Oral Argument Recap: Hentif v. Obama

On Monday morning---after a marathon argument in a well publicized net neutrality case---the D.C. Circuit turned to this question, in the case of Hentif v. Obama: whether the appellant timely noted his appeal, and therefore, whether the appeals court has jurisdiction over the case.  In contrast to the earlier argument, the parties in Hentif each made  brisk, ten-minute presentations to a three-judge panel, comprised of Circuit Judges David Tatel and Judith Rogers, and Senior Circuit Judge Laurence Silberman.  (Big news: the D.C. Circuit now releases argument audio.  You can find all of yesterday's argued cases here.)

The district court denied Guantanamo detainee Fadhel Hussein Saleh Hentif’s petition for a writ of habeas corpus in 2011. The petitioner then moved to reconsider. Next, on July 27, 2012, the district court posted to its docket a so-called “Notice,” which stated that a classified memorandum opinion and order denying the motion to reconsider had been issued, and further that the lower court would post a redacted version later, when one became available. The “Notice” did not assign the still-classified-ruling its own docket number---a fact that counsel found significant, and that apparently motivated him to seek clarity from the clerk.  (Cleared counsel evidently could access the still-secret documents---but not discuss them with uncleared folk.)  On August 10, an unredacted opinion and order were released, and given specific docket numbers.  Thus the timeliness issue.  Hentif noted his appeal to the D.C. Circuit 59 days after the redacted memorandum opinion was made available, in August---but 74 days after the July docket entry. And importantly, in this kind of case, federal law requires an appeal to be noted within 60 days of the “entry” of a judgment or order.

On Hentif’s behalf, lawyer Brent Rushforth argued that the district court’s July 27 “Notice” did not amount to an appeals-clock triggering “entry”---that would require, among other things, an express indication of an "entry" and affixing of a file number.  Separately, and with some prompting from the one member of the panel, Rushforth suggested that the “notice” was vague enough to require the appeals court to read the applicable statute and rule so as to permit an appeal in this case.  Judge Silberman, the day’s most vocal questioner and obvious skeptic, was interested only in the statutory language. To his mind, the court might have first to decide whether the statutory term “entry”---which would supersede any inconsistent or vague rule language---encompassed the “Notice” below.  And, given his terse questions to Rushforth, it was entirely evident that Silberman believed that, yes, the district court’s “Notice” satisfied the statutory language (and that any contrary suggestion in the rules was invalid).  The "Notice" had clearly set forth the court’s ruling and on a date certain, and therefore triggered the 60-day period for noting an appeal.      

Rushforth countered by citing the oddball language employed by the district court (it differed from that employed in other docket entries), and by recounting information provided to him afterwards by the court’s clerk.  Both suggested that another, redacted decision would be forthcoming and then supply a docket-numbered, appealable order.  The attorney added that he couldn’t meaningfully evaluate the question of whether to appeal without getting his hands on a redacted opinion, as he could not discuss any classified ruling with his client or any other uncleared person.  A sympathetic-seeming Judge Tatel asked whether the lawyer thought ambiguity in the district court’s action assisted Rushforth’s position; Rushforth agreed that it did. When pressed, he acknowledged nevertheless that he could have filed a protective notice of appeal---that is, without awaiting the redacted opinion and order---though he sought to minimize the concession, by once more underscoring the order’s ambiguity, his diligent efforts to ascertain the proper path forward, and the “Notice’s” suggestion of more to come.

The government’s lawyer, Anne Murphy, sided with Silberman’s legal view. There was no ambiguity, she said; a clock-starting order was “entered” in July, for purposes of both statute and rule. And despite the great number of Guantanamo habeas appeals, Hentif’s was the only one in which counsel found ambiguity in either the applicable law for filing times, or in the district court’s action.  Mention of the Guantanamo caseload prompted a question from Judge Tatel. He asked why Murphy really cared about this decision’s precedential value, given its unique facts. Oddly enough, the lawyer conceded that the government might actually not care so much, if indeed the court would explicitly limit any subsequent ruling to the facts presented (which it almost never does).  At any rate, she emphasized the substance of the district court’s decision: on the earlier, July date, counsel learned of a denial. That was an “entry,” and that opened the 60-day window. End of story. The matter was apparently more complicated for Judge Rogers.  She pressed Murphy a bit further, on the illogic of filing protectively under the case’s circumstances.  Among other things, Rogers wondered aloud about whether counsel should have to note an appeal before actually speaking to the client about an appeal’s merits; that could mean lots of potentially needless protective filing. The government’s lawyer’s answer was that the rules apply equally to classified and unclassified filings.

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