When Is A Notice of Appeal Timely? Oral Argument Preview in Hentif v. Obama

The issue for tomorrow morning's argument in the D.C. Circuit:  whether Guantanamo detainee Fadel Hussein Saleh Hentif's appeal was filed on time. In a redacted 2011 opinion, the district court had concluded that the Yemeni detainee was more likely than not a part of Al Qaeda or the Taliban, and it therefore rejected Hentif's petition for a writ of habeas corpus.  Hentif then moved to reconsider. Eventually, a July 27, 2012 docket notation indicated denial of Hentif's reconsideration motion. But the redacted opinion announcing the ruling was not actually released until August 10, 2012. Hentif noted an appeal to the D.C. Circuit on October 8, that is, 59 days after the August opinion's issuance, but 74 days after the docket entry.  Federal rules require notices like Hentif's to be filed "within 60 days after entry of the judgment and order appealed from." Having that language in mind, the government informed the D.C. Circuit that Hentif's Notice of Appeal may have been filed late---and that the court  might lack jurisdiction. The D.C. Circuit ordered briefing and argument on that narrow issue, which counsel will take up, Monday morning, before Circuit Judges Garland and Tatel, and Senior Circuit Judge Silberman. Excerpts from the parties' briefing on timeliness can be found below the fold. Hentif's opening brief argues that the appeal was timely.  The below comes from the brief's "Summary of Argument" section:

Federal Rule of Appellate Procedure 4(a)(7) and Federal Rule of Civil Procedure 79(a) establish that the July 27 docket entry did not initiate Hentif’s time to file his Notice of Appeal, as that entry did not comply with the rules for docketing judgments or orders from which a litigant may appeal. Only the August 10 entry satisfied the rules’ demands. Hentif’s Notice of Appeal was filed 59 days later, making it timely.

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The facts of this case lend particular weight to the conclusion that treating the July 27 “Notice” as initiating the time to appeal would unnecessarily encumber the ability to appeal. Hentif’s litigation team interpreted the July 27 “Notice” as ineffective to start the time to file the notice of appeal. To confirm their interpretation, the team contacted this court’s clerk’s office. The clerk’s office stated to Hentif’s team that the July 27 entry was not meant to be the entry of the order onto the docket, and thus was not meant to initiate the time to file the notice of appeal. Further, were a court to hold that in all cases the deadline by which one must appeal must be calculated from the entry onto the docket of the notice of a classified decision, this could undermine appellants’ efforts to make an informed decision of whether to appeal, particularly in Guantanamo-detainee cases. Such a holding paired with the severely restricted access to classified decisions could prevent detainees’ counsel from consulting on the issues that could be raised on appeal and the possibility of success. More importantly, it would inhibit, and could effectively prevent, counsel from discussing the decision to be appealed and the decision of whether to appeal with their client.

The government says it is not bent on precluding appellate review, and thus waives any non-jurisdictional objections to Hentif's appeal.  But jurisdictional objections are another matter, as the United States explains in its opposition brief:

1.  Congress has by statute provided that a notice of appeal is ineffective to invoke the appellate jurisdiction of the court of appeals if the notice is filed more than thirty days after entry of judgment in the district court, or more than sixty days after entry of judgment if the government is a party to the case. See 28 U.S.C. § 2107(a), (b). The federal rules determine when judgment is entered for the purpose of calculating this appeal time. Most significantly, Rule 79 of the Rules of Civil Procedure provides that judgment is entered when the district court clerk makes a docket entry satisfying the following criteria: the court’s judgment order is marked with the number of the civil action and entered chronologically on the docket; and the docket entry itself. shows the substance of the court’s order and the date that the order was entered on the docket.

2. The district court entered judgment in Hentif’s case on July 27, 2012, when the clerk of the district court entered the order denying reconsideration on the docket in full compliance with Rule 79. No more was required.

Hentif is mistaken in suggesting that the test for entry of judgment should be whether the district court clerk intended its docket entry to enter judgment. No case supports this interpretation of Rule 79, and it would be difficult for courts and litigants to discern from the language and punctuation of particular docket entries what the clerk intended. In 1963, an intent-based test for entry of judgment was rejected as too uncertain to trigger the period for post-judgment motions  and appeal, and the test was replaced by Rule 58’s separate-document requirement. Hentif’s proposed rule travels in the opposite direction, from the direct application of Rule 79 to a test based on subjective intent. It would undermine the smooth functioning of the finality rules, and this Court should reject it.

Hentif conflates two separate and independent provisions of Rule 79 when he suggests that the clerk of court must have current physical possession of every item to be entered on the docket. And in contending that his counsel would be unable to consult with him adequately about appeal if the district court could enter judgment on the basis of its classified orders, Hentif overlooks provisions of the federal rules that allow the district courts to extend and reopen the time for appeal.

The district court’s classified order denying the motion for reconsideration was made available to counsel, and a notice was placed on the district court docket indicating that the motion had been denied. Hentif did not file a notice of appeal within 60 days of that order. Hentif did, however, file a notice of appeal 59 days after the district court issued a redacted, unclassified version of the order denying reconsideration.

Hentif reply brief casts aside the government's characterization of the timeliness issue, and insists, in any event, that the docket entry did not start the running of the appeal clock:

Appellees incorrectly frame the question presented as whether the time limit for filing a notice of appeal prescribed by 28 U.S.C. § 2107(b) and Federal Rule of Appellate Procedure 4(a)(1)(B) is jurisdictional and consequently not subject to modification by this Court. That issue, however, is not in dispute. Appellants agree that the 60-day limit in § 2107(b) and 4(a)(1)(B) for filing notices of appeal where an officer or employee of the United States is a party is a jurisdictional limitation that is not subject to modification.

The issue before the Court is a different question: which of two docket entries, one dated July 27, 2012 or one dated August 10, 2012 initiated that 60-day period. In contrast to the statutorily-prescribed time limits for filing an appeal, the requirements for a docket entry commencing the time to appeal are not fixed by statute, but are entirely determined by court rules—principally Federal Rule of Appellate Procedure 4(a)(7)—and therefore are not jurisdictional.

In this case, because the parties agree as to the statutory time limits for filing the Notice of Appeal, resolving the non-jurisdictional “claims processing” question of which of the docket entries initiated the time to appeal determines whether the appeal was timely: if the July 27 entry initiated the time to appeal, the appeal was untimely; if the next docket entry on August 10 triggered the appeal period, the appeal is timely. Because the July 27 entry was captioned as a “Notice” (while the August 10 entry was captioned as the entry of a “Memorandum and Order”), it failed to convey unambiguously that it was the entry of the decision, and thus under applicable case law, it did not initiate the time to appeal. Because the Rule 4(a)(7) issue is non-jurisdictional, it is subject to equitable considerations, including waiver by Appellees. Appellees have clearly waived any non-jurisdictional objections to proceeding with the instant appeal. That waiver resolves the appeal in Appellants’ favor.

Additionally, the plain text of Rule 4(a)(7) and Federal Rule of Civil Procedure 79(a)—which Rule 4(a)(7) incorporates by reference—establishes that, while the August 10 entry complied with the Rules’ requirements, the July 27 entry did not. The appeal was, therefore, timely filed even if the question of which entry initiated the time to appeal is jurisdictional.