United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2013 Decided November 5, 2013

No. 12-5314

FADHEL HUSSEIN SALEH HENTIF, DETAINEE 

AND HAYKAL MOHAMMED SALEH HENTIF,

AS NEXT FRIEND OF FADHEL HUSSEIN SALEH HENTIF,

APPELLANTS

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:06-cv-01766)

Brent Nelson Rushforth argued the cause for appellants. 

With him on the briefs were M. Alexander Bowie II, David

Muraskin, and Robert L. Palmer.

Laura G. Ferguson, Timothy P. O'Toole, and Mia P.

Haessly were on the brief for amicus curiae National

Association of Criminal Defense Lawyers in support of

appellants. 

Anne Murphy, Attorney, U.S. Department of Justice, argued

the cause for appellees. With her on the brief were Stuart F.
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Delery, Acting Assistant Attorney General, Ronald C. Machen

Jr., U.S. Attorney, and Matthew M. Collette, Attorney.

Before: ROGERS and TATEL, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Under 28 U.S.C. § 2107, an appeal

must be filed “within [sixty] days after the entry of such judgment,

order or decree” to be appealed where the United States is a party. Id.

§ 2107(a) & (b)(1). The requirement of a timely notice of appeal

under § 2107 is jurisdictional. Bowles v. Russell, 551 U.S. 205, 209

(2007). The question before the court is whether “the entry” of the

relevant order under § 2107 occurred when the district court clerk’s

office posted on its docket a notice that the district court had issued a

classified memorandum and order denying a motion for

reconsideration of the denial of a petition for a writ of habeas corpus

and that a redacted version would be posted when it became available,

or when the redacted opinion and order were subsequently posted on

the docket. If the former was “the entry,” then the notice of appeal

was untimely because it was filed more than sixty days after the entry

that the district court had issued its classified memorandum and order. 

If the latter, then the appeal is timely. 

Although classified decisions and orders present special

considerations in determining whether a party has adequate

information to make an intelligent decision whether to appeal, cf. Roe

v. Flores-Ortega, 528 U.S. 470, 479 (2000), that problem can be

avoided by the filing of a protective notice of appeal. We conclude

that the first posting qualifies as an “entry” under § 2107. 

Consequently, because the notice of appeal was untimely filed, this

court lacks jurisdiction and Hentif’s appeal must be dismissed.

I.

Fadhel Hussein Saleh Hentif is a Yemeni citizen who has been

detained at the Naval Base at Guantanamo Bay since 2002. He is on
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the list of detainees approved for transfer. At all times relevant to this

appeal, Hentif was represented by counsel who filed pleadings on his

behalf and who had security clearances to view classified materials

(i.e., they were “cleared counsel”). See Appellant’s Br. 9–10;

Appellee’s Br. 5–6. 

In 2006, Hentif filed a petition for a writ of habeas corpus. The

district court denied the petition, and on August 1, 2011, the district

court clerk’s office posted on the docket a “NOTICE OF FILING” of

the memorandum opinion denying the habeas petition. Hentif v.

Gates, et al., 1:06-cv-01766, Docket # 279. A hyperlink led to a

“NOTICE OF FILING” that the classified opinion had been filed with

the Court Security Office and that “[t]he Court will enter an

unclassified version . . . on the docket as soon as it becomes

available.” On August 29, 2011, Hentif filed a classified motion for

reconsideration pursuant to Federal Rule of Civil Procedure 59(e) on

the ground of newly discovered evidence; a docket posting of August

30, 2011 gave “NOTICE of Classified Filing Regarding Petitioners

Motion for Reconsideration.” Docket # 280. A posting of September

15, 2011 (with a hyperlink) stated: “Unclassified version of the

MEMORANDUM OPINION denying the petition for a writ of habeas

corpus.” Docket # 281.

On July 27, 2012, the district court clerk’s office posted a

“NOTICE” on the docket (without a docket number or hyperlink)

stating that “the Court on July 26, 2012 issued a classified

memorandum and order denying . . . Hentif[]’s motion for

reconsideration. The Court will post an unclassified version to the

docket when it becomes available.” On August 10, 2012, the docket

posting (with a hyperlink) states: “REDACTED MEMORANDUM

AND ORDER denying petitioner’s Motion [] for Reconsideration.” 

Docket # 290. 

On October 8, 2012, Hentif filed a notice of appeal to this court

of the denials of his habeas petition and his motion for

reconsideration. Docket # 292. Hentif’s notice of appeal was filed

fifty-nine days after the August 10 posting but more than sixty days

after the July 27 posting. The government has waived any objection

to procedural defects to the extent they are not jurisdictional. See
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Appellee’s Br. 9. Although requirements that appear only in

procedural rules are not jurisdictional and therefore subject to waiver,

see, e.g., Obaydullah v. Obama, 688 F.3d 784, 789 (D.C. Cir. 2012),

“entry” is a requirement in the statute marking the beginning of the

jurisdictional sixty-day period in § 2107(b). Therefore no party may

waive it. Cf. Bowles, 551 U.S. at 211–13.

II. 

Whether this court has jurisdiction over Hentif’s appeal depends

on which docket posting — that on July 27, 2012 or that on August

10, 2012 — triggered the running of the sixty-day period under 28

U.S.C. § 2107(a) & (b)(1). Deciding which posting was the “entry”

under § 2107 presents a question of statutory interpretation. The

court’s interpretation naturally begins with the statutory text and the

presumption that Congress has employed the ordinary meaning of the

words it used unless there are reasons to indicate it intended another

meaning. See, e.g., Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.

Dist., 541 U.S. 246, 252 (2004). The ordinary meaning of “entry” is

the “[a]ct of making or entering a record.” WEBSTER’S NEW

INTERNATIONAL DICTIONARY (2d ed. 1942). The definitions of

“entry” in BLACK’S LAW DICTIONARY (9th ed. 2009) and MERRIAMWEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1993) are to the same

effect. BLACK’S defines “entry” as “[t]he placement of something

before the court or on the record.” Words, however, are to be

considered in their context, see, e.g., King v. St. Vincent’s Hosp., 502

U.S. 215, 221 (1991), and here the context is defined by the rules of

procedure. 

Pursuant to the Rules Enabling Act, 28 U.S.C. § 2072-2074

(2006), Congress authorized the Supreme Court to “prescribe general

rules of practice and procedure and rules of evidence,” id. § 2072(a),

for the federal courts so long as those rules do not “abridge, enlarge,

or modify any substantive right.” Id. § 2072(b). A rule of procedure,

“if within the power delegated to [the Supreme Court], has the force

of a federal statute.” Sibbach v. Wilson & Co., 312 U.S. 1, 13 (1941);

accord U.S. v. Brown, 483 F.2d 1314, 1316 (D.C. Cir. 1973). More

particularly, this court has explained that the rules promulgated by the

Supreme Court and left undisturbed by Congress have the force “not
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of a legislative enactment, but of a regulation pursuant to the Act”

because they are void if in excess of the authority granted under the

Act. Walko Corp. v. Burger Chef Sys., Inc., 554 F.2d 1165, 1168 n.29

(D.C. Cir. 1977). Where rules fall within the scope of the Act, subject

to its limitations, they have the force of law, and the court is not free

to ignore their interpretation of a jurisdictional requirement. See In re

Sealed Case (Bowles), 624 F.3d 482, 486 (D.C. Cir. 2010); Baker v.

United States, 670 F.3d 448, 457–58 (3d Cir. 2012).

Two rules are relevant to Hentif’s case in determining the

meaning of “entry” under § 2107, and neither we nor the parties

suggest that either rule exceeds the scope of the Rules Enabling Act. 

Federal Rule of Appellate Procedure 4 provides, in relevant part, that

“[t]he notice of appeal may be filed by any party within 60 days after

entry of the judgment or order appealed from if one of the parties is 

. . . the United States.” FED. R. APP. P. 4(a)(1)(B)(i). It also

provides that when a separate document is not required under Federal

Rule of Civil Procedure 58(a), “[a] judgment or order is entered for

purposes of this Rule 4(a) . . . when the judgment or order is entered

in the civil docket under Federal Rule of Civil Procedure 79(a).” 

FED. R. APP. P. 4(a)(7)(A)(i). A motion to reconsider pursuant to

Rule 59 does not require a separate document, see FED. R. CIV. P.

58(a)(4). 

Rule 79(a)(3) defines the “Contents of Entries”:

Each entry must briefly show the nature of the paper filed or

writ issued, the substance of each proof of service or other

return, and the substance and date of entry of each order and

judgment. When a jury trial has been properly demanded or

ordered, the clerk must enter the word “jury” in the docket.

The July 27, 2012 posting, on its face, appears to satisfy each of these

requirements. The posting indicated the nature of the paper filed, a

classified memorandum and order, and the substance and date of the

order, that the district court had denied the motion for reconsideration

on July 26, 2012. It stated the date of entry: July 27, 2012. It also
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appears to meet other requirements of Rule 79(a).1 Hentif’s case was

assigned a case file number that was noted on the first page of the

docket and in the attachment to the first entry, the “PETITION for

Writ of Habeas Corpus,” and the memorandum and order denying

reconsideration was marked with that file number. Notice of issuance

of the classified memorandum and order denying reconsideration was

posted chronologically in the docket.

Hentif’s contentions that the posting of July 27 was inadequate

or too incomplete to constitute “the entry” under § 2107 are

unpersuasive. Viewed simply as a matter of the plain meaning (i.e.,

the “definitional possibilities”) of “entry,” the July 27 posting made

a record of what had happened in the district court to his motion for

reconsideration. Viewed in the context of the rules of procedure, the

1

 Rule 79(a)(1) & (2) provides:

(a) Civil Docket.

(1) In General. The clerk must keep a record known

as the “civil docket” in the form and manner

prescribed by the Director of the Administrative

Office of the United States Courts with the approval

of the Judicial Conference of the United States. The

clerk must enter each civil action in the docket. 

Actions must be assigned consecutive file numbers,

which must be noted in the docket where the first

entry of the action is made.

(2) Items to be Entered. The following items must be

marked with the file number and entered

chronologically in the docket: 

(A) papers filed with the clerk;

(B) process issued, and proofs of service or

other returns showing execution; and 

(C) appearances, orders, verdicts, and

judgments.
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July 27 posting notified him of the district court’s issuance of the

classified memorandum and order denying his motion and of the entry

date.

Hentif nonetheless maintains that the caption and capitalization

of the “NOTICE” in the July 27 posting did not convey that it was an

entry of an order. He relies principally on two Rule 58 cases where

the caption was relevant to whether a separate order had been entered. 

In the first, United States v. Johnson, 254 F.3d 279 (D.C. Cir. 2001),

the court held that the separate document requirement was not met

where the posting referred to a single “Memorandum and Order” and

there was “no separate entry for an ‘Order.’” Id. at 286. The caption

was relevant in Johnson because it confirmed that one joint document,

not two separate documents, had been posted on the docket. By

contrast, the July 27 caption refers to a “NOTICE that the Court . . .

issued a classified memorandum and order denying” Hentif’s motion,

which indicates that the relevant document (since the separate

document requirement did not apply to Hentif’s Rule 59 motion) for

“the entry” is the “classified memorandum and order.” The posting

conveyed that the district court had reached its decision to deny

Hentif’s motion and that his cleared counsel could view the district

court’s reasoning in its classified form; the remaining step, redaction

of the classified memorandum and order, was to be performed by the

Executive Branch. See In re Guantanamo Bay Detainee Litigation,

577 F. Supp. 2d 143, 146 (Part I.B.9) (D.D.C. 2008). In the

meantime, cleared counsel could read the classified memorandum and

order at a secured site near the courthouse. See Appellee’s Br. 5–6.

In this regard there is no difference between the July 27, 2012

“NOTICE” of issuance and the August 1, 2011 “NOTICE OF

FILING” of the classified memorandum opinion denying Hentif’s

habeas petition, which Hentif timely moved to reconsider before the

redacted opinion became available. In the second case, Hollywood v.

City of Santa Maria, 886 F.2d 1228, 1230–32 (9th Cir. 1989), an entry

captioned as an “ORD.” qualified as the entry of a separate order. 

Neither case addressed whether a “NOTICE” that the district court has

“issued a classified memorandum and order” would qualify as the

entry of an order where the separate document requirement did not

apply. Even if these Rule 58 cases treated the caption as indicative of
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the nature of the entry, neither court suggested that the capitalized text

at the beginning of the entry is determinative in non-Rule 58 cases. 

Hentif also maintains the July 27 posting was incomplete under

Rule 79(b), because there was neither a docket number nor hyperlink

to the classified memorandum and order indicating that the clerk’s

office had physical possession of it. Appellate Rule 4(a)(7) refers only

to Rule 79(a) in defining “entry.” Hence, the requirements of Rule

79(b) are not relevant. Even if Rule 79(b) is read to inform the

interpretation of Rule 79(a), the absence of the hyperlink is a

necessary accommodation of the classified nature of the memorandum

and order, and its absence alone is insufficient to demonstrate the clerk

of the district court failed to “keep a copy” or “mark” the

memorandum and order as Rule 79(a)(2) requires. Although the

September 1, 2011 notice of filing of the opinion denying Hentif’s

habeas petition included a hyperlink, it led only to a notice that the

opinion was classified and would become available upon redaction;

the July 27 posting provided the same notice without a hyperlink.

Although this court is hardly averse to construing statutes or rules

to protect the right of appeal, see St. Marks Place Hous. Co., Inc. v. 

U.S. Dep’t of Hous. & Urban Dev., 610 F.3d 75, 81 (D.C. Cir. 2010),

Spann v. Colonial Village, Inc., 899 F.2d 24, 32 (D.C. Cir. 1990), the

two postings in Hentif’s case, on July 27 and August 10, are not

misleading, and treating the July 27 posting as “the entry” would not

result in unnecessary litigation delay. In St. Marks Place, 610 F.3d at

79, the posted order stated: “It is further ORDERED that this Order

shall not be deemed a final Order subject to appeal until the court has

issued its Memorandum Opinion.” This created an obvious ambiguity

about which of two orders triggered the running of the time for appeal

because the text of the order first posted on the docket was

inconsistent with the limitation on this court’s jurisdiction under 28

U.S.C. § 1291 to “final decisions of the district courts.” Id. at 80–81. 

In Spann, 899 F.2d at 31–32, which involved the separate document

requirement of Rule 58, dismissing the appeal as premature would

have needlessly delayed the litigation by requiring a return to the

district court to obtain a final judgment in a separate document and

refiling an appeal. Similarly, Hentif’s reliance on Allen v. Horinek,

827 F.2d 672, 673 (10th Cir. 1987), is misplaced because a summary
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on the docket of the district court’s ruling from the bench was

accompanied by a statement that an order would follow and held,

therefore, not to start the time for appeal. Here, the July 27 posting

established that a classified memorandum and order had been issued

by the district court on July 26, 2012 and was available to cleared

counsel the following day; it did not indicate that the district court

would produce an additional document, only that the redacted version

would be docketed when the Executive Branch completed its redaction

of classified information.

To the extent Hentif suggests this court has latitude to read the

word “entry” to shelter the right to appeal, that requirement, unlike

Rule 58(a), is in the statute and this court cannot construe “entry” so

narrowly as to exclude a posting that complied with the ordinary

meaning of the word and Rule 79(a)(3)’s description of the content of

“entries.” See In re Jones, 670 F.3d 265, 267 (D.C. Cir. 2012). The

July 27 posting informed parties without equivocation that the district

court “regards the case as closed and intends that no further action be

taken [by it],” and that “the time to appeal has commenced to run.” 

Ellender v. Schweiker, 781 F.2d 314, 317 (2d Cir. 1986). It comported

with the plain meaning of “entry” because it made a record of the

relevant court document, and, consistent with Rule 79(a), that record

conveyed the necessary information to Hentif to be able to decide

whether to appeal.

Hentif’s reliance on statements by staff in the Clerk’s Office of

this court also cannot affect the conclusion that the July 27 posting

was “the entry” that triggered the sixty-day period. In Bowles, 551

U.S. at 213, the Supreme Court resolved this question in holding that

it has “no authority to create equitable exceptions to jurisdictional

requirements.” Even before Bowles, this court had limited the “unique

circumstances” exception to circumstances “where a party who could

have filed a timely notice of appeal is lulled into missing the deadline

by a formal court order or ruling.” Moore v. S. Carolina Labor Bd.,

100 F.3d 162, 162 (D.C. Cir. 1996); the statements of clerk’s office

staff lack this level of formality. And unlike in St. Marks Place, 610

F.3d at 81, which took into account appellate counsel’s reliance on

language in a docketed order that “expressly den[ied] [its] own
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finality,” the July 27 docket posting did not “expressly deny” either its

finality or that it was an “entry” for purposes of 28 U.S.C. § 2107(a). 

The most concerning aspect of Hentif’s objection to treating the

July 27 posting as “the entry” that triggered the sixty-day period to

appeal stems from the classified nature of the memorandum and order

denying reconsideration. To be able to decide whether to appeal, a

party would usually need to know more than that the district court has

denied his motion for reconsideration. See generally Roe v. Flores

Ortega, 528 U.S. at 489 (Souter, J., concurring in part and dissenting

in part). This court noted a comparable concern in Sealed Case

(Bowles), 624 F.3d at 484, regarding sealed documents not entered on

the district court docket, suggesting ad hoc procedures were

inadequate to ensure timely notice of orders and judgments, see id. at

489. The problem is exacerbated with classified memoranda and

orders if cleared counsel is not able to advise the client regarding

whether an appeal is warranted because the relevant analysis is

classified and counsel cannot determine until a redacted version is

released what may be discussed with the client, who does not have a

security clearance to examine classified materials. See Appellant’s Br.

40–41 (citing ABA MODEL RULES OF PROF’L CONDUCT R. 1.2 & 1.4

(2012)). But that is not the situation in Hentif’s case. 

Even before the redacted memorandum and order denying the

motion for reconsideration was released, Hentif had the necessary

information to decide whether to appeal the denials of his habeas

petition and his motion for reconsideration. The redacted version of

the opinion denying his habeas petition was released before the

district court denied his motion for reconsideration. Many of the

redactions in that opinion related to names and places that did not

obscure the district court’s reasoning. Although several paragraphs

were redacted, the district court’s reasoning was nonetheless evident. 

From the July 27 docket posting, counsel could inform Hentif that the

district court had denied reconsideration and that consequently the

analysis in the redacted opinion denying his habeas petition was

unchanged. The record does not indicate that Hentif was unaware, at

least through counsel, of the new evidence ground for his classified

motion for reconsideration, even if he did not know the details set

forth in the classified material. As of July 27, counsel could also
11

inform Hentif that the new evidence argument had failed. 

Additionally, his counsel acknowledged that they could gain access

to the classified memorandum and order as of July 27 at a secure

location near Washington, D.C., to assess the likely success of an

appeal, even if counsel could not discuss the classified memorandum

and order with Hentif. See In re Guantanamo Bay Detainee

Litigation, 577 F. Supp. 2d at 148 (Part 1.D). Under these

circumstances, the July 27 posting provided Hentif with the

information required by Rule 79(a), and that information was

sufficient to enable him to make an intelligent decision about whether

to appeal, notwithstanding his lack of access to classified information. 

Hentif’s counsel, in turn, could fulfill their ethical obligation to

advise their uncleared client. See Appellant’s Br. 40–41 (citing

MODEL RULES R. 1.2 & 1.4). By August 10, more than thirty days

before Hentif’s notice of appeal was due to be filed, counsel could

speak more freely with Hentif about the reasons for denial of

reconsideration given the release of the redacted memorandum and

order. And, as the government notes, counsel could have moved for

an extension of time for good cause, which if granted would have

extended the time to file an appeal by up to 30 days. See FED. R.

APP. P. 4(a)(5)(A)-(C). Or, if counsel had been concerned prior to

August 10 that the redacted memorandum and opinion denying

reconsideration might not be released in time to appeal, counsel could

have filed a protective notice of appeal. See, e.g., NextWave Pers.

Commc’ns, Inc. v. FCC, 254 F.3d 130, 139 (D.C. Cir. 2001). 

Accordingly, we hold that the July 27 posting was “the entry”

under 28 U.S.C. § 2107 that triggered the sixty-day period to file a

notice of appeal, and because Hentif’s notice of appeal is untimely,

this court lacks jurisdiction and we must dismiss the appeal.