As spring kicks into high gear and your rusty golf clubs see their first light since autumn, it is a sure bet that you will be taking plenty of mulligans on the course. In the courtroom, however, thanks to the Ninth Circuit’s recent decision in Le v. Astrue, No. 07-55559, 2009 U.S. App. LEXIS 5375 (9th Cir. Mar. 10, 2009), you need not waste any mulligans early in the game if you shank your notice of appeal off the tee.
Le clarifies that the Ninth Circuit must liberally construe a notice of appeal to encompass all orders and rulings reasonably embraced in it. Le thus brings Ninth Circuit appellate procedure closer to the already liberal reading that California appellate courts give notices of appeal from state trial courts.
Notices of Appeal in the Federal Courts
The Le case first teed off when the Social Security Administration (SSA) denied Le’s application for social security benefits. After unsuccessfully pursuing his administrative remedies, Le challenged the denial in district court. Both parties then filed cross-motions for summary judgment. The district court, upon the recommendation of a magistrate judge, granted the SSA’s motion and denied Le’s.
That is when the parties teed up for the appeal. Although Le’s notice of appeal stated he was appealing from the order denying his motion for summary judgment, it did not state he was appealing from the order granting the SSA’s.
In its briefing, the SSA never addressed the potential jurisdictional issue created by Le’s incomplete notice, but the Ninth Circuit, required to inquire into its own jurisdiction, did. Its first swing at resolving the question centered on Supreme Court decisions that contrast two independent requirements of Federal Rule of Appellate Procedure 3(c), which governs notices of appeal. FRAP 3(c)(1)(A) requires the appellant to “specify” in its notice “the party or parties taking the appeal by naming each one in the caption or body of the notice,” while FRAP 3(c)(1)(B) requires the appellant to “designate” in the notice “the judgment, order, or part thereof being appealed[.]”
Le explained that rule 3(c)(1)(A)’s party specification requirement is a strict one. Le discussed Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988), in which the appellant’s counsel failed to name his client (one of sixteen appellants) in the notice of appeal. The Supreme Court held that, although rule 3(c) provides that an appeal “shall not be dismissed for informality of form or title of the notice of appeal,” the requirement to name a party is more than a mere formality such that neglecting to do so constitutes a “failure to appeal.” Id. at 314. Thus, even giving a “liberal construction” to the notice, Torres noted, the failure to name a party is fatal to the exercise of appellate court jurisdiction. To permit otherwise, Torres explained, would be equivalent to impermissibly extending the time for filing a notice of appeal. Id. at 315.
Le went on to explain, however, that the Supreme Court has been more forgiving when it comes to rule 3(c)(1)(B)’s order or judgment designation requirement. Thus, as Le noted, in Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court held that a notice stating that the appeal was from an order denying the appellant’s motion to vacate the judgment—where the appellant had filed a premature, ineffective notice of appeal from the judgment—permitted review of the judgment. Foman explained that, as long as the omission does not “mislead or prejudice” the non-appealing party—there both parties had briefed and argued the merits of the judgment— courts should read such notices liberally.
Accordingly, although Torres construed the specification requirement of rule 3(c)(1)(A) narrowly, it did not dispute Foman’s statement that “‘mere technicalities’ should not stand in the way of consideration of a case on its merits.” Moreover, Torres explained, not following a procedural rule’s letter does not block a decision on the merits where “the litigant’s action is the functional equivalent of what the rule requires.”
With this background—and the focus being less on technicalities than on whether the notice of appeal is the “functional equivalent of what the rule requires,” Le rounded Amen Corner and resolved the issue before it. The court explained that satisfaction of rule 3(c)(1)(B)’s designation requirement depends on (1) whether the appellate court can fairly infer from the notice the appellant’s intent to seek review of an undesignated judgment or order and (2) whether the appellee has suffered prejudice from the inadequate designation.
The court sided with Le on the first of these factors by emphasizing that the district court had decided the parties’ cross-motions for summary judgment in the same order on the same date, basing both decisions on the same factual and legal issues. Le’s opening brief, moreover, showed that, despite his inadequate notice, he was challenging the grant of summary judgment. The court also found no prejudice to the SSA in Le’s inadequate designation. Indeed, the SSA never claimed any prejudice and responded to Le’s arguments concerning the grant of summary judgment.
Because both factors broke in Le’s favor, the Court concluded that the notice of appeal’s limited designation of the denial of summary judgment was sufficient to permit review of the order granting summary judgment.
Notices of Appeal in the California Courts
Le’s interpretation of the federal notice-of-appeal rule brings that rule closer to the rule in California state courts. Should you find yourself in the rough due to a deficient notice of appeal in those courts, California Rule of Court 8.100(a)(2), which directs courts to construe notices of appeal “liberally,” may get you back on the fairway.
Following this direction, California reviewing courts have not favored dismissing appeals simply because a litigant has not identified a particular order or judgment in the notice of appeal. Rather, the courts focus on whether the appealing party has shown an intent to appeal from an order not specified in the notice and whether the non-appealing party has suffered prejudice.
The California Supreme Court addressed the issue in Walker v. Los Angeles County Metr. Transp. Auth., 35 Cal. 4th 15 (2005). There, the respondent argued that the Court lacked jurisdiction over an appeal where the appellant’s notice specified she was appealing only from an order denying her motion for a new trial rather than from the judgment. Although such an order is not appealable in California, an appellate court may review the order in an appeal from the judgment. The Walker Court of Appeal nevertheless dismissed the appeal on the ground that it lacked the power to construe the notice “to encompass the judgment” in light of Supreme Court cases holding such orders nonappealable.
The Supreme Court reversed. It acknowledged that it had refused to entertain appeals from orders denying motions for new trial. But, the Court said, because the parties in those cases had also appealed from the judgment, such refusals never had the “effect of closing the doors to the party’s appeal” because the appealing party had appealed from both the order and the judgment. Because Walker appealed only from the order denying her motion for new trial, however, a refusal to hear the appeal would have denied her appellate review of the judgment.
The Court looked to the liberality requirement of former rule 1(a) (now 8.100(a)(2)) and found “instructive” Vibert v. Berger, 64 Cal.2d 65, 67-68 (1966), which directs courts of appeal to construe a notice of appeal “to apply to an existing appealable order or judgment, if no prejudice would accrue to the respondent.” Applying Vibert, Walker thus held that a reviewing court should construe an appeal from an order denying a new trial as an appeal from the judgment where it is “reasonably clear” the appellant intended to appeal from the judgment and the respondent would not be misled or prejudiced.
Turning to the case before it, Walker found the appellant had presented a “colorable argument” that she had intended to appeal from the judgment and that no prejudice would befall the respondent—who had briefed the merits of the judgment in the Court of Appeal and provided a counter-designation of the record. It left the ultimate determination of those issues to the Court of Appeal.
Perfecting Your Game
Le shows that an appellant may challenge rulings and orders on appeal that are not listed in the notice of appeal, as long as the appellate court can infer an intent to appeal and the appellee is not prejudiced. As the non-appealing party faced with a deficient notice, however, you must make a choice: if you meet the appellant’s arguments in your brief (and why wouldn’t you?), you will hardly be able to show prejudice from the deficient notice. On the other hand, if you don’t meet those arguments, you may—just may—be able to preclude the Court from reaching them.
Although Le signifies that the Ninth Circuit will construe a notice of appeal more broadly to encompass undesignated rulings, it is always best to specify all matters from which an appellant is appealing. Even if the rules have not been interpreted as strictly as they could have been, it is a good idea to play by them—and save your mulligans for the 18th hole.