Monday, June 28, 2004
LITIGATION
Making Decisions at Cross-Appeal Crossroads
Circuit Courts Take Both Strict and Flexible Approaches When Parties Fail to File Notice
BY DAVID A. PICON,
JEREMY R. FEINBERG,
VENESSA M. THOMAS
A
PPELLEES beware! Imagine
being foreclosed from arguing a
valid statute of limitations
defense, raised before, but not
ruled upon by the federal district
court, which instead dismissed
the case on a legal theory less supportable on
appeal. It could happen — indeed, it already
has.1 But this result could have been avoided if
the appellee had filed a notice of cross appeal.
The decision not to file a notice of cross
appeal in the federal system can have unexpected and dire consequences for an appellee, even
one who wins at the district court level. In some
circuits the filing of a cross appeal will be overlooked even where the district court’s decision
is affirmed on other grounds. In other circuits
the failure to file that notice can bar an appellee
from raising issues that were properly before the
district court, if resolving them would have the
effect of “enlarging” the appellee’s rights under
the existing district court decision - a determination that is often murky. Although the U.S.
Supreme Court has yet to definitively address
this issue, dicta in the 1999 case of El Paso
Natural Gas Co. v. Neztsosie strongly suggest
that it will weigh in on the side of requiring the
cross-appeal notice, thereby casting a long
shadow over the more flexible approach adopted by certain circuit courts.2
This article analyzes the bases for and policy
considerations behind the competing approaches
David A. Picon is senior counsel, and Jeremy R.
Feinberg and Vanessa M. Thomas are associates,
in the litigation and dispute resolution department at
Proskauer Rose.
This article is reprinted with permission from 6/28/04 issue of The New York
Law Journal. ©2004 ALM Properties, Inc. Further duplication without
permission is prohibited. All rights reserved.
regarding the necessity of a cross-appeal
notice and observes that, notwithstanding its
dicta in Neztsosie, the Supreme Court might
better serve appellate courts and practitioners
by giving further consideration to the flexible approach adopted by certain circuit
courts.
The Cross-Appeal Requirement
The so-called cross-appeal procedural
trap arises from a deceptively simple procedural rule. On appeal, an appellee may
“urge in support of a decree any matter
appearing in the record, although his argument may involve an attack upon the reasoning of the lower court.”3 Thus, if an
appellee offered three grounds to dismiss the
complaint with prejudice and the district
court ruled on only one, the appellee could
raise all three issues on appeal without cross
appealing. But there is one significant limitation upon this rule: an appellee may not
attack the final decree of the trial court “with
a view either to enlarging his own rights
thereunder or of lessening the rights of his
adversary, whether what he seeks is to correct an error or to supplement the decree
with respect to a matter not dealt with below,
without filing a notice of cross appeal.”4
However, whether an alternative ground for
dismissal constitutes an enlargement or lessening of rights is often unclear.
Fain v. Caddo Parish Police Jury demonstrates how both practitioners and courts
may reasonably disagree about the scope of
an argument, and thus whether a notice of
cross appeal is needed. In Fain, all appeal
from an attorney’s fee award in a voting
rights case in favor of plaintiff-appellant, the
appellees argued on appeal that any fee
award was improper because the plaintiffsappellants were not prevailing parties as the
statute required.5 The U.S. Court of Appeals
for the Fifth Circuit held that since the
appellees did not cross appeal from the judgment below, their argument was not properly before the court.6 But appellees’ argument could also have been viewed as an
attempt to keep the fee award at the level the
district court set, and to that extent, should
have been allowed.7
By now, one might simply conclude that
to avoid the uncertainty and the potentially
harsh result that can follow from this rule,
appellees should reflexively file a notice of
cross appeal.8 Plainly, the added paper-
work, cost and administrative burden on the
federal appellate courts seems only a small
price to pay for certainty. And there are also
good policy reasons for requiring the filing
of a cross appeal, namely, the “orderly functioning of the judicial system by putting
opposing parties and appellate courts on
notice of the issues to be litigated and
encouraging repose of those that are not.”9
In turn, notifying the parties of the issues to
be considered leads to well-briefed appeals,
which contribute to the efficiency and
progress of the appellate courts.10
But such judicial economy considerations
cut both ways. Is it better to reject an argument on appeal on a technicality after the
parties and appellate court have invested so
much time in the briefs, only to force the
Failing to file a crossappeal notice could
unexpectedly leave clients
without an appellate
remedy — a harsh, but
entirely avoidable result.
Notably, this approach does not obviate
the need for a cross appeal, and instead
allows the court to overlook that requirement or enforce it as a given case requires.
In Repola v. Morbark Indus. Inc., for example, the U.S. Court of Appeals for the Third
Circuit considered certain issues not raised
in a cross-appeal notice because it believed
that rendering a just judgment would have
been impossible without doing so.13 The
court reasoned that it could not provide
relief to the defendant-appellant on a common law negligence claim without also
affording relief to plaintiff-appellee on an
interrelated statutory strict liability claim,
even though appellee had not cross
appealed. The court did not, however, allow
appellee to obtain relief against a defendant
who did not participate in the appeal, finding
that the defendant was not on notice of the
issues on appeal.14
The Third Circuit thus disposed of a complicated case, reaching interrelated issues
even though appellee had not cross
appealed. The court also avoided impinging
on the rights of a party not properly before
it. But for the flexible approach the Third
Circuit employed, procedural formalities
would have prevented this tidy result.
The ‘El Paso’ Decision
parties to raise the same issue anew before
the district court? Perhaps not. Indeed, a
number of other circuit courts have balanced
these interests of notice and repose on the
one hand, and the harsh results that at times
follow from the strict application of the
cross-appeal rule on the other. These courts
treat the cross-appeal requirement as a rule
of practice that can be waived at the court’s
discretion, allowing the court to entertain
arguments in the interests of justice.11
Courts have considered various factors
such as the “interrelatedness of the issues on
appeal and cross appeal (particularly
whether they involve the same parties),
whether a notice of cross appeal was merely
late or not filed at all, whether the nature of
the district court opinion should have put the
appellee on notice of the need to file a notice
of cross appeal, the extent of any prejudice
to the appellant caused by the absence of
notice, and in a case involving certification
of an interlocutory appeal, whether the
scope of the issues that could be considered
on appeal was clear.”12
Whatever its merits, the approach the
Repola court took and the flexible approach
to the cross-appeal requirement are now in
doubt as a result of the Supreme Courts decision in El Paso Natural Gas Co. v.
Neztsosie.15 In El Paso, the Supreme Court
reviewed the Ninth Circuit’s decision to consider sua sponte the issue of whether Indian
tribal courts may exercise jurisdiction over
claims arising under the Price-Anderson
Act.16 The Ninth Circuit reversed the partial
injunctions against the appellees enjoining
them from pursuing their Price-Anderson
claims in tribal courts, even though the
appellees had not filed cross appeals seeking
such a result. The court relied on “important
comity considerations” relevant to tribal law
and decision-making.17
The Supreme Court reversed, holding that
the comity considerations the Ninth Circuit
mentioned did not justify relaxing the crossappeal requirement.18 The Court noted in
dicta that the cross-appeal rule is “firmly
entrenched” and that in more than two
centuries of endorsing that requirement, no
Supreme Court case had ever recognized an
exception to the rule.19 This dicta casts a
long shadow over Repola and obviously
suggests that if the Supreme Court directly
considered the issue it would construe the
cross-appeal rule strictly.
Despite the Supreme Courts foreshadowing in El Paso, the Second, Fourth and Ninth
circuits have since maintained their view
that the cross-appeal requirement can be
waived at the court’s discretion.20 The
Ninth Circuit has even justified its decision
to resolve certain issues by holding that the
filing of the initial notice of appeal invokes
the court’s jurisdiction over all the parties,
granting the court the power to fully adjudicate the appeal before it.21 These courts
seemingly ignore El Paso and appear reluctant to revise their holdings until the
Supreme Court reaches the issue directly.
Reasons for a Flexible Approach
Should the Supreme Court decide to
address the issue directly, there is good reason for it to reconsider its El Paso dicta.
Notice and repose, the interests used to justify a strict construction of the cross-appeal
requirement, are still well served by a flexible approach, an approach that allows courts
to reach issues in appropriate cases, yet still
requires compliance with the cross-appeal
requirement in others because of these interests.
One need look no further than Mercer v.
Duke University and Mendocino Envtl. Ctr.
v. Mendocino County to see the benefits of
the flexible approach. In Mercer, a defendant appealed from a $2 million punitive
The plaintiff, as
damages verdict.22
appellee, argued that the jury instructions
confused the jury, causing it to intermingle
the concepts of compensatory and punitive
damages. The plaintiff, therefore, sought a
new trial on compensatory damages. She
did not raise this argument in a cross
appeal.23
The U.S. Court of Appeals for the Fourth
Circuit held that the appellee did not present
any facts sufficient to depart from the
requirement of filing a cross appeal, noting
that the appellee never objected to the jury
instructions, did not move for a new trial,
and did not appeal the jurys $1 compensatory damages award. The appellees inaction
left the appellant and the court unaware of
the appellee’s intention to raise this argu-
ment. Nor was there any reason why the
appellee should have been unaware of the
need to file a cross appeal.24 Thus, because
appellant and court were not on notice,
appellee could not raise this issue.
In Mendocino, the Ninth Circuit allowed
the appellee to raise certain arguments without filing a cross appeal, concluding that
such a result would better serve the interests
of justice and notice.25 Mendocino involved
an appeal from a denial of appellants’
motion for summary judgment on a qualified immunity defense to the appellees’
Fourth Amendment claims. Appellants
argued that this ruling was legally inconsistent with the district court’s ruling granting
appellants summary judgment on their qualified immunity defense to appellees’ conspiracy claims. The appellees, who did not
cross appeal, responded by challenging the
dismissal of their conspiracy claim.26
The Ninth Circuit held that the appellees
could raise their argument without filing a
cross appeal, recognizing that appellants
rested their appellate argument on the
alleged inconsistency between both parts of
the district court’s ruling and appellees
could not have known to cross appeal until
the appellants filed their opening brief.27
The court noted that appellees timely
responded to the appellants’ opening brief
by challenging dismissal of their conspiracy
claim, and placed appellants, who had sufficient time and opportunity to file a reply
brief, on notice of the argument. The Ninth
Circuit avoided a manifest injustice, while
ensuring that all parties had sufficient notice
of the issues on appeal.
A flexible view of the cross-appeal
requirement is thus entirely consistent with
the policy of notice. In fact, the related
preservation doctrine ensures adequate
notice to parties and the court by preventing
an appellate court from considering an issue
not raised below and thus requiring parties
to offer to the district court all the evidence
that they believe relevant to the issues. This
prevents any surprise on appeal by barring
consideration of issues of which the parties
are not aware and for which they have not
made a record.28 To the extent a party fails
to preserve an issue, it also guarantees
repose of that issue for the other party, as it
cannot be considered on appeal.29 Thus, a
strict view of the cross-appeal requirement
will often do little, if anything, to advance
the policy of notice that is not already covered by the preservation doctrine.
The Supreme Court should also consider
that even the circuits that purport to strictly
construe the cross-appeal requirement deviate from that approach in certain instances.
For example, if the appellee’s issue is one
that can be raised on the court’s own motion,
the lack of a cross-appeal notice has been
In Sherman v.
deemed irrelevant.30
Community Consol. Sch. Dist. 21 of
Wheeling Township, for example, the
appellees sought to raise the issue of standing to contest the jurisdiction of the court to
hear the appeal and to affirm the earlier summary judgment ruling in their favor.31 The
U.S. Court of Appeals for the Seventh
Circuit, which at the time otherwise strictly
construed the cross-appeal requirement,32
allowed the appellees to raise this issue,
even in the absence of the filing of a cross
appeal, because “judges must consider jurisdiction as the first order of business.”33
Similarly, in Bell, Boyd & Lloyd v. Tapy,
the plaintiffs-appellees secured summary
judgment in their favor in the court below,
but failed to cross appeal the issue of postjudgment interest.34 The Seventh Circuit
nonetheless reached this issue, relying on
Rule 37 of the Federal Rules of Appellate
Procedure, which allows an award of whatever interest the party may be entitled to
under law.35 The court held that Rule 37
rendered a cross appeal unnecessary, while
acknowledging that a reversal of post-judgment interest would modify the judgment
below and would therefore ordinarily
require a cross appeal.
Conclusion
There are several reasons why the
Supreme Court could better serve practitioners and appellate courts alike if it softened
its approach to the cross-appeal requirement
and permitted some flexibility. Until the
Supreme Court does so, however, appellate
lawyers should tread carefully, especially
when they are appellees from a district court
order. Failing to file a cross-appeal notice
could unexpectedly leave their clients without an appellate remedy — a harsh, but
entirely avoidable result.
*
1.
*
*
Conover v. Lein Trucking, 87 F.3d 905 (7th Cir.
1996).
2.
El Paso Natural Gas Co. v Neztsosie, 526 U.S.
the preservation doctrine. Wright, Miller &
473, 480 (1999).
Cooper, § 3904 Separate Appeal Requirements,
3.
El Paso, 526 U.S. at 479 (U.S. 1999).
4.
See El Paso, 526 U.S. at 479; United States and
in Federal Practice and Procedure.
30.
Sherman v. Community Consol. Sch. Dist. 21 of
Interstate Comm. and Comm’n v. American Ry
Wheeling Township, 980 F.2d 437, 440 (7th Cir.
Express Co., 265 US. 425, 435 (1924).
1992); Champagne v. Schlesinger, 506 F.2d 979,
Fain v. Caddo Parish Police Jury, 564 F.2d 707,
982 (7th Cir. 1974) (court may consider the issue
709 (5th Cir. 1977).
of exhaustion of administrative remedies sua
6.
See id.
sponte despite the lack of a filing of a cross
7.
Wright, Miller & Cooper, § 3904 Separate
appeal); See also Roe v. Cheyenne Mountain
Appeal Requirements, in Federal Practice and
Cont.. Resort, Inc., 124 F.3d 1221, 1227 (10th
Procedure.
Cir. 1997) (arguments which would lead to the
Johnson v. Teamsters Local 559, 102 F.3d 21, 29
vacation of the judgment below cannot be heard
(1st Cir. 1996); EF Operating Corp. v. American
without a cross appeal unless the argument is
Buildings, 993 F.2d 1046, 1049 (3d Cir. 1993);
jurisdictional.)
5.
8.
Francis v. Clark Equipment Co., 993 F.2d 545,
31.
Sherman, 980 F.2d at 440.
552 (6th Cir. 1993).
32.
The Seventh Circuit in Young Radiator Company
9.
El Paso, 526 U.S. at 481-82.
v. Celotex Corp., 881 F.2d 1408, 1416 (7th Cir.
10.
Wright, Miller & Cooper, § 3904 Separate
1989) strictly construed cross appeal require-
11.
Appeal Requirements, in Federal Practice and
ment. This holding was challenged in Coe v.
Procedure.
County of Cook, 162 F.3d 491, 497 (7th Cir.
The Ninth, Fourth, Second and D.C. Circuits all
1998) and since the holding in El Paso the
view the cross-appeal rule as one of practice.
Seventh Circuit has not reached a holding on the
Mendocino, 192 F.3d 1283, 1298 (9th Cir. 1999);
issue. See Hanna v. City of Chicago, 65 Fed.
Mercer v. Duke University, No. 01 1512, 2002
Appx. 565, 566 67 (7th Cir. 2003).
U.S. App. LEXIS 23610 *6 (4th Cir 2002);
Nevertheless, at the time it decided Sherman, the
Carlson v. Principal Fin. Group, 320 F.3d 301,
Seventh Circuit strictly construed this require-
309 (2d Cir. 2003); Spann v. Colonial Village,
ment.
899 F.2d 24, 33 (D.C. Cir. 1990).
33.
Sherman, 980 F.2d at 440.
12.
Mendocino, 192 F.3d at 1299.
34.
Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1104
13.
See Repola v. Morbark Indus. Inc., 980 F.2d 938,
940 41 (3d Cir. 1992).
14.
Id. at 941 42.
15.
Repola was questioned even before the Supreme
Court’s decision in
El Paso by a subsequent Third Circuit case, EF
Operating Corp., 993 F.2d at 1049.
16.
El Paso, 526 U.S. at 476 79.
17.
Id. at 478.
18.
Id. at 480.
19.
See id.
20.
Mendocino, 192 F.3d at 1298; Mercer, 2002 U.S.
App. LEXIS 23610 at *6; Carlson, 320 F.3d at
309.
21.
Mendocino, 192 F.3d at 1298.
22.
Mercer, 2002 U.S. App. LEXIS 23610 at *2.
23.
Id. at *4 5.
24.
Id. at *6 7.
25.
Mendocino, 192 F.3d at 1300.
26.
Id. at 1291.
27.
Id. at 1299, 1300.
28.
See, e.g., Lyons v. Jefferson Bank & Trust, 994
F.2d 716, 720 (10th Cir. 1993). Wright, Miller
& Cooper, § 205.05 Reviewability of Issues, in
Federal Practice and Procedure.
29.
Wright, Miller & Cooper suggest that the appellant’s interest in repose is sufficiently served by
(7th Cir. 1990).
35.
Id.