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Aaron S. Bayer

� The good news: You’ve prevailed in district court. The bad: The court rejected an important claim or based its decision on questionable grounds. In this situation, you must determine whether a cross-appeal is required, or even permissible, to preserve your arguments on appeal, and you must decide quickly, as Fed. R. App. P. 4(a)(3) normally requires a cross-appeal to be filed within 14 days after the first notice of appeal is filed. Justice Louis Brandeis long ago articulated the general rule on when a cross-appeal is necessary: An appellee must file a cross-appeal when he challenges the judgment below or seeks “to enlarge[e] his own rights there under or to lessen the rights of his adversary,” but “it is likewise settled that the appellee may, without taking a cross-appeal, 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 or an insistence upon matter overlooked or ignored by it.” United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924). Years later, Justice Benjamin Cardozo referred to this rule as “inveterate and certain.” Morley Const. Co. v. Maryland Cas. Co., 300 U.S. 185, 191 (1937). The rule remains intact, but its application today is less “certain” than it may appear. Altering the judgment or parties’ rights When, for example, is an appellee really seeking to expand its rights or the relief awarded below? Clearly, a cross-appeal is required to seek additional damages (Refuse & Env. Systems Inc. v. Industrial Servs. of America, 932 F.2d 37, 44 (1st Cir. 1991)) or to challenge a trial court’s failure to award attorney fees (Hale v. Cotton Petrol. Corp., 796 F.2d 74, 75 (5th Cir. 1986)). Failure to file a cross-appeal can also affect an appellee’s right to obtain additional relief on a subsequent remand. In Bethea v. Levi Strauss & Co., 916 F.2d 453, 455-56 (8th Cir. 1990), an employee who did not file a cross-appeal challenging the trial court’s initial denial of equitable relief in an employment discrimination suit was held to have waived his rights to that relief when the trial court later sought to award it on remand. A cross-appeal is also needed to alter the nature of the judgment below-when, for example, a party granted summary judgment on the merits argues on appeal that the case should have been dismissed for lack of personal jurisdiction. EF Operating Corp. v. Am. Bldgs., 993 F.2d 1046, 1048-49 & n.1 (3d Cir. 1993). It is not always certain, however, when a change in a judgment requires a cross-appeal. For example, does an appellate court have authority to change a dismissal without prejudice to a dismissal with prejudice, where no cross-appeal was filed seeking this change in the judgment? The en banc 5th U.S. Circuit Court of Appeals has held, over a vigorous dissent, that it could do exactly that, at least where it deemed a § 1983 prisoner suit to be frivolous. Marts v. Hines, 117 F.3d 1504 (5th Cir. 1997). The 7th Circuit, however, has held that it had no authority, absent a cross-appeal, to change a dismissal of state law claim without prejudice to a dismissal with prejudice, though the panel criticized the jurisdictional rule requiring a cross-appeal to be filed in these circumstances. Coe v. County of Cook, 162 F.3d 491, 497-98 (7th Cir. 1998). In some cases, a cross-appeal has been required where an appellee’s argument would not affect the parties in the pending case but might alter the rights of parties in future cases. In Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1195-96 (10th Cir. 1991), a city secured a dismissal of a civil rights claim on lack of standing. The city did not cross-appeal, and consequently was barred from arguing res judicata as an alternative basis for dismissal because it could preclude future plaintiffs from bringing similar claims against the city. Similarly, a cross-appeal was required for a club to challenge a district court ruling that it had the burden of proving it fit within the exemption for private clubs of Title VII of the 1964 Civil Rights Act, on the theory that an appellate determination that the EEOC had the burden of proof could adversely affect EEOC’s rights in future cases. EEOC v. Chicago Club, 86 F.3d 1423, 1431-32 (7th Cir. 1996). Not surprisingly, a cross-appeal is unnecessary to raise jurisdictional or quasi-jurisdictional challenges to a judgment, such as mootness (Whitehead v. Oklahoma Gas & Elec. Co., 187 F.3d 1184, 1189 n.4 (10th Cir. 1999)), 11th Amendment immunity (Lesage v. Texas, 158 F.3d 213, 216 n.1 (5th Cir. 1998), rev’d on other grounds, 528 U.S. 18 (1999)) or standing (Nat’l Wildlife Fed’n v. Agric. Stabilization & Conservation Serv., 955 F.2d 1199, 1203 (8th Cir. 1992)). An appeals court might also allow an appellee, without filing a cross-appeal, to raise an argument providing a statutory basis for upholding a judgment, when it enables the court to avoid reaching a constitutional issue. See Schweiker v. Hogan, 457 U.S. 569, 585 (1982). The federal circuits have long been split on whether the filing of a cross-appeal is a jurisdictional requirement or merely a rule of practice that can be waived or excused in unusual circumstances. Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988), which construed the requirements of Fed. R. App. P. 3 and 4 as mandatory and jurisdictional, was thought by some to have resolved the issue, but the controversy remains. Some courts have relied upon Torres in concluding that the failure to file a timely cross-appeal is a jurisdictional bar (see EF Operating Corp., supra, 993 F.2d at 1048-49 & n.1 (3d Cir.); Johnson v. Teamsters Local 559, 102 F.3d 21, 29 (1st Cir. 1996)) or have otherwise held that the rule is jurisdictional in nature (see, e.g., Francis v. Clark Equip. Co., 993 F.2d 545, 552-53 (6th Cir. 1993); Coe, supra, 993 F.2d 497 (7th Cir. 1998); Savage v. Cache Valley Dairy Ass’n, 737 F.2d 887 (10th Cir. 1984); Aderinto v. J.C. Penney Co., nos. 99-1945, 99-2118, 2000 U.S. App. Lexis 3811 (4th Cir. Feb 15, 2000)). Other courts, like the 5th Circuit, have held the cross-appeal requirement to be jurisdictional (Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d 236, 239 (5th Cir. 1990)), but are willing to carve out a narrow exception for certain appeals (Marts, supra, 117 F.3d at 1506; see U.S. v. Coscarelli, 149 F.3d 342 (5th Cir. 1998) (declining, over strong dissent, to broaden exception)). Some circuits, however, have held that the required filing of a cross-appeal is only a “rule of practice” that can be waived or excused in compelling circumstances. They view the initial notice of appeal as providing jurisdiction over the entire appeal, including claims that should have been presented in a cross-appeal. See Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1297-98 (9th Cir. 1999); Spann v. Colonial Village Inc., 899 F.2d 24, 33 (D.C. Cir. 1990); Texport Oil Co. v. M/V Amolyntos, 11 F.3d 361, 366 (2d Cir. 1993). In deciding whether to excuse the failure to file a timely cross-appeal, courts have relied on a number of factors, including whether the appeal and cross-appeal are closely interrelated, whether the cross-appeal prejudiced the appellant and how far beyond the deadline the cross-appeal was filed. Textport Oil, 11 F.3d at 366; see also Spann, 899 F.2d at 33 (unusual complexity and confusion concerning timeliness and effectiveness of initial appeal excused untimely filing of cross-appeal). Debate over this issue has produced strong opinions. Judge Will Garwood wrote a scholarly dissent admonishing the 5th Circuit for departing from a strict jurisdictional rule, arguing that the flexibility provided by making it a “rule of practice” will gain courts “next to nothing in judicial efficiency.” Marts, 117 F.3d at 1506-19. Judge Richard Posner, in contrast, roundly criticized the jurisdictional rule, arguing that it makes federal law “more complicated than it has to be,” “increases the number of remands,” “trips up the unwary” and “multiplies the number of cross-appeals.” Coe, 162 F.2d at 497. The U.S. Supreme Court has recognized this conflict and at least suggested that it favors the jurisdictional approach, noting that none of its holdings has ever recognized an exception to the “firmly entrenched” rule requiring the filing of a cross-appeal. It specifically declined, however, to resolve the issue. El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479-81 (1999). The risks of unnecessarily filing a cross-appeal The perils of failing to file a timely cross-appeal might lead counsel to file whenever there is a conceivable basis for doing so. Courts of appeals, however, have been less than charitable in dealing with cross-appeals that they view as unnecessary. When, for example, the court below has entered judgment entirely in the appellee’s favor or has granted all of the relief the appellee requested, the appellee is really presenting alternative grounds for upholding the judgment below, which can and should be done without a cross-appeal. See, e.g., Byron v. Clay, 867 F.2d 1049, 1050-51 (7th Cir. 1989); Moore’s Federal Practice 3d § 304.11[3][b] at 30. In these circumstances, appellate courts have rebuked parties for filing cross-appeals, calling them “worse than unnecessary” because they “generate additional complexity,” “disrupt the briefing schedule” and “impose significant burdens on the appellate court.” Crocker v. Piedmont Aviation Inc., 49 F.3d 735, 741 (D.C. Cir. 1995). See also Swanson v. Leggett & Platt Inc., 154 F.3d 730, 738 (7th Cir. 1998) (criticizing as “frivolous” an unnecessary cross-appeal that may have been filed to gain a strategic advantage in briefing and argument). Counsel for a prevailing party should therefore carefully examine whether a cross-appeal is necessary to preserve a claim on appeal. If, however, it is unclear whether the circumstances require a cross-appeal, it is preferable to err on the side of filing one, especially in those circuits that consider a timely cross-appeal a jurisdictional requirement. Better to risk the appellate court’s displeasure than to forfeit an important appeal issue. Aaron S. Bayer is the chairman of the appellate practice group at Wiggin & Dana of New Haven, Conn. He can be reached at [email protected].

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