Petitioner is one of 16 plaintiffs whose complaint seeking
intervention in an employment discrimination action against
respondent was dismissed by the District Court. On remand following
the Court of Appeals' reversal of the dismissal, the District Court
granted summary judgment against petitioner on the ground that he
had not been named in the notice of appeal to the Court of Appeals,
albeit inadvertently. The Court of Appeals affirmed, ruling that
exclusion from the notice of appeal constituted a jurisdictional
bar.
Held: Failure to file a notice of appeal in accordance
with Federal Rule of Appellate Procedure 3(c)'s requirement that
the notice "specify the party or parties taking the appeal"
presents a jurisdictional bar to the appeal. The Rule's caveat that
an appeal "shall not be dismissed for [the notice's] informality of
form or title" does not aid petitioner, since his exclusion from
the notice constitutes a failure to appeal, rather than excusable
informality. Nor can petitioner find relief in Rule 2's grant of
broad equitable discretion to the courts of appeals, "for good
cause shown," to "suspend the requirements . . . of any [Rule],"
since Rule 26(b) contains an exception forbidding "enlarg[ing]"
Rule 4's mandatory time limits for filing a notice, which would be
vitiated if courts could exercise jurisdiction over parties not
named in the notice. This reading is supported by the Advisory
Committee's Note following Rule 3, and does not contravene
Foman v. Davis, 371 U. S. 178,
since, although, under that decision, a court may construe the
Rules liberally and ignore "mere technicalities" in determining
compliance, it may not waive the jurisdictional requirements of
Rules 3 and 4, even for "good cause shown." Here, petitioner never
filed the functional equivalent of a notice of appeal, was not
named by implication in the notice that was filed, and did not seek
leave to amend the notice within the time limit set by Rule 4. The
use of "
et al." in the notice was insufficient to notify
respondent and the court that petitioner was an appellant, or to
allow them to determine with certitude whether he should be bound
by an adverse judgment or held liable for costs or sanctions. Pp.
487 U. S.
314-318.
807 F.2d 178, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, and
KENNEDY, JJ.,
Page 487 U. S. 313
joined. SCALIA, J., filed an opinion concurring in the judgment,
post, p.
487 U. S. 318.
BRENNAN, J., filed a dissenting opinion,
post, p.
487 U. S.
319.
JUSTICE MARSHALL delivered the opinion of the Court.
This case presents the question whether a federal appellate
court has jurisdiction over a party who was not specified in the
notice of appeal in accordance with Federal Rule of Appellate
Procedure 3(c).
I
Petitioner Jose Torres is one of 16 plaintiffs who intervened in
an employment discrimination suit against respondent after
receiving notice of the action pursuant to a settlement agreement
between respondent and the original plaintiffs. In their complaint,
the intervenors purported to proceed not only on their own behalf,
but also on behalf of all persons similarly situated. On August 31,
1981, the District Court for the Northern District of California
dismissed the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim warranting relief. 4 Record,
Doc. No. 87. A class had not been certified at the time of the
dismissal.
On September 29, 1981, a notice of appeal was filed in the Court
of Appeals for the Ninth Circuit. The Court of Appeals reversed the
District Court's dismissal and remanded the case for further
proceedings.
Bonilla v. Oakland Scavenger Co., 697 F.2d
1297 (1982). Both the notice of appeal and the order of the Court
of Appeals omitted petitioner's name. It is undisputed that the
omission in the notice of appeal was due to a clerical error on the
part of a secretary employed by petitioner's attorney.
On remand, respondent moved for partial summary judgment on the
ground that the prior judgment of dismissal was final as to
petitioner by virtue of his failure to appeal. The
Page 487 U. S. 314
District Court granted respondent's motion. App. to Pet. for
Cert. B-l, Civ. Action No. C 75-0060 CAL (ND Cal., Oct. 30, 1985).
The Court of Appeals affirmed, judgment order reported at 807 F.2d
178 (1986), holding that, "[u]nless a party is named in the notice
of appeal, the appellate court does not have jurisdiction over
him." App. to Pet. for Cert A-4, citing
Farley Transportation
Co. v. Santa Fe Trail Transportation Co., 778 F.2d 1365, 1368
(CA9 1985).
We granted certiorari to resolve a conflict in the Circuits over
whether a failure to file a notice of appeal in accordance with the
specificity requirement of Federal Rule of Appellate Procedure 3(c)
presents a jurisdictional bar to the appeal. [
Footnote 1] 484 U.S. 894 (1987). We now
affirm.
II
Federal Rule of Appellate Procedure 3(c) provides in pertinent
part that a notice of appeal "shall specify the party or parties
taking the appeal." The Rule was amended in 1979 to add that an
appeal "shall not be dismissed for informality of form or title of
the notice of appeal." This caveat does not aid petitioner in the
instant case. The failure to name a party in a notice of appeal is
more than excusable "informality;" it constitutes a failure of that
party to appeal.
More broadly, Rule 2 gives courts of appeals the power, for
"good cause shown," to "suspend the requirements or provisions of
any of these rules in a particular case on application of a party
or on its own motion." Rule 26(b), however, contains certain
exceptions to this grant of broad equitable discretion.
Page 487 U. S. 315
The exception pertinent to this case forbids a court to
"enlarge" the time limits for filing a notice of appeal, which are
prescribed in Rule 4. We believe that the mandatory nature of the
time limits contained in Rule 4 would be vitiated if courts of
appeals were permitted to exercise jurisdiction over parties not
named in the notice of appeal. Permitting courts to exercise
jurisdiction over unnamed parties after the time for filing a
notice of appeal has passed is equivalent to permitting courts to
extend the time for filing a notice of appeal. Because the Rules do
not grant courts the latter power, we hold that the Rules likewise
withhold the former.
We find support for our view in the Advisory Committee Note
following Rule 3:
"Rule 3 and Rule 4 combine to require that a notice of appeal be
filed with the clerk of the district court within the time
prescribed for taking an appeal. Because the timely filing of a
notice of appeal is 'mandatory and jurisdictional,'
United
States v. Robinson, [
361 U.S.
220,
361 U. S. 224 (1960)],
compliance with the provisions of those rules is of the utmost
importance."
28 U.S.C.App. p. 467. This admonition by the Advisory Committee
makes no distinction among the various requirements of Rule 3 and
Rule 4; rather it treats the requirements of the two Rules as a
single jurisdictional threshold. The Advisory Committee's caveat
that courts should "dispense with literal compliance in cases in
which it cannot fairly be exacted,"
ibid., is not to the
contrary. The examples cited by the Committee make clear that it
was referring generally to the kinds of cases later addressed by
the 1979 amendment to Rule 3(c), which excuses "informality of form
or title" in a notice of appeal. [
Footnote 2] Permitting imperfect but substantial
compliance with a technical requirement
Page 487 U. S. 316
is not the same as waiving the requirement altogether as a
jurisdictional threshold. Our conclusion that the Advisory
Committee viewed the requirements of Rule 3 as jurisdictional in
nature, although not determinative, is "of weight" in our
construction of the Rule.
Mississippi Publishing Corp. v.
Murphree, 326 U. S. 438,
326 U. S. 444
(1946).
Nor does this Court's decision in
Foman v. Davis,
371 U. S. 178
(1962), compel a contrary construction. In
Foman, the
Court addressed a separate provision of Rule 3(c) requiring that a
notice of appeal "designate the judgment, order or part thereof
appealed from." Foman was a plaintiff whose complaint was
dismissed. He first filed motions in the District Court seeking to
vacate the judgment against him and to amend his complaint. While
the motions were pending, he filed a notice of appeal from the
dismissal. When the District Court denied his motions, Foman filed
a second notice of appeal from the denial. The Court of Appeals
concluded that the first notice of appeal was premature because of
Foman's pending motions, and that the second notice of appeal
failed to designate the underlying dismissal as the judgment
appealed from. This Court reversed the appellate court's refusal to
hear Foman's appeal on the merits of his dismissal, holding that
the court should have treated the second notice of appeal as "an
effective, although inept, attempt to appeal from the judgment
sought to be vacated."
Id. at
371 U. S.
181.
Foman did not address whether the requirement of Rule
3(c) at issue in that case was jurisdictional in nature; rather,
the Court simply concluded that, in light of all the circumstances,
the Rule had been complied with. We do not dispute the important
principle for which
Foman stands -- that the requirements
of the rules of procedure should be liberally construed, and that
"mere technicalities" should not stand in the way of consideration
of a case on its merits.
Ibid. Thus, if a litigant files
papers in a fashion that is technically
Page 487 U. S. 317
at variance with the letter of a procedural rule, a court may
nonetheless find that the litigant has complied with the rule if
the litigant's action is the functional equivalent of what the rule
requires.
See, e.g., Houston v. Lack, ante p.
487 U. S. 266
(delivery of notice of appeal by
pro se prisoner to prison
authorities for mailing constitutes "filing" within the meaning of
Federal Rules of Appellate Procedure 3 and 4). But although a court
may construe the Rules liberally in determining whether they have
been complied with, it may not waive the jurisdictional
requirements of Rules 3 and 4, even for "good cause shown" under
Rule 2, if it finds that they have not been met. [
Footnote 3]
Applying these principles to the instant case, we find that
petitioner failed to comply with the specificity requirement of
Rule 3(c), even liberally construed. Petitioner did not file the
functional equivalent of a notice of appeal; he was never named or
otherwise designated, however inartfully, in the notice of appeal
filed by the 15 other intervenors. Nor did petitioner seek leave to
amend the notice of appeal within the time limits set by Rule 4.
Thus, the Court of Appeals was correct that it never had
jurisdiction over petitioner's appeal.
Petitioner urges that the use of "
et al." in the notice
of appeal was sufficient to indicate his intention to appeal.
We
Page 487 U. S. 318
cannot agree. The purpose of the specificity requirement of Rule
3(c) is to provide notice both to the opposition and to the court
of the identity of the appellant or appellants. The use of the
phrase "
et al.," which literally means "and others,"
utterly fails to provide such notice to either intended recipient.
Permitting such vague designation would leave the appellee and the
court unable to determine with certitude whether a losing party not
named in the notice of appeal should be bound by an adverse
judgment or held liable for costs or sanctions. The specificity
requirement of Rule 3(c) is met only by some designation that gives
fair notice of the specific individual or entity seeking to
appeal.
We recognize that construing Rule 3(c) as a jurisdictional
prerequisite leads to a harsh result in this case, but we are
convinced that the harshness of our construction is "imposed by the
legislature, and not by the judicial process."
Schiavone v.
Fortune, 477 U. S. 21,
477 U. S. 31
(1986) (construing Federal Rule of Civil Procedure 15(c) in a
similarly implacable fashion).
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
Compare Farley Transportation Co. v. Santa Fe Trail
Transportation Co., 778 F.2d 1365, 1368-1370 (CA9 1985)
(failure to specify party to appeal is jurisdictional bar);
Covington v. Allsbrook, 636 F.2d 63, 64 (CA4 1980) (same);
Life Time Doors, Inc. v. Walled Lake Door Co., 505 F.2d
1165, 1168 (CA6 1974) (same),
with Ayres v. Sears, Roebuck
& Co., 789 F.2d 1173, 1177 (CA5 1986) (appeal by party not
named in notice of appeal is permitted in limited instances);
Harrison v. United States, 715 F.2d 1311, 1312-1313 (CA8
1983) (same);
Williams v. Frey, 551 F.2d 932, 934, n. 1
(CA3 1977) (same).
[
Footnote 2]
For example, the Advisory Committee approvingly cited cases
permitting a letter from a prisoner to a judge to suffice as a
notice of appeal,
see Riffle v. United States, 299 F.2d
802 (CA5 1962), and permitting the mailing of a notice of appeal to
constitute its time of "filing," rather than its receipt by the
court,
see Halfen v. United States, 324 F.2d 52 (CA10
1963).
[
Footnote 3]
In addition to urging that the requirements of Rule 3(c) are not
jurisdictional in nature, petitioner advances two other arguments
in support of his position, neither of which has merit. First,
petitioner argues that courts of appeals should apply "harmless
error" analysis to defects in a notice of appeal. This argument
misunderstands the nature of a jurisdictional requirement: a
litigant's failure to clear a jurisdictional hurdle can never be
"harmless" or waived by a court. Second, petitioner argues that
refusal to permit him to cure the defect in the original notice of
appeal will unfairly permit absent class members, now that the suit
has been certified as a class action, to obtain relief from which
petitioner is barred. The District Court, however, in granting
summary judgment against petitioner, explicitly left open "the
issue of whether Mr. Torres can or cannot participate in this
litigation as a member of a class, should a class be properly
certified." App. to Pet. for Cert. B-4.
JUSTICE SCALIA, concurring in the judgment.
I agree with the judgment of the Court, but I do not believe
that the principles set forth in its opinion produce it. If it is
the fact that the requirements of the rules of procedure should be
"liberally construed," that "
mere technicalities' should not
stand in the way of consideration of a case on its merits," and
that a rule is complied with if "the litigant's action is the
functional equivalent of what the rule requires," ante at
487 U. S. 316,
it would seem to me that a caption listing the first party to the
case and then adding "et al." is enough to suggest that
all parties are taking the appeal; and that the later omission of
one of the parties in listing the appellants can, "liberally
viewed," be deemed to create no more than an
Page 487 U. S. 319
ambiguity which does not destroy the effect of putting the
appellee on notice.
The principle that "mere technicalities" should not stand in the
way of deciding a case on the merits is more a prescription for
ignoring the Federal Rules than a useful guide to their
construction and application. By definition, all rules of procedure
are technicalities; sanction for failure to comply with them always
prevents the court from deciding where justice lies in the
particular case, on the theory that securing a fair and orderly
process enables more justice to be done in the totality of cases.
It seems to me, moreover, that we should seek to interpret the
rules neither liberally nor stingily, but only, as best we can,
according to their apparent intent. Where that intent is to provide
leeway, a permissive construction is the right one; where it is to
be strict, a permissive construction is wrong. Thus, the very first
of the Rules of Civil Procedure does not prescribe that they are to
be "liberally construed," but rather that they are to be "construed
to secure the just, speedy, and inexpensive determination of every
action." Fed.Rule Civ.Proc. 1.
The Appellate Rule at issue here requires the appellant to
"specify the party or parties taking the appeal," Fed.Rule
App.Proc. 3(c), which suggests to me more than just a residual
"
et al." Moreover, that it was thought necessary to
specify that "informality of form or title" would not entail
dismissal,
ibid., suggests that a strict application was
generally contemplated. I concur in today's judgment, therefore,
for essentially the same reasons that I dissented from the judgment
in
Houston v. Lack, ante p.
487 U. S. 266,
which the Court appropriately cites to support its reasoning in the
present case, but which, in my view, stands in stark contrast to
its conclusion.
JUSTICE BRENNAN, dissenting.
"The Federal Rules," we have previously observed,
"reject the approach that pleading is a game of skill in which
one misstep
Page 487 U. S. 320
by counsel may be decisive to the outcome, and accept the
principle that the purpose of pleading is to facilitate a proper
decision on the merits."
Foman v. Davis, 371 U. S. 178,
371 U. S.
181-182 (1962). Although the Court today pays lipservice
to the spirit of liberality animating the Federal Rules, it
nevertheless holds that the Court of Appeals below lacked
jurisdiction over petitioner's suit because his lawyer's secretary
inadvertently omitted his name from the notice of appeal filed on
behalf of him and his 15 coplaintiffs. Eschewing any inquiry into
whether this omission was excusable or whether respondent suffered
any prejudice as a result of it, the Court concludes that this
"misstep by counsel" decides the outcome of petitioner's case
because compliance with the party-specification requirement of
Federal Rule of Appellate Procedure 3(c) is a jurisdictional
prerequisite to appellate review. Nothing in the Federal Rules,
however, compels such a construction of Rule 3(c), which I believe
to be wholly at odds with the liberal policies underlying those
Rules, as well as our own prior construction of them.
As the Court notes, Federal Rule of Appellate Procedure 2
permits the courts of appeals, upon a showing of good cause, to
"suspend the requirements or provisions of any of these rules in a
particular case," except as otherwise provided by Rule 26(b). Rule
26(b), in turn, permits appellate courts to enlarge the time
established by the Rules for any act, except the "time for filing a
notice of appeal" set out in Rule 4. On their face, then, Rules 2
and 26(b) together confer broad equitable discretion on the courts
of appeals to excuse compliance with the requirements of any and
all Rules save the time limitations of Rule 4. Notably, neither
mentions Rule 3(c) as falling outside the purview of this broad
equitable power.
In the face of this express policy favoring a liberal
construction of all the Rules except the timeliness requirements of
Rule 4, the Court nevertheless holds that Rule 3(c)'s
party-specification
Page 487 U. S. 321
requirement must be deemed jurisdictional, for the
"mandatory nature of the time limits contained in Rule 4 would
be vitiated if courts of appeals were permitted to exercise
jurisdiction over parties not named in the notice of appeal."
Ante at
487 U. S. 315.
This unsupported assertion, however, is only correct if we assume
the answer to the question at issue here,
i.e., that
"[t]he failure to name a party in a notice of appeal . . .
constitutes a failure of that party to appeal."
Ante at
487 U. S. 314.
If, on the other hand, we assume, as several Courts of Appeals
have, that an unnamed party effectively appeals where a notice is
timely filed and the unnamed party's intention to join in the
appeal is clear to all and prejudicial to none,
see, e.g.,
Harrison v. United States, 715 F.2d 1311, 1312-1313 (CA8
1983);
Williams v. Frey, 551 F.2d 932, 934, n. 1 (CA3
1977), then Rule 4's mandatory time limitations would remain
inviolate. The Court itself acknowledges that a "litigant's action
[may be] the functional equivalent of what the rule requires."
Ante at
487 U. S. 317.
It is obvious, however, that the initial determination whether a
given act satisfies any test of "functional equivalence" depends
not at all on the time limitations prescribed by Rule 4; it is only
after a court decides that a given act is not the
functional equivalent of filing a notice of appeal that the
necessity of amending any notice that was filed, and hence the
necessity of enlarging the time requirements of Rule 4, arise.
The Court purports to find support for its jurisdictional
construction of Rule 3(c) in the Advisory Committee Notes, which
explain that Rules 3 and 4 "combine to require that a notice of
appeal be filed with the clerk of the district court within the
time prescribed for taking an appeal," and that,
"[b]ecause the timely filing of a notice of appeal is mandatory
and jurisdictional, . . . compliance with the provisions of those
rules is of the utmost importance."
28 U.S.C.App. p. 467. Arguing that this admonition does not
differentiate
Page 487 U. S. 322
between the various requirements of the two Rules, the Court
concludes that all the requirements of both form "a single
jurisdictional threshold."
Ante at
487 U. S. 315.
I believe the Advisory Committee Note lends no support to the
result the Court reaches today. The comment itself says only that
the "timely filing" requirement is mandatory and jurisdictional;
significantly, the Advisory Committee stopped short of describing
Rules 3 and 4 as jurisdictional in their entirety. Moreover, it is
apparent from the context that the Advisory Committee did not
intend to incorporate by reference every requirement of the two
Rules, but rather, only those provisions discussed in the first
sentence of the comment. Rule 3(a) provides that an appeal "shall
be taken by filing a notice of appeal with the clerk of the
district court within the time allowed by Rule 4." It is thus this
provision -- which is tracked nearly word for word in the Advisory
Committee Note -- and not every enumerated requirement of Rule 3,
that combines with Rule 4 to form the jurisdictional requirement
"that a notice of appeal be filed with the clerk of the district
court within the time prescribed for taking an appeal."
The Court's broader reading of the Note, and its jurisdictional
construction of the Rule, are flatly inconsistent with
Foman v.
Davis, supra, where we held that Rule 3 (c)'s
judgment-designation requirement is not jurisdictional. That
requirement, which immediately precedes the party-specification
provision, states that a notice of appeal "shall designate the
judgment, order, or part thereof appealed from." Although the Court
today suggests that, in
Foman, we simply forgave mere
technical noncompliance with the Rule,
see ante at
487 U. S. 316,
the lower court in that case expressly stated that the second
notice of appeal in question made no reference to the judgment for
which review was sought, and that the first notice of appeal was
premature, and thus void.
Foman v. Davis, 292 F.2d 85, 87
(CA1 1961). Because we
Page 487 U. S. 323
affirmed the lower court's disposition of the first notice, the
lack of a designated judgment in the second notice was no more nor
less a "mere technicality" than the absence of petitioner's name
from the notice of appeal filed in this case: both the notice here
and in
Foman omitted precisely the information required by
Rule 3(c). In
Foman, we nevertheless held that the Court
of Appeals should have "
treated the [second notice of]
appeal . . . as an effective, although inept, attempt to appeal"
because, when the two ineffective notices were read together,
"petitioner's
intention to seek review . . . was
manifest." 371 U.S. at
371 U. S. 181
(emphasis added).
Petitioner Torres makes precisely the same claim here, arguing
that appellate counsel's presentation of the case -- in which all
issues in the case were treated as common to all the plaintiffs,
named and unnamed in the District Court -- and the inclusion of 15
of the 16 named intervenors in the notice of appeal, made his
intention to join in the appeal manifest. The Court, however,
simply dismisses this contention by asserting that "petitioner
failed to comply with the specificity requirement of Rule 3(c);"
failed to "file the functional equivalent of a notice of appeal;"
and was "never named or otherwise designated, however inartfully,
in the notice of appeal filed by the 15 other intervenors."
Ante at
487 U. S. 317.
These statements, however, are wholly conclusional, and in no way
distinguish petitioner's omission from that involved in
Foman.
In 1979, Rule 3(c) was amended to provide that "[a]n appeal
shall not be dismissed for informality of form or title of the
notice of appeal." The Advisory Committee Note accompanying this
amendment explained that,
"so long as the
function of notice is met by the filing
of a paper indicating an intention to appeal, the substance of the
rule has been complied with."
Advisory Committee Note to Rule 3, 28 U.S.C.App. p. 467
(emphasis added). The function of a notice of appeal, of course, is
to notify the court of appeals
Page 487 U. S. 324
and the opposing party that an appeal is being taken,
see
Cobb v. Lewis, 488 F.2d 41, 45 (CA5 1974) (cited with approval
in Advisory Committee Note to Rule 3), which in turn ensures that
the appellees are not prejudiced in any way by the appeal, and that
the appellants have made the requisite commitment to assuming the
obligations of the appeal, particularly the obligation to pay any
costs and fees that the appellate court might ultimately assess.
These are factual inquiries that the courts of appeals are entirely
capable of undertaking, and that better serve the purposes
supposedly advanced by the bright-line jurisdictional rule the
Court announces today.
*
After today's ruling, appellees will be able to capitalize on
mere clerical errors and secure the dismissal of unnamed appellants
no matter how meritorious the appellant's claims and no matter how
obvious the appellant's intention to seek appellate review, and
courts of appeals will be powerless to correct even the most
manifest of resulting injustices. The Court identifies no policy
supporting, let alone requiring, this harsh rule, which I believe
is patently inconsistent not only with the liberal spirit
underlying the Federal Rules, but with Rule 2's express
authorization permitting courts of appeals to forgive noncompliance
where good cause for such forgiveness
Page 487 U. S. 325
is shown. Instead, the Court simply announces by fiat that the
omission of a party's name from a notice of appeal can never serve
the function of notice, thereby converting what is in essence a
factual question into an inflexible rule of convenience. Because
the Court has failed to demonstrate that the notice filed in this
case failed to apprise the court below or respondents that
petitioner intended to join in the appeal taken by his 15
coplaintiffs, I would reverse the case and remand for the necessary
factual inquiry.
Accordingly, I dissent.
* Although the Court's jurisdictional approach to the
specificity requirement provides no greater protection to litigants
than the equitable approach adopted by several Courts of Appeals,
like all bright-line tests, its application is more certain and
predictable. This advantage, however, is of marginal significance,
inasmuch as few courts have found the notice function satisfied
where a party's name is omitted, and those that have have
acknowledged that it is the exceptional case in which such a
finding is even possible.
See Harrison v. United States,
715 F.2d 1311, 1313 (CA8 1983) ("[T]his is a very rare, but
appropriate, case for a liberal construction of FRAP 3");
Williams v. Frey, 551 F.2d 932, 934, n. 1 (CA3 1977)
("Under most circumstances, the designation of the party appellant
in the notice of appeal will govern"). Certainly no responsible
lawyer would intentionally omit a party's name in reliance on an
equitable construction of the notice of appeal.