FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILL EVANS; THE CENTER FOR 

INVESTIGATIVE REPORTING,

Plaintiffs-Appellees,

v.

SYNOPSYS, INC.,

Intervenor-Appellant,

and

U.S. DEPARTMENT OF LABOR,

Defendant-Appellee.

No. 20-16416

D.C. No.

4:19-cv-01843-

KAW

WILL EVANS; THE CENTER FOR 

INVESTIGATIVE REPORTING,

Plaintiffs-Cross-Appellants,

v.

SYNOPSYS, INC.,

Intervenor-Cross-Appellee,

and

U.S. DEPARTMENT OF LABOR,

Defendant.

No. 20-16538

D.C. No.

4:19-cv-01843-

KAW
2 EVANS V. SYNOPSYS

WILL EVANS; THE CENTER FOR 

INVESTIGATIVE REPORTING,

Plaintiffs,

v.

SYNOPSYS, INC.,

Intervenor-Cross-Appellee,

and

U.S. DEPARTMENT OF LABOR,

Defendant-Cross-Appellant.

No. 20-16826

D.C. No.

4:19-cv-01843-

KAW

OPINION

Appeal from the United States District Court

for the Northern District of California

Kandis A. Westmore, Magistrate Judge, Presiding

Argued and Submitted October 4, 2021

San Francisco, California

Filed May 12, 2022

Before: Richard R. Clifton and Michelle T. Friedland, 

Circuit Judges, and Michael J. McShane,* District Judge.

Opinion by Judge Friedland

* The Honorable Michael J. McShane, United States District Judge 

for the District of Oregon, sitting by designation.
EVANS V. SYNOPSYS 3

SUMMARY**

Timely Notice of Appeal / Intervenor

The panel dismissed for lack of appellate jurisdiction 

prospective intervenor Synopsys, Inc.’s untimely appeal of 

the district court’s grant of summary judgment in favor of 

The Center for Investigative Reporting (“CIR”); and 

dismissed as moot CIR’s and the U.S. Department of Labor 

(“DOL”)’s cross-appeals.

CIR brought a FOIA action against DOL, claiming that 

DOL was improperly withholding workforce demographic 

data that Synopsys and other companies had submitted 

pursuant to federal-contractor reporting regulations. The 

district court granted CIR summary judgment. Seven weeks 

after that judgment was entered, and eleven days before the 

deadline to file a notice of appeal, Synopsys moved to 

intervene as a defendant. About five months after the 

deadline for filing a notice of appeal of the judgment, the 

district court denied Synopsys’s motion to intervene for the 

purpose of asserting a crossclaim but granted Synopsys 

limited intervention for the sole purpose of appealing the 

judgment. Synopsys then filed a notice of appeal from the 

judgment.

The district court had granted CIR’s motion for summary 

judgment on December 10, 2019, and entered judgment the 

same day. The deadline for a party to file a notice of appeal 

was February 10, 2020. See 28 U.S.C. § 2107(b); Fed. R. 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 EVANS V. SYNOPSYS

App. P. 26(a)(1)(C). Synopsys filed a notice of appeal on 

July 22, 2020.

The panel held that Synopsys failed to timely appeal the 

district court’s grant of summary judgment. Synopsys 

argued that the time to appeal prescribed by § 2107(b) 

applies only to parties and not to prospective intervenors. 

The panel disagreed. Although generally only parties may 

appeal an adverse judgment, it does not follow that the 

deadline to file a notice of appeal for prospective intervenors 

is different from the deadline for parties. The text of § 2107 

foreclosed Synopsys’s argument. The panel held that all 

litigants in a given case face the same jurisdictional deadline 

to file a notice of appeal under § 2107. The deadline runs 

from the entry of the judgment being appealed. For 

Synopsys’s appeal to be timely, it must have either extended 

its time to file a notice of appeal or filed a notice of appeal 

by the statutory deadline of February 10, 2020.

The panel rejected Synopsys’s argument that the district 

court properly extended Synopsys’s time to appeal. The 

district court twice stated that Synopsys’s time to appeal was 

being preserved. The panel held that Fed. R. App. P. 26(b) 

makes clear that Fed. R. App. P. 4 provides the only 

mechanism by which a litigant may request, and a court may 

grant, an extension to file a notice of appeal. Here, Synopsys 

needed to seek an extension under Rule 4(a)(5) by March 11, 

2020. Synopsys never filed a formal motion requesting an 

extension of time to appeal. The panel held that the 

extension mechanism of Rule 4(a)(5) was available to a 

prospective intervenor who had not yet been granted party 

status. The panel further held that Synopsys failed to file a 

document that complied with the requirements of Rule 

4(a)(5). The district court could not construe Synopsys’s 

motion to intervene or the emergency motion for a stay as a 
EVANS V. SYNOPSYS 5

motion to extend the time to file a notice of appeal under 

Rule 4(a)(5). The district court’s statements about 

preserving Synopsys’s time to appeal were therefore 

ineffective, and the panel rejected Synopsys’s argument that 

DOL and CIR forfeited their objection by not making it 

sooner.

The panel rejected Synopsys’s argument in the 

alternative that its motion to intervene and brief in support 

of that motion, both filed eleven days before the deadline to 

appeal the judgment, should be construed as a timely notice 

of appeal. The panel held that Synopsys’s motion to 

intervene could not be construed as a notice of appeal 

because that motion did not satisfy the requirements of Fed. 

R. App. P. 3. Because Synopsys was still actively seeking 

substantive relief from the judgment in the district court, its 

motion to intervene logically would not have been a notice 

of appeal.

The panel held that because Synopsys did not file a 

timely notice of appeal of the judgment in favor of CIR, this 

court lacked jurisdiction to hear the merits of that appeal. 

This determination mooted DOL’s and CIR’s cross-appeals 

of the district court’s decision to grant Synopsys intervention 

to appeal the judgment. 

The panel concurrently filed a memorandum disposition 

resolving additional matters raised by the parties.
6 EVANS V. SYNOPSYS

COUNSEL

Robert M. Loeb (argued) and James A. Flynn, Orrick,

Herrington & Sutcliffe LLP, Washington, D.C.; Denise M. 

Mingrone and Robert L. Uriarte, Orrick, Herrington & 

Sutcliffe LLP, Menlo Park, California; for IntervenorAppellant/Cross-Appellee.

Casen B. Ross (argued) and Mark B. Stern, Appellate Staff; 

Stephanie M. Hinds, Acting United States Attorney; Brian 

M. Boynton, Acting Assistant Attorney General; Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Defendant-Appellee/Cross-Appellant.

D. Victoria Baranetsky (argued), Center for Investigative 

Reporting, Emeryville, California; Steven A. Hirsch, 

Matthew M. Werdegar, and Joel F. Wacks, Keker, Van Nest 

& Peters LLP, San Francisco, California; for PlaintiffAppellee/Cross-Appellant.

Katie Townsend, Adam A. Marshall, and Gunita Singh, 

Reporters Committee for Freedom of the Press, Washington, 

D.C., for Amici Curiae Reporters Committee for Freedom of 

the Press, and 33 Media Organizations.

John P. Elwood and Janine M. Lopez, Arnold & Porter Kaye 

Scholer LLP, Washington, D.C.; Tara S. Morrissey and Paul 

V. Lettow, U.S. Chamber Litigation Center, Washington, 

D.C.; for Amicus Curiae Chamber of Commerce of the 

United States of America.
EVANS V. SYNOPSYS 7

OPINION

FRIEDLAND, Circuit Judge:

This case began as a straightforward Freedom of 

Information Act (“FOIA”) dispute, but it now presents a 

surprisingly complex civil procedure question: Did 

Synopsys, a prospective intervenor, file a timely notice of 

appeal?

Will Evans and The Center for Investigative Reporting 

(collectively, “CIR”) brought a FOIA action against the U.S. 

Department of Labor (“DOL”), claiming that DOL was 

improperly withholding workforce demographic data that 

Synopsys and other companies had submitted pursuant to 

federal-contractor reporting regulations. The district court 

agreed and granted CIR summary judgment. Seven weeks 

after that judgment was entered—and eleven days before the 

deadline to file a notice of appeal—Synopsys moved to 

intervene as a defendant. Synopsys sought to assert a 

crossclaim against DOL and to appeal the district court’s 

grant of summary judgment, if that judgment withstood its 

crossclaim. About five months after the deadline for filing a 

notice of appeal of the judgment, the district court denied 

Synopsys’s motion to intervene for the purpose of asserting 

the crossclaim but granted Synopsys limited intervention for 

the sole purpose of appealing the judgment. Synopsys then 

filed a notice of appeal of the judgment. CIR and DOL filed 

notices of cross-appeal of the district court’s partial grant of 

Synopsys’s motion to intervene.

For the reasons below, we hold that Synopsys failed to 

timely appeal the district court’s grant of summary 

judgment. We therefore dismiss Synopsys’s appeal of that 
8 EVANS V. SYNOPSYS

judgment for lack of appellate jurisdiction, and we dismiss 

as moot CIR’s and DOL’s cross-appeals.1

I.

In early 2018, Will Evans, a reporter employed by CIR, 

was investigating diversity in the technology industry. He 

submitted a FOIA request to DOL, seeking reports 

containing the employment data of fifty-five federal 

contractors (“EEO-1 reports”). An EEO-1 report contains a 

one-page table that breaks down a company’s U.S. 

workforce by job category, sex, and race. Many federal 

contractors, including Synopsys, must file an EEO-1 report 

every year with DOL. See 41 C.F.R. § 60-1.7(a). DOL uses 

EEO-1 reports to monitor compliance with an executive 

order prohibiting employment discrimination by federal 

contractors. See Exec. Order No. 11,246, 30 Fed. Reg. 

12,319 (Sept. 28, 1965). DOL informed CIR that, of the 

fifty-five companies listed in the FOIA request, DOL had 

identified responsive EEO-1 reports from thirty-six.

DOL notified the relevant companies that it had received 

a FOIA request for their EEO-1 reports. DOL told the 

companies that it believed the reports could be released but 

that, pursuant to DOL regulation, it was providing them an 

opportunity to object “on grounds that specific information 

contained therein is exempt from mandatory disclosure such 

1 Synopsys has also appealed the partial denial of its motion to 

intervene. We resolve that appeal in a memorandum disposition filed 

concurrently with this opinion. Additionally, in a separate action, 

Synopsys brought a claim against DOL that was substantively identical 

to the crossclaim it was attempting to bring as an intervenor in the 

original FOIA action. We resolve the appeal of that action in the same 

memorandum disposition. See Synopsys, Inc. v. U.S. Dep’t of Labor, 

Case No. 20-16414.
EVANS V. SYNOPSYS 9

as Exemption 4 of the FOIA.” Exemption 4 covers “trade 

secrets and commercial or financial information obtained 

from a person and privileged or confidential.” 5 U.S.C. 

§ 552(b)(4). Twenty of the thirty-six companies, including 

Synopsys, submitted written objections to the release of their 

reports. In response, DOL agreed that their reports were 

“exempt from mandatory disclosure pursuant to Exemption 

4 of the FOIA” and that DOL would decline to release them. 

DOL then sent CIR the non-objecting companies’ reports.

By April 2019, DOL was still withholding the twenty 

EEO-1 reports. CIR concluded that it had exhausted its 

administrative remedies and filed a Complaint for injunctive 

relief in the United States District Court for the Northern 

District of California.

As the litigation progressed, more companies consented 

to the release of their EEO-1 reports. By August 2019, ten 

reports—including Synopsys’s—remained undisclosed. 

CIR and DOL filed cross-motions for summary judgment on 

whether DOL could withhold the undisclosed reports under 

FOIA Exemption 4 as records that contained “commercial 

information” that was “confidential.”

In a December 10, 2019 summary judgment order, the 

district court granted CIR’s motion for summary judgment 

and denied DOL’s. It entered judgment for CIR the same 

day. The court ordered DOL to disclose the remaining EEO1 reports within thirty days. Consistent with a stipulation by 

the parties, the court extended DOL’s disclosure deadline so 

it coincided with the deadline to appeal the judgment: 

February 10, 2020.

DOL subsequently informed Synopsys that it had 

decided not to appeal. Two days later, on January 30, 2020, 

Synopsys took three litigation steps. First, it moved to 
10 EVANS V. SYNOPSYS

intervene in the FOIA action, explaining that it sought 

intervenor status to assert a reverse-FOIA crossclaim against 

DOL and to appeal the judgment if it did not prevail on that 

crossclaim.2

 Second, Synopsys filed an emergency motion 

in the district court to stay the release of the EEO-1 reports. 

Third, Synopsys filed a new action with a reverse-FOIA 

claim substantively identical to the crossclaim it was 

attempting to bring against DOL in the FOIA action. CIR 

and DOL opposed Synopsys’s motion to intervene.

On February 4, 2020—six days before the deadline to 

appeal the judgment—the district court granted Synopsys’s 

emergency motion for a stay. The court wrote: “This stay 

prevents the disclosure of the EEO-1 [reports] that was 

scheduled to occur on February 10, 2020, and preserves 

Synopsys’s time to appeal the [summary judgment] order 

should the motion to intervene be ultimately granted in 

whole or in part.”3 The February 10 appeal deadline then 

passed without Synopsys or anyone else filing a notice of 

appeal.

Briefing on the motion to intervene was completed in 

early March of 2020. About a month later, DOL filed a 

motion for leave to file a supplemental brief, in which it 

reasoned that Synopsys’s time to appeal that judgment had 

expired, and Synopsys had also missed the deadline to move 

to extend its time to appeal. CIR later joined that argument. 

2 A reverse-FOIA claim asserts under the Administrative Procedure 

Act that an agency’s disclosure of records would be “not in accordance 

with law.” 5 U.S.C. § 706(2)(A).

3 The district court later clarified that its stay applied only to 

Synopsys’s EEO-1 report. DOL disclosed the other nine companies’ 

reports, and Synopsys’s report became the only EEO-1 report within 

DOL’s possession that CIR had requested and still not received.
EVANS V. SYNOPSYS 11

Synopsys opposed, arguing that because it had not yet been 

granted party status, it did not have an appeal deadline and 

could not have sought an extension of its time to appeal. The 

district court denied DOL’s motion to file the supplemental 

brief and did not opine on the merits of DOL’s argument, 

writing that “the issue regarding the timeliness of an appeal 

is typically adjudicated by the Court of Appeals.”

In July 2020, the district court ruled on Synopsys’s 

motion to intervene. The court denied the motion as 

untimely to the extent intervention was sought to assert a 

crossclaim. The court did, however, grant Synopsys 

intervenor status for the limited purpose of appealing the 

judgment. The court further stated: “The stay in this case 

shall be lifted in 7 days, after which Synopsys shall have 

6 days to timely file a notice of appeal.”

Two days later, on July 22, 2020, Synopsys filed a notice 

of appeal of the judgment. CIR and DOL then each filed a 

timely notice of cross-appeal, challenging the order granting 

Synopsys intervention to appeal the judgment. The court 

entered an order, pursuant to a stipulation by the parties, 

keeping the stay in place pending the appeals.

II.

We must determine whether Synopsys’s appeal of the 

judgment is timely. The district court granted CIR’s motion 

for summary judgment on December 10, 2019 and entered 

judgment the same day. The deadline for a party to file a 

notice of appeal was February 10, 2020. See 28 U.S.C. 

§ 2107(b); Fed. R. App. P. 26(a)(1)(C). Synopsys filed a 

notice of appeal on July 22, 2020. Synopsys nonetheless 

urges us to hold that its appeal is timely. It argues primarily 

that the time to appeal prescribed by § 2107(b) applies only 

to parties and not to prospective intervenors. Synopsys also 
12 EVANS V. SYNOPSYS

advances two alternative arguments: first, that the district 

court acted within its authority to extend Synopsys’s time to 

appeal by construing its motion to intervene or its motion for 

an emergency stay as a motion to extend its time to appeal, 

and second, that Synopsys’s motion to intervene was itself a 

timely notice of appeal. We reject all these arguments and 

accordingly dismiss this appeal as untimely.

A.

The Supreme Court has held that “an appeal filing 

deadline prescribed by statute will be regarded as 

‘jurisdictional,’ meaning that late filing of the appeal notice 

necessitates dismissal of the appeal.” Hamer v. 

Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16 (2017); 

see also Bowles v. Russell, 551 U.S. 205, 210 (2007) (“[T]he 

courts of appeals routinely and uniformly dismiss untimely 

appeals for lack of jurisdiction.”). As relevant here, 

Congress has prescribed:

Except as otherwise provided in this section, 

no appeal shall bring any judgment, order or 

decree in an action, suit or proceeding of a 

civil nature before a court of appeals for 

review unless notice of appeal is filed, within 

thirty days after the entry of such judgment, 

order or decree.

28 U.S.C. § 2107(a); see also Fed. R. App. P. 4(a)(1)(A) 

(implementing § 2107(a)). Subsection (b) of § 2107 further 

provides that “the time as to all parties shall be 60 days from 

such entry” if one of the parties is the United States, a federal 

agency, or (under certain circumstances) a current or former 

federal employee. 28 U.S.C. § 2107(b); see also Fed. R. 

App. P. 4(a)(1)(B) (implementing § 2107(b)). Because 

DOL, a federal agency, is a party in this case, that subsection 
EVANS V. SYNOPSYS 13

applied, and the deadline to appeal the judgment was 

February 10, 2020.4

Synopsys argues that it was not bound by that deadline 

and that its notice of appeal, filed more than five months 

later, was timely. Synopsys argues that the time to file a 

notice of appeal provided in § 2107(b) applies only to parties 

and not to prospective intervenors. It is “well settled,” as 

Synopsys points out, “that only parties to a lawsuit, or those 

that properly become parties, may appeal an adverse 

judgment.” United States ex rel. Alexander Volkhoff, LLC v. 

Janssen Pharmaceutica N.V., 945 F.3d 1237, 1241 (9th Cir. 

2020) (quoting Marino v. Ortiz, 484 U.S. 301, 304 (1988) 

(per curiam)). Synopsys argues that its time to file a notice 

of appeal of the judgment could not have expired before the 

district court granted its motion to intervene to appeal in July 

2020.

We disagree. Although generally only parties may 

appeal an adverse judgment, it does not follow that the 

deadline to file a notice of appeal for prospective intervenors 

is different from the deadline for parties. Indeed, the text of 

§ 2107 forecloses Synopsys’s argument to that effect. The 

first subsection of that statute contains no references to 

“parties” and states unequivocally that “no appeal shall 

bring any judgment, order or decree . . . before a court of 

appeals for review unless notice of appeal is filed, within 

thirty days after the entry of such judgment, order or decree.” 

28 U.S.C. § 2107(a) (emphasis added); see also Fed. R. App. 

P. 4(a)(1)(A) (containing no reference to parties and 

providing that “the notice of appeal required by Rule 3 must 

4 Judgment was entered on December 10, 2019. Sixty days later was 

February 8, 2020. Because that date fell on a Saturday, by rule, the 

deadline was automatically extended to the end of the next business day: 

Monday, February 10, 2020. See Fed. R. App. P. 26(a)(1)(C).
14 EVANS V. SYNOPSYS

be filed with the district clerk within 30 days after entry of 

the judgment or order appealed from”). By the clear terms 

of § 2107(a), an appellate court cannot hear a civil appeal if 

a notice of appeal was not filed within the prescribed time—

regardless of whether the litigant that failed to file that notice 

of appeal was a party or a prospective intervenor. And the 

statute unambiguously states that the time for filing a notice 

of appeal runs from “the entry of such judgment, order or 

decree” being appealed. That the district court did not rule 

on Synopsys’s motion to intervene until July 2020 does not 

change that the judgment Synopsys sought to appeal was 

entered on December 10, 2019. That date of entry triggered 

the running of the period to file a notice of appeal—for 

everyone.

To be sure, subsection (b), which applied in this case, 

does refer to “parties,” providing that “the time as to all 

parties shall be 60 days from such entry if one of the parties 

is [the United States or a federal agency].” 28 U.S.C. 

§ 2107(b) (emphasis added); see also Fed. R. App. P. 

4(a)(1)(B) (“The 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 or a federal 

agency].” (emphasis added)). But “the words of a statute 

must be read in their context and with a view to their place 

in the overall statutory scheme.” Home Depot U.S.A., Inc. 

v. Jackson, 139 S. Ct. 1743, 1748 (2019) (quoting Davis v. 

Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)). When 

subsection (b) is read in the context of the statute as a whole, 

it is clear that the effect of that subsection is simply to change 

the deadline from thirty days to sixty days if the federal 

government is a party in the case. Even though the thirtyday deadline provided in subsection (a) does not apply in 

such cases, the rest of subsection (a) is still operative.
EVANS V. SYNOPSYS 15

Synopsys’s position seems to be that the clock on its time 

to appeal—whether thirty days or sixty days—did not start 

running until the district court had formally made Synopsys 

a party by granting in part its motion to intervene. But that 

reading of the statute contravenes the plain language 

specifying that the deadline, whether prescribed by 

subsection (a) or subsection (b), runs from the date of entry 

of the judgment. Indeed, even if Synopsys were correct that 

subsection (b) binds only “parties” and not prospective 

intervenors, the most logical consequence of that position 

would be that a prospective intervenor like Synopsys would 

remain bound by the original thirty-day deadline in 

subsection (a)—not that Synopsys’s obligation to provide 

notice of appeal would become completely untethered from 

the date of the judgment’s entry. Our interpretation of 

§ 2107 is that subsection (a) provides the rule for filing a 

notice of appeal and a default deadline of thirty days, while 

subsection (b) changes the deadline from thirty days to sixty 

days if the federal government is a party. We are not aware 

of any court that has held that § 2107 does not apply to 

prospective intervenors,5 and we decline Synopsys’s 

invitation to be the first.

We hold, therefore, that all litigants in a given case face 

the same jurisdictional deadline to file a notice of appeal 

5 Synopsys cites United Airlines, Inc. v. McDonald, 432 U.S. 385 

(1977), but that case does not support Synopsys’s interpretation of the 

statute. The Court in United Airlines held that “[p]ost-judgment 

intervention for the purpose of appeal has been found to be timely . . .

[i]nsofar as the motions to intervene in these cases were made within the 

applicable time for filing an appeal.” Id. at 395 n.16. The Court’s 

decision addressed whether a litigant’s motion to intervene was timely, 

not whether a litigant’s notice of appeal was timely. The Court did not 

consider whether a prospective intervenor’s deadline to appeal was 

different from any other party’s deadline to appeal.
16 EVANS V. SYNOPSYS

under § 2107.6 That deadline runs from “the entry of [the] 

judgment, order or decree” being appealed. 28 U.S.C. 

§ 2107(a). For Synopsys’s appeal of the judgment to be 

timely, Synopsys must have either extended its time to file a 

notice of appeal or filed a notice of appeal by the statutory 

deadline of February 10, 2020. We next consider whether 

Synopsys did either of those things.

B.

Even though Synopsys filed a notice of appeal more than 

five months after the statutory deadline, Synopsys offers two 

alternative arguments why its appeal is nonetheless timely. 

First, Synopsys argues that the district court properly 

6 Synopsys argues that a passage from a concurring opinion in 

Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002 

(2022), supports treating its notice of appeal as timely. Justice Thomas 

wrote in that concurrence that “[a]s a nonparty, the [Kentucky] attorney 

general could not notice an appeal under Rules 3 and 4,” and therefore, 

“could not possibly have been obligated to do so, rather than pursue 

intervention.” Id. at 1015 (Thomas, J., concurring). For two reasons, 

that passage is not relevant here. First, as discussed above, the fact that 

only parties may generally pursue an appeal under Rules 3 and 4 does 

not mean that a potential intervenor’s deadline for filing a notice of 

appeal is different from that of existing parties. Second, the phrase 

“pursu[ing] intervention” in Justice Thomas’s concurrence refers to the 

Kentucky attorney general’s motion to intervene filed in the court of 

appeals after another party had already filed a timely notice of appeal. 

In EMW, the Supreme Court considered whether the Kentucky attorney 

general’s motion to intervene filed in the Sixth Circuit was 

jurisdictionally barred because it came after the time allowed for filing a 

notice of appeal of the district court’s decision (in fact, it came after the 

Sixth Circuit had issued its opinion on the merits). Id. at 1008–09 

(majority opinion). The Supreme Court’s holding that the Sixth Circuit 

had jurisdiction to rule on that intervention motion, id. at 1009, has no 

bearing on whether Synopsys’s notice of appeal of the district court’s 

judgment was timely.
EVANS V. SYNOPSYS 17

extended Synopsys’s time to appeal.7 Second, Synopsys 

argues that its motion to intervene should be construed as a 

timely notice of appeal. We reject both arguments.

1.

The district court twice stated that Synopsys’s time to 

appeal was being preserved. On February 4, 2020, after 

Synopsys filed its motion to intervene, but before the 

statutory deadline to appeal the judgment had passed, the 

district court entered a stay. In that order, the district court 

wrote that the stay “preserve[d] Synopsys’s time to appeal 

the [summary judgment] order should the motion to 

intervene be ultimately granted in whole or in part.” On July 

20, 2020, when the district court granted Synopsys 

intervention to appeal the judgment, the court said that “[t]he 

stay in this case shall be lifted in 7 days, after which 

Synopsys shall have 6 days to timely file a notice of appeal.” 

The parties dispute whether those statements by the district 

court had any effect on Synopsys’s deadline to file a notice 

of appeal.

Section 2107 and Rule 4—the appellate rule that 

implements that statute—provide a mechanism to extend the 

time to file a notice of appeal. The statute says that “[t]he 

district court may, upon motion filed not later than 30 days 

after the expiration of the time otherwise set for bringing 

appeal, extend the time for appeal upon a showing of 

excusable neglect or good cause.” 28 U.S.C. § 2107(c). The 

implementing rule similarly provides that “[t]he district 

court may extend the time to file a notice of appeal if . . . a 

party so moves no later than 30 days after the time prescribed 

7 Synopsys first made this argument in response to our questions at 

oral argument.
18 EVANS V. SYNOPSYS

by this Rule 4(a) expires[] and . . . that party shows 

excusable neglect or good cause.” Fed. R. App. P. 

4(a)(5)(A). The appellate rules make clear that Rule 4 

provides the only mechanism by which a litigant may request 

and a court may grant an extension of time to file a notice of 

appeal. Fed. R. App. P. 26(b) (“[T]he court may not extend 

the time to file . . . a notice of appeal (except as authorized 

in Rule 4).”).8 We have held that a litigant that seeks to avail 

itself of the rule must “explicitly request an extension of 

time” and that “a formal motion for extension [is] required 

by rule 4(a)(5).” Malone v. Avenenti, 850 F.2d 569, 572–73 

(9th Cir. 1988). Here, because the deadline to appeal the 

judgment was February 10, 2020, Synopsys needed to seek 

an extension under Rule 4(a)(5) by March 11, 2020.

Synopsys never filed a formal motion requesting an 

extension of time to appeal. Nonetheless, the district court 

stated that Synopsys’s time to appeal the judgment would be 

preserved if Synopsys’s motion to intervene were granted. 

DOL and CIR argued in the district court and reiterate on 

appeal that the district court lacked authority to extend the 

deadline absent a motion from Synopsys that complied with 

Rule 4(a)(5). We must first decide whether the extension 

mechanism of Rule 4(a)(5) is even available to a prospective 

intervenor who has not yet been granted party status. If it is, 

we must decide whether the district court’s statements that 

Synopsys’s time to appeal would be preserved were effective 

despite DOL and CIR’s objection that Synopsys had not 

complied with Rule 4(a)(5)’s requirements for a motion to 

extend time.

8 Rule 4(a)(6) implements a different provision of § 2107(c) and 

provides a mechanism for re-opening the time to file an appeal. That 

rule is inapplicable in this case, and no party has argued otherwise.
EVANS V. SYNOPSYS 19

a.

DOL and CIR contend that, notwithstanding Rule 

4(a)(5)’s use of the word “party,” Synopsys could have and 

should have sought an extension of its time to appeal once it 

realized the district court would not resolve its motion to 

intervene before the deadline to file a notice of appeal.

Although we have never addressed whether a 

prospective intervenor may file a motion for an extension of 

time under Rule 4(a)(5), other circuits have allowed it. The 

Seventh Circuit has expressly held that a prospective 

intervenor may “secure an extension of the appeal deadline” 

under Rule 4(a)(5). CE Design, Ltd. v. Cy’s Crab House N., 

Inc., 731 F.3d 725, 728–29 (7th Cir. 2013). The Fifth Circuit 

has entertained an appeal after explicitly noting that a 

prospective intervenor sought and secured an extension of 

time to file a notice of appeal. Thurman v. FDIC, 889 F.2d 

1441, 1448 (5th Cir. 1989) (holding that “the extension of 

time [secured under Rule 4(a)(5)] was sufficient to preserve 

[a prospective intervenor’s] right to appeal”).

We agree with those circuits and hold that a prospective 

intervenor may file a motion to extend its time to appeal 

under Rule 4(a)(5). The word “party” does not appear in the 

operative language of § 2107(c), which Rule 4(a)(5) 

implements. Compare 28 U.S.C. § 2107(c) (“The district 

court may, upon motion filed[,] . . . extend the time for 

appeal.”), with Fed. R. App. P. 4(a)(5)(A) (“The district 

court may extend the time to file a notice of appeal if . . . a 

party so moves.”). The statute therefore does not impose a 

jurisdictional bar to hearing an appeal that comes to us after 

a prospective intervenor has secured an extension under 

§ 2107(c) and Rule 4(a)(5). See Hamer, 138 S. Ct. at 16 

(noting that appeal filing requirements will be regarded as 

“jurisdictional” only if they are “prescribed by statute”). 
20 EVANS V. SYNOPSYS

And, in fact, we have already held that a prospective 

intervenor whose motion to intervene has been denied can 

file a notice of appeal of that denial pursuant to Rule 4(a)(1). 

See, e.g., Citizens for Balanced Use v. Mont. Wilderness 

Ass’n, 647 F.3d 893, 896 (9th Cir. 2011). The word “party” 

as used in Rule 4(a) therefore must be broad enough to 

encapsulate, at least in some circumstances, individuals and 

entities who are seeking to intervene to become parties. See

Thurman, 889 F.2d at 1448 (rejecting as “meritless” the 

contention that “an intervenor whose motion to intervene is 

denied is not a ‘party’ under [Rule] 4(a)(4)”). We see no 

reason why “party” in Rule 4(a)(5) should be interpreted to 

exclude prospective intervenors who are seeking to become 

parties.9

In any event, a prospective intervenor, in almost every 

circumstance, will have attained party status by the time the 

motion to extend time is granted. Rule 4(a)(5) states that a 

“district court may extend the time to file a notice of appeal 

if . . . a party so moves no later than 30 days after [the 

deadline to file a notice of appeal] expires.” Fed. R. App. P. 

4(a)(5)(A). The rule further provides that “[n]o extension 

. . . may exceed 30 days after the prescribed time or 14 days 

after the date when the order granting the motion is entered, 

whichever is later.” Fed. R. App. P. 4(a)(5)(C). Thus, the 

rule prescribes a deadline by which a party must move for an 

extension, as well as a limit on how much a district court 

may extend the deadline if it grants the motion. But the rule 

9 Interpreting “party” in Rule 4(a)(5) to include prospective 

intervenors is consistent with our interpretation of subsections (a) and 

(b) of § 2107, as well as Rule 4(a)(1)(A) and Rule 4(a)(1)(B), discussed 

in section II.A. Because prospective intervenors seeking to appeal a 

judgment face the same appellate deadline as parties, it makes sense that 

prospective intervenors, like parties, should be able to extend that 

deadline for good cause.
EVANS V. SYNOPSYS 21

does not set any deadline by which a district court must 

decide that motion. Therefore, it makes sense for a district 

court, needing time to decide a motion to intervene, to leave 

unresolved any motion to extend time filed by a prospective 

intervenor until the court is ready to rule on intervention. 

Otherwise, the district court would start the clock on the 

prospective intervenor’s deadline to appeal before the 

prospective intervenor was granted party status—i.e., before 

the prospective intervenor has received permission to appeal 

the judgment at all. If the district court grants the motion to 

intervene and grants the (previously held) motion to extend 

the deadline to appeal, the intervenor will be a party when it 

appeals the merits.10 A timely motion to extend the deadline 

to appeal, therefore, acts as a wedge that keeps the window 

for a prospective intervenor to appeal the merits open so long 

as there remains a possibility that a court might grant the 

prospective intervenor’s extension motion.

We conclude that the mechanism for a district court to 

extend the time to appeal provided in Rule 4(a)(5) is 

available to a prospective intervenor. We next turn to 

whether Synopsys properly invoked Rule 4(a)(5).

b.

Synopsys argues that the district court properly 

construed the motion to intervene or the emergency motion 

for a stay as a motion to extend the time to file a notice of 

10 If the district court denies the motion to intervene and/or the 

motion to extend time, the denial of either or both motions can be 

appealed. See Corrigan v. Bargala, 140 F.3d 815, 817 n.3 (9th Cir. 

1998) (“The grant or denial of an extension of time to appeal is 

appealable pursuant to 28 U.S.C. § 1291.”); Citizens for Balanced Use, 

647 F.3d at 896 (“We have jurisdiction over the denial of a motion to 

intervene as of right as a final appealable order.”).
22 EVANS V. SYNOPSYS

appeal under Rule 4(a)(5). It is not clear whether that was 

the district court’s intent. Regardless, the district court could 

not construe either motion as a motion to extend the time to 

appeal because neither met the requirements of Rule 4(a)(5). 

We have held that Rule 4(a)(5) requires “a formal motion” 

that, among other things, “explicitly request[s] an extension 

of time.” Malone, 850 F.2d at 572. In Malone, a pro se 

prisoner sent a letter to the district court inquiring about the 

availability of an appeal and stating that he had been unable 

to communicate with his lawyer. We held that the district 

court erred in construing that letter as a motion to extend the 

time to appeal because the letter did not comport with Rule 

4(a)(5). Id. at 571–73. We have also held that even a latefiled notice of appeal—a document that unequivocally 

evinces a party’s intent to appeal—cannot be construed as a 

motion to extend the time to appeal. Pettibone v. Cupp, 

666 F.2d 333, 335 (9th Cir. 1981). Synopsys’s motion to 

intervene and emergency motion for a stay contemplated that 

Synopsys would likely wish to appeal if it did not win the 

relief it was seeking in its proposed crossclaim, but neither 

document “explicitly request[ed] an extension of time to 

appeal.” See Malone, 850 F.2d at 572. Synopsys, therefore, 

failed to file a document that complied with the requirements 

of Rule 4(a)(5).

But that does not necessarily mean that the district 

court’s extension of Synopsys’s time to appeal was invalid. 

In Hamer, the Supreme Court distinguished between, on the 

one hand, “an appeal filing deadline prescribed by statute,” 

which “will be regarded as ‘jurisdictional,’” and, on the 

other hand, “a time limit prescribed only in a court-made 

rule,” which is “a mandatory claim-processing rule.” 

Hamer, 138 S. Ct. at 16. The distinction is often important, 

because contravention of a jurisdictional requirement 

“necessitates dismissal of the appeal” whereas “[m]andatory 

claim-processing rules are less stern” and “may be waived 
EVANS V. SYNOPSYS 23

or forfeited.”11 Id. at 16–17; see also Demaree v. Pederson, 

887 F.3d 870, 876 (9th Cir. 2018) (recognizing that Hamer 

rejected the rule that “all timeliness issues in notices of 

appeal are jurisdictional”). We have not previously decided 

whether the rule that a party must make a formal motion 

explicitly requesting an extension of time to appeal is a 

jurisdictional requirement contained in § 2107(c) or a 

mandatory claim-processing rule contained only in Rule 

4(a)(5).

We need not resolve that question because, either way, 

we would conclude that the district court’s statements about 

preserving Synopsys’s time to appeal were ineffective. The 

Supreme Court has instructed that, “[i]f properly invoked, 

mandatory claim-processing rules must be enforced.” 

Hamer, 138 S. Ct. at 17; see also Nutrition Distrib. LLC v. 

IronMag Labs, LLC, 978 F.3d 1068, 1081 n.4 (9th Cir. 2020) 

(holding that “[e]ven if the timeliness issue were not 

jurisdictional,” so long as a party “did not waive or forfeit its 

timeliness objection[, w]e would . . . still be required to treat 

the appeal as untimely”). So long as DOL and CIR have 

properly invoked the argument that Synopsys failed to 

follow the rules for seeking an extension of time to appeal, 

we are obligated to enforce those rules.

Here, DOL and CIR timely raised that the Rule 4(a)(5) 

procedures for extending the deadline to appeal had not been 

followed. Synopsys’s deadline to file a formal motion to 

extend its time to appeal was March 11, 2020. See Fed. R. 

App. P. 4(a)(5)(A). Until then, it was possible Synopsys 

would file a formal motion requesting such an extension. 

11 The Court in Hamer expressly “reserved whether mandatory 

claim-processing rules may be subject to equitable exceptions.” Hamer, 

138 S. Ct. at 18 n.3; see id. at 22. We decline to address that question 

here given that no party has raised the issue.
24 EVANS V. SYNOPSYS

Once the deadline had passed and Synopsys had not done so,

DOL and CIR raised the argument that intervention to appeal 

would be pointless because any notice of appeal would be 

untimely. In support of that argument, DOL explained that 

“Synopsys did not file a motion to extend [the] time period 

under Federal Rule of Appellate Procedure 4(a)(5),” and that 

the deadline to do so had expired on March 11, 2020.

Synopsys argues that DOL and CIR forfeited that 

objection by not making it sooner. We disagree. DOL and 

CIR raised the issue about a month after the March 11 

deadline had passed, and they were not obligated to point out 

before that deadline that Synopsys was at risk of losing its 

ability to appeal the judgment. See Dolan v. United States, 

560 U.S. 605, 610 (2010) (explaining that a litigant forfeits 

the protection of a claim-processing rule’s deadline when it 

fails to “point[] out to the court that another litigant has 

missed such a deadline” (emphasis added)). Indeed, they 

may not have needed to raise the issue in the district court at 

all—as the district court noted in declining to respond to 

DOL and CIR’s Rule 4(a)(5) argument, the timeliness of an 

appeal is typically adjudicated by the appellate court. See 

United States v. Sadler, 480 F.3d 932, 940 (9th Cir. 2007) 

(“We, not the district court, are the ultimate arbiters of 

compliance with the rules governing the appellate 

process.”).12

12 In Hamer, the Supreme Court expressly reserved the question 

“whether respondents’ failure to raise any objection in the District Court 

to the overlong time extension,” in contravention of Rule 4(a)(5)(C), “by 

itself, effected a forfeiture.” 138 S. Ct. at 22. Unlike the respondents in 

Hamer, who did not raise their argument that a claim-processing rule had 

been violated until the court of appeals asked for additional briefing on 

the issue, id. at 18, DOL and CIR undisputedly raised their claim-
EVANS V. SYNOPSYS 25

Moreover, to the extent that Synopsys is arguing that 

DOL and CIR had an obligation to promptly inform the 

district court that it could not construe Synopsys’s motion to 

intervene or motion to stay as a motion to extend its time to 

appeal under Rule 4(a)(5), we disagree. Even assuming the 

district court had misapplied a claim-processing rule, that 

error was not apparent at the time. The district court never 

gave any express indication that it believed Rule 4(a)(5) had 

been invoked. And, indeed, in response to DOL’s April 

2020 filing, which argued that Synopsys had missed its 

deadline to request an extension of its time to appeal, 

Synopsys expressly disavowed that it even could file a 

motion to extend time under Rule 4(a)(5) because it had not 

yet been granted party status. We therefore need not decide 

whether an obvious misapplication of a claim-processing 

rule would trigger an obligation to promptly inform the 

district court of its error.13

Because DOL and CIR adequately invoked the rule that 

a district court may extend a litigant’s time to file a notice of 

processing argument in the district court, and Synopsys argues only that 

they should have made it sooner.

13 To the extent Synopsys is arguing that DOL and CIR’s failure to 

inform the district court that it lacked authority to sua sponte preserve 

Synopsys’s deadline to appeal constituted a forfeiture, that argument also 

fails. If the district court had been acting sua sponte and was not 

construing Synopsys’s motions as a motion to extend time, that would 

have violated a jurisdictional requirement of 28 U.S.C. § 2107(c), which 

provides that a district court can extend a deadline to appeal only “upon 

motion filed.” See United States ex rel. Haight v. Cath. Healthcare W., 

602 F.3d 949, 956 (9th Cir. 2010) (holding that “the requirement that a 

would-be appellant file a timely motion for an extension of time before 

such an extension may be granted” is jurisdictional). DOL and CIR’s 

argument that a district court lacks authority to sua sponte extend an 

appeal deadline cannot be waived or forfeited because it relates to a 

jurisdictional rule.
26 EVANS V. SYNOPSYS

appeal only if that litigant requests an extension in a formal 

motion meeting the requirements of Rule 4(a)(5), we must 

enforce that rule. See Malone, 850 F.2d at 572–73; see also 

Hamer, 138 S. Ct. at 17. Accordingly, the district court’s 

statements that Synopsys’s time to appeal the judgment 

would be preserved had no effect, and Synopsys’s deadline 

to file a notice of appeal remained February 10, 2020.

2.

Synopsys argues in the alternative that its motion to 

intervene and brief in support of that motion—both filed 

eleven days before the deadline to appeal the judgment—

should be construed as a timely notice of appeal. Rule 3 

specifies that a notice of appeal must contain three pieces of 

information: (1) the parties taking the appeal, (2) the order 

or judgment being appealed, and (3) the court to which the 

appeal is taken. Fed. R. App. P. 3(c). We have held that 

“documents which are not denominated notices of appeal 

will be so treated when they serve the essential purpose of 

showing that the party intended to appeal, are served upon 

the other parties to the litigation, and are filed in court within 

the time period otherwise provided by Rule 4(a).” Rabin v. 

Cohen, 570 F.2d 864, 866 (9th Cir. 1978). That is, “[i]f a 

document filed within the time specified by Rule 4 gives the 

notice required by Rule 3, it is effective as a notice of 

appeal.” Smith v. Barry, 502 U.S. 244, 248–49 (1992). But, 

“[a]lthough courts should construe Rule 3 liberally when 

determining whether it has been complied with, 

noncompliance is fatal to an appeal.” Id. at 248; see also id. 

(“Rule 3’s dictates are jurisdictional in nature, and their 

satisfaction is a prerequisite to appellate review.”).

We hold that Synopsys’s motion to intervene cannot be 

construed as a notice of appeal because that motion did not 

satisfy the requirements of Rule 3. Fundamentally, a notice 
EVANS V. SYNOPSYS 27

of appeal must put the parties on notice that an “appeal is 

[being] taken.” Fed. R. App. P. 3(c)(1)(B). Synopsys’s 

motion to intervene did not do so. Synopsys stated in its 

brief in support of its intervention motion that it was seeking 

to file substantive motions that, if successful, would have 

obviated the need for an appeal. Specifically, Synopsys 

stated that, if intervention were granted, it would “assert[] a 

crossclaim against DOL in the nature of a reverse FOIA 

action” and that it “anticipates that the parties will crossmove for summary judgment on the reverse FOIA 

crossclaim . . . and/or [that] Synopsys will seek 

reconsideration of the grant of summary judgment on the 

FOIA claim.” Synopsys went on to say that it “also seeks 

party status in order to appeal, if [the district court’s] 

December 10 ruling stands” (emphasis added). Synopsys’s 

statement that it would seek to appeal the summary judgment 

ruling was conditioned on that ruling surviving the motions 

for post-judgment relief that Synopsys still intended to bring 

in the district court.

Because Synopsys was still actively seeking substantive 

relief from the judgment in the district court, its motion to 

intervene logically could not have been a notice of appeal.14 

The Supreme Court has explained that “[t]he filing of a 

14 The only case Synopsys cites in which a motion to intervene has 

been construed as a notice of appeal, In re Grand Jury Proc. (Malone), 

655 F.2d 882 (8th Cir. 1981), is clearly distinguishable. The intervenor 

in Malone filed his motion to intervene with the court of appeals, in an 

already pending appellate proceeding before the Eighth Circuit. Id. at

883. A different litigant in the case had filed a timely notice of appeal 

of the underlying order in the district court, vesting jurisdiction in the 

appellate court. Id. The court held that the motion to intervene in the 

appeal was the “the functional equivalent of a notice of appeal [and]

would have been timely as such.” Id. at 885. Accordingly, the Eighth 

Circuit allowed the intervention to proceed. The intervenor in that case 

was not actively seeking any relief in the district court.
28 EVANS V. SYNOPSYS

notice of appeal is an event of jurisdictional significance—it 

confers jurisdiction on the court of appeals and divests the 

district court of its control over those aspects of the case 

involved in the appeal.” Griggs v. Provident Consumer 

Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). Synopsys’s 

motion to intervene cannot, as Synopsys contends, be the 

functional equivalent of a notice of appeal, because if it 

were, the district court would have been divested of 

jurisdiction to entertain the crossclaim that Synopsys was, in 

the very same filing, asking the district court to adjudicate.15

C.

For the reasons above, Synopsys did not file a timely 

notice of appeal of the judgment in favor of CIR. We 

therefore lack jurisdiction to hear the merits of that appeal. 

See Hamer, 138 S. Ct. at 16. That determination moots 

15 We have held that when a prospective intervenor’s motion to 

intervene has already been denied but the time to appeal the merits has 

not yet expired, and the “putative intervenor wishes to press an appeal 

on the merits,” it is appropriate for that litigant to “file[] a notice of 

appeal from the order denying their motion to intervene, and a protective 

notice of appeal from the district court’s order on the merits.” Perry v. 

Schwarzenegger, 630 F.3d 898, 902–03 (9th Cir. 2011); see also 

15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 

Federal Practice and Procedure § 3902.1 (2d ed. rev. 2022) (“If final 

judgment is entered with or after the denial of intervention, however, the 

applicant should be permitted to file a protective notice of appeal as to 

the judgment, to become effective if the denial of intervention is 

reversed.”). The filing of a protective notice of appeal under those 

circumstances typically does not present the jurisdictional concerns or 

ambiguity discussed above, because the district court has already ruled 

on (and denied) the prospective intervenor’s motion to intervene. A 

protective notice of appeal ensures that the so-far unsuccessful 

prospective intervenor has filed a timely appeal of the underlying order 

or judgment and allows the court of appeals to reach the merits of the 

appeal if that court reverses the denial of the motion to intervene.
EVANS V. SYNOPSYS 29

DOL’s and CIR’s cross-appeals of the district court’s 

decision to grant Synopsys intervention to appeal the 

judgment. See CE Design, 731 F.3d at 730 (holding that, 

when a court of appeals “lack[s] jurisdiction to review the 

judgment” because there has been no timely appeal of that 

judgment, mootness precludes review of whether 

intervention to appeal should have been permitted).

III.

We dismiss for lack of jurisdiction Synopsys’s untimely 

appeal of the grant of summary judgment in favor of CIR, 

and we dismiss as moot CIR’s and DOL’s cross-appeals.