1

Including but not limited to procedures established in Watson v. Ault, 525 F.2d 886 (5th

Cir. 1976)(supplementingquestionnaire);Spears v. McCotter, 766F.2d 179 (5thCir. 1985)

(informal hearing); Graves v. Hampton, 1 F.3d 315 (5th Cir. 1993).

REVISED

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-30513

SIDNEY MARTS,

Plaintiff-Appellant,

versus

PHILLIP HINES, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

July 18, 1997

Before POLITZ, Chief Judge, WISDOM, KING, GARWOOD, JOLLY, HIGGINBOTHAM,

DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA,

DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

POLITZ, Chief Judge:

We have taken this case en banc to resolve relevant conflicting circuit

precedents, to continue our development of procedures to address and dispose

appropriately of a continually burgeoning prisoner pro se docket, both at the trial

and appellate levels,1and to note an appropriate awareness of the intervening
 

2Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of

1996, Pub.L. No. 104-134, 110 Stat. 1321 (1996).

 

3

68 F.3d 134 (5th Cir. 1995), reh’g en banc granted, 79 F.3d 17 (5th Cir. 1996).

 

4See Ballard v. Wilson, 856 F.2d 1568 (5th Cir. 1988) (citing Deakins v.

Monaghan, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) (when a section

1983 action might have a disruptive effect upon contemporaneous state criminal

proceedings, the federal district court should stay its hand)).

2

Prison Litigation Reform Act of 1995.2

Background

The facts concerning the appeal by Sidney Marts of his 42 U.S.C. § 1983

complaint against an assistant district attorney for Orleans Parish, Louisiana, a

public defender, and a private attorney representing a codefendant in a state court

criminal action, are setforth in the panel opinion.3 Marts’ complaint implicated the

integrity of the state court criminal proceeding, thus requiring the district court to

make a threshold determination whether his action was not frivolous and justified

the retention of federal jurisdiction.4 The trial court dismissed without prejudice

the claim for money damages against the private counsel and public defender

because they were not state actors, and that against the prosecutor on the basis of

absolute immunity. Finding no factual basis for the conspiracy charge it was

dismissed as frivolous, also without prejudice. The panel modified the dismissals

to be with prejudice, except for the conspiracy claim, and affirmed the trial court.

We determined that because of conflicting circuit precedents it was necessary to

revisit this issue en banc.

Analysis
 

5See Fed.R.Civ.P. 41(b) which provides in pertinent part:

Unless the court in its order for dismissal otherwise specifies, a

dismissal under thissubdivision and any dismissal not provided for in

this rule, other than a dismissal for lack of jurisdiction, for improper

venue, or for failure to join a party under Rule 19, operates as an

adjudication upon the merits.

 

6Section 1915(e)(2) now reads:

Notwithstanding any filing fee, or any portion thereof, that may have

been paid, the court shall dismiss the case at any time if the court

determines that

--

(A) the allegation of poverty is untrue; or

(B) the action or appeal --

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted;

or

(iii) seeks monetary relief against a defendant who is

immune from such relief.

3

Once again we consider the application of limited judicial resources to an

ever increasing number of prisoner pro se filings. Our task, simply stated, is to

implement procedures which will aid in the separation of the wheat from the chaff

in such filings as early in the judicial process as is possible, in an effort to ensure

that judicial resources will not be wasted and that the meritorious claims may

receive the timely attention and disposition warranted.

The rule that the in limine dismissals of actions by the district court generally

are to be with prejudice5particularly fits dismissals under the former 28 U.S.C.

§ 1915(d), now a part of 28 U.S.C. § 1915(e)(2).6 Dismissals under the in forma

pauperis statute are in a class of their own, acting not as dismissals on the merits
 

7Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).

 

8

Id. The Supreme Court teaches that the dismissal may have a res judicata

effect on frivolousness determinations for future in forma pauperis petitions.

 

9One example is a claim subject to a peremptory time bar where no amendment

or subsequent paid filing could overcome the fatal defects. Graves.

 

10Id.

 

11

Id. (noting one likely scenario -- an allegation of infringement of a claimed

legal interest which does not exist).

4

but, rather, as denials of in forma pauperis status.7 Typically, but not exclusively,

such dismissals may serve as res judicata for subsequent in forma pauperis filings,

but they effect no prejudice to the subsequent filing of a fee-paid complaint making

the same allegations.8 Exceptions included complaints containing claims which,

on theirface, were subject to an obviousmeritorious defense,9or instancesin which

the plaintiff was given an opportunity to expound on the factual allegations by a

Watson questionnaire or a Spears hearing and could not assert a claim with an

arguable factual basis,10 or claims without an arguable basis in law.11

On en banc reconsideration, considering the distinct features ofsuch in forma

pauperis proceedings, we now hold that dismissals asfrivolous or maliciousshould

be deemed to be dismissals with prejudice unless the district court specifically

dismisses without prejudice. When the trial court dismisses without prejudice it is

expected that the court will assign reasons so that our appellate review of the trial

court’s exercise of discretion may be performed properly. Unexplained dismissals

without prejudice will necessitate a remand.

We reserve for another day and an appropriate appeal the question of the full
5

application of this rule to the expanded bases for denial of in forma pauperis status

specified in the Prison Litigation Reform Act.

In reaching today’s decision we have determined and now hold that in cases

involving dismissals as frivolous or malicious under the in forma pauperis statute,

in which the defendant has not been served and was, therefore, not before the trial

court and is not before the appellate court, the appellate court, notwithstanding, has

the authority to change a district court judgment dismissing the claims without

prejudice to one dismissing with prejudice, even though there is no cross-appeal by

the obviously non-present “appellee.” This limited exception is the product of our

effort to make effective the prudential rule announced herein.

Consistent with today’s holding we must now vacate and remand this action

to the district court for entry of an order of dismissal with prejudice except as

relates to the conspiracy claim and forsuch further proceedings as may be deemed

appropriate.

VACATED and REMANDED.

ENDRECORD 
12 I concur in the balance of the Court’s opinion.

GARWOOD, Circuit Judge, with whom KING, HIGGINBOTHAM, SMITH,

DUHE’ EMILIO M. GARZA, BENAVIDES and DENNIS Circuit Judges, join,

dissenting:

I respectfully dissent from this Court’s sua sponte action, taken where only

the plaintiff has appealed, changing the district court’s judgment of dismissal

without prejudice to one of dismissal with prejudice. I likewise dissent from the

majority’s conclusory announcement that in all pre-service dismissals without

prejudice of in forma pauperis suits where the plaintiff alone appeals, this Court

will determine whether the dismissal could properly have been with, rather than

without, prejudice and will modify the judgment accordingly.12

The Court provides no explanation, justification, or authority for this action,

and does not even tip its hat to the Federal Rules or the relevant jurisprudence. Its

decision hence appears to be more an exercise of will than of judgment.

Some sixty years ago, just before the Federal Rules went into effect, the

Supreme Court had occasion to review a decision of the Eighth Circuit which had

modified in a manner favorable to the appellee a judgment of the district court,

despite the absence of any cross-appeal. The Supreme Court reversed the Eighth

Circuit in a unanimous opinion by Justice Cardozo. Morley Construction Co. v.

Maryland Casualty Co., 57 S.Ct. 325 (1937). The opinion begins by stating the

question before the Supreme Court: “The power of an appellate court to modify a
13 Although Morley was decided before the Federal Rules went

into effect, its applicability under the Federal Rules has never

been questioned. See, e.g., Mass. Mutual Life Ins. Co. v. Ludwig,

96 S.Ct. 2158, 2159 (1976) (reversing Court of appeals because its

decision conflicted with “the ‘inveterate and certain’ rule” of

Morley). See also the following decisions of this Court expressly

relying on Morley in support of holdings that the appellee who did

not cross-appeal could not seek to enlarge his rights under the

judgment appealed or diminish those of his adversary, viz: Matter

of Toyota of Jefferson, 14 F.3d 1088, 1091 n.1 (5th Cir. 1994);

Texas Commerce Bank v. National Royalty Corp., 799 F.2d 1081, 1083

(5th Cir. 1986); United States v. Central Gulf Lines, 699 F.2d 243,

248 (5th Cir. 1983); Alford v. City of Lubbock, 664 F.2d 1263, 1273

(5th Cir.), cert. denied, 102 S.Ct. 2239 (1982); North Texas

Producers Ass’n v. Metzger Dairies, 348 F.2d 189, 197 & n.10 (5th

Cir. 1965); Newport Industries v. Crosby Naval Stores, 139 F.2d

611, 612 (5th Cir. 1944); Arkansas Fuel Oil Co. v. Leisk, 133 F.2d

79, 81 & n.7 (5th Cir. 1943).

The Supreme Court has likewise continued to apply the Morley

principles in refusing to consider a contention of a respondent who

did not cross-petition where if the contention were sustained the

judgment of the court of appeals would be modified in a manner

adverse to the petitioner. See, e.g., Mills v. Electric Auto-Lite

Company, 90 S.Ct. 616, 620 n.4 (1970) (citing Morley). See also

Trans World Airlines v. Thurston, 105 S.Ct. 613, 620 n.14 (1985);

Federal Energy Admin. v. Algonquin SNG, Inc., 96 S.Ct. 2295, 2303

n.11 (1976) (citing Mills); United States v. ITT Continental Baking

Co., 95 S.Ct. 926, 929 n.2 (1975) (citing Morley). Most recently,

in Northwest Airlines, Inc. v. County of Kent, 114 S.Ct. 855, 862

(1994), the Court wrote: “A cross-petition is required, however,

7

decree in equity for the benefit of an appellee in the absence of a cross-appeal is

here to be admeasured.” Id. at 326 (emphasis added). The Court went on to hold

that the appellate court had no such power, stating:

“Without a cross-appeal, an appellee may ‘urge in support of a decree

anymatter 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. American

Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed.

1087 [1924]. What he may not do in the absence of a cross-appeal is

to ‘attack the decree 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.’ Ibid. The rule is inveterate and

certain.” Id. at 327-28.13
when the respondent seeks to alter the judgment below.”

14 It is well-settled that where the plaintiff alone appeals a

dismissal without prejudice, the appellate court may not change the

judgment to one of dismissal with prejudice, as this enlarges the

rights of the defendant-appellee under the judgment, for which a

cross-appeal is required. See, e.g., Transcapital Financial v.

Office of Thrift Supervision, 44 F.3d 1023, 1026 (D.C. Cir. 1995);

Treadway v. Farley, 35 F.3d 288, 296 (7th Cir. 1994); New Castle

County v. Hartford Acc. & Indem. Co., 933 F.2d 1162, 1206 (3d Cir.

1991); Benson v. Armontrout, 767 F.2d 454, 455 (8th Cir. 1985). We

similarly so held in Arvie v. Broussard, 42 F.3d 249 (5th Cir.

1994). In Arvie, we declined to follow earlier decisions in Graves

v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993), and Ali v. Higgs, 892

F.2d 438 (5th Cir. 1990), in which this Court had changed dismissal

without prejudice to with prejudice without even commenting on the

absence of a cross-appeal, much less making any attempt to justify

such unusual action. Cf. Penhurst State School v. Halderman, 104

S.Ct. 900, 918 (1984) (decisions assuming jurisdiction sub silentio

are not binding precedent on that issue).

8

The Supreme Court did not suggest that the Eighth Circuit had abused its

discretion or that the circumstances were not sufficiently exceptional to justify its

action, but rather held that the Eighth Circuit simply did not have the “power” to

do what it did “in the absence of a cross-appeal.”

Yet this Court now, in violation of the “inveterate and certain” rule of

Morley, doesjust what the Supreme Court held the Eighth Circuit lacked the power

to do.14

I.

Over the years, decisions of the courts of appeals have divided on whether

the Morley rule requiring a cross-appeal in order to modify the judgment to enlarge

the appellee’s rights thereunder, or diminish those of the appellant, is a rule

governing the power or jurisdiction of the appellate court or is rather a rule of

practice as to which exceptions may be made on a case by case basis in highly
9

unusual and compelling circumstances. A representative sample of cases from

other circuits holding that the cross-appeal requirement is one governing the power

or jurisdiction of the appellate court includes the following: E.F. Operating Corp.

v. American Buildings, 993 F.2d 1046, 1049 & n.1 (3d Cir.), cert. denied, 114 S.Ct.

193 (1993); Francis v. Clark Equipment Co., 993 F.2d 545, 552-53 (6th Cir. 1993);

New Castle County v. Hartford Acc. & Indem. Co., 933 F.2d 1162, 1206 (3d Cir.

1991); Rollins v. Metropolitan Life Ins. Co., 912 F.2d 911, 917 (7th Cir. 1990);

Young RadiatorCo. v.CelotexCorp., 881 F.2d 1408, 1415-17 (7th Cir. 1989); Broth.

of Maintenance Employees v. St. Johnsburg &Lamoille, 806 F.2d 14, 15-16 (2d Cir.

1986) (at least where no cross-appeal by any party); Benson v. Armontrout, 767 F.2d

454, 455 (8th Cir. 1985); Savage v. Cache Valley Dairy Ass’n, 737 F.2d 887, 888-89

(10th Cir. 1984); Securities and Exchange Commission v. Youmans, 729 F.2d 413,

415 (6th Cir. 1984) (citing Morley); Martin v. Hamil, 608 F.2d 725, 730-31 (7th Cir.

1979) (citing Morley); Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 725-26 (2d Cir.

1978); Gomez v. Wilson, 477 F.2d 411, 414 n.10 (D.C. Cir. 1973); Whitehead v.

American Security and Trust Company, 285 F.2d 282, 285-86 (D.C. Cir. 1960).

Some of the cases from other circuits which treat the absence of a cross-appeal as

rule of practice which can be dispensed with in certain rare circumstances include

the following. United States v. Tabor Court Realty Corp., 943 F.2d 335, 342-45 (3d

Cir. 1991); Spann v. Colonial Village, Inc., 899 F.2d 24, 32-33 (D.C. Cir.), cert.

denied, 111 S.Ct. 508, 509 (1990); Lafaut v. Smith, 834 F.2d 389, 394 n.9 (4th Cir.

1987); Bryant v. Technical Research Company, 654 F.2d 1337, 1341-42 (9th Cir.
10

1981); Hysell v. Iowa Public Service Co., 559 F.2d 468, 476 (8th Cir. 1977). See

also Transcapital Financial v. Office of Thrift Supervision, 44 F.3d 1023, 1026 (D.C.

Cir. 1995) (declining relief to appellee for want of a cross-appeal notice, butstating

“we will not waive this requirement in these circumstances”); Freeman v. B&B

Associates, 790 F.2d 145, 151 (D.C. Cir. 1986) (failure to file notice of cross-appeal

is not jurisdictional, and can be waived “but only in cases involving exceptional

circumstances”; applying rule that where no cross-appeal “‘we may not and should

not consider’” an argument that would enlarge appellee’s rights under judgment).

Still other cases have denied an appellee relief because of the lack of a crossappeal, but have not indicated whether this is on a jurisdictional basis or simply as

a matter of practice. See, e.g., Tredway v. Farley, 35 F.3d 288, 296 (7th Cir. 1994);

Turpen v. City of Corvallis, 26 F.3d 978, 980 (9th Cir.), cert. denied, 115 S.Ct. 426

(1994); U.S. v. Lumbermen’s Mut. Cas. Co., 917 F.2d 654, 662 (1st Cir. 1990).

Likewise in this Court there are decisions viewing the question as one of

power or jurisdiction, and others which treat it as a rule of practice or as at least

subject to exception in particularly unusual circumstances. Among our decisions

treating the lack of a cross-appeal aslimitation on the appellate court’sjurisdiction

or power are the following: Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996)

(“Because Kelly did not file a notice of appeal or cross-appeal, however, we lack

jurisdiction to alter the district court’s judgment in her favor”); Memorial Hosp.

System v. Northbrook Life Ins. Co., 904 F.2d 236, 239 N.2 (5th Cir. 1990) (declining

to consider appellee’s request for relief because they did not cross-appeal and “we
11

have held that ‘the filing of a notice of appeal is a “mandatory precondition” to our

exercise of jurisdiction’”); Ayers v. United States, 750 F.2d 499, 457 (5th Cir. 1985)

(appellee “Ayers’ challenge to the set-off against the damage award clearly

attemptsto enlarge his rights under the district court’s judgment. As such, a crossappeal is necessary to pursue the challenge and Ayers’ failure to file a cross-appeal

pursuant to Fed. R. App. P. 4(a)(3) precludes consideration of his claim”); Shipp v.

General Motors Corp., 750 F.2d 418, 428 (5th Cir. 1985) (declining to consider

appellee Shipp’s request for relief because his notice of cross-appeal was late; “As

the filing of a notice of appeal is a ‘mandatory precondition’ to our exercise of

jurisdiction [citations], we must decline to entertain Shipp’s belated cross-points”);

Alford v. City of Lubbock, 664 F.2d 1263, 1272-73 (5th Cir.), cert. denied, 102 S.Ct.

2239 (1982) (“Appellees contend that the district court erred in denying them

attorney’s fees . . . We cannot consider this contention. Appellees filed no crossappeal . . . In the absence of a cross-appeal, an appellee cannot ‘attack the [district

court’s] decree with a view either to enlarging his own rights thereunder or of

lessening the rights of his adversary,’” quoting Morley at 328); Duriso v. K-Mart,

559 F.2d 1274, 1278 (5th Cir. 1977) (“Our consideration of this issue is precluded

by [appellee] Duriso’s failure to file a timely notice of cross-appeal. Rule 4(a),

F.R.A.P.”); Dupuy v. Dupuy, 551 F.2d 1005, 1026 n.34 (5th Cir. 1977) (refusing to

consider appellee’s claim that erroneous charge entitled it to new trial on liability

as well as damages “[b]ecause the appellee did not cross-appeal” such relief “may

occur only on cross-appeal”); North Texas Producers Ass’n v. Metzger Dairies, Inc.,
12

348 F.2d 189, 197 (5th Cir. 1965) (declining relief on appellee’s contention fee

award below was inadequate because “in the absence of a cross-appeal, this Court

cannot enlarge the rights of the appellee,” citing Morley); Arkansas Fuel Oil Co. v.

Leisk, 133 F.2d 79, 81 & n.7 (5th Cir. 1943) (rehearing granted to eliminate

modification of judgment below which increased award to appellee, because

appellee did not cross-appeal; noting that although on appeal this Court had

jurisdiction to revise the judgment appealed, nevertheless “the jurisdiction thus

conferred must be invoked before it may be exercised” and without a cross-appeal

“appellee may not attempt either to enlarge hisrights under the judgment appealed

from or to lessen the rights of his adversary,” citing Morley). See also Richardson

v. Byrd, 709 F.2d 1016, 1024 (5th Cir. 1983) (“Absent a timely cross-appeal,

[appellee] Gassner’s request for additional relief is not before us”); Likens v.

Jefferson Standard Life Ins. Co., 69 F.2d 98, 99 (5th Cir. 1934) (question of whether

trial court correctly allowed an offset to defendants-appellants “is not before us as

the plaintiff has not [cross] appealed”).

In other cases, though we have not expressly spoken in terms of the appellate

court’s jurisdiction or power we have denied relief to an appellee simply on the

basis that without a cross-appeal an appellee may not seek to enlarge its rights (or

diminish its adversary’s) under the judgment appealed, generally citing Morley,

which, as previously noted, spoke to the “power” of the appellate court. See, e.g.,

Matter of Toyota of Jefferson, Inc., 14 F.3d 1088, 1091 n.1 (5th Cir. 1994) (citing

Morley); Speaks v. Trikora Lloyd P.T., 838 F.2d 1436, 1439 (5th Cir. 1988); Texas
13

Commerce Bank v. Nat. Royalty Corp., 799 F.2d 1081, 1083 (5th Cir. 1986) (citing

Morley); United States v. Central Gulf Lines, Inc., 699 F.2d 243, 248 (5th Cir. 1983)

(citing Morley); United States v. Yorfino, 412 F.2d 329, 330 (5th Cir. 1969) (“In the

absence of a cross-appeal, as was the case, defendants-appellees are without

standing to contest the judgment entered by the district court”); Abel v. Brayton

Flying Service, 248 F.2d 713, 717 & n.11 (5th Cir. 1957); Newport Industries v.

Crosby Naval Stores, 139 F.2d 611, 612 (5th Cir. 1944) (citing Morley). In none of

these cases did we suggest that this was a rule of practice the invocation of which

was discretionary with the appellate court or discuss whether the circumstances

were exceptional or the like. We simply applied a fixed rule, generally relying on

Morley.

On the other hand, there are a few decisions of this Court which have treated

the cross-appeal requirement as a rule of practice subject to exceptions in rare

particular cases. We took that approach in Calhoun County v. Roberts, 137 F.2d

130, 132 (5th Cir. 1943), and again in United States v. Gordon, 406 F.2d 332, 337-

38 n.6 (5th Cir. 1969), and United States v. United States Steel Corporation, 520

F.2d 1043, 1052 (5th Cir. 1975), cert. denied, 97 S.Ct. 61 (1976). So far as I can

determine, we have not since 1975 expressly invoked the rule of practice theory to

modify a district court judgment in a manner favorable to an appellee who has not

filed a cross-appeal. However, in Kicklighter v. Nails by Jannee, 616 F.2d 734, 742-

44 (5th Cir. 1980), we did hold that an appeal by a third party defendant, whose

liability was derivative of the defendant’s, successfully challenging an instruction
15 We stated that “we have held . . . that the third party

defendant . . . has appealed on behalf of defendant,” id. at 743,

and 

“[b]ecause the third-party defendant’s liability is

derivative of defendant’s liability, and because the

reversal of the judgment against the third-party

defendant is based solely on an error in the main case,

i.e., plaintiff’s case against defendant, we hold that

third-party defendant has appealed and asserted this

error not only on its own behalf but also on behalf of

defendant. Thus the third-party defendant’s appeal

operates, in this limited circumstance, as an appeal of

the judgment of defendant as well as the judgment of

third-party defendant.” Id. (footnotes omitted).

We were careful to note the limited nature of our holding,

observing that the D.C. Circuit’s Whitehead case was

distinguishable because “[t]he plaintiff in Whitehead could not be

said to have appealed on behalf of the defendant,” id. at 743; and

we likewise reserved judgment on cases from other circuits which

had allowed a successful appeal by one party to operate in favor of

a nonappealing party whose interests were parallel to, though not

derivative of, those of the appellant. Id. at 743 & n.14.

I note in passing our decision in French v. Estelle, 696 F.2d

318 (5th Cir. 1982), cert. denied, 103 S.Ct. 2108 (1983), in which

we affirmed the district court’s grant of habeas relief, albeit on

a different ground than that relied on by the district court even

though the prisoner had not cross-appealed. Although such an

affirmance may have had adverse collateral consequences to the

state, we noted that despite his failure to cross-appeal “the

petitioner may urge the appellate court to affirm the district

court’s decision on any ground raised below.” Id. at 320.

14

relating to the defendant’s liability, “operates” as an appeal by the defendant,

resulting in a new trial as to both the defendant and third party defendant.15

On one occasion, we opined in dicta that an appellate court does have

authority to grant relief to appellees who have not appealed, but declined to grant

such relief, noting that it is available only in a very limited set of defined

circumstances. In Anthony v. Petroleum Helicopter, 693 F.2d 495, 497-98 (5th Cir.

1982), PHI, owner of a helicopter which crashed, wassued by an injured passenger,
15

who also sued the manufacturer, MBB, the distributor, Boeing, and Texaco; PHI

brought claims for contribution and for loss of the helicopter against MBB and

Boeing; and MBB and Boeing sought contribution against Texaco. The trial court

granted summary judgment exonerating MBB, Boeing, and Texaco from all

liability. The surviving passenger appealed the judgment exonerating MBB,

Boeing, and Texaco, but then settled. PHI appealed the judgment but only insofar

as it exonerated MBB and Boeing. We reversed, holding that summary judgment

for MBB and Boeing was improper, as there were genuine issues of fact. We

refused to consider the request of appellees MBB and Boeing, who had not crossappealed, to also set aside the summary judgment in favor of Texaco, stating

“[since] neither party [MBB and Boeing] filed a protective appeal against Texaco

pursuant to Fed. R. App. P. 4(a)(3), we dismiss the appeal with respect to Texaco.”

Id. at 498. We also observed that “MBB and Boeing do not fall within any of the

exceptional circumstances in which the appellate courts have exercised their

discretionary powers.” Id. We had earlier described these circumstances as

follows:

“Although appellate courts have ‘discretionary power to retain all

parties in the lawsuit [on] remand . . . to insure an equitable resolution

at trial,’ Bryant v. Technical Research Co., 654 F.2d 1337, 1342 (9th

Cir. 1981), this discretion has been exercised only in narrowly defined

situations: when the reversal ‘wipes out all basis for recovery against

the nonappealing, as well as against the appealing defendant,’ Daniels

v. Gilbreath, 668 F.2d 477 (10th Cir. 1982); Kicklighter v. Nails by

Jannee, Inc., 616 F.2d 734, 742-45 (5th Cir. 1980); when the failure to

reverse with respect to the nonappealing party will frustrate the

execution of the judgment in favor of the successful appellant, In re

Barnett, 124 F.2d 105, 1008-12 (2d Cir. 1942); or when the appealed

decision could reasonably be read as not being adverse to the
16

nonappealing party. Bryant, 654 F.2d at 1342-43.” Id. at 497-98.

The last three times we have expressly addressed the “rule of practice”

argument we have declined to either adopt or reject it, but have denied relief to the

appellee due to the failure to cross-appeal. In Robicheaux v. Radcliff Material, Inc.,

697 F.2d 662 (5th Cir. 1983), the defendant appealed an award to the plaintiffsemployees (welders), and, because they had not cross-appealed, we refused to

consider the plaintiffs’ claim that the judgment erroneously failed to include

liquidated damages, quoting the rule as stated in Morley and also citing, inter alia,

Alford and Dupuy. Robicheaux at 668. We noted that “plaintiff welders argue that

this rule is not jurisdictionally mandated and may be judicially waived.” Id.

However, we did not expressly accept or reject this argument, but simply held that

the liquidated damages issue was “not properly before us,” noting that “no more

reason is shown for our exercising any power we might have under Fed. R. App.

P. 2 to suspend the requirement for a timely cross-appeal, Fed. R. App. P. 4(a)(3),

than in other such instances.” Id. In both Stockstill v. Petty Ray Geophysical, 888

F.2d 1493 (5th Cir. 1989), and Crist v. Dickson Welding, Inc., 957 F.2d 1281 (5th

Cir.), cert. denied, 113 S.Ct. 187 (1992), we declined to consider requests for relief

by those who had not cross-appealed. In each case we noted the Anthony dicta

suggesting that “an initial notice of appeal isjurisdictional but a protective or crossappeal is permissive and courts of appeal may retain all parties in order to do

justice.” Stockstill at 1496; Crist at 1289 (same). Each opinion further notes “[t]he

continued viability ofthe principle recognized in Anthony is questionable, however,
17

in view of Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101

L.Ed.2d 285 (1988).” Crist at 1289; Stockstill at 1496 (same). In Stockstill we

quoted from the Seventh Circuit’s thorough discussion of this issue in Young

Radiator Co., which explained that Torres made clear that the requirements of Fed.

R. App. P. 3 and 4 must be satisfied as to each party and that a notice of appeal

which was adequate as to some plaintiffs was nevertheless inadequate to confer

appellate jurisdiction as to a plaintiff unnamed therein. Stockstill at 1496-97.

Stockstill goes on to observe “[u]nder Torres, therefore, it is doubtful we have

jurisdiction to review the district court’s dismissal of BMF.” 888 F.2d at 1497. In

both Crist and Stockstill, we refrained from ultimately resolving this question as we

concluded that even if the Anthony dicta were viable, nevertheless none of the three

narrow circumstances in which Anthony indicated the absence of a cross-appeal

could be dispensed with were present, and so we granted the motions to dismiss

these contentions by the parties who had not filed protective appeals. Crist at 1289-

90; Stockstill at 1497.

For a better understanding of whether the Morley limitations relate to the

power or jurisdiction of the court of appeals or merely state a rule of practice from

which the court can depart in its discretion, some review of the development of the

relevant Federal Rules is helpful. Morley was handed down in early 1937. In

December 1937, the Supreme Court adopted what are now the Federal Rules of

Civil Procedure. Rule 73 governed the mechanics of taking an appeal, including

the form of notice of appeal, but did not initially provide any time limits for
16 This amendment also allowed the district court to extend the

time for an additional thirty days “upon a showing of excusable

neglect based on a failure of a party to learn of the entry of the

judgment.” Id. ¶ 203.24[2].

17 The 1966 amendment also expanded the excusable neglect for

which the district court could extend the appeal period for an

additional thirty days from that based solely on failure to learn

of the entry of the judgment (see note 5 above) to any form of

excusable neglect. Id.

18

appealing, which were covered by statute. In 1946, Rule 73(a) was amended by,

inter alia, prescribing a thirty-day period (sixty days if the United States were a

party) in which an appeal could be taken (this operated to shorten the time allowed,

which had generally been three months). 9 Moore’s Federal Practice (2d ed.), ¶¶

203.22, 203.24[1], [2], 203.25[1].16 In 1966, Rule 73(a) was again amended to

provide, for the first time, an additional period for an appeal taken after an appeal

by another party. Id. ¶ 203.24[2].17 As amended in 1966, and as in effect when

replaced by the new Rules of Appellate Procedure in 1968, the first sentence of

Rule 73(a) provided:

“(a) HOW AND WHEN TAKEN. An appeal permitted by law from

a district court to a court of appeals shall be taken by filing a notice of

appeal with the district court within 30 days from the entry of the

judgment appealed from, except that: (1) in any action in which the

United States or an officer or agency thereof is a party, the notice of

appeal may be filed by any party within 60 days from such entry; (2)

upon a showing of excusable neglect the district court in any action

may extend the time for filing the notice of appeal not exceeding 30

days from the expiration of the original time herein prescribed; (3) if

a timely notice of appeal is filed by a party, any other party may file

a notice of appeal within 14 days of the date on which the first notice

of appeal was filed, or within the time otherwise herein prescribed,

whichever period last expires; (4) an appeal by permission of a court

of appeals obtained under Title 28, U.S.C. § 1292(b) shall be taken in

accordance with the rules of the Court of Appeals.”
19

The firstsentence of the second paragraph of Rule 73(a) provided (as does now the

third sentence of Fed. R. App. P. 3(a)) that “[f]ailure of an appellant to take any

step other than the timely filing of a notice of appeal does not affect the validity of

the appeal, but is ground only for such action as the court of appeals deems

appropriate, which may include dismissal of the appeal.”

When the Rules of Appellate Procedure were adopted, former Rule 73 was

abrogated, and its provisions concerning the time in which a notice of appeal must

be filed were placed in Fed. R. App. P. 4, while those dealing with other aspects of

the notice of appeal, including the necessity for it and its contents, were placed in

Fed. R. App. P. 3. The first three sentences of Rule 3 now provide:

“(a) Filing the Notice of Appeal. An appeal permitted by law

as of right from a district court to a court of appeals must be taken by

filing a notice of appeal with the clerk of the district court within the

time allowed by Rule 4. At the time of filing, the appellant must

furnish the clerk with sufficient copies of the notice of appeal to

enable the clerk to comply promptly with the requirements of

subdivision (d) of this Rule 3. Failure of an appellant to take any step

other than the timely filing of a notice of appeal does not affect the

validity of the appeal, but is ground only for such action as the court

of appeals deems appropriate, which may include dismissal of the

appeal.”

Except for the 1994 addition of the second sentence (and its change of the “shall”

to “must” in the first sentence), this language is unchanged from the originally

promulgated Rule 3. The relevant portions of Fed. R. App. P. 4(a) now provide as

follows:

“(a) Appeal in a Civil Case——

(1) Except as provided in paragraph (a)(4) of this

Rule, in a civil case in which an appeal is permitted by

law as of right from a district court to a court of

appeals the notice of appeal required by Rule 3 must be
20

filed with the clerk of the district court within 30 days

after the date of entry of the judgment or order appealed

from; but if the United States or an officer or agency

thereof is a party, the notice of appeal may be filed by

any party within 60 days after such entry. . . . 

(2) [premature notice of appeal] . . . 

(3) If one party timely files a notice of appeal,

any other party may file a notice of appeal within 14

days after the date when the first notice was filed, or

within the time otherwise prescribed by this Rule 4(a),

whichever period last expires.

(4) If any party files a timely motion of a type

specified immediately below, the time for appeal for all

parties runs from the entry of the order disposing of the

last such motion outstanding. . . .

(5) The district court, upon a showing of excusable

neglect or good cause, may extend the time for filing a

notice of appeal upon motion filed not later than 30 days

after the expiration of the time prescribed by this Rule

4(a). . . . No such extension shall exceed 30 days past

such prescribed time or 10 days from the date of entry of

the order granting the motion, whichever occurs later.

(6) [allowing 14-day reopening of appeal period

where party does not receive notice within 21 days after

entry of judgment, provided motion made within 180 days

of entry or 7 days of notice, whichever first] . . .

(7) [entry of judgment defined] . . .”

As can be seen, current Rule 4(a)(3) is virtually identical to

clause (3) of former Rule 73(a) as amended in 1966. The Committee

Note respecting the 1966 amendment adding clause (3) to Rule 73(a)

explains:

“The exception number (3) in the first sentence

affords additional time for appeal to all parties other

than an initial appellant whenever the first appeal taken

from a judgment is taken within the 14 days preceding

expiration of the time for appeal. . . . The added time

which may be made available by the operation of the

provision is not restricted to cross appeals in the

technical sense, i.e., to appeals by parties made

appellees by the nature of the initial appeal. The
18 Quoted in Moore’s ¶ 203.25[3]. The cases cited in the last

sentence are ones in which the initial appeal was filed on or about

the last day, and the other party’s notice of appeal was

consequently a day or two late, resulting in its dismissal by the

court of appeals.

21

exception permits any party to the action who is entitled

to appeal within the time ordinarily prescribed to appeal

within such added time as the sentence affords. Bertman

v. J.A. Kirch Co., 377 U.S. 995 (1964), Schildhaus v.

Moe, 335 F.2d 529 (2d Cir. 1964) and Whitehead v.

American Security and Trust Co., 285 F.2d 282 (D.C. Cir.

1960) are illustrative of the desirability of a change in

the present rule.”18

As explained in Moore’s, the purpose of the 1966 addition of

clause (3) to the first sentence of former Rule 73(a) was 

“. . . simply to permit each party to a judgment to

decide upon the advisability of an appeal with full

knowledge of the intentions of all other parties with

respect to an appeal. It not infrequently happens that

a party is satisfied with a judgment only if it is to be

the final result; that is, if no other party intends to

appeal from it. Before the addition of [the predecessor

to] Rule 4(a)(3), a party so situated had no certain way

of knowing whether any other party intended to appeal.

All parties were required to appeal within the time

regularly fixed for taking an appeal. A party who

desired to appeal only if some other party took an appeal

either had to forego that desire and file a notice of

appeal, thereby possibly provoking other appeals that

might not have been taken, or keep watch at the clerk’s

office during the final days of the time for appeal in

order to be sure that he would learn of the fact of the

appeal in time to take his own.” Id. ¶ 204.11[1] at 4-18

(footnotes omitted; emphasis added).

By the time that clause (3) was added to the first sentence of

former Rule 73(a), it was already clear that the time limits for

filing a notice of appeal were “mandatory and jurisdictional.”

United States v. Robinson, 80 S.Ct. 282, 288 (1960). This is also

reflected in the provision of the second paragraph of former Rule

73(a) that “failure of an appellant to take any step other than the
19 The quoted provision of the second paragraph of Rule 73(a)

has been contained in Fed. R. App. P. 3(a) since its adoption. The

portion of Rule 6(b) quoted in the text was carried forward as to

notices of appeal in Fed. R. App. P. 26(b) (as to the other filings

it remains in Fed. R. Civ. P. 6(b)) by the provision contained in

Rule 26(b) since its adoption that “the court may not enlarge the

time for filing a notice of appeal.” See 9 Moore’s Federal

Practice ¶¶ 226.01, 226.02. Moreover, Fed. R. App. P. 2 has, since

its original adoption with the other Federal Rules of Appellate

Procedure, provided that “a court of appeals may, except as

otherwise provided in Rule 26(b), suspend the requirements or

provisions of any of these rules in a particular case on

application of a party or on its own motion and may order

proceedings in accordance with its direction.” (Emphasis added).

22

timely filing of a notice of appeal does not affect the validity of

the appeal” (emphasis added), and in the provision of former Rule

6(b) of the Rules of Civil Procedure that courts “may not extend

the time for taking any action under rules 25, 50(b), (d), and (e),

60(b), and 73(a) and (g), except to the extent and under the

conditions stated in them.” 2 Moore’s Federal Practice (2d ed.) ¶

6.01[16].19

As previously observed, these provisions have all been carried

forward into the Federal Rules of Appellate Procedure. The

Committee Note to Rule 3 made at the time the Federal Rules of

Appellate Procedure were adopted states:

“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,

224 (1960), compliance with the provisions of those rules

is of the utmost importance.” 9 Moore’s Federal Practice

(2d ed.) ¶ 203.01[2].

Since then, the Supreme Court has time and again reiterated that

the filing of a timely notice of appeal is “mandatory and
23

jurisdictional.” See, e.g., Torres v. Oakland Scavenger Co., 108

S.Ct. 2405, 2409 (1988) (“. . . a court of appeals . . . may not

waive the jurisdictional requirements of Rules 3 and 4, even for

‘good cause shown’ under Rule 2"); Budinich v. Becton Dickinson And

Co., 108 S.Ct. 1717, 1722 (1988) (“the taking of an appeal within

the prescribed time is mandatory and jurisdictional”); Griggs v.

Provident Consumer Discount Co., 103 S.Ct. 400, 403 (1982) (“It is

well settled that the requirement of a timely notice of appeal is

mandatory and jurisdictional” [internal quotations marks omitted]);

Browder v. Director, 98 S.Ct. 556, 561 (1978) (“‘mandatory and

jurisdictional,’” citing Robinson).

Similarly, it is plain from both the wording and history of

former Rule 73(a)——particularly its first sentence——that the filing

within the time there specified of a notice of appeal by one party

after another party had timely filed a notice of appeal was as much

a necessary precondition to the appellate court’s exercise of

jurisdiction over the former’s appeal as compliance with any of the

other time periods specified in the rule’s first sentence was a

prerequisite to exercise of jurisdiction over the appeals to which

such other periods related. As the Supreme Court observed in

Torres respecting the above quoted Committee Note to Rule 3: “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.” Torres at 2408. Clause (3) of the first sentence of

former Rule 73(a) merely extends the otherwise applicable and
24

jurisdictional thirty-day period provided in the initial clause of

the sentence by up to fourteen days, just as clause (1) employs a

sixty-day period for cases in which the United States is a party.

There is simply nothing in the wording or structure of the first

sentence of former Rule 73(a) to suggest that the time limit of its

clause (3) was any less mandatory and jurisdictional than any of

the other time limits specified in that sentence. Indeed, the

history of the adoption of clause (3) of former Rule 73(a) clearly

reflects that it was intended to allow the fourteen additional days

following timely appeal by another party in order to avoid the

jurisdictional dismissal which otherwise ensued when an appellee

waited to see if another party would appeal, but the other party

did not do so until the last day, so the appellee was only able to

file his notice of cross-appeal after the thirty days had expired.

It might be argued that the “cross-appeal” provision——clause

(3) of the first sentence of former Rule 73(a) and its successor,

Fed. R. App. P. 4(a)(3)——merely affords a “safe harbor,” so that a

party who complies therewith, after another party has timely

appealed, has the right to seek a modification in his favor of the

judgment below without being subject to any “rule of practice”

limitation on that right. Such an argument, however, illogically

treats this “cross-appeal” time limit differently from the other

notice of appeal time limits specified in the same rule. Moreover,

it ignores the provisions of the second paragraph of former Rule

73(a)——now carried forward as the third sentence of Fed. R. App. P.

3(a)——that “failure of an appellant to take any step other than the
25

timely filing of a notice of appeal does not affect the validity of

the appeal” (emphasis added), and it likewise ignores both the

provision of Fed. R. App. P. 26(b)——carrying forward the similar

provision of former Fed. R. Civ. P. 6(b)——that “the court may not

enlarge the time for filing a notice of appeal” and the related

provision of Fed. R. App. P. 2 allowing the courts of appeal to

suspend the requirements of the rules in particular cases “except

as otherwise provided in Rule 26(b).” (Emphasis added). See note

8, supra, and accompanying text. It makes no sense to say that the

cross-appeal requirement is merely a rule of practice which does

not limit the jurisdiction or power of the court of appeals, but

that nevertheless the court of appeals is powerless to extend the

time allowed therefor provided in Rule 4(a)(3) (and its predecessor

former Rule 73(a)) despite being empowered to suspend all the

other time limits provided in the appellate rules.

Finally, Morley stood and stands as a clear statement of the

Supreme Court respecting the appellate court’s lack of “power,” in

the absence of a cross-appeal, to change a trial court judgment so

as to enlarge an appellee’s rights, or diminish those of the

appellant, thereunder.

The inevitable conclusion is that without a timely crossappeal the appellate court lacks jurisdiction or power to modify

the lower court’s judgment adversely to the appellant.

The notion that the requirement of a cross-appeal in order to

modify the judgment in a manner favorable to the appellee is merely

a “rule of practice” which the appellate court may disregard at its
20 Both prongs of the rule were later quoted in Morley and there

described as “inveterate and certain” and as measuring “[t]he power

of an appellate court.”

21 It is to be noted that Calhoun County was decided before any

time limits were contained in former Rule 73(a); also, Calhoun

26

discretion is founded on essentially three propositions. I

consider these seriatim.

First, reliance is placed on Langnes v. Green, 51 S.Ct. 243

(1931), which does indeed contain “rule of practice” language. Id.

at 245-246. However, Langnes cannot sustain the weight thus sought

to be placed on it. In the first place, Langnes predates Morley,

and Morley expressly speaks to the “power” of the appellate court.

The Supreme Court has never retreated from Morley. See note 2,

supra. If Langnes and Morley conflict, the latter clearly

controls. Second, the “rule of practice” language in Langnes is

dicta, as Langnes expressly held that the respondent there, who had

not cross-petitioned, sought “not to overthrow the [court of

appeals] decree, but to sustain it” and hence was within that prong

of the rule of United States v. American Railway Express Co., 44

S.Ct. 560, 564 (1924),20 allowing an appellee who has not crossappealed to “‘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 matters

overlooked or ignored by it.’” Langnes at 246. While we relied on

Langnes in Calhoun County, we recognized that the rule of practice

language in Langnes was only “considered dictum.” Calhoun County,

137 F.2d at 132.21 Even the Langnes dicta stresses the admiralty
County was an admiralty case, decided at a time when admiralty

appeals were governed by separate statutory provisions and review

was de novo. Id. at 132.

22 It is to be doubted that the Langnes dicta is any longer

followed so as to allow a respondent who has not cross-petitioned

for certiorari to seek to modify in his favor the decree of the

court of appeals. See Northwest Airlines, Inc. v. County of Kent,

114 S.Ct. 855, 862 (1994). See also note 2, supra. In Trans World

Airlines, Inc. v. Thornton, 105 S.Ct. 613 (1985), the court of

appeals held that petitioner TWA was liable in damages to the

plaintiffs-respondents for violation of the Age Discrimination in

Employment Act (ADEA); and it also held that the Air Line Pilots

Association (ALPA) had violated the ADEA, but that the plaintiffs

could not recover damages from the ALPA because the ADEA did not

permit monetary recovery from unions. TWA petitioned for

certiorari, but the plaintiffs-respondents did not cross-petition.

The Supreme Court held it “was without jurisdiction” to consider

the correctness of the court of appeals’ ruling as to the ALPA’s

lack of liability for damages, which plaintiffs-respondents (as

well as TWA) urged it to reverse. Id., 105 S.Ct. at 620 n.14. The

Court stated:

“In its petition for a writ of certiorari, TWA

raised the issue of a union’s liability for damages under

the ADEA. Although we granted the petition in full, we

now conclude that the Court is without jurisdiction to

consider this question. TWA was not the proper party to

present this question. The airline cannot assert the

right of others to recover damages against the Union.

Both the individual respondents and the EEOC argue

that the issue of union liability is properly before the

Court. But the respondents failed to file a crosspetition raising this question. A prevailing party may

advance any ground in support of a judgment in his favor.

[citation] An argument that would modify the judgment,

however, cannot be presented unless a cross-petition has

been filed. [citation] In this case, the judgment of

the Court of Appeals would be modified by the arguments

advanced by the EEOC and the individual plaintiffs, as

they are contending that the Union should be liable to

them for monetary damages.” Id. (emphasis added).

So far as the “rule of practice” approach is followed by the

27

nature of the proceedings there in which appellate review was de

novo and under a separate statutory system; moreover, the language

is directed to Supreme Court certiorari review. Id. at 245-246.22
Supreme Court on certiorari, it seems to be only to limit the

rights of a respondent who has not cross-petitioned to seek to

sustain the judgment of the court of appeals on a different basis

than that relied on by the court of appeals. See, e.g., United

States v. ITT Continental Baking Co., 95 S.Ct. 926, 929 n.2 (1975):

“Respondent recognizes that, not having crosspetitioned, it cannot attack the judgment insofar as it

sustained the findings of violations and imposed

penalties for such violations. United States v. American

Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560,

563, 68 L.Ed. 1087 (1924). Cf. Morley Construction Co.

v. Maryland Casualty Co., 300 U.S. 185, 57 S.Ct. 325, 81

L.Ed. 593 (1937). Respondent argues that it may

nevertheless seek to sustain the Court of Appeals’

limitation on the penalties on the theory that no penalty

should have been awarded at all. Ordinarily, however, as

a matter of practice and control of our docket, if not of

our power, we do not entertain a challenge to a decision

on the merits where the only petition for certiorari

presents solely a question as to the remedy granted for

a liability found to exist, even if the respondent is willing to

accept whatever judgment has already been entered against him.”

This contrasts with the absolute duty of the court of appeals

to rule on issues properly presented by appellee and preserved

below which would result in affirmance of the district court’s

judgment, albeit on a different ground and even though no crossappeal has been taken. Mass. Mutual Life Ins. Co. v. Ludwig, 96

S.Ct. 2158, 2159 (1976).

28

The next argument in favor of the “rule of practice” approach

is founded on Fed. R. App. P. 2 (allowing courts of appeals to

suspend the rules in particular cases) and Fed. R. Civ. P. 1 (rules

“shall be construed and administered to secure the just, speedy and

inexpensive determination of every action”). See, e.g., Robicheaux

v. Radcliff Materials, Inc., 697 F.2d at 628 (declining to exercise

“any power we might have under Fed. R. App. P. 2 to suspend the

requirement for a timely cross-appeal, Fed. R. App. P. 4(a)(3)”).

Of course, as previously noted, Fed. R. App. P. 2 is expressly made

subject to Fed. R. App. P. 26(b), which provides that a court of
23 See, e.g., Hysell, 559 F.2d at 476 (“once a timely notice of

appeal has been filed from a judgment it gives us jurisdiction to

review the entire judgment; rules requiring separate appeals by

other parties are rules of practice, which may be waived . . .,”

citing Langnes).

29

appeals “may not enlarge the time for filing a notice of appeal.”

As to Fed. R. Civ. P. 1, the Rules of Civil Procedure have long

been inapplicable to giving notice of appeal, and when they were

applicable former Rule 6(b) prohibited notice of appeal time

enlargements not provided for in former Rule 73(a). See note 8,

supra, and accompanying text. In related contexts, the Supreme

Court has consistently rejected these or similar arguments. See

Torres at 2407-08; Budinich at 1722; Griggs at 403.

The final and most frequently invoked justification for the

“rule of practice” approach to cross-appeals is that the initial

appellant’s notice of appeal gives the court of appeals

jurisdiction over the whole case, so notice of appeal by any other

party is not a necessary precondition to exercise appellate power

or jurisdiction to modify the judgment in a manner adverse to the

appellant.23 However, as pointed out above, this approach ignores

the reason for the 1966 addition of the extra fourteen days for

cross-appeal by clause (3) of former Rule 73(a) and is likewise

inconsistent with the treatment in former Rule 73(a), and now in

Fed. R. App. P. 4(a), of the “cross appeal” time limits in the very

same way as the initial appeal time limits, except for the extra

fourteen days allowed for the “cross-appeal.” Nor does this

approach account for the provision in the second paragraph of
24 I note that there is no basis for concluding that a party who

files a notice of appeal after another party has done so is not an

“appellant.” No distinction is made in Fed. R. App. P. 4(a)(3)——or

in its predecessor former Rule 73(a)(3)——between those parties who

are adverse or potentially adverse to the party first appealing and

those who are not. This is also reflected in the above-cited

Committee Notes to the 1966 amendment to former Rule 73(a), which

state that the new clause (3) “is not restricted to cross appeals

in the technical sense, i.e. to appeals by parties made appellees

by the nature of the initial appeal.” See text accompanying note

7, supra.

30

former Rule 73(a), now in Fed. R. App. P. 3(a), that “failure of an

appellant to take any steps other than the timely filing of a

notice of appeal does not affect the validity of the appeal”

(emphasis added). This provision was plainly as applicable to

appeals under clause (3) of the first sentence of former Rule 73(a)

as to appeals under the other provisions of that sentence, just as

it is now as applicable to Fed. R. App. P. 4(a)(3) as to Fed. R.

App. P. 4(a)(1).24 Further, the rule of practice approach cannot

reasonably account for the provisions of Fed. R. App. P.

26(b)——formerly contained in Fed. R. Civ. P. 6(b)——prohibiting

enlargement of the fourteen-day period specified in Fed. R. App. P.

4(a)(3) (and previously in former Rule 73(a)) or the fact that the

flexibility authorized to the courts of appeal by Fed. R. App. P.

2 is expressly made subject to this restriction.

Finally, the theory that the initial appeal fulfills all

jurisdictional prerequisites so as to empower the appellate court

to dispose of all aspects of the entire case appears to be

necessarily inconsistent with Torres. The Seventh and Third

Circuits have expressly so recognized. See Young Radiator, 881
25 Another panel of the Third Circuit, however, rejected this

reading of Torres. See United States v. Tabor Court Realty Corp.,

943 F.3d 335, 343-344 (3d Cir. 1991). Tabor Court is itself

apparently contrary to the Third Circuit’s New Castle County, 933

F.2d 1162, 1206 (3d Cir. 1991) (“Absent a cross-appeal, however,

the Carrier Appellees may not obtain more extensive relief on

appeal than they received in the district court”; emphasis added).

31

F.2d at 1416; E.F. Operating Corp., 993 F.2d at 1029 & n.1.25 We,

too, have twice recognized the strength of the Young Radiator

analysis of Torres in this connection, although not ultimately

resolving the matter. See Crist at 1289; Stockstill at 1296-97.

In Torres, notice of appeal was timely filed naming as appellants

fifteen of the sixteen plaintiffs, but the name of the sixteenth

plaintiff, Jose Torres, was inadvertently left off the notice of

appeal. The Supreme Court held that because Torres’ name was left

off the notice of appeal, the court of appeals never acquired

jurisdiction on appeal over the case as to Torres. Obviously, had

the notice of appeal of the other plaintiffs——which was indisputably

timely and adequate——sufficed to bring up the whole case or the

entire judgment, then this would not have been so. Torres thus

necessarily rejects the notion that a valid notice of appeal by one

party suffices to vest the court of appeals with jurisdiction over

the entire judgment of the district court, even as to parties not

giving notice of appeal. As the Young Radiator Court stated:

“. . . it could have been argued in Torres that the

notice of appeal naming fifteen of the sixteen plaintiffs

invoked the jurisdiction of the court over the whole

case, so that a separate appeal by the sixteenth

plaintiff would not be jurisdictionally required. Yet

the Court’s holding made clear that the requirements of

Rules 3 and 4 must be satisfied as to each party, and

precludes the argument in this case that Celotex’s
26 There, the plaintiffs Osterneck, stockholders in a

corporation which merged into Barwick Industries, sued defendants

Barwick Industries, its officers, E.T. Barwick, Keller, and Talley,

and its accountants, Ernest & Whinney (E&W), claiming that the

merger was induced by fraud. On January 30, 1985, judgment was

entered on the jury verdict awarding the Osternecks damages against

Barwick Industries, Keller, and Talley, but exonerating E.T.

Barwick and E&W. Within ten days, the Osternecks filed a motion

for prejudgment interest. While this motion was pending, on March

1, 1985, the Osternecks filed a notice of appeal naming all

defendants, and on the same day Talley and Keller filed notices of

appeal. On July 9, 1985, the district court entered an amended

judgment, granting the Osternecks some but not all the prejudgment

interest they had requested (but otherwise not changing the January

30 judgment). Within thirty days thereafter, Keller and Talley

filed notices of appeal, as did the Osternecks on July 31. The

Osternecks’ July 31 notice of appeal named all the defendants

except E&W. Before the court of appeals the Osternecks claimed

that the judgment erroneously exonerated E&W and E.T. Barwick, and

also that the award of prejudgment interest was inadequate; Keller

and Talley argued, inter alia, that the Osternecks’ claims against

them were barred by limitations and that the evidence was

insufficient. The court of appeals held it had jurisdiction over

the July 1985 appeals of Keller and Talley, but found that the

issues raised by those defendants were without substantive merit.

Osterneck v. E.T. Barwick Industries, Inc., 825 F.2d 1521 (11th

Cir. 1987). The court likewise concluded that it had jurisdiction

over the Osternecks’ July 31, 1985, notice of appeal, but that this

notice of appeal did not suffice to bring forward the Osternecks’

claims against E&W, as E&W was not named therein. Id. at 1528-

1529. See, also, e.g., Capitol Parks v. Southeastern Advertising,

30 F.3d 627, 630 (5th Cir. 1994); Pope v. MCI, 937 F.2d 258, 266

(5th Cir. 1991), cert. denied, 112 S.Ct. 1956 (1992). The court of

appeals further held that the Osternecks’ March 1, 1985, notice of

appeal (and that of Keller and Talley filed the same day) was

rendered ineffective by the then provisions of Fed. R. App. P.

4(a)(4) because it was filed while the motion for prejudgment

32

noncompliance with Rule 4(a)(3) can be waived.” Id., 881

F.2d at 1416.

The theory that an initial appeal by one party brings up the entire

judgment so as to render appeals by other parties irrelevant for

purposes of the jurisdiction or power of the court of appeals is

likewise rejected, at least implicitly, by Osterneck v. Ernst &

Whinney, 109 S.Ct. 987 (1989).26
interest, which the court concluded was a Rule 59(e) motion, was

pending. Osterneck, 825 F.2d at 1525-1529. The Osternecks

petitioned for certiorari complaining of the dismissal of their

appeal as to E&W. The Supreme Court granted the writ and affirmed.

It noted that “[t]he Court of Appeals dismissed petitioners’ appeal

as to Ernest & Whinney for lack of jurisdiction.” Osterneck, 108

S.Ct. at 989. It agreed with the court of appeals that the

Osternecks’ motion for prejudgment interest was a Rule 59(e)

motion, and since it was pending when the March 1 notice of appeal

was filed that notice of appeal was nugatory under the then

provisions of Fed. R. App. P. 4(a)(4). Id. at 990-992. The Court

declined to make any equitable exception to this ruling. Id. at

992-93. The Osternecks did not contend in the Supreme Court that

their July 31, 1985, notice of appeal was effective as to E&W. Id.

at 990 n.1. Of course, had the July 1985 notices of appeal by

Keller and Talley——which were properly before the court of

appeals——brought the whole July 9, 1985, judgment into the court of

appeals for jurisdictional purposes, then the court of appeals

would have had jurisdiction over the Osternecks’ complaints of that

judgment’s denial to them of recovery against E&W.

33

In summary, the language and history of Fed. R. App. P. 3,

4(a), and 26 (b), and the Supreme Court’s decisions in Morley and

Torres, compel the conclusion that a court of appeals, despite a

timely and proper appeal from a district court judgment by one

party, lacks power or jurisdiction to modify that judgment so as to

make it either more favorable to another party who has not timely

appealed it or less favorable to the only party who has appealed

it. The majority errs in its implicit holding to the contrary.

II.

Finally, even if we were dealing with a rule of practice which

the Court might waive in a particular case, cf. Fed. R. App. P. 2,

I would still dissent from the majority’s modification of the

judgment, which only the plaintiff has appealed, from one of

dismissal without prejudice to one of dismissal with prejudice, and

from its apparent announcement of a new rule of practice that in
27 Anthony states:

“. . . this discretion has been exercised only in

narrowly defined situations: when the reversal ‘wipes

out all basis for recovery against the nonappealing, as

well as against the appealing defendant” [citations,]

when the failure to reverse with respect to the

nonappealing party will frustrate the execution of the

judgment in favor of the successful appellant,

[citation,] or when the appealed decision could

reasonably be read as not being adverse to the

nonappealing party.” Id. at 497-98.

34

all pre-service dismissals without prejudice of in forma pauperis

suits where only the plaintiff appeals this Court will sua sponte

determine whether the dismissal of any claim could properly have

been with, rather than without, prejudice, and will modify the

judgment accordingly.

Courts that have espoused the rule of practice approach have

almost always emphasized that waiver or excuse of the failure to

file a protective or cross-appeal was available only in most

narrowly defined circumstances. Those circumstances we listed in

Anthony, 693 F.2d at 497-98, and there refused to go beyond them,

as we similarly so refused in Robicheaux, Stockstill, and Crist.

27

Other courts that have assumed arguendo that a rule of practice

“waiver” might theoretically be available in some cases have

refused to invoke it in similar circumstances. See, e.g.,

Lumbermens Mut. Cas. Co., 917 F.2d at 662-663. Where “rule of

practice” waiver of failure to appeal has been invoked it has

almost always been in highly unusual cases involving three or more

parties where the rights of the parties are interdependent and on

the appeal by one party the appellate court changes the judgment in
35

a way that adversely affects the rights of one nonappealing party

as against another or eliminates the basis of the judgment against

a nonappealing party. Thus, 15A Wright, Miller & Cooper, Federal

Practice and Procedure, (2d ed.) § 3904 at 219, states “[t]he cases

that have excused separate appeal requirements virtually all

involved circumstances in which appeals were taken by one or more

defendants or third party defendants, but not by others. The

decision on appeal was inconsistent with the judgment against those

who did not appeal.” See also 9 Moore’s Federal Practice (2d ed.)

¶ 204.11[5] (“In some cases, however, the rights of the parties are

tied together so closely that the court of appeals can render no

judgment that would be just without affecting the rights of the

parties who did not file a notice of appeal.”).

No cases have been found granting a “rule of practice” waiver

of the failure to file a cross-appeal or protective appeal in a

situation, such as the present, where absent such a waiver the only

result would have been a simple affirmance of the judgment below.

The waiver is granted only where on the appeal timely taken the

appellate court properly grants relief to the appellant and

accordingly changes the judgment below in some respect; because of

that appellate change, nonappealing parties are sometimes, in

certain narrow and extreme cases, allowed to request other or

further changes in the judgment below under the “rule of practice”

theory notwithstanding their failure to appeal, because the

appellate change in the judgment affects their rights against some

other nonappealing party or eliminates the basis of the judgment
28 Experience has shown few, if any, occasions where we have

faced appeals by plaintiffs in second suits following our

affirmance of a section 1915(d) dismissal without prejudice of the

first suit on the same claim, particularly not where the initial

dismissal was on grounds which likely would have warranted

dismissal with prejudice; nor is there any reason to believe that

we would not have faced the second appeal had we, on the first

appeal, changed the dismissal to “with prejudice.”

36

against them. The Court’s decision in the instant case represents

a sharp break with this rationale, and in effect simply creates a

wholly new rule of practice.

Moreover, our departure from the “inveterate and certain” rule

of Morley gains us next to nothing in judicial efficiency. Any

gain in judicial efficiency presupposes both that if we had merely

affirmed the dismissal without prejudice the appellant would in

fact have timely filed another suit on the same claim against the

same defendant, and that because we have changed the dismissal so

that it is with prejudice, he will not actually do so. This is a

lot of assuming. But, to promote the efficiency of this Court——and

I believe the district courts generally can pretty well take care

of their own efficiency concerns——we must also further assume that

when the district court disposes of the second suit, which will

again doubtless be by dismissal, the plaintiff will again appeal to

us, but would not have done so had we on the first appeal changed

the district court’s original dismissal to be with prejudice.28 Nor

are these hypothetical efficiency gains without costs (apart from

the systemic costs of casually departing from established legal

rules), for we must now not only determine whether the dismissal

without prejudice violated the appellant’s rights, but we must also
37

sua sponte determine the sometimes rather close question of whether

the dismissal should instead have been made with prejudice. In

this case, for example, we hold that the dismissal should have been

with prejudice as to three of the claims, but was properly without

prejudice as to the fourth.

III.

The plaintiff alone has appealed the judgment dismissing all

his claims without prejudice. Instead of entering the obviously

merited simple affirmance, we have undertaken to change the

judgment to one of dismissal with prejudice as to three of the four

claims. That change exceeds our power and jurisdiction. Even were

we to follow the theory that the failure to take a protective or

cross-appeal may in certain rare instances be waived by a court of

appeals, this simple case——where absent the waiver there would be

only a plain vanilla affirmance——is totally beyond the universe of

cases in which that approach has been followed and is wholly

unsupported by their rationale.

From one point of view, this is certainly a “nothing” case.

But as a court of appeals it is vitally important that we

understand and observe the rules which govern our jurisdiction,

power, and proceedings. We should not so casually depart from such

inveterate and certain rules.