FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES ex rel. ALEXANDER 

VOLKHOFF, LLC,

Plaintiff-Appellant,

*

v.

JANSSEN PHARMACEUTICA N.V.;

JANSSEN PHARMACEUTICALS, INC.;

JANSSEN RESEARCH AND 

DEVELOPMENT, LLC; JOHNSON &

JOHNSON; ORTHO-MCNEIL,

Defendants-Appellees.

No. 18-55643

D.C. No.

2:16-cv-06997-

RGK-RAO

OPINION

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted November 14, 2019

Pasadena, California

Filed January 2, 2020

* The caption’s reference to Alexander Volkhoff, LLC as “PlaintiffAppellant” reflects the appeal-initiating documents. As we explain 

herein, Alexander Volkhoff, LLC is neither a plaintiff in this action nor 

a proper appellant of the district court order at issue on appeal. 
2 U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA

Before: FERDINAND F. FERNANDEZ, MILAN D. 

SMITH, JR., and ERIC D. MILLER, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY**

Qui Tam / Appellate Jurisdiction

The panel dismissed for lack of jurisdiction Alexander 

Volkhoff, LLC’s appeal from the dismissal of a first 

amended qui tam complaint filed by relator Jane Doe 

pursuant to the False Claims Act and state false claims laws.

The panel held that this court lacks jurisdiction to hear 

nonparty Volkhoff’s appeal, where Volkhoff, which 

substituted itself out when Jane Doe filed the first amended 

complaint, chose not to participate in the district court 

proceedings; and where Volkhoff failed to show that the 

equities favor hearing its appeal.

The panel rejected Volkhoff’s argument that this court 

should infer from the notice of appeal that Jane Doe – a party 

in the district court proceedings – intended to appeal. The 

panel wrote that it is not clear from the notice, as required by 

Fed. R. App. P. 3(c), that Jane Doe intended to appeal. The 

panel rejected the proposition that Volkhoff, an LLC, is 

interchangeable with Jane Doe, a natural person; and wrote 

that the record undermines Volkhoff’s argument that 

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

has been prepared by court staff for the convenience of the reader.
U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA 3

Volkhoff’s failure to name Jane Doe as an appellant was an 

inadvertent omission.

COUNSEL

C. Brooks Cutter (argued) and John R. Parker, Jr., Cutter 

Law P.C., Sacramento, California; Audra Ibarra, Law Office 

of Audra Ibarra, Palo Alto, California; Mychal Wilson, Law 

Offices of Mychal Wilson, Santa Monica, California; for 

Plaintiff-Appellant.

Michael A. Schwartz (argued) and Erin Colleran, Pepper 

Hamilton LLP, Philadelphia, Pennsylvania; Jeffrey M. 

Goldman, Pepper Hamilton LLP, Los Angeles, California; 

for Defendants-Appellees.

OPINION

M. SMITH, Circuit Judge: 

Alexander Volkhoff, LLC (Volkhoff) appeals the district 

court’s dismissal of the qui tam complaint filed by relator 

Jane Doe pursuant to the False Claims Act (FCA), 31 U.S.C. 

§§ 3729–3733, and analogous state false claims laws.1 

However, Volkhoff was not a party to Jane Doe’s complaint. 

Moreover, it is not clear from Volkhoff’s notice of appeal

(Notice), as required by Federal Rule of Appellate Procedure 

1 In a qui tam action brought pursuant to the FCA, a private plaintiff, 

referred to as a “relator,” initiates a suit on behalf of the government for 

alleged fraud. See 31 U.S.C. § 3730; United States ex rel. Eisenstein v. 

City of New York, 556 U.S. 928, 932 (2009). Herein, we use “relator,” 

except where necessary to indicate that the parties used (or did not use) 

the term “plaintiff.” 
4 U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA

3(c), that Jane Doe also sought to take an appeal. Because 

Volkhoff is a nonparty that cannot appeal, and Jane Doe was 

not properly named as an appellant, we dismiss this appeal

for lack of appellate jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

On September 16, 2016, shortly after its incorporation as 

a Delaware limited liability company, Volkhoff filed a qui 

tam complaint (the Original Complaint) in federal district

court. The Original Complaint named Volkhoff as the 

relator and alleged violations of the FCA and various states’ 

false claims laws by Defendants Janssen Pharmaceutica

N.V., Janssen Pharmaceuticals, Inc., Janssen Research & 

Development, LLC, Johnson & Johnson, and Ortho-McNeil 

(Defendants). In particular, the Original Complaint alleged

that Defendants fraudulently and unlawfully marketed their 

medications. Neither the United States nor any state elected 

to intervene, allowing Volkhoff to proceed with the Original 

Complaint.

2

Following Defendants’ motion to dismiss the Original 

Complaint, Volkhoff did not oppose the motion. Instead, 

Volkhoff’s counsel filed a First Amended Complaint (FAC). 

The FAC alleged the same claims as those Volkhoff alleged

in the Original Complaint. The FAC, however, removed 

2 FCA suits are subject to certain procedural requirements, including 

the government’s sole right to intervene, generally within 60 days of the 

suit’s filing. See 31 U.S.C. § 3730; Eisenstein, 556 U.S. at 932. Like 

the FCA, the state false claims laws invoked by the Original Complaint 

provide their respective state governments with an opportunity to 

intervene. See, e.g., Cal. Gov’t Code §§ 12650–12656; Colo. Rev. Stat. 

§§ 25.5-4-303.5–25.5-4-310. Because we dismiss this appeal for lack of 

appellate jurisdiction, we do not reach any other procedural issues 

relating to qui tam suits that are raised on appeal.
U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA 5

Volkhoff as the relator and named Jane Doe, an anonymous 

natural person, as the only relator.

The FAC did not mention Volkhoff or its relationship to 

Jane Doe. In filings before the district court and our court, 

Jane Doe and Volkhoff acknowledge that the replacement of 

Volkhoff by Jane Doe was a tactical decision aimed at 

avoiding the dismissal of the Original Complaint’s FCA 

employment retaliation claim. The change responded to 

Defendants’ first motion to dismiss, which argued that 

Volkhoff, as a limited liability company, lacked standing to 

assert an FCA retaliation claim.

Defendants moved to dismiss Jane Doe’s FAC. The

district court dismissed the FAC on April 19, 2018. In 

relevant part, the district court dismissed Jane Doe’s FCA 

claims for lack of subject matter jurisdiction based on the socalled “first-to-file bar,” which prevents private third parties 

from intervening in or filing similar FCA qui tam lawsuits 

after an initial relator has filed one. See 31 U.S.C. 

3730(b)(5); United States ex rel. Lujan v. Hughes Aircraft 

Co., 243 F.3d 1181, 1187 (9th Cir. 2001). In concluding that 

the first-to-file bar applied, the district court found that Jane 

Doe was not a party to the Original Complaint that Volkhoff 

had filed, and that she and Volkhoff were distinct legal 

persons. The district court dismissed Jane Doe’s FCA 

employment retaliation claim because she failed to 

demonstrate a need for proceeding anonymously. Finally, 

the court declined to exercise supplemental jurisdiction over 

Jane Doe’s remaining state law claims and dismissed those 

claims without prejudice.

Within thirty days of the dismissal, Volkhoff filed the

Notice challenging the district court’s order. Fed. R. App. 

P. 4. The Notice names Volkhoff as the sole relator and 

plaintiff. It does not mention Jane Doe, nor refer to any other 
6 U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA

relator, plaintiff, or appellant. The “Representation 

Statement” filed concurrently with the Notice, and 

subsequent papers filed with this court, designate Volkhoff 

variously as the only relator, plaintiff, or appellant. On 

appeal, Volkhoff contends that Jane Doe is Volkhoff’s sole 

owner.

JURISDICTION AND STANDARD OF REVIEW

Generally, we have jurisdiction over appeals “from all 

final decisions of the district courts of the United States,” 

28 U.S.C. § 1291, such as the district court’s final decision 

dismissing Jane Doe’s FAC.

However, whether a nonparty has the ability to appeal is 

a jurisdictional question, see Cal. Dep’t of Toxic Substances 

Control v. Com. Realty Projects, Inc., 309 F.3d 1113, 1121 

(9th Cir. 2002), and a failure to comply with the filing and 

content requirements of the Federal Rules of Appellate 

Procedure may “present a jurisdictional bar to appeal.” Le 

v. Astrue, 558 F.3d 1019, 1021, 1024 (9th Cir. 2009). As a 

result, our inquiry into whether this appeal is proper is 

jurisdictional. “We have jurisdiction to determine our own 

jurisdiction.” Havensight Capital LLC v. Nike, Inc., 891 F.3d 

1167, 1171 (9th Cir. 2018) (quoting Agonafer v. Sessions, 

859 F.3d 1198, 1202 (9th Cir. 2017)). We review whether 

we have appellate jurisdiction de novo. Le, 558 F.3d at 1021 

(citing Perez-Martin v. Ashcroft, 394 F.3d 752, 756 (9th Cir. 

2005)).

ANALYSIS

Volkhoff argues both that it and Jane Doe appealed the 

district court’s dismissal, and that, under either 

circumstance, the appeal is proper. However, Volkhoff and 

Jane Doe each face distinct jurisdictional problems that 
U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA 7

foreclose this appeal. First, Volkhoff’s appeal violates the 

general rule that only parties to a lawsuit may appeal it. 

Second, because Volkhoff’s Notice does not name Jane Doe 

or otherwise refer to her, Jane Doe’s purported appeal does 

not conform to Federal Rule of Appellate Procedure 3(c). 

We discuss each jurisdictional defect in turn.

I. Volkhoff’s Nonparty Appeal

Volkhoff claims that it may appeal the dismissal of Jane 

Doe’s FAC even though it was not a party to her lawsuit. 

“The rule that only parties to a lawsuit, or those that properly 

become parties, may appeal an adverse judgment, is well 

settled.” Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per 

curiam) (citing United States ex rel. Louisiana v. Jack, 

244 U.S. 397, 402 (1917); Fed. R. App. P. 3(c)). This rule 

echoes the requirements of standing. See Raley v. Hyundai 

Motor Co., Ltd., 642 F.3d 1271, 1274 (10th Cir. 2011) 

(“After all, it is usually only parties who are sufficiently 

aggrieved by a district court’s decision that they possess 

Article III and prudential standing to be able to pursue an 

appeal of it.” (emphasis added) (citations omitted)). But 

while the rule is sometimes described as “standing to 

appeal,” it is distinct from the requirements of constitutional 

standing. See United States v. Kovall, 857 F.3d 1060, 1068–

69 (9th Cir. 2017); In re Proceedings Before Fed. Grand 

Jury, 643 F.2d 641, 642–643, 642 n.1 (9th Cir. 1981).

As required by this rule, we hear nonparties’ appeals 

only in “exceptional circumstances.” S. Cal. Edison Co. v. 

Lynch, 307 F.3d 794, 804 (9th Cir. 2002) (quoting Citibank 

Int’l v. Collier-Traino, Inc., 809 F.2d 1438, 1441 (9th Cir. 

1987)). “We have allowed such an appeal only when (1) the 

appellant, though not a party, participated in the district court 

proceedings, and (2) the equities of the case weigh in favor 

of hearing the appeal.” Hilao v. Estate of Marcos, 393 F.3d 
8 U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA

987, 992 (9th Cir. 2004) (citation and internal quotation 

marks omitted); see also United States v. Badger, 930 F.2d 

754, 756 (9th Cir. 1991).

The cases in which we have applied this test illustrate the 

level and nature of participation in the district court 

proceedings that is required for a nonparty to be permitted to 

appeal. We have allowed nonparties to appeal when they 

were significantly involved in the district court 

proceedings—often because they were compelled to 

participate by one of the parties or the court. Commodity 

Futures Trading Comm’n v. Topworth Int’l, Ltd., 205 F.3d 

1107, 1113–14 (9th Cir. 1999), as amended (9th Cir. 2000)

(nonparty “participated in the proceedings below to the full 

extent possible” and “participated for several years, rather 

than coming in at the end of the proceedings” (citation 

omitted)); Keith v. Volpe, 118 F.3d 1386, 1389–91 (9th Cir. 

1997) (after objecting, nonparty responded to order to show 

cause filed by party, filed memorandum of points and 

authorities at court’s request, and participated in oral 

argument); S.E.C. v. Wencke, 783 F.2d 829, 834–35 (9th Cir. 

1986) (nonparty appeared in the district court to contest the 

same issues it was asserting on appeal, the district court 

accepted nonparty’s briefs, and it allowed him to crossexamine witnesses). This requirement is in accordance with 

the Supreme Court’s admonition in Marino that “the better 

practice is for . . . a nonparty to seek intervention for 

purposes of appeal.” 484 U.S. at 304; see also Fed. R. Civ. 

P. 24.

In contrast, we have denied nonparties the right to appeal 

when they choose not to meaningfully involve themselves in 

the district court proceedings. In Citibank, we dismissed a 

nonparty’s appeal from a judgment when the nonparty “was 

well-apprised of the proceedings” but “chose not to 
U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA 9

intervene, join or make an appearance to contest jurisdiction 

[in district court], even though it had actual knowledge of the 

proceedings and their substance.” 809 F.2d at 1441; see also 

Washoe Tribe v. Greenley, 674 F.2d 816, 818–19 (9th Cir. 

1982) (concluding that nonparty state could not appeal 

where, by deciding not to intervene in the district court, it 

avoided waiving its immunity).

We conclude that Volkhoff’s participation in the district 

court proceedings cannot serve as the basis for a right to 

appeal. Its activity in the case all but ceased with the filing 

of the FAC. The substitution of Jane Doe in place of 

Volkhoff was a strategic choice. See Citibank, 809 F.2d 

at 1441. Although Volkhoff, in what appears to be a 

scrivener’s error, was listed as the only relator in the 

opposition to Defendants’ motion to dismiss the FAC, the 

district court’s order dismissing the FAC explicitly noted 

that Volkhoff had been substituted out of the lawsuit by Jane 

Doe. Moreover, the district court’s application of the firstto-file bar to dismiss the FAC was premised upon on its 

finding that Volkhoff, the initial sole relator, had been 

completely replaced by Jane Doe, the second sole relator. 

Like the nonparty in Citibank, Volkhoff “chose not to 

participate” in the district court proceedings and instead 

substituted itself out when Jane Doe filed the FAC. Id.

We also find that Volkhoff fails to show that the equities 

favor hearing its appeal. The equities will support a 

nonparty’s appeal “when a party has haled the non-party into 

the proceeding against his will, and then has attempted to 

thwart the nonparty’s right to appeal by arguing that he lacks 

standing or when judgment has been entered against the 

nonparty.” Hilao, 393 F.3d at 992 (citations and internal 

quotation marks omitted); see also Commodity Futures 

Trading Comm’n, 205 F.3d at 1114 n.1 (nonparty was 
10 U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA

“brought into the proceedings by the Receiver’s notice 

indicating that [nonparty] would forfeit his right to recover 

anything . . . unless he filed a claim, and by the later schedule 

requiring him to file a written objection or waive it”); Keith, 

118 F.3d at 1391; Badger, 930 F.2d at 756.

Here, Volkhoff was not haled into court by one of the 

parties or the court. Instead, its participation ceased after it 

made the tactical decision to substitute Jane Doe for itself. 

See Washoe, 674 F.2d at 818–819 (concluding that equities 

did not favor appeal of party that avoided appearing in 

district court). Moreover, the district court’s judgment is 

against Jane Doe, not Volkhoff. At most, Volkhoff 

concludes, with little support, that its appeal is not 

inequitable to Defendants, which does not meet its burden as 

a nonparty appellant to demonstrate that the equities are in 

its favor. See S. Cal. Edison Co., 307 F.3d at 804.3

 Thus, 

we conclude that we lack jurisdiction to hear nonparty 

Volkhoff’s appeal of the district court’s dismissal of Jane 

Doe’s FAC.

II. Jane Doe’s Purported Appeal

Alternatively, Volkhoff argues that we should infer from 

the Notice that Jane Doe, a party in the district court 

proceedings, intended to appeal. Federal Rule of Appellate 

3 Volkhoff briefly raises the possibility that Defendants might later 

argue, in a subsequent lawsuit, that the district court’s dismissal of Jane 

Doe’s FAC has a preclusive effect against Volkhoff. The cases that 

Volkhoff relies on to argue that this consideration should affect our 

analysis are inapposite. American Games, Inc. v. Trade Products, Inc.

concerned an intervenor. 142 F.3d 1164, 1166 (9th Cir. 1998). Wencke, 

described above, involved a nonparty that was extensively involved at 

the district court. 783 F.2d 829, 834–835. Furthermore, we do not see 

how the possibility of future legal arguments regarding issue or claim 

preclusion tips the balance of equities in Volkhoff’s favor.
U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA 11

Procedure 3(c) governs the required contents of a notice of 

appeal. Smith v. Barry, 502 U.S. 244, 247–48 (1992). Rule 

3(c) requires that the notice “specify the party or parties 

taking the appeal by naming each one in the caption or body 

of the notice, but an attorney representing more than one 

party may describe those parties with such terms as ‘all 

plaintiffs,’ ‘the defendants,’ ‘the plaintiffs A, B, et al.,’ or 

‘all defendants except X.’” Fed. R. App. P. 3(c)(1)(A).

Rule 3(c), however, instructs us not to dismiss an appeal

“for failure to name a party whose intent to appeal is 

otherwise clear from the notice [of appeal].” Fed. R. App. 

P. 3(c)(4). The Advisory Committee Note to the 1993 

amendment to Rule 3(c) makes clear that its current version 

aims “to prevent the loss of a right to appeal through 

inadvertent omission[s]” of party names on the notice of 

appeal, but also that it still requires that it be “objectively 

clear that a party intended to appeal.”

In interpreting Rule 3(c), the Supreme Court has 

instructed that “[a]lthough courts should construe Rule 3 

liberally when determining whether it has been complied 

with, noncompliance is fatal to an appeal.” Le, 558 F.3d 

at 1022 (quoting Smith, 502 U.S. at 248) (brackets in 

original). In particular, we interpret Rule 3(c)(1)(A)’s 

appellant-naming requirements strictly, following the 

Supreme Court’s decision in Torres v. Oakland Scavenger 

Co., 487 U.S. 312 (1988), superseded by statute as 

recognized in Retail Flooring Dealers of America, Inc. v. 

Beaulieu of America, LLC, 339 F.3d 1146, 1148 (9th Cir. 

2003).

In Torres, the Court dismissed an appeal pursuant to 

Rule 3(c) because the appellant was not named in the notice 

of appeal. Torres, 487 U.S. at 314−18. Although the 1993 

amendments to Rule 3(c) responded to Torres by allowing 
12 U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA

appellants more flexibility in meeting its requirements, 

Retail Flooring, 339 F.3d at 1148, Torres nevertheless 

continues to guide our interpretation of Rule 3(c). Le, 

558 F.3d at 1022 (“[T]he ‘failure to name a party in a notice 

of appeal is more than excusable “informality,”’ but rather 

‘it constitutes a failure of that party to appeal.’” (quoting 

Torres, 487 U.S. at 314)); Argabright v. United States, 

35 F.3d 472, 474 (9th Cir. 1994) (applying Torres to dismiss 

appeals of appellants not named or implicitly indicated 

through the use of “et al.” or “plaintiffs” in the notice of 

appeal), superseded by statute on other grounds as 

recognized in Hinck v. United States, 550 U.S. 501, 504

(2007); see also West v. United States, 853 F.3d 520, 522–

24 (9th Cir. 2017) (contrasting our court’s liberal 

interpretation of Rule 3(c)(1)(B) with the Supreme Court’s 

“narrow application of Rule 3(c)(1)(A)” in Torres (citing Le, 

558 F.3d at 1022)).

We are not alone in relying on Torres to find that the 

failure to name an appellant in a notice of appeal can result 

in dismissal. The Tenth Circuit relied on Torres in 

dismissing an appeal in a case that we find to be on point. In 

Raley, the initial plaintiff, Misty Raley, asked the district

court to substitute her for the entity BancFirst as the sole 

plaintiff in the case. 642 F.3d at 1273–74. The court granted 

the requested substitution. Id. Defendant Hyundai prevailed 

at trial, but the district court’s judgment erroneously 

identified Raley as the losing plaintiff. Id. at 1274. After 

Raley appealed the judgment in her name, the district court 

entered an amended judgment identifying only BancFirst as 

the losing party. Id. Raley filed another notice of appeal, 

again in her name, to appeal the amended judgment. Id.

The Tenth Circuit, quoting Torres for the proposition 

that Rule 3(c) was part of a “jurisdictional threshold” to 
U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA 13

appellate review, dismissed the appeal. 642 F.3d at 1274, 

1276 (quoting 487 U.S. at 315). The Tenth Circuit refused 

to look beyond the notice of appeal to determine whether 

BancFirst intended to appeal. Id. at 1277. Because the 

notice specified only Raley as the appellant and did not “use 

terms that objectively and clearly encompass[ed]” 

BancFirst, the court would not infer that BancFirst intended 

to appeal. Id. Although the court noted the apparent 

harshness of the result, it emphasized that “[t]hroughout 

most of the briefing of [the] appeal it was unclear whether 

BancFirst wanted to pursue an appeal,” creating an unfair 

situation for Hyundai, which “ha[d] to write its briefs and 

prepare its arguments without any way of being sure who 

[was], and who [was] not, seeking to undo its district court 

victory.” Id. at 1278.

The defects in Volkhoff’s Notice are akin to those in 

Raley’s notice of appeal. It is not clear from the Notice that 

Jane Doe intended to appeal the district court’s dismissal. 

As already discussed, the Notice does not mention Jane Doe

or her alleged ownership of Volkhoff, and instead designates 

Volkhoff as the only relator, plaintiff, and appellant.

Perhaps in light of this notable absence, Volkhoff urges 

us to view “Alexander Volkhoff, LLC” and “Jane Doe” as 

interchangeable. We do not accept the proposition that an 

LLC is interchangeable with a natural person. See, e.g., 

6 Del. Code tit. 6, §§ 18-201(b), 18-303(a); In re Carlisle 

Etcetera LLC, 114 A.3d 592, 605 (Del. Ch. 2015) (observing 

that the “core attributes of the LLC” include “its separate 

legal existence . . . and limited liability for its members” 

(citation omitted)). Moreover, the alleged unity of identity 

between Volkhoff and Jane Doe is not clear from the Notice.

Volkhoff also argues that Rule 3(c), as amended in 1993, 

precludes dismissal because the Notice mistakenly named 
14 U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA

Volkhoff as the relator. The record undermines this 

argument. Before the district court, Jane Doe indicated that 

she changed the relator’s name from “Alexander Volkhoff 

LLC” to “Jane Doe” to maintain the FAC’s FCA 

employment retaliation claim, which could only be brought 

by an individual. In its appeal, Volkhoff acknowledges that 

the decision to switch relators in the FAC was tactical. In 

the shadow of this tactical choice, Volkhoff filed the Notice,

which failed to designate Jane Doe as an appellant. That 

omission has been repeated in subsequent filings since the 

Notice. We cannot accept that Volkhoff’s failure to name 

Jane Doe as an appellant was an “inadvertent omission” that 

Rule 3(c) requires us to overlook. Fed. R. App. P. 3(c) 

advisory committee’s note to 1993 amendment.

Finally, Volkhoff relies on Rule 3(c)(4), which instructs 

us not to dismiss an appeal “for failure to name a party whose 

intent to appeal is otherwise clear from the notice.” But Jane 

Doe’s intent to appeal is not clear from the Notice, nor would 

it be any clearer even if we were permitted to look beyond 

the Notice. The lack of identity between Doe and Volkhoff 

was the central merits problem before the district court. The 

fact that Volkhoff is not Doe, and vice versa, is precisely 

why the district court dismissed Doe’s FCA claim in the first 

place—and even before that, why Volkhoff voluntarily 

substituted itself out of the case so that Doe could pursue her 

retaliation claim. Under these circumstances, we cannot find 

that Jane Doe’s intent to appeal was clear when Volkhoff, 

and only Volkhoff, filed a Notice.

The cases on which Volkhoff relies that invoke Rule 

3(c)(4) involve attorneys who mistakenly appealed sanctions 

orders in the names of their parties, when the attorneys 

signed and were otherwise named in the filings. See 

Detabali v. St. Luke’s Hosp., 482 F.3d 1199, 1204 (9th Cir. 
U.S. EX REL. VOLKHOFF V.JANSSEN PHARMACEUTICA 15

2007) (attorney “prepared, signed, and filed Detabali’s 

notice of appeal” challenging sanctions order); Retail 

Flooring, 339 F.3d at 1149 (notice directly challenged 

sanctions against counsel, counsel’s name appeared on the 

notice as the attorney, and counselsigned and filed the notice 

of appeal); Aetna Life Ins. Co. v. Alla Med. Servs., Inc., 

855 F.2d 1470, 1473 (9th Cir. 1988) (attorney listed on 

notice of appeal, where only appealable order was that 

imposing sanctions against attorney). None of the 

considerations that underlie these cases’ applications of Rule 

3(c)(4) applies here. Jane Doe is not serving as Volkhoff’s 

attorney, is not otherwise mentioned on the Notice, and 

Volkhoff is not appealing a sanctions order against Jane Doe 

entered by the district court.

We are mindful of Rule 3(c)’s goal of avoiding 

dismissals of appeals solely due to matters of form. 

However, Volkhoff has failed to establish that Rule 3(c) 

forecloses dismissal of this appeal for lack of jurisdiction. 

Because Volkhoff, a nonparty, and Jane Doe, a purported 

appellant not named in the Notice, both fail to meet the 

requirements of appellate jurisdiction, we DISMISS this 

appeal.

APPEAL DISMISSED.