FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL WEST,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA;

JOE GORDWIN, an FBI agent,

Defendants-Appellees.

No. 13-16909

D.C. No.

2:13-cv-00304-GMS

OPINION

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Argued and Submitted January 6, 2016

San Francisco, California

Filed April 3, 2017

Before: Alex Kozinski, Diarmuid F. O’Scannlain

and M. Margaret McKeown,* Circuit Judges.

Opinion by Judge Kozinski;

Partial Concurrence and Partial Dissent by

Judge O’Scannlain

* Following argument in this case, Judge McKeown was drawn to

replace Judge Noonan.
2 WEST V. UNITED STATES

SUMMARY**

Federal Rule of Appellate Procedure 3

The panel reversed the district court’s judgment in a civil

action, which dismissed claims brought by Carl West against

the United States and FBI agent Joe Gordwin based on

misconduct in West’s criminal case.

The panel sua sponte considered whether West’s notice of

appeal (“NOA”) complied with Federal Rule of Appellate

Procedure 3, which lists the requirements for taking an appeal

as of right in federal court. 

Under Fed. R. App. P. 3(c)(1)(A), the NOA must identify

each appellant, but does not mention appellees. The panel

held that failing to name an appellee in an NOA is not a

jurisdictional bar to considering an appeal against that

appellee. The panel concluded that any ambiguity about the

identity of the appellees in West’s NOA did not preclude the

court’s review of West’s claims against FBI Agent Gordwin.

Under Fed. R. App. P. 3(c)(1)(B) the NOA must

“designate the judgment, order, or part thereof being

appealed.” The panel construed the NOA functionally, and

concluded that it sufficiently indicated West’s intent to appeal

the entire district court order and the judgment dismissing the

whole suit.

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

been prepared by court staff for the convenience of the reader.
WEST V. UNITED STATES 3

The panel noted that the district court failed to distinguish

between claims against the United States and claims against

Gordwin when dismissing the case with prejudice. The panel

held that it was clear error for the district court to dismiss the

claims against Gordwin, who was not a party to the case

because he had not been served and the time for service had

not expired.

The panel addressed the merits of West’s other claims in

a concurrently filed memorandum disposition.

Judge O’Scannlain concurred in part and dissented in

part. He concurred in the court’s reversal of the final

judgment in the concurrent memorandum disposition with

regard to West’s claims against the United States, and

dissented from the majority’s holdings with regard to West’s

claims against FBI Agent Gordwin. Because of a serious

jurisdictional defect, Judge O’Scannlain would dismiss the

appeal as to Gordwin rather than reverse and remand and

expose him to further proceedings. Judge O’Scannlain

concludes that the majority erred when it held that West’s

intent to appeal the judgment with respect to Agent Gordwin

could be inferred and that he was not prejudiced. 

COUNSEL

David W. Dow (argued), Phoenix, Arizona, for PlaintiffAppellant.

Peter M. Lantka (argued), Phoenix, Arizona, for DefendantsAppellees.
4 WEST V. UNITED STATES

OPINION

KOZINSKI, Circuit Judge:

We consider whether an appellant’s notice of appeal

satisfied the requirements of Federal Rule of Appellate

Procedure 3.

BACKGROUND

Carl West was convicted of robbery and sentenced to

twenty years in prison because Joe Gordwin, then an FBI

agent, “manufactured and coerced” the testimony of various

witnesses at West’s trial. When Gordwin’s actions were

exposed, West was released and the charges against him were

dropped. This appeal concerns West’s subsequent civil suit

against the United States and Gordwin based on the

misconduct in West’s criminal case.

West alleged thirteen causes of action and requested

punitive damages against both the United States and

Gordwin. The United States filed a motion to dismiss West’s

complaint, addressing onlyWest’s claims “against the United

States,” not those against Gordwin. The government noted

that it “d[id] not represent Defendant Joe Gordwin.” At that

time, West hadn’t served Gordwin with process. In fact, after

the United States filed its motion to dismiss, the district court

granted West an extension of time in which to serve Gordwin

under Federal Rule of Civil Procedure 4.

The district court granted the government’s motion to

dismiss, but it dismissed all of West’s claims, including those
WEST V. UNITED STATES 5

against Gordwin. The district court entered judgment “in

favor of defendants and against plaintiff” the same day. 

Gordwin hadn’t been served yet, and West’s deadline for

service hadn’t passed.

West then filed his notice of appeal (NOA). He included

Gordwin and the United States in the caption and listed the

district court’s order and judgment as the basis of his appeal. 

West didn’t otherwise identify Gordwin or the claims against

him in the NOA. West did say that he was appealing “as to

the Defendant United States of America.” See infra p. 9. In

his opening brief, West argued that certain claims against

both the United States and Gordwin were wrongfully

dismissed.

DISCUSSION

Federal Rule of Appellate Procedure 3 lists the

requirements for taking an appeal as of right in federal court. 

The appealing party must file an NOA within the time set by

Rule 4. Fed. R. App. P. 3(a). The NOA must identify each

appellant, Rule 3(c)(1)(A); “designate the judgment, order, or

part thereof being appealed,” Rule 3(c)(1)(B); and “name the

court to which the appeal is taken,” Rule 3(c)(1)(C). These

requirements are jurisdictional, see Torres v. Oakland

Scavenger Co., 487 U.S. 312, 317 (1988), but the Rule

cautions against their formalistic application: “An appeal

must not be dismissed for informality of form or title of the

notice of appeal, or for failure to name a party whose intent

to appeal is otherwise clear from the notice.” Fed. R. App. P.

3(c)(4).
6 WEST V. UNITED STATES

While no party has raised an issue with West’s NOA or

our ability to review the district court’s dismissal of his

claims, “[a] court has a duty to assure itself of its own

jurisdiction, regardless of whether jurisdiction is contested by

the parties.” Peterson v. Islamic Republic of Iran, 627 F.3d

1117, 1125 (9th Cir. 2010). West’s NOA faces two potential

compliance issues as to his claims against Gordwin:

subsections (c)(1)(A) and (c)(1)(B).

A. In Torres v. Oakland Scavenger Co., Torres was

barred from appealing because his name was omitted from

the NOA “due to a clerical error.” 487 U.S. at 313, 318. The

Supreme Court held that failing to identify an appellant in the

NOA deprives a U.S. Court of Appeals of jurisdiction over

that appellant’s case. Id. at 315–18. The Court

acknowledged that this caused a “harsh result” in Torres’s

case, but it explained that specificity in naming an appellant

is required by the clear text of Rule 3. See id. at 318. But

neither Rule 3 nor Torres mentions appellees. The rule’s

only subsection that requires naming the parties to the appeal

states that the NOA must

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 partymay 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) (emphasis added); see also

Chathas v. Smith, 848 F.2d 93, 93 (7th Cir. 1988) (“There is

no mention of appellees . . . .”).
WEST V. UNITED STATES 7

We have not addressed in a precedential opinion whether

failing to name an appellee is a jurisdictional bar to

considering an appeal against that appellee. But see Hale v.

Arizona, 967 F.2d 1356, 1361 (9th Cir. 1992) (“Rule 3(c)

does not require that appellees be listed, only appellants.”),

reh’g en banc, 993 F.2d 1387 (9th Cir. 1993). Other circuits

have held that failing to name certain appellees in an NOA

doesn’t necessarily preclude an appeal against those

appellees. See, e.g., Longmire v. Guste, 921 F.2d 620, 622

(5th Cir. 1991) (per curiam) (holding that appellant’s failure

to name appellee wasn’t a jurisdictional bar to review); Battle

v. District of Columbia, 854 F.2d 1448, 1450 (D.C. Cir. 1988)

(per curiam) (noting the same); cf. Chathas, 848 F.2d at 94

(finding omission of appellee’s name to be harmless error). 

The Fifth Circuit held that “[t]he jurisdictional prerequisite of

[Rule] 3(c) only requires naming with specificity the

appellants taking the appeal and not the appellees against

whom the appeal is being taken.” Longmire, 921 F.2d at 622. 

No circuit has reached a contrary conclusion.

Consistent with other circuits and the plain language of

the rule, we hold that failing to name an appellee in an NOA

is not a bar to an appeal. Therefore, any ambiguity about the

identity of the appellees in West’s NOA doesn’t preclude our

review of West’s claims against Gordwin.

B. The Supreme Court has also told us that “courts

should construe Rule 3 liberally when determining whether

it has been complied with.” Smith v. Barry, 502 U.S. 244,

248 (1992). “Thus, when papers are ‘technically at variance

with the letter of [Rule 3], a court may nonetheless find that

the litigant has complied with the rule if the litigant’s action

is the functional equivalent of what the rule requires.’” Id.

(alteration in original) (quoting Torres, 487 U.S. at 316–17). 
8 WEST V. UNITED STATES

In Smith, the Supreme Court held that we may construe an

appellant’s opening brief as an NOA if it contains all of the

information that Rule 3 requires. Id. at 248–50. In Foman v.

Davis, the NOA didn’t name the judgment, but the Court held

that it was error to treat the NOA as including only an appeal

from a specifically named order and not the judgment. 

371 U.S. 178, 181 (1962). We have interpreted these rulings

as “reject[ing] a literal interpretation of Rule 3(c)(1)(B),”

which stands in contrast to the Court’s narrow application of

Rule 3(c)(1)(A). Le v. Astrue, 558 F.3d 1019, 1022 (9th Cir.

2009).

“When ‘a party seeks to argue the merits of an order that

does not appear on the face of the notice of appeal,’ we

consider: ‘(1) whether the intent to appeal a specific judgment

can be fairly inferred and (2) whether the appellee was

prejudiced by the mistake.’” Id. at 1022–23 (quoting Lolli v.

County of Orange, 351 F.3d 410, 414 (9th Cir. 2003)). “In

determining whether ‘intent’ and ‘prejudice’ are present, we

apply a two-part test: first, whether the affected party had

notice of the issue on appeal; and, second, whether the

affected party had an opportunity to fully brief the issue.” 

Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055

(9th Cir. 2009) (quoting Lynn v. Sheet Metal Workers’ Int’l

Ass’n, 804 F.2d 1472, 1481 (9th Cir. 1986)).

Pursuant to this functional approach, we have considered

appeals from orders that weren’t named in the NOA and were

discussed only in appellate briefs. See, e.g., One Indus., LLC

v. Jim O’Neal Distrib., Inc., 578 F.3d 1154, 1159 (9th Cir.

2009); Lynn, 804 F.2d at 1481. In these cases, the appellants’

intent to appeal the otherwise unnamed orders were clear

from their briefs. The appellees suffered no prejudice
WEST V. UNITED STATES 9

because they had opportunities to respond in their answering

briefs.

West titled his NOA, “Plaintiff’s Notice of Appeal to the

Ninth Circuit Court of Appeals from the Order and Judgment

of the United States District Court” (capitalization altered). 

The title alone contained all of the information that Rule 3

required. Moreover, the main text of West’s NOA stated:

Notice is hereby given that Plaintiff in the

above-entitled case, Carl West, hereby

appeals to the United States Court of Appeals

for the Ninth Circuit the Order of the Hon. G.

Murray Snow dated August 21, 2013 and the

Judgment of the Court entered August 21,

2013 dismissing this action as follows: 

Plaintiff appeals the dismissal with prejudice

of Counts 4, 7, 9, 10 and 14 as to the

Defendant United States of America.

(capitalization altered). While West identified certain counts

against the United States, he twice named in full the district

court’s order and judgment. Construing the NOA

functionally, we conclude that it sufficientlyindicated West’s

intent to appeal the entire district court order and the

judgment dismissing the whole suit.

West’s opening brief on appeal further clarified the scope

of his appeal. It stated that the same counts he appealed as to

the United States “as well as 42 U.S.C. § 1983 claims under

Counts 6 and 8 and 14, punitive damages, should not have

been dismissed against not yet served Defendant Joe

Gordwin.” West explained that the district court’s dismissal

order didn’t address the claims against Gordwin “but
10 WEST V. UNITED STATES

proceeded to dismiss the entire case.” That dismissal was

error, he argued. West’s argument was more than sufficient

to present the issue on appeal.

C. The district court failed to distinguish between claims

against the United States and claims against Gordwin when

dismissing the case with prejudice. It was clear error for the

district court to dismiss the claims against Gordwin, who

wasn’t a party to the case because he hadn’t been served and

the time for service had not expired. See European

Community v. RJN Nabisco, Inc., 355 F.3d 123, 128, 139 (2d

Cir. 2004) (holding that there was no procedural basis for

dismissal when the plaintiffs’ deadline for service had not

expired), cert. granted, vacated on other grounds &

remanded, 544 U.S. 1012 (2005); cf. Franklin v. Murphy,

745 F.2d 1221, 1226 (9th Cir. 1984) (explaining that it was

error to dismiss a complaint without notice before the

plaintiff served it when the plaintiff had paid filing fees).

The dissent claims that the result we reach is “both unfair

and inequitable” because “Gordwin never received notice of

the appeal nor had the opportunity to brief the issues

concerning him.” Dissent at 12–13. But the dissent’s

concerns arise out of the district court’s error, not any

problem with West’s NOA. Because the district court

prematurely dismissed Gordwin before West served him,

Gordwin couldn’t be on the service list for West’s brief. See

dissent at 12. West’s NOA and brief included sufficient

information to put any reader on notice of his appeal. His

intent to appeal was clear, and Gordwin suffered no

prejudice. Gordwin is in the exact same position he was in

prior to the district court’s error and this ensuing appeal:

waiting for West to serve him.
WEST V. UNITED STATES 11

We address the merits of West’s other claims in a

memorandum disposition filed concurrentlywith this opinion.

REVERSED.

O’SCANNLAIN, Circuit Judge, concurring in part and

dissenting in part:

While I concur in the court’s reversal of the final

judgment in the concurrent memorandum disposition with

regard to West’s claims against the United States, I must

respectfully dissent from the opinion’s holdings with regard

to West’s claims against Agent Gordwin. Because of a

serious jurisdictional defect, I would instead dismiss the

appeal as to him rather than reverse and remand and expose

him to further proceedings.

I

We simply lack jurisdiction to review the district court’s

judgment with respect to Agent Gordwin because the Notice

of Appeal (“NOA”) specifies that West “appeals the dismissal

with prejudice of Counts 4, 7, 9, 10 and 14 as to the

Defendant United States of America.” See Fed. R. App. P.

3(c)(1)(B). Counts 6 and 8, the only counts which relate to

claims against Defendant Gordwin, are nowhere mentioned

and are presumably excluded from this appeal.

Of course, when a party seeks to argue the merits of an

order that does not appear on the face of the NOA, Le’s twostep analysis applies. Le v. Astrue, 558 F.3d 1019, 1022–23

(9th Cir. 2009) (quoting Lolli v. County of Orange, 351 F.3d
12 WEST V. UNITED STATES

410, 414 (9th Cir. 2003)). But, the majority errs when it

concludes that West’s intent to appeal the judgment with

respect to Agent Gordwin can be inferred and that he was not

prejudiced. Maj. at 10.

Such holding disregards Ninth Circuit precedent. “In

determining whether ‘intent’ and ‘prejudice’ are present, we

apply another two-part test: first, whether the affected party

had notice of the issue on appeal; and, second, whether the

affected party had an opportunity to fully brief the issue.” 

Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051,

1055 (9th Cir. 2009) (quoting Lynn v. Sheet Metal Workers’

Int’l Ass’n, 804 F.2d 1472, 1481 (9th Cir. 1986)). 

It is undisputed that Agent Gordwin never received notice

of the appeal nor had the opportunity to brief the issues

concerning him. West briefly addressed the claims against

Agent Gordwin in his opening brief, but there is no evidence

such brief was ever properly served.1 Nor, unsurprisingly,

was there any response from Agent Gordwin. This

differentiates the present case from those in which the Court

has held that briefs discussing a judgment not referenced in

the NOA may provide notice. See, e.g., Lynn, 804 F.2d at

1481 (finding notice where “appellant served the affected

party . . . with a copy of the brief in which he raised the

issue,” and “the [affected party] filed a joint brief . . . in

which this issue was fully discussed”) (emphasis added);

United States v. One 1997 Mercedes Benz, 708 F.2d 444, 451

(9th Cir. 1983) (finding notice where appellant “address[ed]

the dismissal of the third-party action in her opening brief . . .

and served that brief on all third-party defendants”)

1 The relevant Certificate of Filing and Service only certifies delivery

to an Assistant United States Attorney representing the government.
WEST V. UNITED STATES 13

(emphasis added). Thus, Ahlmeyer makes clear that West’s

failure to serve Agent Gordwin forecloses our ability to

review the claims against him. Ahlmeyer, 555 F.3d at 1055.

The suit in which Agent Gordwin was named was filed

and dismissed in 2013. There is no evidence that he has been

served with papers at any stage of this litigation. It is both

unfair and inequitable to require, as the majority does, that

Agent Gordwin remain exposed to continued litigation, which

began four years ago, without notice to him should West

eventually decide to provide him with the due process to

which he was entitled from the start.

II

For the foregoing reasons, I would dismiss the appeal

with respect to the claims against Agent Gordwin, rather than

let this case go forward as to him.