F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C A R L W E S T , Plaintiff-Appellant

,

v

.

U N I T E D S T A T E S O F A M E R I C A ; J O E G O R

D W I N , an F B I ag ent, Defendants-Appellees. No. 13-16909

D.C. No. 2:13-cv-00304-GMS

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na G. Murray Snow, District J u dg e, Presiding

Arg ued and Submitted J anuary 6, 2016 San F rancisco, California

F iled April 3, 2017

B efore: Alex Koz inski, Diarmuid F . O’Scannlain and M. Marg aret McKeown, * Circuit J udg es.

Opinion by

J udg e Koz inski; Partial Concurrence and Partial Dissent by

J udg e O’Scannlain

* Fo l lo w in g arg u m en t in th i s case, J u dg e McKeo w n w a s d raw n to rep lace J u d g e No o n an

.W E S T V

. U N I T E D S T A T E S 2

SUMMARY * *

F e deral Rule of

Appellate P rocedure 3

The p anel r eversed the district court’s judg ment in a civil action, which dismissed c laims broug h t by Carl W est ag ainst
t h e U n i t ed States and F B I a g ent J oe Gordwin based on misconduct in W est’s criminal case.

The panel sua sponte considered whether W est’s notice o f
appea l (“NOA”) complied with F ederal Rule o f Appellate Procedure 3, which lists the requirements for taking an appeal as of rig h t in federal court.

Under F ed. R. App. P. 3(c)(1)(A), the NOA must identify each appellant, but does not mention appellees. T h e panel held that failing to name an appellee in an N OA is not a jurisdictional bar to considering an appeal a ga i nst that appellee. The panel concluded that any ambig uity

about the identity o f the appellees in W e st’s NOA did not preclude the court’s r eview of W est’s claims ag ainst F B I A g ent Gordwin.

U n d er F ed. R. App. P. 3(c)(1)(B ) the NOA mus t “desig nat e t he judg ment, order, or part thereof being

a p pealed.” The panel c o nstrued the NOA f unctionally

, a n d concluded that it sufficiently indicated W est’s intent to appeal the entire district court order and the judg ment dismissing the whole suit.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.W E S T V

. U N I T E D S T A T E S 3

The panel noted that the district court failed to disting uish between claims ag ainst the United States and c laims ag ainst Gordwin w hen dismissing the case with prejudice. The panel held that it w as clear error f or the district court to d ismiss the claims ag ainst Gordwin, who wa s not a party to the case because he had not been served and the time for service h ad
not ex pired.

The panel addressed the merits of W est’s other claims in a concurrently filed memorandum disposition.

J udg e O’Scannlain c oncurred in part a n d d i s sented in part. He concurred i n t h e court’s reversal of the final judg ment in t he concurrent memorandum disposition with
reg ard to West’s cl a i m s ag a inst the United States, a nd dissented from the majority ’ s h olding s with reg ard to W est’s claims a g ainst F B I Ag ent Gordwin

. Be c a use of a serious jurisdictional defect, J udg e O ’Scannlain would dismiss the appeal a s to Gordwin rather than reverse a n d remand a nd

ex p ose h im to further proceeding s. J udg e O’Scannlain concludes that the majority erred whe n it h eld that W est’s intent to appeal the judg ment with respect to Ag ent Gordwin could be inferred and that he was not prejudiced.

COUNSEL

David W

. Dow (arg

ued), Phoenix

, Ariz ona , f or PlaintiffAppellant.

Peter M. L antka (arg

ued), Phoenix

, Ariz ona, for DefendantsAppellees.W E S T V

. U N I T E D S T A T E S 4

OP INION

KOZ I NSKI , Circuit J udg e:

W e consider w hether an appellant’s notice of a p p eal satisfied the r equirements of F e d er a l Rule of Appellate Procedure 3.

BACK G ROUND

Carl W est was convict e d of r obbery and sentenced to twenty y e ar s in prison because J oe Gordwin, then a n F B I
ag ent, “manufactured a

nd coerced” the testimony of v arious witnesses at W e st ’ s trial. W hen Gordwin’s actions were

ex p osed, W est was released and the charg es ag ainst him were dropped. This appeal c oncerns W est’s subsequent ci v i l suit
ag ainst the United States a nd Gordwin b ased on the misconduct in W est’s criminal case.

W e st alleg ed thirteen c a uses of action and requested
p u nitive damag es ag ainst both the United States a n d Gordwin. The United States filed a motion to dismiss W est’s complaint, a ddressing o nly W est’s claims “ag ainst the United States,” not those a g ainst Gordwin. The g o v e r n m e nt noted that it “d[ id] not represent Defendant J oe Gordwin.” At that time, West hadn’t served Gordwin with process. I n fact, a fter the U nited States filed its motion to dismiss, the district court g ranted W e st an ex tension of time in which to serve Gordwin under F ederal Rule of Civil Procedure 4.

The district court g r anted the g overnment’s motion to dismiss, but it d ismissed all of West’s claims, including thoseW E S T V

. U N I T E D S T A T E S 5

ag ainst G ordwin. Th e d istrict court entered judg ment “in favor of defendants and ag ainst plaintiff” t h e s a me day

. Gordwin h adn’t be e n served y et, and W est’s d e adline for service hadn’t passed.

W e st then filed his notice of appeal (NOA). H e included Gordwin and the Uni ted States in the caption and listed the district court’s order and judg ment as the basis of his appeal. W e st didn’t otherwise identify Gordwin or the claims ag ainst him in the NOA. West d id say that he was appeal i n g “ a s t o the Defendant United States of America.” See infra p. 9. I n his opening brief, West arg ued that certain cl a i m s ag ainst both the United States and Gordwin were wrong fu l ly dismissed.

D ISCUSSION

F ederal Rule of A ppella te Procedure 3 lists the requirements for taking a

n appeal a s of rig ht in federal court. The appealing party must f ile an NOA within the time set b y Rule 4

. F ed. R. App. P. 3(a). The NOA must identify e ach appellant, Rule 3(c)(1)(A); “desig nate the judg ment, order, o r part thereof being a

p pealed,” Rule 3(c)(1)(B ); and “name the
court to which the app e a l i s taken,” Rule 3(c)(1)(C). These requirements are jurisdictional, se e Torres v. Oakland Scavenger C o

. , 487 U.S. 312, 317 (1988), but the Rule cautions ag ainst t h e i r formalistic application: “An appeal
must n ot be dismissed for informality of form o r tit l e o f the notice of appeal, or for failure to name a pa r t y w h o s e intent
to a p peal is otherwise clear from the notice.” F ed. R. A pp. P. 3(c)(4).W E S T V

. U N I T E D S T A T E S 6

W hile no party has raised an issue w ith W est’s NOA o r

our ability to review the district court’s dismissal of his claims, “[ a] court has a d u t y to assure itself o f its o wn jurisdiction, reg ardless of w hether jurisdiction is contested b y the parties.” Peterson v. Islamic Republic of Iran
, 627 F .3d 1117, 1125 (9th Cir. 2010). W est’s NOA faces two potential compliance issues as to his c laims ag ainst G ordwin: subsections (c)(1)(A) and (c)(1)(B ).

A. I n Torres v. Oakland Scavenger Co.
, Torres was ba rr e d f rom appealing because his n ame was o mitted from the NOA “due to a c lerical e r ror.” 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

– 1 8

. T he Court acknowledg ed that this caused a “harsh res u l t ” i n T o rres’s
case, b ut it ex plained that specificity in naming an appellant is require d b y t h e clear tex t of Rule 3. See id. at 318. B ut neither Rule 3 nor Torres mentions app e l l e e s. The rule’s only subsection that r e q

uires 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 th e n otice, but an attorney representing more than one p arty may describe those parties with

s u c h t e r m s a s “ a l l p l a i n t i f f s , ” “ t h e defendants,” “the plai n t i ffs A, B
, et al.,” o r “all defendants ex cept X.”

F ed

. R

. App. P. 3(c)(1)(A) (emphasis added); see also Chathas v. Smith

, 8 48 F .2d 93, 93 (7th Cir. 1988) (“There is no mention of appellees . . . .”).W E S T V

. U N I T E D S T A T E S 7

W e have n ot addressed in a precedential opinion whether failing to name an appellee is a jurisdictional bar to considering an appeal ag a inst that appellee. But see H a le v. Arizona
, 967 F .2d 1356, 1361 (9th Cir. 1992) (“Rul e 3 ( c ) doe s not require that appellees be listed, only appellants .”), reh’g en banc

, 993 F .2d 1 387 ( 9th Cir. 1993). Other c ircuits have held that failing to name certain appellees in a n N O A doesn’t n ecessarily preclude an appeal ag ainst those appellees. S

e e , e.g. , Longmire v. Guste
, 921 F

. 2d 620, 622 (5th Cir. 1991) (per curiam) ( holding that appellant’s failure
to n ame appellee wasn’t a jurisdictional b ar to review); Battle

v. District of Columbia

, 854 F .2d 1448, 1450 (D.C. Cir. 1 988) ( p e r c uriam) (noting the same); cf. Chathas

, 848 F .2d at 94 ( f inding omission of appellee’s name to be harmless error ). The F ifth Circuit held that “[ t] he jurisdictional p rerequisite o f [ Rule] 3(c) o nly requires n a m i n g with specificity the appellants taking the appeal and not the a p p e llees ag ainst whom the appeal is being taken.” Longmire
, 921 F .2d at 622. No circuit has reached a contrary conclusion.

Consistent with other c ircuits and the plain l ang uag e o f the rule, we hold that failing to n ame an appellee in an NOA is not a bar to an appeal. Therefore, any ambig uity about the identity of the appellees in W est’s NOA d oesn’t p reclude our review of W est’s claims ag ainst Gordwin.

B. The Supreme Court has a lso told us that “courts should construe Rule 3 liberally when d etermini n g whether it has been complied with.” S m i t h v

. Barry
, 502 U .S. 244, 248 (1992). “Thus, when p apers are ‘technically at variance with the letter of [ Rule 3 ], a court may n onetheless find that the litig ant has complied with the rule if the litig ant’s action i s t he functional equivalent of what the rule requires.’” Id

. (alteration in orig inal) (quoting Torres
, 487 U.S. at 316–17).W E S T V

. U N I T E D S T A T E S 8

I n Smith

, the Supreme Court held that we m ay construe an appellant’s opening brief as an N OA if it contains a l l o f the information that Rule 3 requires. Id. at 248–50. I n Foman v. Davis
, the NOA didn’t name the judg ment, but the Court h eld that it was error to treat the NOA as including only an appeal from a specifically named o rder and not the judg ment. 371 U.S. 178, 181 (1962). W e have interpreted these ruling s

as “rejec t [ i n g] a literal interpretation o f Rule 3(c)(1)(B ),” which stands in contrast to the Court’s narrow application o f Rule 3(c)(1)(A). Le v. Astrue
, 558 F .3d 1019, 1022 ( 9th Cir. 2009).

“W hen ‘a party seeks to a rg u e the merits of an order that does not a

ppear on the f

a c e o f t he notice of appeal,’ we consider: ‘(1) whether the intent to appeal a specific judg ment

can b e f airly inferred and (2) whether the appellee was prejudiced b y the mistake.’” Id. at 1022–23 (quoting Lolli v. County of Orange
, 351 F .3d 410, 414 (9th C i r

. 2 0 0 3 )). “I n determining whether ‘intent’ and ‘prejudice’ are present, we apply a two-part test: first, whether the a f f ected p arty h ad

n o t i c e o f the issue on appeal; and, second, whether t h e affected party had an o pportunity to fully brief the issue.” Ahlmeyer v. Nev. Sys. o

f Higher Educ.

, 5 55 F .3d 1 051, 1055 (9th Cir. 2009) (quoting Ly n n v

. Sheet Metal W orkers’ I nt’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’ N e a l D istrib., Inc.
, 578 F .3d 1 154, 1159 (9th Cir. 2009); Lynn
, 804 F .2d at 1481. I n these cases, the appellants’ intent to appeal the o t h erwise unnamed orders were clear from their b riefs. The appellees suffered no prejudiceW E S T V

. U N I T E D S T A T E S 9

because they had opportunities to respond in their answering briefs.

W e st titled his NOA, “Plaintiff’s Notice of A ppeal to the Ninth Circuit Court of Appeals from the Order and J udg ment of the United States District Court” (capitaliz ation alt ered). The title a lone contained a ll of the informatio n t h a t Rule 3 required. Moreover, the main tex t of W est’s NOA stated:

Notice i s h e r eby g iven that Plaintiff in the above-e n titled case, Carl W est, hereby appeals to the United States Court of Appeals for the Ninth Circuit the Order of the Hon. G

. Murray Snow dated Aug ust 21, 2013 and the J udg men t of the Court entered Aug ust 21, 2013 d ismissing this action as follows: Plaintiff appeals the d ismissal with prejudice of Counts 4, 7
, 9, 10 and 14 as to the Defendant United States of America.

(capitaliz a tion altered). W h ile W est identified certain c ounts ag ainst the United States, h e twice n a m e d in full the district court’s order a

nd judg ment. Const r u i ng the NOA functionally

, w e conclude that it sufficiently indicated W est’s i n t e n t to appeal the entire district court order and the judg ment dismissing the whole suit.

W e st’s o pening brief on appeal further clarified the scope of his appeal. I t stated that the same counts he a ppealed a s to the United States “as well as 42 U.S.C. § 1983 claims under Counts 6 and 8 a

nd 1 4
, p u n i tive d amag es, should not have been dismissed ag ainst not y et served D e f endant J oe Gordwin.” W e st ex plained that the d istrict court’s d ismissal order didn’t address t h e claims ag ainst Gordwin “ butW E S T V

. U N I T E D S T A T E S 10

p r o c e eded to dismiss the e ntire case.” That dismissal wa s error, he arg ued. W est’s arg u ment was more than sufficient to present the issue on appeal.

C. The district c o urt f

ailed to disting uish between c laims
ag ainst the United States a nd claims ag ainst Gordwin when dismissing the case with prejudice. I t was clear error for the district court to dismiss t h e claims ag ainst Gordwin, w ho wasn’t a party to the case because he hadn’t been served a nd the time f

o r service had not ex pired. S ee European Community v. RJN Nabisco, Inc.
, 355 F .3d 123, 128, 139 (2d Cir. 2 004) (holding that there was no procedur a l b a sis for d i s m i s s al when the plaintiffs’ d eadline for service had not

ex p ired), c er t

. granted, vacated on other grounds & remanded

, 544 U .S. 101 2 (2005); cf. Franklin v. Murphy

, 745 F .2d 1221, 1226 (9th Cir. 1984) (ex plaining tha t it was

error to dismiss a complaint with o ut notice before the plaintiff served it when the plaintiff had paid filing f e es).

The d issent claims that the result we reach is “both unfair and inequitable” because “Gordwin never received notice o f the appeal nor h a d the opportunity to brief the issues concerning him.” Dis s ent a t 12–13. B ut the dissent’s

concerns a

rise out of the d istrict court’s e r r o r, n ot any problem with W est’s NOA. B ecause the district court prematurely dismissed G ordwin before W est served him, Gordwin couldn’t b e on the service list for W est’s brief. See dissent a t 12. W est’s NOA and b rief included sufficient information t o put any reader on notice of his appeal. His intent to appeal was clear, and Gordwin suffered no prejud i c e

. G ordwin is in the e x act same position h e w as in prior to the d istrict court’s error and th i s ensuing appeal: waiting for W est to serve him.W E S T V

. U N I T E D S T A T E S 11

W e address the merits of W est’s other c la i m s in a memorandum d i s p o s i t i o n f i l e d c o n c u r r ently with this opinion.

REVERSED.

O’SCANNL AI

N, Circuit J udg e, concurrin g i n part a nd dissenting in part:

W h ile I concur in the court’s revers al of the final judg ment in t h e concurrent memorandum disposition with
reg ard to W est’s claims ag ainst the United Stat e s , I must respectfully dissent from t h e opinion’s holding s w ith reg ard
to W est’s c laims ag ainst Ag ent Go r d w i n

. B ecause of a

s e r i ous jurisdictional defect, I would instead dismiss th e

a p p e a l a s to him rather than reverse and remand and ex po s e him to further proceeding s.

I

W e simply lack jurisdiction to review the district court’s judg ment with respect to Ag e nt Gordwin because the Notice of A p peal ( “NOA”) specifies that West “ a p peals the d ismissal with prejudice o f C o u n t s 4, 7
, 9, 10 and 14 a s to the Def e n d an t United States of America.” See F ed. R. App. P. 3(c)(1)(B ). Counts 6 a n d 8, the only counts which relate to claims ag ainst Defendant Gordwin, are nowhere m entioned and are presumably

ex cluded from this appeal.

Of cour s e , when a party seeks to arg ue the merits of an order that does not appear o n the face of the NOA, Le’s twostep analy sis applies. Le v. Astrue , 558 F .3d 1019, 1022–23 (9th Cir. 2009) (quoting Lolli v. County of Orange
, 351 F .3dW E S T V

. U N I T E D S T A T E S 12

4 1 0
, 4 14 (9th Cir. 2003)). B ut, the majority errs when i t concludes that W est’s intent to appeal the j u dg ment with respect to A g e nt Gordwin can be inferred and that he was not prejudiced. Maj. at 10.

Such holding disreg ards Ninth Circuit prece d e n t

. “I n determining whether ‘intent’ and ‘ prejudice’ are present, we apply another two-part test: first, wh e ther the affected party had notice o f t h e issue on appeal; and, second, whether the affected party had an o pportunity 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 W orkers’ Int’l Ass’n , 804 F .2d 1472, 1481 (9th Cir. 1986)).

I t is undisputed that Ag e nt Gordwin n ever received notice of the appeal nor had the o pportuni t y t o brief the issues concerning him. W est briefly addressed t h e claims ag ainst Ag ent Gordwin in his o pening brief, but there is no evidence such b rief was ever p roperly served. 1 Nor, unsurpri s ing ly

, was there any response from Ag ent Gordwin. This differentiates the present case f rom those in which the Court has held that briefs discussing a j udg ment not referenced in the N OA may provide n o tice. See, e.g. , Ly n n , 8 0 4 F .2d at 1481 (finding notice where “appellant serve d t he affected party

. . . with a copy o f t h e brief in which he raised the i s s u e , ” a n d “the [ affected party ] filed a joint brief

. . . in which t h i s issue was fully discussed”) (emphasis added); United S tates v. One 1997 Mercedes Benz
, 708 F .2d 4 4 4, 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 T h e relev an t Certif

icate o f Filin g an d S erv i ce o n ly certif ies deliv ery to an A ssistan

t Un ited States A tto rn ey

rep resen tin g th e g o v ern m en t.W E S T V

. U N I T E D S T A T E S 13

(emphasis added). Thus, A hlmeyer makes clear that W est’s failure to serve Ag ent G ordwin forecloses ou r ability to review the claims ag ainst him. Ahlmeyer

, 555 F .3d at 1055.

The suit in which Ag ent G ordwin was named w as filed and dismissed in 2013. There is no evidence that he has been served with paper s a t any stag e of this litig ation. I t is both unfair a n d inequitable to r equire, as the majority does, that Ag ent Gordwin r e m a i n e xp osed to c o n tinued litig ation, which b e g an four y ears ag o, w ithout notice to him should W e s t eventually deci d e t o provide him w ith the due process to which he was entitled from the start.

I I

F or the f oreg oing reasons, I w ould dismiss the appeal with respect to the claims ag a inst Ag ent G ordwin, rather than let this case g o forward as to him.