How to draft a notice of appeal

You think it's easy to write up a notice of appeal. Just pull it from your hard drive and change the caption. You'd better take another look at that template.

The case is Gusler v. City of Long Beach, decided on November 26. The plaintiff sued the City and 12 individual defendants under 42 U.S.C. sec. 1983, claiming retaliation. All the defendants moved to dismiss; nine were successful in getting the claim dismissed. As for three of the defendants, the district court denied their motions to dismiss on qualified immunity, and they took up an interlocutory appeal. So counsel for defendants filed a notice of appeal that read:

Notice is hereby given that the defendant Nassau County hereby appeals ... to the extent that the [District] Court denied defendants' motion to dismiss the claims against the individual defendants on the grounds of qualified immunity.

Here's the problem: while the City of Long Beach is situated in Nassau County, Nassau County is not a party to the case. Somebody blew it. But a good lawyer can work with the rules to get what he wants. Or he can at least try. Under Federal Rule of Appellate Procedure 3(c)(1)(A), the notice of appeal has to “specify the party or parties taking the appeal by naming each one in the caption or body of the notice” and permits “an attorney representing more than one party [to] describe those parties with such terms as ‘all plaintiffs,’ ‘the
defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all defendants except X.’”

The notice of appeal does not quite say the three defendants want to appeal. So it's defective. The only argument for defendants to save the appeal (a proper notice of appeal is jurisdictional) is that their names are in the caption of the notice of appeal. That won't work. The Court of Appeals (Jacobs, Carney and Gleeson [D.J.]) says:

the reference in Rule 3(c)(1)(A) to “naming [the party] in the caption” is best understood to mean that the notice of appeal is sufficient even if the party taking the appeal is named nowhere but in the caption if--and only if--it is manifest from the notice as a whole that the party wishes to appeal. The notice of appeal then meets the requisite of “specify[ing] the party or parties taking the appeal.”

In addition, "An appeal must not be dismissed ... or failure to name a party whose intent to appeal is otherwise clear from the notice." This notice of appeal doesn't work because the three defendants' intent to appeal is not clear. The Second Circuit says, "The three defendants against whom claims remain are among the parties listed in the caption, but the body of the notice states that someone else is appealing the district court's order."

As the Court of Appeals notes, "The statement in the text of the notice--that the appeal concerns the district court’s order 'to the extent that the Court denied defendants’ motion to dismiss the claims against the individual defendants on the grounds of qualified immunity'--may give reasonable grounds for concluding that only the individual defendants have an interest in appealing." However, the notice of appeal is still ambiguous because it says that all the defendants want to appeal, including the ones who won their motion to dismiss the case. "And if it should transpire in the future that it was error to dismiss the claims against them, it is not clear whether they would be bound by any decision we issued in this appeal with respect to their entitlement to qualified immunity. Thus, the notice fails to meet the basic requirement of informing the court and the opposition of who is taking the appeal."

If you want to know the policy reasons for the above rules, read the opinion. The rules do allow for some flexibility, but the Court of Appeals will not bend them to help the defendants in this case. The Court concludes, "Because the notice of appeal did not specify which defendants were taking an appeal of the district court’s decision, we lack jurisdiction to consider their appeal."