Analyzing Cross-Appeals in Federal Court
Failure to cross-appeal may result in waiver of
certain arguments and, on occasion, have a preclusive effect in further
This article appeared in the
July 26, 2013, issue of
Certworthy, published by the Defense
You have obtained a judgment in federal district
court, but celebration is short lived: the other party has appealed. Although the
reversal rate for all federal appeals is less than ten percent, appellees could
make a big mistake if they sit back, relax and think there is nothing to do
except respond to appellant's brief.
In some circuits, failing to cross-appeal
could lead to severe repercussions. Still in others, filing an unnecessary
cross-appeal may result in sanctions. See, e.g., Aventis Pharma S.A. v. Hospira,
637 F.3d 1341, 1343-44 (Fed. Cir. 2011).
To further complicate matters, the
Supreme Court has indicated that cross-appeals may be jurisdictional, contrary
to the traditional notion in some circuits that the requirement of cross-appeals
is a flexible rule of practice. See, e.g., Genesis Healthcare Corp. v. Symczyk,
133 S.Ct. 1523 (2013); El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479
This article will briefly outline some of the issues appellees should consider
when deciding whether to cross-appeal. Counsel should carefully analyze the law
and practice of the applicable circuit to avoid waiving significant issues.
The Need to Cross-Appeal
Most appellate lawyers are familiar with the general rule that, absent a
cross-appeal, an appellee may support a judgment through any matter appearing in
the record, even if an argument attacks the lower court's reasoning or raises
grounds overlooked or ignored by the court. Ethypharm S.A. France v. Abbott
Labs, 707 F.3d 223, 232 n.15 (3d Cir. 2013). An appellee may not, however,
"attack the decree with a view either to enlarging his own rights there under or
of lessening the rights of his adversary." El Paso Natural Gas, 526 U.S. at 479.
If the appellee seeks such an enlargement or lessening of rights, a cross-appeal
is required, and must be filed within fourteen days after the initial notice of
appeal. Fed. R. App. P. 4(a)(3). Because this time period may be jurisdictional
in some circuits, it is critical to quickly analyze whether a cross-appeal is
necessary. See In re Johns-Manville Corp., 476 F.3d 118 (2d Cir. 2007).
Most lawyers would have little difficulty recognizing the need to cross-appeal
in making certain arguments that plainly enlarge rights. Perhaps most obviously,
a request for additional damages requires a cross-appeal. Refuse & Envtl. Sys.,
Inc. v. Indus. Servs. Of Am., Inc., 932 F.2d 37, 44 (1st Cir. 1991). A
cross-appeal is likewise necessary to challenge a district court's attorneys'
fee award or failure to award fees. See, e.g., Doherty v. Wireless Broad. Sys.
Of Sacramento, Inc., 151 F.3d 1129, 1131 (9th Cir. 1998); Hale v. Cotton
Petroleum Corp., 796 F.2d 74, 75 (5th Cir. 1986).
In other situations, however, it can be hard to distinguish between alternative
grounds for the judgment and seeking to alter the nature of the judgment. For
example, in Genesis Healthcare, the Supreme Court refused to address an issue
because the plaintiff failed to preserve it by not filing a cross-petition for
certiorari. Plaintiff had alleged two claims: one on her own behalf and the
other a collective action on behalf of other employees similarly situated under
the Fair Labor Standards Act ("FLSA"), for which she was the sole named
plaintiff. With its answer to the complaint, her employer served a Rule 68 offer
of judgment providing for complete relief on her individual claim. Plaintiff
failed to timely respond to the offer of judgment and the employer then moved to
dismiss, arguing that because it had offered complete relief on the individual
claim, plaintiff no longer possessed a personal stake in the outcome of the
suit, rendering the entire action moot. The district court granted the motion,
but the Third Circuit reversed that portion of the judgment holding the
collective action moot. On further review, however, the Supreme Court declined
to reach the merits of the collective action issue, holding that acceptance of
plaintiff's collective action argument would result in an alteration of the
Third Circuit judgment with respect to her individual claim, and therefore
required a cross-appeal. 133 S. Ct. at 1529.
Many competent appellate attorneys may not have recognized the need for a
cross-appeal in the circumstances presented in Genesis Healthcare. Fortunately,
most cases present more straight-forward facts where the application of the
general rule requiring a cross appeal if the appellee's contentions would
modify the trial court's judgment is relatively easy to apply. Thus, an
argument that would change a dismissal with prejudice to one without prejudice,
or vice versa, requires a cross-appeal. For example, in EF Operating Corp. v.
Am. Bldgs., 993 F.2d 1046, 1048-49 (3d Cir. 1993), the district court ruled in
favor of defendant Flaherty on summary judgment, never addressing Flaherty's
motion to dismiss for lack of personal jurisdiction. Flaherty raised absence of
personal jurisdiction in response to the plaintiff's opening brief, but did not
file a cross-appeal. The Third Circuit held that a cross-appeal was required to
preserve the personal jurisdiction issue because a dismissal for lack of
personal jurisdiction would be without prejudice, while a grant of summary
judgment would result in a dismissal with prejudice. Likewise, in Am. Bottom
Conservancy v. U.S. Army Corps of Engineers, 650 F.3d 652, 660 (7th Cir. 2011),
the Seventh Circuit reversed the district court's holding that appellant lacked
standing, but refused to consider the merits of appellee's summary judgment
argument. The court reasoned that because the dismissal for lack of standing was
without prejudice, a decision on the merits in favor of appellee would result in
a judgment with prejudice, thus requiring a cross-appeal.
Similarly, if an appellant succeeds in convincing the court to reverse on one
ground, and another argument made by the appellee below would require reversal
of a portion of the district court's judgment, appellee should cross-appeal. For
example, in Granite Management Corp. v. United States, 416 F.3d 1373, 1378-80
(Fed. Cir. 2005), the lower court ruled that the United States government had
breached its contract with the plaintiff, but granted the government's motion
for summary judgment rejecting all of plaintiff's damage theories. The plaintiff
appealed and ultimately persuaded the Federal Circuit that one of its rejected
damage theories might be viable and required further factual development. In its
responsive brief, the United States then challenged the lower court's ruling on
liability. Because the government was seeking to modify or change the judgment
of the trial court, however, the court refused to consider the argument in the
absence of a cross-appeal.
Another variation of these principles is found in Radio Sys. Corp. v. Lalor, 709
F.3d 1124 (Fed. Cir. 2013). There, a patent holder appealed the district court's
summary judgment ruling that the appellee had not infringed. On appeal, the
appellee argued in its responsive brief that invalidity of the patents was an
alternative ground for affirming the district court's judgment. The Federal
Circuit refused to consider invalidity without a cross-appeal, however, because
a judgment of patent invalidity is broader than a judgment of non-infringement.
709 F.3d at 1132.
Possible preclusive effects
In some circuits a cross-appeal may be required if a portion of the district
court ruling could have preclusive effects in later litigation. For example,
failure to file a cross-appeal can affect an appellee's right to obtain
additional relief on a subsequent remand. See, e.g., Kashner Davidson Sec. Corp.
v. Mscisz, 601 F.3d 19, 23 (1st Cir. 2010). Thus, in Lazare Kaplan Int'l, Inc.
v. Photoscribe Techs, Inc., 714 F.3d 1289 (Fed. Cir. 2013), the court of appeals
held that after the reversal of the district court's finding of
non-infringement, the district court on remand erred in reconsidering its
previous ruling on patent validity because it was not preserved through a
Some circuits allow a conditional cross-appeal to preserve issues that could
become adverse if the appellate court vacates or modifies the district court's
judgment. For example, in Gross v. FBL Fin. Servs., Inc., 588 F.3d 614 (8th Cir.
2009), the Eighth Circuit held that a plaintiff in an employment case should
have filed a protective cross-appeal urging re-litigation of certain issues if
the appellant/employer succeeded on other arguments. In Gross, an age
discrimination case, the jury awarded relief for lost wages, but no emotional
distress damages. The jury also found that the employer's conduct was not
willful. The employer appealed on liability grounds, and the appellate courts
reversed. The employee sought a remand order that all issues should be retried,
but the Eighth Circuit disagreed because he had not filed a protective
cross-appeal to urge a new trial on emotional distress damages and willfulness.
588 F.3d at 621-22.
When faced with uncertainty, the filing of a cross-appeal may seem to be the
cautious and most prudent option. However, some circuits frown upon this
practice and have threatened sanctions for overuse of the cross-appeal. In
Aventis Pharma S.A. v. Hospira, Inc., 637 F.3d 1341 (Fed. Cir. 2011), the court
stated that the improper use of a cross-appeal "may meet with sanctions,"
reasoning that "[a]ttorneys are free to devote as much of their responsive
briefing as needed to flesh out additional arguments and alternative grounds for
affirming the judgment on appeal. [...] They are not free, however, to game the
system by filing a cross-appeal to obtain the final word: this is neither fair
to the appellant nor an efficient use of the appellate process." Id. at 1343;
see also Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323, 332 (7th Cir.
2011) (refusing to consider an argument in an improper cross-appeal that should
have been made in the response brief); Leprino Foods Co. v. Factory Mutual Ins.
Co., 453 F.3d 1281, 1290 (10th Cir. 2006) (ordering appellee to bear the costs
of an unnecessary cross-appeal).
The decision whether to cross-appeal may be critical to the outcome of an
appeal. Not only can a failure to cross-appeal result in waiver of certain
arguments, but it can also, on occasion, have a preclusive effect in further
litigation. At the same time, however, the improper filing of a cross-appeal may
also result in serious consequences. Faced with the conflicting approaches of
the various circuits, appellate counsel would be wise to carefully analyze the
issues early, including potential consultation with local counsel about the
approach to cross-appeals taken in the applicable circuit.