Le v. Astrue ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINH V. LE, 
Plaintiff-Appellant, No. 07-55559
v.
 D.C. No.
CV-05-02030-WQH
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted October 23, 2008*
Pasadena, California
Filed March 10, 2009
Before: Consuelo M. Callahan and Sandra S. Ikuta, Circuit
Judges, and Milton I. Shadur,** District Judge.
Opinion by Judge Ikuta
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)
**The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
3097
3100 LE v. ASTRUE
COUNSEL
Alexandra T. Manbeck, San Diego, California, for the
plaintiff-appellant.
Michael J. Cabotaje, Special Assistant United States Attorney,
San Francisco, California, for the defendant-appellee.
OPINION
IKUTA, Circuit Judge:
In this case, the district court issued an order disposing of
cross-motions for summary judgment. The losing party’s
notice of appeal mistakenly designated only the district
court’s denial of his motion for summary judgment, rather
than both the denial of his motion and the grant of the prevail-
ing party’s motion. We hold that Rules 3(c)(1)(B) and 3(c)(4)
of the Federal Rules of Appellate Procedure, as interpreted by
the Supreme Court and in our own precedent, require us to
LE v. ASTRUE 3101
construe the notice of appeal as encompassing the district
court’s entire disposition.1
I
Vinh Le applied for disability insurance benefits under
Title II and Title XVI of the Social Security Act. The Social
Security Administration denied the application. Le requested
a hearing before an administrative law judge (ALJ), who sub-
sequently denied Le’s application for benefits. The Appeals
Council affirmed the ALJ’s decision.
Le filed a complaint in district court requesting judicial
review of the Commissioner’s decision under 42 U.S.C.
§§ 405(g) and 1383(c). Thereafter, Le and the Commissioner
filed cross-motions for summary judgment. On December 15,
2005, a magistrate judge issued a report recommending that
the district court deny Le’s motion for summary judgment and
grant the Commissioner’s motion for summary judgment. On
March 22, 2007, the district court adopted the magistrate
judge’s recommendation in an order stating:
IT IS HEREBY ORDERED that: (1) the Court adopt
the Report and Recommendation (Doc. #18) filed on
December 15, 2006, in its entirety; (2) Plaintiff’s
motion for summary judgment (Doc #8 is DENIED;
and (3) Defendant’s cross-motion for summary judg-
ment (Doc. #10) is GRANTED. The Clerk of the
Court shall enter judgment in favor of Defendant and
against Plaintiff.
On March 23, 2007, the district court entered judgment in
favor of the Commissioner, in an order stating:
1
In a separate memorandum disposition issued today, we affirm the dis-
trict court’s judgment in favor of the Commissioner. See Le v. Astrue, No.
07-55559, 2009 WL ___ (9th Cir. March 10, 2009).
3102 LE v. ASTRUE
The Court ADOPTS the Report and Recommenda-
tion filed on 12/15/06, in its entirety. Plaintiff’s
motion for summary judgment is DENIED. Defen-
dant’s cross-motion for summary judgment is
GRANTED. Judgment is in favor of Defendant and
against Plaintiff.
On April 23, 2007, Le filed a timely notice of appeal which
states in full:
Notice is hereby given that plaintiff in the above-
named case, hereby appeals to the United States
Court of Appeals for the Ninth Circuit from an order
denying plaintiff’s motion for summary judgment on
the 23th [sic] day of March, 2007.
Le’s opening brief on appeal states that the district court
“granted the Commissioner’s motion for summary judgment
in an order dated March 23, 2007,” and Le “filed a timely
notice of appeal on April 23, 2007.” The brief argues the mer-
its of the district court’s grant of summary judgment in favor
of the Commissioner.
Neither party argues that we lack jurisdiction over Le’s
appeal of the district court’s grant of summary judgment to
the Commissioner because his notice of appeal requested
review only of the district court’s denial of Le’s motion for
summary judgment. Nevertheless, “we have an independent
obligation to inquire into our own jurisdiction.” Perez-Martin
v. Ashcroft, 394 F.3d 752, 756 (9th Cir. 2005). We review the
question whether we have jurisdiction de novo. Id.
II
[1] We have jurisdiction over appeals “from all final deci-
sions of the district courts of the United States.” 28 U.S.C.
§ 1291. There is no dispute that the judgment issued March
23, 2007, and from which Le appeals, is a final decision of the
LE v. ASTRUE 3103
district court. Nevertheless, we must consider whether Le’s
notice of appeal is deficient in complying with the filing and
content procedures established by Rule 3 of the Federal Rules
of Appellate Procedure, because a deficiency may present a
jurisdictional bar to appeal.
A
[2] We first consider the Supreme Court’s framework for
determining when noncompliance with Rule 3 creates a juris-
dictional bar for an appeal. Federal Rule of Appellate Proce-
dure 3(c) states, in pertinent part:
(c) Contents of the Notice of Appeal.
(1) The notice of appeal must:
(A) 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”;
(B) designate the judgment, order, or part thereof
being appealed; and
(C) name the court to which the appeal is taken.
...
(4) An appeal must not be dismissed for informal-
ity of form or title of the notice of appeal, or for fail-
ure to name a party whose intent to appeal is
otherwise clear from the notice.
The Supreme Court has noted that “[a]lthough courts should
construe Rule 3 liberally when determining whether it has
3104 LE v. ASTRUE
been complied with, noncompliance is fatal to an appeal.”
Smith v. Barry, 502 U.S. 244, 248 (1992).
[3] In determining when noncompliance with Rule 3
creates a jurisdictional bar, the Supreme Court has distin-
guished between Rule 3(c)(1)(A), which requires the notice of
appeal to specifically mention the parties taking the appeal,
and Rule 3(c)(1)(B), which requires the notice of appeal to
“designate the judgment, order, or part thereof being
appealed.”
[4] The Supreme Court has interpreted Rule 3(c)(1)(A) nar-
rowly. See Torres v. Oakland Scavenger Co., 487 U.S. 312,
314 (1988). In Torres, the Court held that the appellate court
lacked jurisdiction over a party whose name had inadvertently
been omitted from a notice of appeal. Id. at 317. Noting that
the “purpose of the specificity requirement in Rule 3(c) is to
provide notice both to the opposition and to the court of the
identity of the appellant or appellants,” id. at 318, the Court
held that the “failure to name a party in a notice of appeal is
more than excusable ‘informality,’ ” id. at 314, but rather, “it
constitutes a failure of that party to appeal.” Id. The Court
concluded that “the specificity requirement of Rule 3(c) is
met only by some designation that gives fair notice of the spe-
cific individual or entity seeking to appeal.” Id. at 318.
[5] By contrast, the Supreme Court has rejected a literal
interpretation of Rule 3(c)(1)(B), which requires the notice of
appeal to “designate the judgment, order, or part thereof being
appealed.” In Foman v. Davis, 371 U.S. 178 (1962), a plain-
tiff filed a notice of appeal from the denial of a motion to
vacate the judgment, instead of from the judgment itself. Id.
at 179. The Court held that the notice of appeal was sufficient
under Rule 3(c) as “an effective, although inept, attempt to
appeal from the judgment sought to be vacated.” Id. at 181.
The Court subsequently explained “the important principle for
which Foman stands” is “that the requirements of the rules of
procedure should be liberally construed and that ‘mere techni-
LE v. ASTRUE 3105
calities’ should not stand in the way of consideration of a case
on its merits.” Torres, 487 U.S. at 316 (explaining Foman).
The Court concluded that “if a litigant files papers in a fash-
ion that is technically at variance with the letter of a proce-
dural rule, 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. at 316-17.
B
[6] In implementing the Court’s instructions to apply Rule
3(c) in a non-technical manner, see id., we have focused on
whether errors in the designation of the order from which the
party is appealing have prejudiced the other party. Lolli v.
County of Orange, 351 F.3d 410, 414 (9th Cir. 2003). 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. (internal quotation marks and alterations omit-
ted). In determining whether intent and prejudice are present,
we consider “ ‘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.’ ” Meehan v.
County of Los Angeles, 856 F.2d 102, 105 (9th Cir. 1988)
(quoting Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d
1472, 1481 (9th Cir. 1986), aff’d, 488 U.S. 347 (1989)). This
non-technical approach to construing notices of appeal is con-
sistent with the requirement in Rule 3 that “[a]n appeal must
not be dismissed for informality of form or title of the notice
of appeal.” FED. R. APP. P. 3(c)(4); see also Smith, 502 U.S.
at 249 (holding that the court of appeals erred under Rule 3
in failing to construe a prisoner’s informal brief as a notice of
appeal where it was timely filed and contained the same infor-
mation as that required under Rule 3(c)).
[7] In applying this framework, we have held that a notice
of appeal is adequate even when it completely fails to indicate
3106 LE v. ASTRUE
the order from which the party is appealing. For example, in
Lolli, an appellant filed a notice of appeal designating only
the district court’s denial of appellant’s motion for reconsider-
ation, and did not designate the district court’s grant of sum-
mary judgment in favor of the opposing parties. 351 F.3d at
414. We treated the notice of appeal as including the grant of
summary judgment because the intent to appeal the order
could be inferred from the appellant’s discussion of the merits
of the summary judgment in the opening appellate brief, and
because appellee’s full and detailed responses to appellant’s
claims indicated there had been no prejudice. Id. at 414-15.
Similarly, in Duran v. City of Douglas, 904 F.2d 1372 (9th
Cir. 1990), a district court entered a single order granting the
plaintiff’s motion for partial summary judgment and denying
the defendant’s motion for summary judgment on the basis of
qualified immunity. Id. at 1375. Although the defendant’s
notice of appeal identified only the grant of partial summary
judgment, we construed it as appealing the entire district court
order. Because the defendant “did not err in designating the
order appealed; his only mistake was in identifying the por-
tion of that order, . . . both motions for summary judgment
were resolved in the same order, and the [appellees] claim[ed]
no prejudice,” we held that the defendant’s mistake was not
fatal to his appeal. Id. at 1375 n.1.
[8] Moreover, a technical error in a notice of appeal does
not deprive us of jurisdiction even if the order mistakenly des-
ignates an unappealable order. In Firchau v. Diamond
National Corp., 345 F.2d 269 (9th Cir. 1965), the appellant’s
notice of appeal mistakenly appealed from the district court’s
dismissal of the first amended complaint (an unappealable
order), rather than from the court’s final judgment (an appeal-
able order). Id. at 270-71. We overlooked this defect because
it had no effect on the “substantial rights” of the parties. Id.
at 271. Indeed, an earlier determination by this court that we
lacked jurisdiction over an appeal due to such a technical
error was summarily reversed by the Supreme Court. In
LE v. ASTRUE 3107
United States v. Arizona, 206 F.2d 159 (9th Cir. 1953), a sin-
gle district court order dismissed a defendant’s third-party
complaint (an unappealable order), and also dismissed the
defendant’s case against the third party (an appealable order).
Id. at 160. The defendant’s notice of appeal mistakenly desig-
nated only the unappealable district court order dismissing the
third-party complaint. We stated, “[h]ere are two decisions
entered on the same date and the notice of [appellant] specifi-
cally appealed from the one not appealable and does not men-
tion the one that is.” Id. at 161. Based on this distinction, we
refused to exercise jurisdiction over the merits of the case. Id.
The dissent argued against such a hypertechnical decision:
To say that the [district] court’s action was such that
there were two, completely distinct orders, is wholly
unrealistic. The operative words of the order were as
follows: ‘The motion to dismiss the Third-Party
complaint is granted, and It is Further Ordered that
this case be and it is dismissed.’ Plainly that is but
one order . . . . [T]he court cannot pretend that it is
not fully advised by this notice of appeal just what
appellant was undertaking to appeal from. Obviously
the appeal was directed at the dismissal of the case
which was contained in, and a part of, the order
‘entered on the 6th day of October, 1952’.
Arizona, 206 F.2d at 161-62 (Pope, J., dissenting) (alterations
omitted). The Supreme Court summarily reversed the major-
ity. See United States v. Arizona, 346 U.S. 907 (1953) (per
curiam) (citing Hoiness v. United States, 335 U.S. 297
(1948)).
[9] The Tenth Circuit has similarly concluded that a notice
of appeal which designates an unappealable order does not
per se strip an appellate court of jurisdiction. See Wright v.
Am. Home Assur. Co., 488 F.2d 361, 363 (10th Cir. 1973). In
Wright, the district court granted appellee’s motion for a
directed verdict, and denied appellant’s motion for judgment
3108 LE v. ASTRUE
notwithstanding the verdict. Id. at 362. Although appellant’s
notice of appeal specifically sought review of the court’s
denial of the motion for judgment notwithstanding the verdict
or for a new trial in the alternative (an unappealable order),
both parties briefed the merits of the appeal and the “appel-
lant’s statement of issues . . . demonstrate[d] an intent to chal-
lenge the judgment.” Id. at 363. The court concluded that “[i]t
would be contrary to the spirit of the Federal Rules of Civil
Procedure to deny appellant a decision on the merits because
of a mere technicality.” Id.
III
[10] Applying these principles to our case, we first note
that Le complied with Rule 3(c)(1)(A), so there is no jurisdic-
tional bar from failure to identify an appellant in the notice of
appeal. See Torres, 487 U.S. 316-17.
[11] We apply the two-part test we have developed for
determining the effect of technical errors in the designation of
the order appealed from in a notice of appeal under Rule
3(c)(1)(B). See Lolli, 351 F.3d at 414. In Le’s case, we first
consider whether Le’s intent to appeal the district court’s
grant of the Commissioner’s summary judgment motion “can
be fairly inferred,” id., and whether the Commissioner “had
notice of the issue on appeal,” Meehan, 856 F.2d at 105. Here,
the district court resolved the cross-motions for summary
judgment in the same order on the same day, and based its
decision on the same facts and legal issues. Le’s notice of
appeal indicates that he is appealing from this single order.
See Duran, 904 F.2d at 1375 n.1 (inferring intent where the
non-designated order was decided by the district court in the
same order as that designated in the notice of appeal); cf.
Pope v. MCI Telecomms. Corp., 937 F.2d 258, 266 (5th Cir.
1991) (noting that a party is less likely to infer an intent to
appeal a non-designated order where the order is “truly inde-
pendent” from the designated order). Additionally, Le’s open-
ing brief indicates he is appealing from the grant of summary
LE v. ASTRUE 3109
judgment in favor of the Commissioner, and addresses the
merits of the district court’s grant of summary judgment in
favor of the Commissioner. See McCarthy v. Mayo, 827 F.2d
1310, 1314 (9th Cir. 1987) (inferring plaintiff’s intent to
appeal the decision addressed in the opening brief, even
though plaintiff’s notice of appeal failed to designate the deci-
sion); United States v. One 1977 Mercedes Benz, 708 F.2d
444, 451 (9th Cir.1983) (same). Accordingly, we conclude
that Le’s intent to appeal the district court’s grant of summary
judgment was clear, and gave the Commissioner notice of the
issue on appeal.
[12] We next consider whether the Commissioner was prej-
udiced by the mistake in the notice of appeal. Lolli, 351 F.3d
at 414. The Commissioner fully briefed the issues raised by
Le’s challenge to the district court’s grant of summary judg-
ment. “Where the appellee has argued the merits fully in its
brief, it has not been prejudiced by the appellant’s failure to
designate specifically an order which is subject to appeal.”
Lockman Found. v. Evangelical Alliance Mission, 930 F.2d
764, 772 (9th Cir. 1991). Moreover, as in Duran, the Com-
missioner does not claim prejudice. See 904 F.2d at 1375 n.1.
Both of these factors indicate that the Commissioner was not
prejudiced.
Because both the intent and prejudice factors of our two-
part test weigh in favor of Le, we construe Le’s notice of
appeal as meeting the requirements of Rule 3(c)(1)(B) and
effectively challenging the district court’s grant of summary
judgment in favor of the Commissioner. We therefore have
jurisdiction over Le’s appeal.
IV
We conclude that under Supreme Court precedent, as well
as our own, Le’s mistake in appealing from the denial of his
motion for summary judgment, rather than from the grant of
the Commissioner’s motion for summary judgment, does not
3110 LE v. ASTRUE
prevent us from exercising jurisdiction. Le’s intent was clear
and the Commissioner has suffered no prejudice from the
mistake. Therefore, we have jurisdiction over Le’s appeal
and, for the reasons stated in a separately filed memorandum
disposition concerning the merits of the appeal, AFFIRM the
judgment of the district court.