Synopsys, Inc. v. Usdol ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILL EVANS; THE CENTER FOR No. 20-16416
INVESTIGATIVE REPORTING,
Plaintiffs-Appellees, D.C. No.
4:19-cv-01843-
v. KAW
SYNOPSYS, INC.,
Intervenor-Appellant,
and
U.S. DEPARTMENT OF LABOR,
Defendant-Appellee.
WILL EVANS; THE CENTER FOR No. 20-16538
INVESTIGATIVE REPORTING,
Plaintiffs-Cross-Appellants, D.C. No.
4:19-cv-01843-
v. KAW
SYNOPSYS, INC.,
Intervenor-Cross-Appellee,
and
U.S. DEPARTMENT OF LABOR,
Defendant.
2 EVANS V. SYNOPSYS
WILL EVANS; THE CENTER FOR No. 20-16826
INVESTIGATIVE REPORTING,
Plaintiffs, D.C. No.
4:19-cv-01843-
v. KAW
SYNOPSYS, INC.,
Intervenor-Cross-Appellee, OPINION
and
U.S. DEPARTMENT OF LABOR,
Defendant-Cross-Appellant.
Appeal from the United States District Court
for the Northern District of California
Kandis A. Westmore, Magistrate Judge, Presiding
Argued and Submitted October 4, 2021
San Francisco, California
Filed May 12, 2022
Before: Richard R. Clifton and Michelle T. Friedland,
Circuit Judges, and Michael J. McShane, * District Judge.
Opinion by Judge Friedland
*
The Honorable Michael J. McShane, United States District Judge
for the District of Oregon, sitting by designation.
EVANS V. SYNOPSYS 3
SUMMARY **
Timely Notice of Appeal / Intervenor
The panel dismissed for lack of appellate jurisdiction
prospective intervenor Synopsys, Inc.’s untimely appeal of
the district court’s grant of summary judgment in favor of
The Center for Investigative Reporting (“CIR”); and
dismissed as moot CIR’s and the U.S. Department of Labor
(“DOL”)’s cross-appeals.
CIR brought a FOIA action against DOL, claiming that
DOL was improperly withholding workforce demographic
data that Synopsys and other companies had submitted
pursuant to federal-contractor reporting regulations. The
district court granted CIR summary judgment. Seven weeks
after that judgment was entered, and eleven days before the
deadline to file a notice of appeal, Synopsys moved to
intervene as a defendant. About five months after the
deadline for filing a notice of appeal of the judgment, the
district court denied Synopsys’s motion to intervene for the
purpose of asserting a crossclaim but granted Synopsys
limited intervention for the sole purpose of appealing the
judgment. Synopsys then filed a notice of appeal from the
judgment.
The district court had granted CIR’s motion for summary
judgment on December 10, 2019, and entered judgment the
same day. The deadline for a party to file a notice of appeal
was February 10, 2020. See 28 U.S.C. § 2107(b); Fed. R.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 EVANS V. SYNOPSYS
App. P. 26(a)(1)(C). Synopsys filed a notice of appeal on
July 22, 2020.
The panel held that Synopsys failed to timely appeal the
district court’s grant of summary judgment. Synopsys
argued that the time to appeal prescribed by § 2107(b)
applies only to parties and not to prospective intervenors.
The panel disagreed. Although generally only parties may
appeal an adverse judgment, it does not follow that the
deadline to file a notice of appeal for prospective intervenors
is different from the deadline for parties. The text of § 2107
foreclosed Synopsys’s argument. The panel held that all
litigants in a given case face the same jurisdictional deadline
to file a notice of appeal under § 2107. The deadline runs
from the entry of the judgment being appealed. For
Synopsys’s appeal to be timely, it must have either extended
its time to file a notice of appeal or filed a notice of appeal
by the statutory deadline of February 10, 2020.
The panel rejected Synopsys’s argument that the district
court properly extended Synopsys’s time to appeal. The
district court twice stated that Synopsys’s time to appeal was
being preserved. The panel held that Fed. R. App. P. 26(b)
makes clear that Fed. R. App. P. 4 provides the only
mechanism by which a litigant may request, and a court may
grant, an extension to file a notice of appeal. Here, Synopsys
needed to seek an extension under Rule 4(a)(5) by March 11,
2020. Synopsys never filed a formal motion requesting an
extension of time to appeal. The panel held that the
extension mechanism of Rule 4(a)(5) was available to a
prospective intervenor who had not yet been granted party
status. The panel further held that Synopsys failed to file a
document that complied with the requirements of Rule
4(a)(5). The district court could not construe Synopsys’s
motion to intervene or the emergency motion for a stay as a
EVANS V. SYNOPSYS 5
motion to extend the time to file a notice of appeal under
Rule 4(a)(5). The district court’s statements about
preserving Synopsys’s time to appeal were therefore
ineffective, and the panel rejected Synopsys’s argument that
DOL and CIR forfeited their objection by not making it
sooner.
The panel rejected Synopsys’s argument in the
alternative that its motion to intervene and brief in support
of that motion, both filed eleven days before the deadline to
appeal the judgment, should be construed as a timely notice
of appeal. The panel held that Synopsys’s motion to
intervene could not be construed as a notice of appeal
because that motion did not satisfy the requirements of Fed.
R. App. P. 3. Because Synopsys was still actively seeking
substantive relief from the judgment in the district court, its
motion to intervene logically would not have been a notice
of appeal.
The panel held that because Synopsys did not file a
timely notice of appeal of the judgment in favor of CIR, this
court lacked jurisdiction to hear the merits of that appeal.
This determination mooted DOL’s and CIR’s cross-appeals
of the district court’s decision to grant Synopsys intervention
to appeal the judgment.
The panel concurrently filed a memorandum disposition
resolving additional matters raised by the parties.
6 EVANS V. SYNOPSYS
COUNSEL
Robert M. Loeb (argued) and James A. Flynn, Orrick,
Herrington & Sutcliffe LLP, Washington, D.C.; Denise M.
Mingrone and Robert L. Uriarte, Orrick, Herrington &
Sutcliffe LLP, Menlo Park, California; for Intervenor-
Appellant/Cross-Appellee.
Casen B. Ross (argued) and Mark B. Stern, Appellate Staff;
Stephanie M. Hinds, Acting United States Attorney; Brian
M. Boynton, Acting Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Defendant-Appellee/Cross-Appellant.
D. Victoria Baranetsky (argued), Center for Investigative
Reporting, Emeryville, California; Steven A. Hirsch,
Matthew M. Werdegar, and Joel F. Wacks, Keker, Van Nest
& Peters LLP, San Francisco, California; for Plaintiff-
Appellee/Cross-Appellant.
Katie Townsend, Adam A. Marshall, and Gunita Singh,
Reporters Committee for Freedom of the Press, Washington,
D.C., for Amici Curiae Reporters Committee for Freedom of
the Press, and 33 Media Organizations.
John P. Elwood and Janine M. Lopez, Arnold & Porter Kaye
Scholer LLP, Washington, D.C.; Tara S. Morrissey and Paul
V. Lettow, U.S. Chamber Litigation Center, Washington,
D.C.; for Amicus Curiae Chamber of Commerce of the
United States of America.
EVANS V. SYNOPSYS 7
OPINION
FRIEDLAND, Circuit Judge:
This case began as a straightforward Freedom of
Information Act (“FOIA”) dispute, but it now presents a
surprisingly complex civil procedure question: Did
Synopsys, a prospective intervenor, file a timely notice of
appeal?
Will Evans and The Center for Investigative Reporting
(collectively, “CIR”) brought a FOIA action against the U.S.
Department of Labor (“DOL”), claiming that DOL was
improperly withholding workforce demographic data that
Synopsys and other companies had submitted pursuant to
federal-contractor reporting regulations. The district court
agreed and granted CIR summary judgment. Seven weeks
after that judgment was entered—and eleven days before the
deadline to file a notice of appeal—Synopsys moved to
intervene as a defendant. Synopsys sought to assert a
crossclaim against DOL and to appeal the district court’s
grant of summary judgment, if that judgment withstood its
crossclaim. About five months after the deadline for filing a
notice of appeal of the judgment, the district court denied
Synopsys’s motion to intervene for the purpose of asserting
the crossclaim but granted Synopsys limited intervention for
the sole purpose of appealing the judgment. Synopsys then
filed a notice of appeal of the judgment. CIR and DOL filed
notices of cross-appeal of the district court’s partial grant of
Synopsys’s motion to intervene.
For the reasons below, we hold that Synopsys failed to
timely appeal the district court’s grant of summary
judgment. We therefore dismiss Synopsys’s appeal of that
8 EVANS V. SYNOPSYS
judgment for lack of appellate jurisdiction, and we dismiss
as moot CIR’s and DOL’s cross-appeals. 1
I.
In early 2018, Will Evans, a reporter employed by CIR,
was investigating diversity in the technology industry. He
submitted a FOIA request to DOL, seeking reports
containing the employment data of fifty-five federal
contractors (“EEO-1 reports”). An EEO-1 report contains a
one-page table that breaks down a company’s U.S.
workforce by job category, sex, and race. Many federal
contractors, including Synopsys, must file an EEO-1 report
every year with DOL. See 41 C.F.R. § 60-1.7(a). DOL uses
EEO-1 reports to monitor compliance with an executive
order prohibiting employment discrimination by federal
contractors. See Exec. Order No. 11,246, 30 Fed. Reg.
12,319 (Sept. 28, 1965). DOL informed CIR that, of the
fifty-five companies listed in the FOIA request, DOL had
identified responsive EEO-1 reports from thirty-six.
DOL notified the relevant companies that it had received
a FOIA request for their EEO-1 reports. DOL told the
companies that it believed the reports could be released but
that, pursuant to DOL regulation, it was providing them an
opportunity to object “on grounds that specific information
contained therein is exempt from mandatory disclosure such
1
Synopsys has also appealed the partial denial of its motion to
intervene. We resolve that appeal in a memorandum disposition filed
concurrently with this opinion. Additionally, in a separate action,
Synopsys brought a claim against DOL that was substantively identical
to the crossclaim it was attempting to bring as an intervenor in the
original FOIA action. We resolve the appeal of that action in the same
memorandum disposition. See Synopsys, Inc. v. U.S. Dep’t of Labor,
Case No. 20-16414.
EVANS V. SYNOPSYS 9
as Exemption 4 of the FOIA.” Exemption 4 covers “trade
secrets and commercial or financial information obtained
from a person and privileged or confidential.” 5 U.S.C.
§ 552(b)(4). Twenty of the thirty-six companies, including
Synopsys, submitted written objections to the release of their
reports. In response, DOL agreed that their reports were
“exempt from mandatory disclosure pursuant to Exemption
4 of the FOIA” and that DOL would decline to release them.
DOL then sent CIR the non-objecting companies’ reports.
By April 2019, DOL was still withholding the twenty
EEO-1 reports. CIR concluded that it had exhausted its
administrative remedies and filed a Complaint for injunctive
relief in the United States District Court for the Northern
District of California.
As the litigation progressed, more companies consented
to the release of their EEO-1 reports. By August 2019, ten
reports—including Synopsys’s—remained undisclosed.
CIR and DOL filed cross-motions for summary judgment on
whether DOL could withhold the undisclosed reports under
FOIA Exemption 4 as records that contained “commercial
information” that was “confidential.”
In a December 10, 2019 summary judgment order, the
district court granted CIR’s motion for summary judgment
and denied DOL’s. It entered judgment for CIR the same
day. The court ordered DOL to disclose the remaining EEO-
1 reports within thirty days. Consistent with a stipulation by
the parties, the court extended DOL’s disclosure deadline so
it coincided with the deadline to appeal the judgment:
February 10, 2020.
DOL subsequently informed Synopsys that it had
decided not to appeal. Two days later, on January 30, 2020,
Synopsys took three litigation steps. First, it moved to
10 EVANS V. SYNOPSYS
intervene in the FOIA action, explaining that it sought
intervenor status to assert a reverse-FOIA crossclaim against
DOL and to appeal the judgment if it did not prevail on that
crossclaim. 2 Second, Synopsys filed an emergency motion
in the district court to stay the release of the EEO-1 reports.
Third, Synopsys filed a new action with a reverse-FOIA
claim substantively identical to the crossclaim it was
attempting to bring against DOL in the FOIA action. CIR
and DOL opposed Synopsys’s motion to intervene.
On February 4, 2020—six days before the deadline to
appeal the judgment—the district court granted Synopsys’s
emergency motion for a stay. The court wrote: “This stay
prevents the disclosure of the EEO-1 [reports] that was
scheduled to occur on February 10, 2020, and preserves
Synopsys’s time to appeal the [summary judgment] order
should the motion to intervene be ultimately granted in
whole or in part.” 3 The February 10 appeal deadline then
passed without Synopsys or anyone else filing a notice of
appeal.
Briefing on the motion to intervene was completed in
early March of 2020. About a month later, DOL filed a
motion for leave to file a supplemental brief, in which it
reasoned that Synopsys’s time to appeal that judgment had
expired, and Synopsys had also missed the deadline to move
to extend its time to appeal. CIR later joined that argument.
2
A reverse-FOIA claim asserts under the Administrative Procedure
Act that an agency’s disclosure of records would be “not in accordance
with law.” 5 U.S.C. § 706(2)(A).
3
The district court later clarified that its stay applied only to
Synopsys’s EEO-1 report. DOL disclosed the other nine companies’
reports, and Synopsys’s report became the only EEO-1 report within
DOL’s possession that CIR had requested and still not received.
EVANS V. SYNOPSYS 11
Synopsys opposed, arguing that because it had not yet been
granted party status, it did not have an appeal deadline and
could not have sought an extension of its time to appeal. The
district court denied DOL’s motion to file the supplemental
brief and did not opine on the merits of DOL’s argument,
writing that “the issue regarding the timeliness of an appeal
is typically adjudicated by the Court of Appeals.”
In July 2020, the district court ruled on Synopsys’s
motion to intervene. The court denied the motion as
untimely to the extent intervention was sought to assert a
crossclaim. The court did, however, grant Synopsys
intervenor status for the limited purpose of appealing the
judgment. The court further stated: “The stay in this case
shall be lifted in 7 days, after which Synopsys shall have
6 days to timely file a notice of appeal.”
Two days later, on July 22, 2020, Synopsys filed a notice
of appeal of the judgment. CIR and DOL then each filed a
timely notice of cross-appeal, challenging the order granting
Synopsys intervention to appeal the judgment. The court
entered an order, pursuant to a stipulation by the parties,
keeping the stay in place pending the appeals.
II.
We must determine whether Synopsys’s appeal of the
judgment is timely. The district court granted CIR’s motion
for summary judgment on December 10, 2019 and entered
judgment the same day. The deadline for a party to file a
notice of appeal was February 10, 2020. See 28 U.S.C.
§ 2107(b); Fed. R. App. P. 26(a)(1)(C). Synopsys filed a
notice of appeal on July 22, 2020. Synopsys nonetheless
urges us to hold that its appeal is timely. It argues primarily
that the time to appeal prescribed by § 2107(b) applies only
to parties and not to prospective intervenors. Synopsys also
12 EVANS V. SYNOPSYS
advances two alternative arguments: first, that the district
court acted within its authority to extend Synopsys’s time to
appeal by construing its motion to intervene or its motion for
an emergency stay as a motion to extend its time to appeal,
and second, that Synopsys’s motion to intervene was itself a
timely notice of appeal. We reject all these arguments and
accordingly dismiss this appeal as untimely.
A.
The Supreme Court has held that “an appeal filing
deadline prescribed by statute will be regarded as
‘jurisdictional,’ meaning that late filing of the appeal notice
necessitates dismissal of the appeal.” Hamer v.
Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16 (2017);
see also Bowles v. Russell, 551 U.S. 205, 210 (2007) (“[T]he
courts of appeals routinely and uniformly dismiss untimely
appeals for lack of jurisdiction.”). As relevant here,
Congress has prescribed:
Except as otherwise provided in this section,
no appeal shall bring any judgment, order or
decree in an action, suit or proceeding of a
civil nature before a court of appeals for
review unless notice of appeal is filed, within
thirty days after the entry of such judgment,
order or decree.
28 U.S.C. § 2107(a); see also Fed. R. App. P. 4(a)(1)(A)
(implementing § 2107(a)). Subsection (b) of § 2107 further
provides that “the time as to all parties shall be 60 days from
such entry” if one of the parties is the United States, a federal
agency, or (under certain circumstances) a current or former
federal employee. 28 U.S.C. § 2107(b); see also Fed. R.
App. P. 4(a)(1)(B) (implementing § 2107(b)). Because
DOL, a federal agency, is a party in this case, that subsection
EVANS V. SYNOPSYS 13
applied, and the deadline to appeal the judgment was
February 10, 2020. 4
Synopsys argues that it was not bound by that deadline
and that its notice of appeal, filed more than five months
later, was timely. Synopsys argues that the time to file a
notice of appeal provided in § 2107(b) applies only to parties
and not to prospective intervenors. It is “well settled,” as
Synopsys points out, “that only parties to a lawsuit, or those
that properly become parties, may appeal an adverse
judgment.” United States ex rel. Alexander Volkhoff, LLC v.
Janssen Pharmaceutica N.V., 945 F.3d 1237, 1241 (9th Cir.
2020) (quoting Marino v. Ortiz, 484 U.S. 301, 304 (1988)
(per curiam)). Synopsys argues that its time to file a notice
of appeal of the judgment could not have expired before the
district court granted its motion to intervene to appeal in July
2020.
We disagree. Although generally only parties may
appeal an adverse judgment, it does not follow that the
deadline to file a notice of appeal for prospective intervenors
is different from the deadline for parties. Indeed, the text of
§ 2107 forecloses Synopsys’s argument to that effect. The
first subsection of that statute contains no references to
“parties” and states unequivocally that “no appeal shall
bring any judgment, order or decree . . . before a court of
appeals for review unless notice of appeal is filed, within
thirty days after the entry of such judgment, order or decree.”
28 U.S.C. § 2107(a) (emphasis added); see also Fed. R. App.
P. 4(a)(1)(A) (containing no reference to parties and
providing that “the notice of appeal required by Rule 3 must
4
Judgment was entered on December 10, 2019. Sixty days later was
February 8, 2020. Because that date fell on a Saturday, by rule, the
deadline was automatically extended to the end of the next business day:
Monday, February 10, 2020. See Fed. R. App. P. 26(a)(1)(C).
14 EVANS V. SYNOPSYS
be filed with the district clerk within 30 days after entry of
the judgment or order appealed from”). By the clear terms
of § 2107(a), an appellate court cannot hear a civil appeal if
a notice of appeal was not filed within the prescribed time—
regardless of whether the litigant that failed to file that notice
of appeal was a party or a prospective intervenor. And the
statute unambiguously states that the time for filing a notice
of appeal runs from “the entry of such judgment, order or
decree” being appealed. That the district court did not rule
on Synopsys’s motion to intervene until July 2020 does not
change that the judgment Synopsys sought to appeal was
entered on December 10, 2019. That date of entry triggered
the running of the period to file a notice of appeal—for
everyone.
To be sure, subsection (b), which applied in this case,
does refer to “parties,” providing that “the time as to all
parties shall be 60 days from such entry if one of the parties
is [the United States or a federal agency].” 28 U.S.C.
§ 2107(b) (emphasis added); see also Fed. R. App. P.
4(a)(1)(B) (“The notice of appeal may be filed by any party
within 60 days after entry of the judgment or order appealed
from if one of the parties is [the United States or a federal
agency].” (emphasis added)). But “the words of a statute
must be read in their context and with a view to their place
in the overall statutory scheme.” Home Depot U.S.A., Inc.
v. Jackson, 139 S. Ct. 1743, 1748 (2019) (quoting Davis v.
Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)). When
subsection (b) is read in the context of the statute as a whole,
it is clear that the effect of that subsection is simply to change
the deadline from thirty days to sixty days if the federal
government is a party in the case. Even though the thirty-
day deadline provided in subsection (a) does not apply in
such cases, the rest of subsection (a) is still operative.
EVANS V. SYNOPSYS 15
Synopsys’s position seems to be that the clock on its time
to appeal—whether thirty days or sixty days—did not start
running until the district court had formally made Synopsys
a party by granting in part its motion to intervene. But that
reading of the statute contravenes the plain language
specifying that the deadline, whether prescribed by
subsection (a) or subsection (b), runs from the date of entry
of the judgment. Indeed, even if Synopsys were correct that
subsection (b) binds only “parties” and not prospective
intervenors, the most logical consequence of that position
would be that a prospective intervenor like Synopsys would
remain bound by the original thirty-day deadline in
subsection (a)—not that Synopsys’s obligation to provide
notice of appeal would become completely untethered from
the date of the judgment’s entry. Our interpretation of
§ 2107 is that subsection (a) provides the rule for filing a
notice of appeal and a default deadline of thirty days, while
subsection (b) changes the deadline from thirty days to sixty
days if the federal government is a party. We are not aware
of any court that has held that § 2107 does not apply to
prospective intervenors, 5 and we decline Synopsys’s
invitation to be the first.
We hold, therefore, that all litigants in a given case face
the same jurisdictional deadline to file a notice of appeal
5
Synopsys cites United Airlines, Inc. v. McDonald, 432 U.S. 385(1977), but that case does not support Synopsys’s interpretation of the
statute. The Court in United Airlines held that “[p]ost-judgment
intervention for the purpose of appeal has been found to be timely . . .
[i]nsofar as the motions to intervene in these cases were made within the
applicable time for filing an appeal.” Id. at 395 n.16. The Court’s
decision addressed whether a litigant’s motion to intervene was timely,
not whether a litigant’s notice of appeal was timely. The Court did not
consider whether a prospective intervenor’s deadline to appeal was
different from any other party’s deadline to appeal.
16 EVANS V. SYNOPSYS
under § 2107. 6 That deadline runs from “the entry of [the]
judgment, order or decree” being appealed. 28 U.S.C.
§ 2107(a). For Synopsys’s appeal of the judgment to be
timely, Synopsys must have either extended its time to file a
notice of appeal or filed a notice of appeal by the statutory
deadline of February 10, 2020. We next consider whether
Synopsys did either of those things.
B.
Even though Synopsys filed a notice of appeal more than
five months after the statutory deadline, Synopsys offers two
alternative arguments why its appeal is nonetheless timely.
First, Synopsys argues that the district court properly
6
Synopsys argues that a passage from a concurring opinion in
Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002(2022), supports treating its notice of appeal as timely. Justice Thomas
wrote in that concurrence that “[a]s a nonparty, the [Kentucky] attorney
general could not notice an appeal under Rules 3 and 4,” and therefore,
“could not possibly have been obligated to do so, rather than pursue
intervention.” Id. at 1015 (Thomas, J., concurring). For two reasons,
that passage is not relevant here. First, as discussed above, the fact that
only parties may generally pursue an appeal under Rules 3 and 4 does
not mean that a potential intervenor’s deadline for filing a notice of
appeal is different from that of existing parties. Second, the phrase
“pursu[ing] intervention” in Justice Thomas’s concurrence refers to the
Kentucky attorney general’s motion to intervene filed in the court of
appeals after another party had already filed a timely notice of appeal.
In EMW, the Supreme Court considered whether the Kentucky attorney
general’s motion to intervene filed in the Sixth Circuit was
jurisdictionally barred because it came after the time allowed for filing a
notice of appeal of the district court’s decision (in fact, it came after the
Sixth Circuit had issued its opinion on the merits). Id. at 1008–09
(majority opinion). The Supreme Court’s holding that the Sixth Circuit
had jurisdiction to rule on that intervention motion, id. at 1009, has no
bearing on whether Synopsys’s notice of appeal of the district court’s
judgment was timely.
EVANS V. SYNOPSYS 17
extended Synopsys’s time to appeal. 7 Second, Synopsys
argues that its motion to intervene should be construed as a
timely notice of appeal. We reject both arguments.
1.
The district court twice stated that Synopsys’s time to
appeal was being preserved. On February 4, 2020, after
Synopsys filed its motion to intervene, but before the
statutory deadline to appeal the judgment had passed, the
district court entered a stay. In that order, the district court
wrote that the stay “preserve[d] Synopsys’s time to appeal
the [summary judgment] order should the motion to
intervene be ultimately granted in whole or in part.” On July
20, 2020, when the district court granted Synopsys
intervention to appeal the judgment, the court said that “[t]he
stay in this case shall be lifted in 7 days, after which
Synopsys shall have 6 days to timely file a notice of appeal.”
The parties dispute whether those statements by the district
court had any effect on Synopsys’s deadline to file a notice
of appeal.
Section 2107 and Rule 4—the appellate rule that
implements that statute—provide a mechanism to extend the
time to file a notice of appeal. The statute says that “[t]he
district court may, upon motion filed not later than 30 days
after the expiration of the time otherwise set for bringing
appeal, extend the time for appeal upon a showing of
excusable neglect or good cause.” 28 U.S.C. § 2107(c). The
implementing rule similarly provides that “[t]he district
court may extend the time to file a notice of appeal if . . . a
party so moves no later than 30 days after the time prescribed
7
Synopsys first made this argument in response to our questions at
oral argument.
18 EVANS V. SYNOPSYS
by this Rule 4(a) expires[] and . . . that party shows
excusable neglect or good cause.” Fed. R. App. P.
4(a)(5)(A). The appellate rules make clear that Rule 4
provides the only mechanism by which a litigant may request
and a court may grant an extension of time to file a notice of
appeal. Fed. R. App. P. 26(b) (“[T]he court may not extend
the time to file . . . a notice of appeal (except as authorized
in Rule 4).”). 8 We have held that a litigant that seeks to avail
itself of the rule must “explicitly request an extension of
time” and that “a formal motion for extension [is] required
by rule 4(a)(5).” Malone v. Avenenti, 850 F.2d 569, 572–73
(9th Cir. 1988). Here, because the deadline to appeal the
judgment was February 10, 2020, Synopsys needed to seek
an extension under Rule 4(a)(5) by March 11, 2020.
Synopsys never filed a formal motion requesting an
extension of time to appeal. Nonetheless, the district court
stated that Synopsys’s time to appeal the judgment would be
preserved if Synopsys’s motion to intervene were granted.
DOL and CIR argued in the district court and reiterate on
appeal that the district court lacked authority to extend the
deadline absent a motion from Synopsys that complied with
Rule 4(a)(5). We must first decide whether the extension
mechanism of Rule 4(a)(5) is even available to a prospective
intervenor who has not yet been granted party status. If it is,
we must decide whether the district court’s statements that
Synopsys’s time to appeal would be preserved were effective
despite DOL and CIR’s objection that Synopsys had not
complied with Rule 4(a)(5)’s requirements for a motion to
extend time.
8
Rule 4(a)(6) implements a different provision of § 2107(c) and
provides a mechanism for re-opening the time to file an appeal. That
rule is inapplicable in this case, and no party has argued otherwise.
EVANS V. SYNOPSYS 19
a.
DOL and CIR contend that, notwithstanding Rule
4(a)(5)’s use of the word “party,” Synopsys could have and
should have sought an extension of its time to appeal once it
realized the district court would not resolve its motion to
intervene before the deadline to file a notice of appeal.
Although we have never addressed whether a
prospective intervenor may file a motion for an extension of
time under Rule 4(a)(5), other circuits have allowed it. The
Seventh Circuit has expressly held that a prospective
intervenor may “secure an extension of the appeal deadline”
under Rule 4(a)(5). CE Design, Ltd. v. Cy’s Crab House N.,
Inc., 731 F.3d 725, 728–29 (7th Cir. 2013). The Fifth Circuit
has entertained an appeal after explicitly noting that a
prospective intervenor sought and secured an extension of
time to file a notice of appeal. Thurman v. FDIC, 889 F.2d
1441, 1448 (5th Cir. 1989) (holding that “the extension of
time [secured under Rule 4(a)(5)] was sufficient to preserve
[a prospective intervenor’s] right to appeal”).
We agree with those circuits and hold that a prospective
intervenor may file a motion to extend its time to appeal
under Rule 4(a)(5). The word “party” does not appear in the
operative language of § 2107(c), which Rule 4(a)(5)
implements. Compare 28 U.S.C. § 2107(c) (“The district
court may, upon motion filed[,] . . . extend the time for
appeal.”), with Fed. R. App. P. 4(a)(5)(A) (“The district
court may extend the time to file a notice of appeal if . . . a
party so moves.”). The statute therefore does not impose a
jurisdictional bar to hearing an appeal that comes to us after
a prospective intervenor has secured an extension under
§ 2107(c) and Rule 4(a)(5). See Hamer, 138 S. Ct. at 16(noting that appeal filing requirements will be regarded as
“jurisdictional” only if they are “prescribed by statute”).
20 EVANS V. SYNOPSYS
And, in fact, we have already held that a prospective
intervenor whose motion to intervene has been denied can
file a notice of appeal of that denial pursuant to Rule 4(a)(1).
See, e.g., Citizens for Balanced Use v. Mont. Wilderness
Ass’n, 647 F.3d 893, 896 (9th Cir. 2011). The word “party”
as used in Rule 4(a) therefore must be broad enough to
encapsulate, at least in some circumstances, individuals and
entities who are seeking to intervene to become parties. See
Thurman, 889 F.2d at 1448 (rejecting as “meritless” the
contention that “an intervenor whose motion to intervene is
denied is not a ‘party’ under [Rule] 4(a)(4)”). We see no
reason why “party” in Rule 4(a)(5) should be interpreted to
exclude prospective intervenors who are seeking to become
parties. 9
In any event, a prospective intervenor, in almost every
circumstance, will have attained party status by the time the
motion to extend time is granted. Rule 4(a)(5) states that a
“district court may extend the time to file a notice of appeal
if . . . a party so moves no later than 30 days after [the
deadline to file a notice of appeal] expires.” Fed. R. App. P.
4(a)(5)(A). The rule further provides that “[n]o extension
. . . may exceed 30 days after the prescribed time or 14 days
after the date when the order granting the motion is entered,
whichever is later.” Fed. R. App. P. 4(a)(5)(C). Thus, the
rule prescribes a deadline by which a party must move for an
extension, as well as a limit on how much a district court
may extend the deadline if it grants the motion. But the rule
9
Interpreting “party” in Rule 4(a)(5) to include prospective
intervenors is consistent with our interpretation of subsections (a) and
(b) of § 2107, as well as Rule 4(a)(1)(A) and Rule 4(a)(1)(B), discussed
in section II.A. Because prospective intervenors seeking to appeal a
judgment face the same appellate deadline as parties, it makes sense that
prospective intervenors, like parties, should be able to extend that
deadline for good cause.
EVANS V. SYNOPSYS 21
does not set any deadline by which a district court must
decide that motion. Therefore, it makes sense for a district
court, needing time to decide a motion to intervene, to leave
unresolved any motion to extend time filed by a prospective
intervenor until the court is ready to rule on intervention.
Otherwise, the district court would start the clock on the
prospective intervenor’s deadline to appeal before the
prospective intervenor was granted party status—i.e., before
the prospective intervenor has received permission to appeal
the judgment at all. If the district court grants the motion to
intervene and grants the (previously held) motion to extend
the deadline to appeal, the intervenor will be a party when it
appeals the merits. 10 A timely motion to extend the deadline
to appeal, therefore, acts as a wedge that keeps the window
for a prospective intervenor to appeal the merits open so long
as there remains a possibility that a court might grant the
prospective intervenor’s extension motion.
We conclude that the mechanism for a district court to
extend the time to appeal provided in Rule 4(a)(5) is
available to a prospective intervenor. We next turn to
whether Synopsys properly invoked Rule 4(a)(5).
b.
Synopsys argues that the district court properly
construed the motion to intervene or the emergency motion
for a stay as a motion to extend the time to file a notice of
10
If the district court denies the motion to intervene and/or the
motion to extend time, the denial of either or both motions can be
appealed. See Corrigan v. Bargala, 140 F.3d 815, 817 n.3 (9th Cir.
1998) (“The grant or denial of an extension of time to appeal is
appealable pursuant to 28 U.S.C. § 1291.”); Citizens for Balanced Use,
647 F.3d at 896 (“We have jurisdiction over the denial of a motion to
intervene as of right as a final appealable order.”).
22 EVANS V. SYNOPSYS
appeal under Rule 4(a)(5). It is not clear whether that was
the district court’s intent. Regardless, the district court could
not construe either motion as a motion to extend the time to
appeal because neither met the requirements of Rule 4(a)(5).
We have held that Rule 4(a)(5) requires “a formal motion”
that, among other things, “explicitly request[s] an extension
of time.” Malone, 850 F.2d at 572. In Malone, a pro se
prisoner sent a letter to the district court inquiring about the
availability of an appeal and stating that he had been unable
to communicate with his lawyer. We held that the district
court erred in construing that letter as a motion to extend the
time to appeal because the letter did not comport with Rule
4(a)(5). Id. at 571–73. We have also held that even a late-
filed notice of appeal—a document that unequivocally
evinces a party’s intent to appeal—cannot be construed as a
motion to extend the time to appeal. Pettibone v. Cupp,
666 F.2d 333, 335 (9th Cir. 1981). Synopsys’s motion to
intervene and emergency motion for a stay contemplated that
Synopsys would likely wish to appeal if it did not win the
relief it was seeking in its proposed crossclaim, but neither
document “explicitly request[ed] an extension of time to
appeal.” See Malone, 850 F.2d at 572. Synopsys, therefore,
failed to file a document that complied with the requirements
of Rule 4(a)(5).
But that does not necessarily mean that the district
court’s extension of Synopsys’s time to appeal was invalid.
In Hamer, the Supreme Court distinguished between, on the
one hand, “an appeal filing deadline prescribed by statute,”
which “will be regarded as ‘jurisdictional,’” and, on the
other hand, “a time limit prescribed only in a court-made
rule,” which is “a mandatory claim-processing rule.”
Hamer, 138 S. Ct. at 16. The distinction is often important,
because contravention of a jurisdictional requirement
“necessitates dismissal of the appeal” whereas “[m]andatory
claim-processing rules are less stern” and “may be waived
EVANS V. SYNOPSYS 23
or forfeited.” 11 Id. at 16–17; see also Demaree v. Pederson,
887 F.3d 870, 876 (9th Cir. 2018) (recognizing that Hamer
rejected the rule that “all timeliness issues in notices of
appeal are jurisdictional”). We have not previously decided
whether the rule that a party must make a formal motion
explicitly requesting an extension of time to appeal is a
jurisdictional requirement contained in § 2107(c) or a
mandatory claim-processing rule contained only in Rule
4(a)(5).
We need not resolve that question because, either way,
we would conclude that the district court’s statements about
preserving Synopsys’s time to appeal were ineffective. The
Supreme Court has instructed that, “[i]f properly invoked,
mandatory claim-processing rules must be enforced.”
Hamer, 138 S. Ct. at 17; see also Nutrition Distrib. LLC v.
IronMag Labs, LLC, 978 F.3d 1068, 1081 n.4 (9th Cir. 2020)
(holding that “[e]ven if the timeliness issue were not
jurisdictional,” so long as a party “did not waive or forfeit its
timeliness objection[, w]e would . . . still be required to treat
the appeal as untimely”). So long as DOL and CIR have
properly invoked the argument that Synopsys failed to
follow the rules for seeking an extension of time to appeal,
we are obligated to enforce those rules.
Here, DOL and CIR timely raised that the Rule 4(a)(5)
procedures for extending the deadline to appeal had not been
followed. Synopsys’s deadline to file a formal motion to
extend its time to appeal was March 11, 2020. See Fed. R.
App. P. 4(a)(5)(A). Until then, it was possible Synopsys
would file a formal motion requesting such an extension.
11
The Court in Hamer expressly “reserved whether mandatory
claim-processing rules may be subject to equitable exceptions.” Hamer,
138 S. Ct. at 18 n.3; see id. at 22. We decline to address that question
here given that no party has raised the issue.
24 EVANS V. SYNOPSYS
Once the deadline had passed and Synopsys had not done so,
DOL and CIR raised the argument that intervention to appeal
would be pointless because any notice of appeal would be
untimely. In support of that argument, DOL explained that
“Synopsys did not file a motion to extend [the] time period
under Federal Rule of Appellate Procedure 4(a)(5),” and that
the deadline to do so had expired on March 11, 2020.
Synopsys argues that DOL and CIR forfeited that
objection by not making it sooner. We disagree. DOL and
CIR raised the issue about a month after the March 11
deadline had passed, and they were not obligated to point out
before that deadline that Synopsys was at risk of losing its
ability to appeal the judgment. See Dolan v. United States,
560 U.S. 605, 610 (2010) (explaining that a litigant forfeits
the protection of a claim-processing rule’s deadline when it
fails to “point[] out to the court that another litigant has
missed such a deadline” (emphasis added)). Indeed, they
may not have needed to raise the issue in the district court at
all—as the district court noted in declining to respond to
DOL and CIR’s Rule 4(a)(5) argument, the timeliness of an
appeal is typically adjudicated by the appellate court. See
United States v. Sadler, 480 F.3d 932, 940 (9th Cir. 2007)
(“We, not the district court, are the ultimate arbiters of
compliance with the rules governing the appellate
process.”). 12
12
In Hamer, the Supreme Court expressly reserved the question
“whether respondents’ failure to raise any objection in the District Court
to the overlong time extension,” in contravention of Rule 4(a)(5)(C), “by
itself, effected a forfeiture.” 138 S. Ct. at 22. Unlike the respondents in
Hamer, who did not raise their argument that a claim-processing rule had
been violated until the court of appeals asked for additional briefing on
the issue, id. at 18, DOL and CIR undisputedly raised their claim-
EVANS V. SYNOPSYS 25
Moreover, to the extent that Synopsys is arguing that
DOL and CIR had an obligation to promptly inform the
district court that it could not construe Synopsys’s motion to
intervene or motion to stay as a motion to extend its time to
appeal under Rule 4(a)(5), we disagree. Even assuming the
district court had misapplied a claim-processing rule, that
error was not apparent at the time. The district court never
gave any express indication that it believed Rule 4(a)(5) had
been invoked. And, indeed, in response to DOL’s April
2020 filing, which argued that Synopsys had missed its
deadline to request an extension of its time to appeal,
Synopsys expressly disavowed that it even could file a
motion to extend time under Rule 4(a)(5) because it had not
yet been granted party status. We therefore need not decide
whether an obvious misapplication of a claim-processing
rule would trigger an obligation to promptly inform the
district court of its error. 13
Because DOL and CIR adequately invoked the rule that
a district court may extend a litigant’s time to file a notice of
processing argument in the district court, and Synopsys argues only that
they should have made it sooner.
13
To the extent Synopsys is arguing that DOL and CIR’s failure to
inform the district court that it lacked authority to sua sponte preserve
Synopsys’s deadline to appeal constituted a forfeiture, that argument also
fails. If the district court had been acting sua sponte and was not
construing Synopsys’s motions as a motion to extend time, that would
have violated a jurisdictional requirement of 28 U.S.C. § 2107(c), which
provides that a district court can extend a deadline to appeal only “upon
motion filed.” See United States ex rel. Haight v. Cath. Healthcare W.,
602 F.3d 949, 956 (9th Cir. 2010) (holding that “the requirement that a
would-be appellant file a timely motion for an extension of time before
such an extension may be granted” is jurisdictional). DOL and CIR’s
argument that a district court lacks authority to sua sponte extend an
appeal deadline cannot be waived or forfeited because it relates to a
jurisdictional rule.
26 EVANS V. SYNOPSYS
appeal only if that litigant requests an extension in a formal
motion meeting the requirements of Rule 4(a)(5), we must
enforce that rule. See Malone, 850 F.2d at 572–73; see also
Hamer, 138 S. Ct. at 17. Accordingly, the district court’s
statements that Synopsys’s time to appeal the judgment
would be preserved had no effect, and Synopsys’s deadline
to file a notice of appeal remained February 10, 2020.
2.
Synopsys argues in the alternative that its motion to
intervene and brief in support of that motion—both filed
eleven days before the deadline to appeal the judgment—
should be construed as a timely notice of appeal. Rule 3
specifies that a notice of appeal must contain three pieces of
information: (1) the parties taking the appeal, (2) the order
or judgment being appealed, and (3) the court to which the
appeal is taken. Fed. R. App. P. 3(c). We have held that
“documents which are not denominated notices of appeal
will be so treated when they serve the essential purpose of
showing that the party intended to appeal, are served upon
the other parties to the litigation, and are filed in court within
the time period otherwise provided by Rule 4(a).” Rabin v.
Cohen, 570 F.2d 864, 866 (9th Cir. 1978). That is, “[i]f a
document filed within the time specified by Rule 4 gives the
notice required by Rule 3, it is effective as a notice of
appeal.” Smith v. Barry, 502 U.S. 244, 248–49 (1992). But,
“[a]lthough courts should construe Rule 3 liberally when
determining whether it has been complied with,
noncompliance is fatal to an appeal.” Id. at 248; see also id.(“Rule 3’s dictates are jurisdictional in nature, and their
satisfaction is a prerequisite to appellate review.”).
We hold that Synopsys’s motion to intervene cannot be
construed as a notice of appeal because that motion did not
satisfy the requirements of Rule 3. Fundamentally, a notice
EVANS V. SYNOPSYS 27
of appeal must put the parties on notice that an “appeal is
[being] taken.” Fed. R. App. P. 3(c)(1)(B). Synopsys’s
motion to intervene did not do so. Synopsys stated in its
brief in support of its intervention motion that it was seeking
to file substantive motions that, if successful, would have
obviated the need for an appeal. Specifically, Synopsys
stated that, if intervention were granted, it would “assert[] a
crossclaim against DOL in the nature of a reverse FOIA
action” and that it “anticipates that the parties will cross-
move for summary judgment on the reverse FOIA
crossclaim . . . and/or [that] Synopsys will seek
reconsideration of the grant of summary judgment on the
FOIA claim.” Synopsys went on to say that it “also seeks
party status in order to appeal, if [the district court’s]
December 10 ruling stands” (emphasis added). Synopsys’s
statement that it would seek to appeal the summary judgment
ruling was conditioned on that ruling surviving the motions
for post-judgment relief that Synopsys still intended to bring
in the district court.
Because Synopsys was still actively seeking substantive
relief from the judgment in the district court, its motion to
intervene logically could not have been a notice of appeal. 14
The Supreme Court has explained that “[t]he filing of a
14
The only case Synopsys cites in which a motion to intervene has
been construed as a notice of appeal, In re Grand Jury Proc. (Malone),
655 F.2d 882 (8th Cir. 1981), is clearly distinguishable. The intervenor
in Malone filed his motion to intervene with the court of appeals, in an
already pending appellate proceeding before the Eighth Circuit. Id. at
883. A different litigant in the case had filed a timely notice of appeal
of the underlying order in the district court, vesting jurisdiction in the
appellate court. Id. The court held that the motion to intervene in the
appeal was the “the functional equivalent of a notice of appeal [and]
would have been timely as such.” Id. at 885. Accordingly, the Eighth
Circuit allowed the intervention to proceed. The intervenor in that case
was not actively seeking any relief in the district court.
28 EVANS V. SYNOPSYS
notice of appeal is an event of jurisdictional significance—it
confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case
involved in the appeal.” Griggs v. Provident Consumer
Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). Synopsys’s
motion to intervene cannot, as Synopsys contends, be the
functional equivalent of a notice of appeal, because if it
were, the district court would have been divested of
jurisdiction to entertain the crossclaim that Synopsys was, in
the very same filing, asking the district court to adjudicate. 15
C.
For the reasons above, Synopsys did not file a timely
notice of appeal of the judgment in favor of CIR. We
therefore lack jurisdiction to hear the merits of that appeal.
See Hamer, 138 S. Ct. at 16. That determination moots
15
We have held that when a prospective intervenor’s motion to
intervene has already been denied but the time to appeal the merits has
not yet expired, and the “putative intervenor wishes to press an appeal
on the merits,” it is appropriate for that litigant to “file[] a notice of
appeal from the order denying their motion to intervene, and a protective
notice of appeal from the district court’s order on the merits.” Perry v.
Schwarzenegger, 630 F.3d 898, 902–03 (9th Cir. 2011); see also
15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3902.1 (2d ed. rev. 2022) (“If final
judgment is entered with or after the denial of intervention, however, the
applicant should be permitted to file a protective notice of appeal as to
the judgment, to become effective if the denial of intervention is
reversed.”). The filing of a protective notice of appeal under those
circumstances typically does not present the jurisdictional concerns or
ambiguity discussed above, because the district court has already ruled
on (and denied) the prospective intervenor’s motion to intervene. A
protective notice of appeal ensures that the so-far unsuccessful
prospective intervenor has filed a timely appeal of the underlying order
or judgment and allows the court of appeals to reach the merits of the
appeal if that court reverses the denial of the motion to intervene.
EVANS V. SYNOPSYS 29
DOL’s and CIR’s cross-appeals of the district court’s
decision to grant Synopsys intervention to appeal the
judgment. See CE Design, 731 F.3d at 730 (holding that,
when a court of appeals “lack[s] jurisdiction to review the
judgment” because there has been no timely appeal of that
judgment, mootness precludes review of whether
intervention to appeal should have been permitted).
III.
We dismiss for lack of jurisdiction Synopsys’s untimely
appeal of the grant of summary judgment in favor of CIR,
and we dismiss as moot CIR’s and DOL’s cross-appeals.