by Adam Charnes and Christin Jones
When must a party who prevailed in the trial court cross-appeal? The seemingly obvious answer—“if I won, I never need to appeal”—turns out to be wrong in many instances. Because failure to cross-appeal could limit the prevailing party’s arguments on appeal, it is important for litigators to understand the somewhat arcane rules governing this question.
To start with the basics, a cross-appeal is an appeal filed by the appellee. When the trial court issues a split decision, it is natural that both sides would appeal, and the second appeal is called a cross-appeal. But the more difficult question is when a party who prevailed completely—that is, a party for whom judgment has been entered on all claims—must file a cross-appeal. In Jennings v. Stephens, 135 S. Ct. 793 (2015), the Supreme Court reiterated the long-standing rule that a prevailing party must file a cross-appeal in order to present an argument that would either enlarge that party’s rights or lessen the opposing party’s rights under the district court’s judgment. A cross-appeal is not necessary, however, when an argument simply presents an alternative ground for affirming the judgment as it stands.
In Jennings, the defendant was convicted of murder and sentenced to death. He sought federal habeas relief by arguing three theories of ineffective assistance of counsel during the punishment phase. The district court granted relief on two of the three theories and ordered the State to release him unless it held a new sentencing hearing or commuted his death sentence.
The State’s appeal attacked only the two theories upon which the court relied in issuing its order. Jennings responded by defending the order on all three theories, but the Fifth Circuit determined that it lacked jurisdiction to address the third theory because Jennings had not filed a cross-appeal.
Reversing, the Supreme Court reasoned that the third theory, if accepted, would neither expand Jennings’ rights, nor lessen the State’s rights, under the judgment. And because appellate courts review lower courts’ judgments—which actually define the parties’ rights and obligations—and not their opinions, the Court allowed Jennings to present the third theory without filing a cross-appeal.
So it is clear that a cross-appeal is necessary only if the appellee intends to advance an argument that would, if accepted, result in a modification of the judgment rather than a straight affirmance.
Under this principle, an appellee must cross-appeal when it seeks to increase the amount awarded as damages or costs; tries to alter the disposition of a counterclaim or setoff; challenges an attorney’s fees ruling; or attempts to convert a dismissal without prejudice into one with prejudice. Further, when the plaintiff appeals a summary judgment or jury verdict for the defendant, the defendant must cross-appeal to contest the denial of its motion to dismiss for lack of personal jurisdiction, because a grant of summary judgment and a dismissal for lack of personal jurisdiction are wholly different forms of relief. When a judgment disposes of multiple claims, a cross-appeal is required to present arguments related to a different claim than that raised in the initial appeal. And a cross-appeal might be necessary for an appellee to defend an injunction on a different basis than that relied on by the trial court, because a different rationale for the injunction could change the scope of the order.
Notwithstanding the general rule, the courts have recognized a few unique exceptions. For example, a cross-appeal is not necessary to secure post-judgment interest denied by the district court, since Rule 37 of the Federal Rules of Appellate Procedure allows the appellate court to award whatever interest is due under the law. Also, an appellee need not file a cross-appeal to challenge the district court’s subject-matter jurisdiction, which is non-waivable.
When the appellee fails to cross-appeal, any argument that could be raised only in connection with a cross-appeal is waived. But if no cross-appeal is taken, an appellee may still urge in support of the judgment any argument appearing in the record, even if it attacks the reasoning of the lower court or urges an argument ignored by that court—as long as the argument would not alter the scope of the existing judgment. And since appellate rule 4(a)(3) gives a party fourteen days after the filing of the first notice of appeal to file a cross-appeal, the prevailing party may postpone performing this often-complicated analysis until it sees whether its opponent appeals.
Adam Charnes is a partner at Kilpatrick Townsend & Stockton LLP. He can be reached at firstname.lastname@example.org. Christin Jones is an associate at the firm and can be contacted at email@example.com.