Supreme Court Explains When a Winning Party Must Cross-Appeal
Appellate Litigation Law Update 03/17/15 E. King Poor, Thomas McDonell
It’s a common question at the beginning of an appeal: Having won in the trial court, when must a party cross-appeal? Recently, in Jennings v. Stephens, 135 S. Ct. 793 (2015), the United States Supreme Court observed that while the basic rule is familiar, “that familiarity and clarity do not go hand-in-hand.”
In Jennings, the court reached back to its precedent of some 90 years ago (United States v. American Ry. Express Co., 265 U.S. 425 (1924)(Brandeis. J.)) to repeat the familiar rule that a party may argue to affirm a judgment in its favor based on any grounds supported by the record, even if that may “involve an attack upon the reasoning of the lower court.” Only if the prevailing party seeks to enlarge its own rights or lessen those of the losing party, must it take a cross-appeal.
In the Jennings case, a Texas inmate won a federal habeas case overturning his death sentence. The state appealed and the inmate defended the appeal on two grounds that he had prevailed on in the trial court, as well as on a third ground on which he had lost. The court of appeals reversed on the two grounds that the trial court had relied on and also ruled that it did not have jurisdiction to decide the third ground because the inmate failed to take a cross-appeal as to that.
In a 6-3 decision, the Supreme Court reversed. The court reasoned that the inmate was not required to cross-appeal as to the third ground because that did not enlarge his rights or lessen the state’s rights under the judgment. Writing for the majority, Justice Scalia explained that the inmate sought the same relief under all three theories: a new sentencing hearing. “Whether prevailing on a single theory or all three, [the inmate] sought the same indivisible relief.”
In reaching this conclusion, the court emphasized that a “prevailing party seeks to enforce not a district court’s reasoning, but its judgment.” It is only a judgment that defines the rights and liabilities of the parties, not the reasons given in an opinion. Because the inmate challenged only the reasoning of the lower court without seeking to enlarge his rights under the judgment or lessen the state’s, he was permitted to argue an alternative theory to affirm the judgment without taking a cross-appeal.
The dissent argued that habeas cases arise in a “unique context” and the inmate’s raising of the third ground amounted to an additional constitutional argument that “would modify the prisoner’s rights flowing from that order.” The majority maintained that there was nothing particular about a habeas proceeding that would alter the basic rule for cross-appeals. Moreover, the court also pointed out that though relying on a different theory may alter any issue-preclusive effect in future proceedings, that should not be confused with the rights obtained under a judgment. Since the inmate did not seek to alter those rights, he was not required to cross-appeal.
In the wake of the Jennings decision, federal courts of appeal have already applied it beyond the habeas context to general civil litigation. See Zayed v. Associated Bank, N.A., __F.3d __, 2015 WL 855707, *8 (8th Cir. 2015) (bank that prevailed against investor claims could urge affirmance on grounds that trial court did not reach); cf. BNSF R. Co. C. Alstom Transp., Inc., 777 F.3d 785 (5th Cir. 2015) (having failed to cross-appeal, prevailing party could not seek full rather than partial vacating of arbitration award).
Practice Pointer: The Jennings decision reinforces that after a notice of appeal is filed, the prevailing party in the trial court must promptly assess whether any arguments it might present on appeal will simply be alternative reasons to affirm or will actually enlarge its rights or lessen those of the other side. If they are the later, then it must timely file a cross-appeal.
You may view the Jennings decision here. If you have any questions about the Jennings decision or related cross-appeal issues, please contact E. King Poor at (312) 715-5143 / [email protected], Thomas McDonell at (312) 715-2713 / [email protected], or your local Quarles & Brady attorney.