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DISSECTING CROSS-APPEALS

WHAT IS A CROSS-APPEAL?

A cross appeal is an appeal filed by a respondent.  Normally, when you are the respondent (or appellee) on appeal, you have won and your focus is on defending what the lower court did.  But, sometimes, neither side wins. 

When neither side wins, the first party to file an appeal becomes the appellant. If you want to challenge the district court’s findings as well, you do not have to file a separate appeal.  You can file a cross-appeal.

WHEN SHOULD YOU FILE A CROSS APPEAL?

You should file a cross-appeal “when acceptance of the argument [you] wish[ ] to advance would result in reversal or modification of the judgment rather than an affirmance.”  Hamilton Beach Brands, Inc. v. f’real Foods, LLC, 908 F.3d 1328, 1337 (Fed. Cir. 2018) (internal quotations omitted).  Cross-appeals must be filed if you “seek to alter the judgment below.”  Nw. Airlines, Inc. v. Cnty. of Kent, Mich., 510 U.S. 355, 364, 114 S. Ct. 855, 862, 127 L.Ed.2d 183 (1994). 

A common example of a cross-appeal is a party who prevails on summary judgment, but then is denied their requested attorney fees.  That party wants the summary judgment ruling to be upheld, but the attorney fee denial reversed.  They can cross-appeal the denial of fees. 

A cross-appeal cannot be filed when you generally agree with the outcome the court reached, but not with the court’s reasoning behind it.  “[A] party that is not adversely affected by a judgment lacks standing to cross-appeal.”  Vanda Pharm. Inc. v. W.Ward Pharm. Int’l, Ltd., 887 F.3d 1117, 1140 (Fed. Cir. 2018).  Instead, a responding party on appeal “may urge in support of a decree in any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court.”  Jennings v. Stephens, 135 S. Ct. 793, 798, 190 L.Ed.2d 662 (2015) (internal quotations omitted).  And, “[a] prevailing party need not cross-[appeal] to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not change, the judgment.”  Nw. Airlines, Inc., 510 U.S. at 364, 114 S. Ct. at 862. 

HOW DO YOU FILE A CROSS APPEAL?

You file a notice of cross appeal.  NRAP 28.1(b); FRAP 28.1(b).  After the appellant files their opening brief, you file a combined answering brief and opening brief on cross-appeal.  NRAP 28.1(c)(2); FRAP 28.1(c)(2).  You do not need to include a statement of the case or a statement of the facts in this brief, but it must comply with Rule 28’s requirements for opening briefs (not answering briefs) in all other respects. Id.

The appellant then gets to file a answering brief to the cross-appeal opening brief, and can combine that answering brief with their reply brief.  NRAP 28.1(c)(3).  You get to file a reply brief in support of your opening brief on cross-appeal.  NRAP 28.1(c)(4).  This must be limited to the issues presented in the cross-appeal. 

Page limits are different for briefs in a cross-appeal.  Usually, opening and answering briefs are limited to 30 pages.  On cross-appeal, the appellant’s opening brief is limited to 30 pages, but the combined answering and opening brief on cross-appeal is expanded to 40 pages.  Usually, reply briefs are limited to 15 pages, but the appellant’s combined reply and answering brief on cross-appeal is expanded to 30 pages.  The respondent’s reply brief on cross-appeal is still limited to 15 pages.  NRAP 28.1(e); FRAP 28.1(e). 

The time limits to file a brief in a cross-appeal generally remain the same.  In Nevada, opening briefs are due 120 days after the date the appeal is docketing or briefing is reinstated following the settlement program.  NRAP 28.1(f)(1)(A).  Combined answering and opening briefs on cross-appeal are due 30 days after the initial brief.  NRAP 28.1(f)(1)(B).  The reply brief and combined answering brief is due 30 days after that, and the final reply brief on the cross-appeal is due 14 days after that.  NRAP 28.1(f)(1)(C)-(D). 

In the Ninth Circuit, the opening brief is due 40 days after the record is filed, the combined answering and opening on cross-appeal is due 30 days after that, the combined reply and answering brief on cross-appeal is due 30 days after that, and the final reply brief is due 21 days after that (unless oral argument will occur prior to that, then it is due no later than 7 days before oral argument).  FRAP 28.1(f).

FOOD FOR THOUGHT

Cross-appeals are a highly strategical decision.  If you won a favorable substantive decision, you might not want to file a cross-appeal. As I repeatedly say, it is not persuasive to argue “The judge is an absolute idiot who really screwed up… so you should totally affirm them.”