and Submitted January 6, 2016 San Francisco, California
from the United States District Court for the District of
Arizona D.C. No. 2:13-cv-00304-GMS G. Murray Snow, District
W. Dow (argued), Phoenix, Arizona, for Plaintiff-Appellant.
M. Lantka (argued), Phoenix, Arizona, for
Before: Alex Kozinski, Diarmuid F. O'Scannlain and M.
Margaret McKeown, [*] Circuit Judges.
Rule of Appellate Procedure 3
panel reversed the district court's judgment in a civil
action, which dismissed claims brought by Carl West against
the United States and FBI agent Joe Gordwin based on
misconduct in West's criminal case.
panel sua sponte considered whether West's notice of
appeal ("NOA") complied with Federal Rule of
Appellate Procedure 3, which lists the requirements for
taking an appeal as of right in federal court.
Fed. R. App. P. 3(c)(1)(A), the NOA must identify each
appellant, but does not mention appellees. The panel held
that failing to name an appellee in an NOA is not a
jurisdictional bar to considering an appeal against that
appellee. The panel concluded that any ambiguity about the
identity of the appellees in West's NOA did not preclude
the court's review of West's claims against FBI Agent
Fed. R. App. P. 3(c)(1)(B) the NOA must "designate the
judgment, order, or part thereof being appealed." The
panel construed the NOA functionally, and concluded that it
sufficiently indicated West's intent to appeal the entire
district court order and the judgment dismissing the whole
panel noted that the district court failed to distinguish
between claims against the United States and claims against
Gordwin when dismissing the case with prejudice. The panel
held that it was clear error for the district court to
dismiss the claims against Gordwin, who was not a party to
the case because he had not been served and the time for
service had not expired.
panel addressed the merits of West's other claims in a
concurrently filed memorandum disposition.
O'Scannlain concurred in part and dissented in part. He
concurred in the court's reversal of the final judgment
in the concurrent memorandum disposition with regard to
West's claims against the United States, and dissented
from the majority's holdings with regard to West's
claims against FBI Agent Gordwin. Because of a serious
jurisdictional defect, Judge O'Scannlain would dismiss
the appeal as to Gordwin rather than reverse and remand and
expose him to further proceedings. Judge O'Scannlain
concludes that the majority erred when it held that
West's intent to appeal the judgment with respect to
Agent Gordwin could be inferred and that he was not
KOZINSKI, Circuit Judge:
consider whether an appellant's notice of appeal
satisfied the requirements of Federal ...