When Does a Respondent or Appellee Need to File a Notice of Cross-Appeal?

Jennings v. Stephens, ___ U.S. ___ (2015).  There is a settled principle that an appellate court may affirm on any basis, even if that basis was not relied on by the trial court, and respondents (or, in the federal system, appellees) are normally free to present such arguments on appeal without having to file a notice of cross-appeal.  But sometimes it is not easy for respondents/appellees to know whether they need to file a notice of cross-appeal in order to make certain arguments.   The sometimes indistinct line between when a notice of cross-appeal is necessary and when it is not was the subject of this habeas corpus decision by the Supreme Court of the United States yesterday.  By a 6-3 vote, the Court ruled that this habeas plaintiff, who had filed a brief in the Fifth Circuit defending the decision of the District Court on alternative grounds, need not have filed a notice of cross-appeal in order to make his arguments.  Justice Scalia wrote the majority opinion, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined.  Justice Thomas wrote the dissent, and was joined by Justices Kennedy and Alito.

Jennings, the plaintiff, had been sentenced to death in Texas for capital murder.  He sought a writ of habeas corpus, based on three claims of ineffective assistance of counsel.  He prevailed on two of those claims in the District Court.  When Texas appealed, Jennings defended the appeal by arguing all three of the grounds he had presented below.  The Fifth Circuit reversed the grant of habeas corpus on the two grounds that Jennings had successfully argued in the District Court.  As to the third basis that Jennings had presented, the Fifth Circuit ruled that because Jennings had neither filed a notice of cross-appeal nor obtained a certificate of appealability under 28 U.S.C. §2253(c), which governs appeals in habeas cases, the court would not consider that third contention.  The Supreme Court granted review and reversed the Fifth Circuit’s ruling as to the third ground. 

Justice Scalia began by noting that although “[t]he rules governing the argumentation permissible for appellees urging the affirmance of judgment are familiar, … this case shows that familiarity and clarity do not go hand-in-hand.”  There were two key applicable principles.  First, “[a]n appellee who does not take a cross-appeal may urge in support of a decree any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court.”  Second, however, “an appellee who does not cross-appeal may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.”  Both of those ideas were embodied in United States v. American Railway Express Co., 265 U.S. 425 (1924).

Here, the majority concluded, Jennings had merely sought by his third theory “the same relief awarded under his [other two] theories: a new sentencing hearing.  Whether prevailing on a single theory or all three, Jennings sought the same, indivisible relief.”  He was not seeking to enlarge his own rights or reduce those of the State.  No notice of cross-appeal was necessary.  Justice Scalia did not reach the issue of whether a certificate of appealability was needed since, again, Jennings had not appealed.  He had simply defended a judgment on the State’s appeal.

The fact that this was a habeas appeal added some complexity to the opinion, but the bottom line result is a familiar one.  To the extent that the decision helps illuminate the sometimes murky circumstances when a notice of cross-appeal is or is not required, the Court’s ruling is useful.