Perhaps a recent decision from the US Supreme Court as to when a party must file a cross-appeal has now shed some light on this issue. (Jennings v. Stephens, No. 13-7211 (Jan. 14, 2015))
I have blogged repeatedly on the current state of the law as to when a party must file a cross-appeal. (Alternate grounds support a judgment? Cross-Appeal!; when it doubt, move it; workers comp - the mystery continues - and other briefing issues; When in doubt, cross it out) The general rule is that you don’t have to file a cross-appeal unless you want different relief than was granted at the trial level – alternate ground arguments to achieve the same judgment don’t require a cross-appeal. BUT, as my previous postings indicated, the Maine SJC appears to apply a different rule, requiring cross-appeal when you disagree with trial court findings, even when that disagreement doesn’t affect the ultimate relief and judgment, and stray language in a First Circuit decision a while back appeared to be creeping in this direction.
In Jennings, the Supreme Court confirms that the general rule applies in the federal system: no cross-appeal unless you are seeking a change in the judgment.
The petitioner applied for federal habeas relief on three theories of ineffective assistance of counsel. He prevailed on two (counsel’s failure to present evidence of the petitioner’s deprived background and failure to investigate evidence of mental impairment), while the district court rejected the third (counsel’s statement in closing that he could not “quarrel with” a death sentence.) The court ordered that the state release the petitioner, grant him a new sentencing hearing, or change his sentence to imprisonment in accordance with state law. The state appealed and attacked the two theories on which the court had awarded relief. Jennings didn’t cross-appeal, but defended the judgment on all three theories. The Fifth Circuit reversed the relief awarded by the district court on the first two theories, but held that it did not have jurisdiction to consider the third theory because the petitioner had not filed a cross-appeal.
The Supreme Court reversed, citing U.S. v. American Railway Express Co., 265 U.S. 425, 435 (1924), which provides that an appellee who doesn’t cross-appeal cannot “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary,” but can “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.” Because the rights Jennings obtained from the judgment – release, resentencing or commutation within a fixed time at the State’s option – would remain the same under the third theory, under this “straightforward” test, Jennings didn’t have to file a cross-appeal. Because an appellee seeks to defend and enforce the lower court’s judgment and not necessarily its reasoning, it’s ok to rely on alternative grounds to defend the judgment without filing a cross-appeal, so long as doing so would not enlarge the appellee’s rights, detract from the appellant’s rights, or require consideration of evidence not in the record.
Amongst other things, the Court noted:
Whenever an appellee successfully defends a judgment on an alternative ground, he changes what would otherwise be the judgment’s issue-preclusive effects. Thereafter, issue preclusion no longer attaches to the ground on which the trial court decided the case, and instead attaches to the alternative ground on which the appellate court affirmed the judgment. Restatement (Second) of Judgments § 27 (1982). Thus, making alteration of issue-preclusive effects the touchstone of necessity for cross-appeal would require cross-appeal for every defense of a judgment on alternative grounds. That is, of course, the polar opposite of the rule we established in American Railway.
(emphasis in original).
The key to the ruling is “[w]hether prevailing on a single theory or all three, Jennings sought the same, indivisible relief.”
Where does this leave us?
I feel less concerned about filing protective cross-appeals in the First Circuit (or any U.S. Court of Appeals), even if we are going to disagree with the reasoning/findings of the trial court, when the argument we are going to make disagreeing with that reasoning doesn’t change the ultimate relief/judgment.
With the Maine SJC, however, absent further illumination from that Court, I’d still file the cross-appeal when disagreeing with the “findings” of the trial court, even if a change in those findings wouldn't alter the relief granted in the judgment.