                                        REVISED
                      UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT



                                      No. 94-30513




SIDNEY MARTS,
                                                                        Plaintiff-Appellant,
                                          versus
PHILLIP HINES, ET AL.,
                                                                    Defendants-Appellees.



                       Appeal from the United States District Court
                          for the Eastern District of Louisiana

                                       July 18, 1997
Before POLITZ, Chief Judge, WISDOM, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA,
DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.
POLITZ, Chief Judge:

       We have taken this case en banc to resolve relevant conflicting circuit

precedents, to continue our development of procedures to address and dispose

appropriately of a continually burgeoning prisoner pro se docket, both at the trial
and appellate levels,1 and to note an appropriate awareness of the intervening




  1
    Including but not limited to procedures established in Watson v. Ault, 525 F.2d 886 (5th
Cir. 1976) (supplementing questionnaire); Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985)
(informal hearing); Graves v. Hampton, 1 F.3d 315 (5th Cir. 1993).
Prison Litigation Reform Act of 1995.2
                                     Background

          The facts concerning the appeal by Sidney Marts of his 42 U.S.C. § 1983

complaint against an assistant district attorney for Orleans Parish, Louisiana, a
public defender, and a private attorney representing a codefendant in a state court

criminal action, are set forth in the panel opinion.3 Marts’ complaint implicated the

integrity of the state court criminal proceeding, thus requiring the district court to

make a threshold determination whether his action was not frivolous and justified
the retention of federal jurisdiction.4 The trial court dismissed without prejudice
the claim for money damages against the private counsel and public defender
because they were not state actors, and that against the prosecutor on the basis of

absolute immunity. Finding no factual basis for the conspiracy charge it was
dismissed as frivolous, also without prejudice. The panel modified the dismissals

to be with prejudice, except for the conspiracy claim, and affirmed the trial court.
We determined that because of conflicting circuit precedents it was necessary to
revisit this issue en banc.

                                       Analysis


  2
   Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of
1996, Pub.L. No. 104-134, 110 Stat. 1321 (1996).
  3
      68 F.3d 134 (5th Cir. 1995), reh’g en banc granted, 79 F.3d 17 (5th Cir. 1996).
      4
     See Ballard v. Wilson, 856 F.2d 1568 (5th Cir. 1988) (citing Deakins v.
Monaghan, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) (when a section
1983 action might have a disruptive effect upon contemporaneous state criminal
proceedings, the federal district court should stay its hand)).
                                          2
           Once again we consider the application of limited judicial resources to an
ever increasing number of prisoner pro se filings. Our task, simply stated, is to

implement procedures which will aid in the separation of the wheat from the chaff

in such filings as early in the judicial process as is possible, in an effort to ensure
that judicial resources will not be wasted and that the meritorious claims may

receive the timely attention and disposition warranted.

           The rule that the in limine dismissals of actions by the district court generally

are to be with prejudice5 particularly fits dismissals under the former 28 U.S.C.
§ 1915(d), now a part of 28 U.S.C. § 1915(e)(2).6 Dismissals under the in forma
pauperis statute are in a class of their own, acting not as dismissals on the merits




     5
         See Fed.R.Civ.P. 41(b) which provides in pertinent part:

           Unless the court in its order for dismissal otherwise specifies, a
           dismissal under this subdivision and any dismissal not provided for in
           this rule, other than a dismissal for lack of jurisdiction, for improper
           venue, or for failure to join a party under Rule 19, operates as an
           adjudication upon the merits.
     6
         Section 1915(e)(2) now reads:

           Notwithstanding any filing fee, or any portion thereof, that may have
           been paid, the court shall dismiss the case at any time if the court
           determines that
--
              (A) the allegation of poverty is untrue; or
              (B) the action or appeal --
                 (i) is frivolous or malicious;
                 (ii) fails to state a claim on which relief may be granted;
                 or
                 (iii) seeks monetary relief against a defendant who is
                 immune from such relief.
                                               3
but, rather, as denials of in forma pauperis status.7 Typically, but not exclusively,
such dismissals may serve as res judicata for subsequent in forma pauperis filings,

but they effect no prejudice to the subsequent filing of a fee-paid complaint making

the same allegations.8 Exceptions included complaints containing claims which,
on their face, were subject to an obvious meritorious defense,9 or instances in which

the plaintiff was given an opportunity to expound on the factual allegations by a

Watson questionnaire or a Spears hearing and could not assert a claim with an

arguable factual basis,10 or claims without an arguable basis in law.11
           On en banc reconsideration, considering the distinct features of such in forma
pauperis proceedings, we now hold that dismissals as frivolous or malicious should
be deemed to be dismissals with prejudice unless the district court specifically

dismisses without prejudice. When the trial court dismisses without prejudice it is
expected that the court will assign reasons so that our appellate review of the trial

court’s exercise of discretion may be performed properly. Unexplained dismissals
without prejudice will necessitate a remand.
           We reserve for another day and an appropriate appeal the question of the full

   7
       Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).
       8
     Id. The Supreme Court teaches that the dismissal may have a res judicata
effect on frivolousness determinations for future in forma pauperis petitions.
  9
    One example is a claim subject to a peremptory time bar where no amendment
or subsequent paid filing could overcome the fatal defects. Graves.
   10
        Id.
   11
     Id. (noting one likely scenario -- an allegation of infringement of a claimed
legal interest which does not exist).
                                              4
application of this rule to the expanded bases for denial of in forma pauperis status
specified in the Prison Litigation Reform Act.

      In reaching today’s decision we have determined and now hold that in cases

involving dismissals as frivolous or malicious under the in forma pauperis statute,
in which the defendant has not been served and was, therefore, not before the trial

court and is not before the appellate court, the appellate court, notwithstanding, has

the authority to change a district court judgment dismissing the claims without

prejudice to one dismissing with prejudice, even though there is no cross-appeal by
the obviously non-present “appellee.” This limited exception is the product of our
effort to make effective the prudential rule announced herein.
      Consistent with today’s holding we must now vacate and remand this action

to the district court for entry of an order of dismissal with prejudice except as
relates to the conspiracy claim and for such further proceedings as may be deemed

appropriate.
      VACATED and REMANDED.



ENDRECORD




                                          5
GARWOOD, Circuit Judge, with whom KING, HIGGINBOTHAM, SMITH,
DUHE’ EMILIO M. GARZA, BENAVIDES and DENNIS Circuit Judges, join,

dissenting:




      I respectfully dissent from this Court’s sua sponte action, taken where only

the plaintiff has appealed, changing the district court’s judgment of dismissal

without prejudice to one of dismissal with prejudice. I likewise dissent from the
majority’s conclusory announcement that in all pre-service dismissals without
prejudice of in forma pauperis suits where the plaintiff alone appeals, this Court
will determine whether the dismissal could properly have been with, rather than

without, prejudice and will modify the judgment accordingly.12
      The Court provides no explanation, justification, or authority for this action,

and does not even tip its hat to the Federal Rules or the relevant jurisprudence. Its
decision hence appears to be more an exercise of will than of judgment.
      Some sixty years ago, just before the Federal Rules went into effect, the

Supreme Court had occasion to review a decision of the Eighth Circuit which had

modified in a manner favorable to the appellee a judgment of the district court,
despite the absence of any cross-appeal. The Supreme Court reversed the Eighth

Circuit in a unanimous opinion by Justice Cardozo. Morley Construction Co. v.

Maryland Casualty Co., 57 S.Ct. 325 (1937). The opinion begins by stating the

question before the Supreme Court: “The power of an appellate court to modify a


12
        I concur in the balance of the Court’s opinion.
decree in equity for the benefit of an appellee in the absence of a cross-appeal is
here to be admeasured.” Id. at 326 (emphasis added). The Court went on to hold

that the appellate court had no such power, stating:

      “Without a cross-appeal, an appellee may ‘urge in support of a decree
      any matter appearing in the record, although his argument may involve
      an attack upon the reasoning of the lower court or an insistence upon
      matter overlooked or ignored by it.’ United States v. American
      Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed.
      1087 [1924]. What he may not do in the absence of a cross-appeal is
      to ‘attack the decree with a view either to enlarging his own rights
      thereunder or of lessening the rights of his adversary, whether what he
      seeks is to correct an error or to supplement the decree with respect to
      a matter not dealt with below.’ Ibid. The rule is inveterate and
      certain.” Id. at 327-28.13

13
       Although Morley was decided before the Federal Rules went
into effect, its applicability under the Federal Rules has never
been questioned. See, e.g., Mass. Mutual Life Ins. Co. v. Ludwig,
96 S.Ct. 2158, 2159 (1976) (reversing Court of appeals because its
decision conflicted with “the ‘inveterate and certain’ rule” of
Morley). See also the following decisions of this Court expressly
relying on Morley in support of holdings that the appellee who did
not cross-appeal could not seek to enlarge his rights under the
judgment appealed or diminish those of his adversary, viz: Matter
of Toyota of Jefferson, 14 F.3d 1088, 1091 n.1 (5th Cir. 1994);
Texas Commerce Bank v. National Royalty Corp., 799 F.2d 1081, 1083
(5th Cir. 1986); United States v. Central Gulf Lines, 699 F.2d 243,
248 (5th Cir. 1983); Alford v. City of Lubbock, 664 F.2d 1263, 1273
(5th Cir.), cert. denied, 102 S.Ct. 2239 (1982); North Texas
Producers Ass’n v. Metzger Dairies, 348 F.2d 189, 197 & n.10 (5th
Cir. 1965); Newport Industries v. Crosby Naval Stores, 139 F.2d
611, 612 (5th Cir. 1944); Arkansas Fuel Oil Co. v. Leisk, 133 F.2d
79, 81 & n.7 (5th Cir. 1943).
     The Supreme Court has likewise continued to apply the Morley
principles in refusing to consider a contention of a respondent who
did not cross-petition where if the contention were sustained the
judgment of the court of appeals would be modified in a manner
adverse to the petitioner. See, e.g., Mills v. Electric Auto-Lite
Company, 90 S.Ct. 616, 620 n.4 (1970) (citing Morley). See also
Trans World Airlines v. Thurston, 105 S.Ct. 613, 620 n.14 (1985);
Federal Energy Admin. v. Algonquin SNG, Inc., 96 S.Ct. 2295, 2303
n.11 (1976) (citing Mills); United States v. ITT Continental Baking
Co., 95 S.Ct. 926, 929 n.2 (1975) (citing Morley). Most recently,
in Northwest Airlines, Inc. v. County of Kent, 114 S.Ct. 855, 862
(1994), the Court wrote: “A cross-petition is required, however,

                                         7
      The Supreme Court did not suggest that the Eighth Circuit had abused its
discretion or that the circumstances were not sufficiently exceptional to justify its

action, but rather held that the Eighth Circuit simply did not have the “power” to

do what it did “in the absence of a cross-appeal.”
      Yet this Court now, in violation of the “inveterate and certain” rule of

Morley, does just what the Supreme Court held the Eighth Circuit lacked the power

to do.14

                                         I.
      Over the years, decisions of the courts of appeals have divided on whether
the Morley rule requiring a cross-appeal in order to modify the judgment to enlarge
the appellee’s rights thereunder, or diminish those of the appellant, is a rule

governing the power or jurisdiction of the appellate court or is rather a rule of
practice as to which exceptions may be made on a case by case basis in highly


when the respondent seeks to alter the judgment below.”
14
      It is well-settled that where the plaintiff alone appeals a
dismissal without prejudice, the appellate court may not change the
judgment to one of dismissal with prejudice, as this enlarges the
rights of the defendant-appellee under the judgment, for which a
cross-appeal is required. See, e.g., Transcapital Financial v.
Office of Thrift Supervision, 44 F.3d 1023, 1026 (D.C. Cir. 1995);
Treadway v. Farley, 35 F.3d 288, 296 (7th Cir. 1994); New Castle
County v. Hartford Acc. & Indem. Co., 933 F.2d 1162, 1206 (3d Cir.
1991); Benson v. Armontrout, 767 F.2d 454, 455 (8th Cir. 1985). We
similarly so held in Arvie v. Broussard, 42 F.3d 249 (5th Cir.
1994). In Arvie, we declined to follow earlier decisions in Graves
v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993), and Ali v. Higgs, 892
F.2d 438 (5th Cir. 1990), in which this Court had changed dismissal
without prejudice to with prejudice without even commenting on the
absence of a cross-appeal, much less making any attempt to justify
such unusual action. Cf. Penhurst State School v. Halderman, 104
S.Ct. 900, 918 (1984) (decisions assuming jurisdiction sub silentio
are not binding precedent on that issue).

                                         8
unusual and compelling circumstances. A representative sample of cases from
other circuits holding that the cross-appeal requirement is one governing the power

or jurisdiction of the appellate court includes the following: E.F. Operating Corp.

v. American Buildings, 993 F.2d 1046, 1049 & n.1 (3d Cir.), cert. denied, 114 S.Ct.
193 (1993); Francis v. Clark Equipment Co., 993 F.2d 545, 552-53 (6th Cir. 1993);

New Castle County v. Hartford Acc. & Indem. Co., 933 F.2d 1162, 1206 (3d Cir.

1991); Rollins v. Metropolitan Life Ins. Co., 912 F.2d 911, 917 (7th Cir. 1990);

Young Radiator Co. v. Celotex Corp., 881 F.2d 1408, 1415-17 (7th Cir. 1989); Broth.
of Maintenance Employees v. St. Johnsburg & Lamoille, 806 F.2d 14, 15-16 (2d Cir.
1986) (at least where no cross-appeal by any party); Benson v. Armontrout, 767 F.2d
454, 455 (8th Cir. 1985); Savage v. Cache Valley Dairy Ass’n, 737 F.2d 887, 888-89

(10th Cir. 1984); Securities and Exchange Commission v. Youmans, 729 F.2d 413,
415 (6th Cir. 1984) (citing Morley); Martin v. Hamil, 608 F.2d 725, 730-31 (7th Cir.

1979) (citing Morley); Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 725-26 (2d Cir.
1978); Gomez v. Wilson, 477 F.2d 411, 414 n.10 (D.C. Cir. 1973); Whitehead v.
American Security and Trust Company, 285 F.2d 282, 285-86 (D.C. Cir. 1960).

Some of the cases from other circuits which treat the absence of a cross-appeal as

rule of practice which can be dispensed with in certain rare circumstances include
the following. United States v. Tabor Court Realty Corp., 943 F.2d 335, 342-45 (3d

Cir. 1991); Spann v. Colonial Village, Inc., 899 F.2d 24, 32-33 (D.C. Cir.), cert.

denied, 111 S.Ct. 508, 509 (1990); Lafaut v. Smith, 834 F.2d 389, 394 n.9 (4th Cir.

1987); Bryant v. Technical Research Company, 654 F.2d 1337, 1341-42 (9th Cir.


                                         9
1981); Hysell v. Iowa Public Service Co., 559 F.2d 468, 476 (8th Cir. 1977). See
also Transcapital Financial v. Office of Thrift Supervision, 44 F.3d 1023, 1026 (D.C.

Cir. 1995) (declining relief to appellee for want of a cross-appeal notice, but stating

“we will not waive this requirement in these circumstances”); Freeman v. B&B
Associates, 790 F.2d 145, 151 (D.C. Cir. 1986) (failure to file notice of cross-appeal

is not jurisdictional, and can be waived “but only in cases involving exceptional

circumstances”; applying rule that where no cross-appeal “‘we may not and should

not consider’” an argument that would enlarge appellee’s rights under judgment).
Still other cases have denied an appellee relief because of the lack of a cross-
appeal, but have not indicated whether this is on a jurisdictional basis or simply as
a matter of practice. See, e.g., Tredway v. Farley, 35 F.3d 288, 296 (7th Cir. 1994);

Turpen v. City of Corvallis, 26 F.3d 978, 980 (9th Cir.), cert. denied, 115 S.Ct. 426
(1994); U.S. v. Lumbermen’s Mut. Cas. Co., 917 F.2d 654, 662 (1st Cir. 1990).

      Likewise in this Court there are decisions viewing the question as one of
power or jurisdiction, and others which treat it as a rule of practice or as at least
subject to exception in particularly unusual circumstances. Among our decisions

treating the lack of a cross-appeal as limitation on the appellate court’s jurisdiction

or power are the following: Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996)
(“Because Kelly did not file a notice of appeal or cross-appeal, however, we lack

jurisdiction to alter the district court’s judgment in her favor”); Memorial Hosp.

System v. Northbrook Life Ins. Co., 904 F.2d 236, 239 N.2 (5th Cir. 1990) (declining

to consider appellee’s request for relief because they did not cross-appeal and “we


                                          10
have held that ‘the filing of a notice of appeal is a “mandatory precondition” to our
exercise of jurisdiction’”); Ayers v. United States, 750 F.2d 499, 457 (5th Cir. 1985)

(appellee “Ayers’ challenge to the set-off against the damage award clearly

attempts to enlarge his rights under the district court’s judgment. As such, a cross-
appeal is necessary to pursue the challenge and Ayers’ failure to file a cross-appeal

pursuant to Fed. R. App. P. 4(a)(3) precludes consideration of his claim”); Shipp v.

General Motors Corp., 750 F.2d 418, 428 (5th Cir. 1985) (declining to consider

appellee Shipp’s request for relief because his notice of cross-appeal was late; “As
the filing of a notice of appeal is a ‘mandatory precondition’ to our exercise of
jurisdiction [citations], we must decline to entertain Shipp’s belated cross-points”);
Alford v. City of Lubbock, 664 F.2d 1263, 1272-73 (5th Cir.), cert. denied, 102 S.Ct.

2239 (1982) (“Appellees contend that the district court erred in denying them
attorney’s fees . . . We cannot consider this contention. Appellees filed no cross-

appeal . . . In the absence of a cross-appeal, an appellee cannot ‘attack the [district
court’s] decree with a view either to enlarging his own rights thereunder or of
lessening the rights of his adversary,’” quoting Morley at 328); Duriso v. K-Mart,

559 F.2d 1274, 1278 (5th Cir. 1977) (“Our consideration of this issue is precluded

by [appellee] Duriso’s failure to file a timely notice of cross-appeal. Rule 4(a),
F.R.A.P.”); Dupuy v. Dupuy, 551 F.2d 1005, 1026 n.34 (5th Cir. 1977) (refusing to

consider appellee’s claim that erroneous charge entitled it to new trial on liability

as well as damages “[b]ecause the appellee did not cross-appeal” such relief “may

occur only on cross-appeal”); North Texas Producers Ass’n v. Metzger Dairies, Inc.,


                                          11
348 F.2d 189, 197 (5th Cir. 1965) (declining relief on appellee’s contention fee
award below was inadequate because “in the absence of a cross-appeal, this Court

cannot enlarge the rights of the appellee,” citing Morley); Arkansas Fuel Oil Co. v.

Leisk, 133 F.2d 79, 81 & n.7 (5th Cir. 1943) (rehearing granted to eliminate
modification of judgment below which increased award to appellee, because

appellee did not cross-appeal; noting that although on appeal this Court had

jurisdiction to revise the judgment appealed, nevertheless “the jurisdiction thus

conferred must be invoked before it may be exercised” and without a cross-appeal
“appellee may not attempt either to enlarge his rights under the judgment appealed
from or to lessen the rights of his adversary,” citing Morley). See also Richardson
v. Byrd, 709 F.2d 1016, 1024 (5th Cir. 1983) (“Absent a timely cross-appeal,

[appellee] Gassner’s request for additional relief is not before us”); Likens v.
Jefferson Standard Life Ins. Co., 69 F.2d 98, 99 (5th Cir. 1934) (question of whether

trial court correctly allowed an offset to defendants-appellants “is not before us as
the plaintiff has not [cross] appealed”).
      In other cases, though we have not expressly spoken in terms of the appellate

court’s jurisdiction or power we have denied relief to an appellee simply on the

basis that without a cross-appeal an appellee may not seek to enlarge its rights (or
diminish its adversary’s) under the judgment appealed, generally citing Morley,

which, as previously noted, spoke to the “power” of the appellate court. See, e.g.,

Matter of Toyota of Jefferson, Inc., 14 F.3d 1088, 1091 n.1 (5th Cir. 1994) (citing

Morley); Speaks v. Trikora Lloyd P.T., 838 F.2d 1436, 1439 (5th Cir. 1988); Texas


                                            12
Commerce Bank v. Nat. Royalty Corp., 799 F.2d 1081, 1083 (5th Cir. 1986) (citing
Morley); United States v. Central Gulf Lines, Inc., 699 F.2d 243, 248 (5th Cir. 1983)

(citing Morley); United States v. Yorfino, 412 F.2d 329, 330 (5th Cir. 1969) (“In the

absence of a cross-appeal, as was the case, defendants-appellees are without
standing to contest the judgment entered by the district court”); Abel v. Brayton

Flying Service, 248 F.2d 713, 717 & n.11 (5th Cir. 1957); Newport Industries v.

Crosby Naval Stores, 139 F.2d 611, 612 (5th Cir. 1944) (citing Morley). In none of

these cases did we suggest that this was a rule of practice the invocation of which
was discretionary with the appellate court or discuss whether the circumstances
were exceptional or the like. We simply applied a fixed rule, generally relying on
Morley.

      On the other hand, there are a few decisions of this Court which have treated
the cross-appeal requirement as a rule of practice subject to exceptions in rare

particular cases. We took that approach in Calhoun County v. Roberts, 137 F.2d
130, 132 (5th Cir. 1943), and again in United States v. Gordon, 406 F.2d 332, 337-
38 n.6 (5th Cir. 1969), and United States v. United States Steel Corporation, 520

F.2d 1043, 1052 (5th Cir. 1975), cert. denied, 97 S.Ct. 61 (1976). So far as I can

determine, we have not since 1975 expressly invoked the rule of practice theory to
modify a district court judgment in a manner favorable to an appellee who has not

filed a cross-appeal. However, in Kicklighter v. Nails by Jannee, 616 F.2d 734, 742-

44 (5th Cir. 1980), we did hold that an appeal by a third party defendant, whose

liability was derivative of the defendant’s, successfully challenging an instruction


                                         13
relating to the defendant’s liability, “operates” as an appeal by the defendant,
resulting in a new trial as to both the defendant and third party defendant. 15

      On one occasion, we opined in dicta that an appellate court does have

authority to grant relief to appellees who have not appealed, but declined to grant
such relief, noting that it is available only in a very limited set of defined

circumstances. In Anthony v. Petroleum Helicopter, 693 F.2d 495, 497-98 (5th Cir.

1982), PHI, owner of a helicopter which crashed, was sued by an injured passenger,


15
       We stated that “we have held . . . that the third party
defendant . . . has appealed on behalf of defendant,” id. at 743,
and

      “[b]ecause the third-party defendant’s liability is
      derivative of defendant’s liability, and because the
      reversal of the judgment against the third-party
      defendant is based solely on an error in the main case,
      i.e., plaintiff’s case against defendant, we hold that
      third-party defendant has appealed and asserted this
      error not only on its own behalf but also on behalf of
      defendant.   Thus the third-party defendant’s appeal
      operates, in this limited circumstance, as an appeal of
      the judgment of defendant as well as the judgment of
      third-party defendant.” Id. (footnotes omitted).

     We were careful to note the limited nature of our holding,
observing   that   the   D.C.   Circuit’s   Whitehead    case   was
distinguishable because “[t]he plaintiff in Whitehead could not be
said to have appealed on behalf of the defendant,” id. at 743; and
we likewise reserved judgment on cases from other circuits which
had allowed a successful appeal by one party to operate in favor of
a nonappealing party whose interests were parallel to, though not
derivative of, those of the appellant. Id. at 743 & n.14.
     I note in passing our decision in French v. Estelle, 696 F.2d
318 (5th Cir. 1982), cert. denied, 103 S.Ct. 2108 (1983), in which
we affirmed the district court’s grant of habeas relief, albeit on
a different ground than that relied on by the district court even
though the prisoner had not cross-appealed.       Although such an
affirmance may have had adverse collateral consequences to the
state, we noted that despite his failure to cross-appeal “the
petitioner may urge the appellate court to affirm the district
court’s decision on any ground raised below.” Id. at 320.

                                         14
who also sued the manufacturer, MBB, the distributor, Boeing, and Texaco; PHI
brought claims for contribution and for loss of the helicopter against MBB and

Boeing; and MBB and Boeing sought contribution against Texaco. The trial court

granted summary judgment exonerating MBB, Boeing, and Texaco from all
liability. The surviving passenger appealed the judgment exonerating MBB,

Boeing, and Texaco, but then settled. PHI appealed the judgment but only insofar

as it exonerated MBB and Boeing. We reversed, holding that summary judgment

for MBB and Boeing was improper, as there were genuine issues of fact. We
refused to consider the request of appellees MBB and Boeing, who had not cross-
appealed, to also set aside the summary judgment in favor of Texaco, stating
“[since] neither party [MBB and Boeing] filed a protective appeal against Texaco

pursuant to Fed. R. App. P. 4(a)(3), we dismiss the appeal with respect to Texaco.”
Id. at 498. We also observed that “MBB and Boeing do not fall within any of the

exceptional circumstances in which the appellate courts have exercised their
discretionary powers.” Id. We had earlier described these circumstances as
follows:

      “Although appellate courts have ‘discretionary power to retain all
      parties in the lawsuit [on] remand . . . to insure an equitable resolution
      at trial,’ Bryant v. Technical Research Co., 654 F.2d 1337, 1342 (9th
      Cir. 1981), this discretion has been exercised only in narrowly defined
      situations: when the reversal ‘wipes out all basis for recovery against
      the nonappealing, as well as against the appealing defendant,’ Daniels
      v. Gilbreath, 668 F.2d 477 (10th Cir. 1982); Kicklighter v. Nails by
      Jannee, Inc., 616 F.2d 734, 742-45 (5th Cir. 1980); when the failure to
      reverse with respect to the nonappealing party will frustrate the
      execution of the judgment in favor of the successful appellant, In re
      Barnett, 124 F.2d 105, 1008-12 (2d Cir. 1942); or when the appealed
      decision could reasonably be read as not being adverse to the

                                         15
      nonappealing party. Bryant, 654 F.2d at 1342-43.” Id. at 497-98.
      The last three times we have expressly addressed the “rule of practice”

argument we have declined to either adopt or reject it, but have denied relief to the

appellee due to the failure to cross-appeal. In Robicheaux v. Radcliff Material, Inc.,
697 F.2d 662 (5th Cir. 1983), the defendant appealed an award to the plaintiffs-

employees (welders), and, because they had not cross-appealed, we refused to

consider the plaintiffs’ claim that the judgment erroneously failed to include

liquidated damages, quoting the rule as stated in Morley and also citing, inter alia,
Alford and Dupuy. Robicheaux at 668. We noted that “plaintiff welders argue that
this rule is not jurisdictionally mandated and may be judicially waived.” Id.
However, we did not expressly accept or reject this argument, but simply held that

the liquidated damages issue was “not properly before us,” noting that “no more
reason is shown for our exercising any power we might have under Fed. R. App.

P. 2 to suspend the requirement for a timely cross-appeal, Fed. R. App. P. 4(a)(3),
than in other such instances.” Id. In both Stockstill v. Petty Ray Geophysical, 888
F.2d 1493 (5th Cir. 1989), and Crist v. Dickson Welding, Inc., 957 F.2d 1281 (5th

Cir.), cert. denied, 113 S.Ct. 187 (1992), we declined to consider requests for relief

by those who had not cross-appealed. In each case we noted the Anthony dicta
suggesting that “an initial notice of appeal is jurisdictional but a protective or cross-

appeal is permissive and courts of appeal may retain all parties in order to do

justice.” Stockstill at 1496; Crist at 1289 (same). Each opinion further notes “[t]he

continued viability of the principle recognized in Anthony is questionable, however,


                                           16
in view of Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101
L.Ed.2d 285 (1988).” Crist at 1289; Stockstill at 1496 (same). In Stockstill we

quoted from the Seventh Circuit’s thorough discussion of this issue in Young

Radiator Co., which explained that Torres made clear that the requirements of Fed.
R. App. P. 3 and 4 must be satisfied as to each party and that a notice of appeal

which was adequate as to some plaintiffs was nevertheless inadequate to confer

appellate jurisdiction as to a plaintiff unnamed therein. Stockstill at 1496-97.

Stockstill goes on to observe “[u]nder Torres, therefore, it is doubtful we have
jurisdiction to review the district court’s dismissal of BMF.” 888 F.2d at 1497. In
both Crist and Stockstill, we refrained from ultimately resolving this question as we
concluded that even if the Anthony dicta were viable, nevertheless none of the three

narrow circumstances in which Anthony indicated the absence of a cross-appeal
could be dispensed with were present, and so we granted the motions to dismiss

these contentions by the parties who had not filed protective appeals. Crist at 1289-
90; Stockstill at 1497.
      For a better understanding of whether the Morley limitations relate to the

power or jurisdiction of the court of appeals or merely state a rule of practice from

which the court can depart in its discretion, some review of the development of the
relevant Federal Rules is helpful. Morley was handed down in early 1937. In

December 1937, the Supreme Court adopted what are now the Federal Rules of

Civil Procedure. Rule 73 governed the mechanics of taking an appeal, including

the form of notice of appeal, but did not initially provide any time limits for


                                         17
appealing, which were covered by statute. In 1946, Rule 73(a) was amended by,
inter alia, prescribing a thirty-day period (sixty days if the United States were a

party) in which an appeal could be taken (this operated to shorten the time allowed,

which had generally been three months). 9 Moore’s Federal Practice (2d ed.), ¶¶
203.22, 203.24[1], [2], 203.25[1].16 In 1966, Rule 73(a) was again amended to

provide, for the first time, an additional period for an appeal taken after an appeal

by another party. Id. ¶ 203.24[2].17 As amended in 1966, and as in effect when

replaced by the new Rules of Appellate Procedure in 1968, the first sentence of
Rule 73(a) provided:
             “(a) HOW AND WHEN TAKEN. An appeal permitted by law from
      a district court to a court of appeals shall be taken by filing a notice of
      appeal with the district court within 30 days from the entry of the
      judgment appealed from, except that: (1) in any action in which the
      United States or an officer or agency thereof is a party, the notice of
      appeal may be filed by any party within 60 days from such entry; (2)
      upon a showing of excusable neglect the district court in any action
      may extend the time for filing the notice of appeal not exceeding 30
      days from the expiration of the original time herein prescribed; (3) if
      a timely notice of appeal is filed by a party, any other party may file
      a notice of appeal within 14 days of the date on which the first notice
      of appeal was filed, or within the time otherwise herein prescribed,
      whichever period last expires; (4) an appeal by permission of a court
      of appeals obtained under Title 28, U.S.C. § 1292(b) shall be taken in
      accordance with the rules of the Court of Appeals.”


16
      This amendment also allowed the district court to extend the
time for an additional thirty days “upon a showing of excusable
neglect based on a failure of a party to learn of the entry of the
judgment.” Id. ¶ 203.24[2].
17
      The 1966 amendment also expanded the excusable neglect for
which the district court could extend the appeal period for an
additional thirty days from that based solely on failure to learn
of the entry of the judgment (see note 5 above) to any form of
excusable neglect. Id.

                                          18
The first sentence of the second paragraph of Rule 73(a) provided (as does now the
third sentence of Fed. R. App. P. 3(a)) that “[f]ailure of an appellant to take any

step other than the timely filing of a notice of appeal does not affect the validity of

the appeal, but is ground only for such action as the court of appeals deems
appropriate, which may include dismissal of the appeal.”

      When the Rules of Appellate Procedure were adopted, former Rule 73 was

abrogated, and its provisions concerning the time in which a notice of appeal must

be filed were placed in Fed. R. App. P. 4, while those dealing with other aspects of
the notice of appeal, including the necessity for it and its contents, were placed in
Fed. R. App. P. 3. The first three sentences of Rule 3 now provide:
             “(a) Filing the Notice of Appeal. An appeal permitted by law
      as of right from a district court to a court of appeals must be taken by
      filing a notice of appeal with the clerk of the district court within the
      time allowed by Rule 4. At the time of filing, the appellant must
      furnish the clerk with sufficient copies of the notice of appeal to
      enable the clerk to comply promptly with the requirements of
      subdivision (d) of this Rule 3. Failure of an appellant to take any step
      other than the timely filing of a notice of appeal does not affect the
      validity of the appeal, but is ground only for such action as the court
      of appeals deems appropriate, which may include dismissal of the
      appeal.”

Except for the 1994 addition of the second sentence (and its change of the “shall”

to “must” in the first sentence), this language is unchanged from the originally
promulgated Rule 3. The relevant portions of Fed. R. App. P. 4(a) now provide as

follows:

      “(a) Appeal in a Civil Case——
           (1) Except as provided in paragraph (a)(4) of this
      Rule, in a civil case in which an appeal is permitted by
      law as of right from a district court to a court of
      appeals the notice of appeal required by Rule 3 must be

                                          19
     filed with the clerk of the district court within 30 days
     after the date of entry of the judgment or order appealed
     from; but if the United States or an officer or agency
     thereof is a party, the notice of appeal may be filed by
     any party within 60 days after such entry. . . .

            (2) [premature notice of appeal] . . .

          (3) If one party timely files a notice of appeal,
     any other party may file a notice of appeal within 14
     days after the date when the first notice was filed, or
     within the time otherwise prescribed by this Rule 4(a),
     whichever period last expires.

          (4) If any party files a timely motion of a type
     specified immediately below, the time for appeal for all
     parties runs from the entry of the order disposing of the
     last such motion outstanding. . . .

          (5) The district court, upon a showing of excusable
     neglect or good cause, may extend the time for filing a
     notice of appeal upon motion filed not later than 30 days
     after the expiration of the time prescribed by this Rule
     4(a). . . . No such extension shall exceed 30 days past
     such prescribed time or 10 days from the date of entry of
     the order granting the motion, whichever occurs later.

          (6) [allowing 14-day reopening of appeal period
     where party does not receive notice within 21 days after
     entry of judgment, provided motion made within 180 days
     of entry or 7 days of notice, whichever first] . . .

            (7) [entry of judgment defined] . . .”

     As can be seen, current Rule 4(a)(3) is virtually identical to

clause (3) of former Rule 73(a) as amended in 1966.   The Committee

Note respecting the 1966 amendment adding clause (3) to Rule 73(a)

explains:

          “The exception number (3) in the first sentence
     affords additional time for appeal to all parties other
     than an initial appellant whenever the first appeal taken
     from a judgment is taken within the 14 days preceding
     expiration of the time for appeal. . . . The added time
     which may be made available by the operation of the
     provision is not restricted to cross appeals in the
     technical sense, i.e., to appeals by parties made
     appellees by the nature of the initial appeal.        The


                                 20
     exception permits any party to the action who is entitled
     to appeal within the time ordinarily prescribed to appeal
     within such added time as the sentence affords. Bertman
     v. J.A. Kirch Co., 377 U.S. 995 (1964), Schildhaus v.
     Moe, 335 F.2d 529 (2d Cir. 1964) and Whitehead v.
     American Security and Trust Co., 285 F.2d 282 (D.C. Cir.
     1960) are illustrative of the desirability of a change in
     the present rule.”18

     As explained in Moore’s, the purpose of the 1966 addition of

clause (3) to the first sentence of former Rule 73(a) was

     “. . . simply to permit each party to a judgment to
     decide upon the advisability of an appeal with full
     knowledge of the intentions of all other parties with
     respect to an appeal. It not infrequently happens that
     a party is satisfied with a judgment only if it is to be
     the final result; that is, if no other party intends to
     appeal from it. Before the addition of [the predecessor
     to] Rule 4(a)(3), a party so situated had no certain way
     of knowing whether any other party intended to appeal.
     All parties were required to appeal within the time
     regularly fixed for taking an appeal.       A party who
     desired to appeal only if some other party took an appeal
     either had to forego that desire and file a notice of
     appeal, thereby possibly provoking other appeals that
     might not have been taken, or keep watch at the clerk’s
     office during the final days of the time for appeal in
     order to be sure that he would learn of the fact of the
     appeal in time to take his own.” Id. ¶ 204.11[1] at 4-18
     (footnotes omitted; emphasis added).

     By the time that clause (3) was added to the first sentence of

former Rule 73(a), it was already clear that the time limits for

filing a notice of appeal were “mandatory and jurisdictional.”

United States v. Robinson, 80 S.Ct. 282, 288 (1960).    This is also

reflected in the provision of the second paragraph of former Rule

73(a) that “failure of an appellant to take any step other than the


18
      Quoted in Moore’s ¶    203.25[3]. The cases cited in the last
sentence are ones in which   the initial appeal was filed on or about
the last day, and the         other party’s notice of appeal was
consequently a day or two    late, resulting in its dismissal by the
court of appeals.

                                  21
timely filing of a notice of appeal does not affect the validity of

the appeal” (emphasis added), and in the provision of former Rule

6(b) of the Rules of Civil Procedure that courts “may not extend

the time for taking any action under rules 25, 50(b), (d), and (e),

60(b), and 73(a) and (g), except to the extent and under the

conditions stated in them.”        2 Moore’s Federal Practice (2d ed.) ¶

6.01[16].19

      As previously observed, these provisions have all been carried

forward into    the     Federal   Rules    of   Appellate     Procedure.    The

Committee Note to Rule 3 made at the time the Federal Rules of

Appellate Procedure were adopted states:

      “Rule 3 and Rule 4 combine to require that a notice of
      appeal be filed with the clerk of the district court
      within the time prescribed for taking an appeal. Because
      the timely filing of a notice of appeal is ‘mandatory and
      jurisdictional,’ United States v. Robinson, 361 U.S. 220,
      224 (1960), compliance with the provisions of those rules
      is of the utmost importance.” 9 Moore’s Federal Practice
      (2d ed.) ¶ 203.01[2].

Since then, the Supreme Court has time and again reiterated that

the   filing   of   a   timely    notice   of   appeal   is    “mandatory   and



19
       The quoted provision of the second paragraph of Rule 73(a)
has been contained in Fed. R. App. P. 3(a) since its adoption. The
portion of Rule 6(b) quoted in the text was carried forward as to
notices of appeal in Fed. R. App. P. 26(b) (as to the other filings
it remains in Fed. R. Civ. P. 6(b)) by the provision contained in
Rule 26(b) since its adoption that “the court may not enlarge the
time for filing a notice of appeal.”        See 9 Moore’s Federal
Practice ¶¶ 226.01, 226.02. Moreover, Fed. R. App. P. 2 has, since
its original adoption with the other Federal Rules of Appellate
Procedure, provided that “a court of appeals may, except as
otherwise provided in Rule 26(b), suspend the requirements or
provisions of any of these rules in a particular case on
application of a party or on its own motion and may order
proceedings in accordance with its direction.” (Emphasis added).

                                      22
jurisdictional.”     See, e.g., Torres v. Oakland Scavenger Co., 108

S.Ct. 2405, 2409 (1988) (“. . . a court of appeals . . . may not

waive the jurisdictional requirements of Rules 3 and 4, even for

‘good cause shown’ under Rule 2"); Budinich v. Becton Dickinson And

Co., 108 S.Ct. 1717, 1722 (1988) (“the taking of an appeal within

the prescribed time is mandatory and jurisdictional”); Griggs v.

Provident Consumer Discount Co., 103 S.Ct. 400, 403 (1982) (“It is

well settled that the requirement of a timely notice of appeal is

mandatory and jurisdictional” [internal quotations marks omitted]);

Browder v. Director, 98 S.Ct. 556, 561 (1978) (“‘mandatory and

jurisdictional,’” citing Robinson).

     Similarly, it is plain from both the wording and history of

former Rule 73(a)——particularly its first sentence——that the filing

within the time there specified of a notice of appeal by one party

after another party had timely filed a notice of appeal was as much

a necessary precondition to the appellate court’s exercise of

jurisdiction over the former’s appeal as compliance with any of the

other time periods specified in the rule’s first sentence was a

prerequisite to exercise of jurisdiction over the appeals to which

such other periods related.        As the Supreme Court observed in

Torres respecting the above quoted Committee Note to Rule 3:        “This

admonition by the Advisory Committee makes no distinction among the

various requirements of Rule 3 and Rule 4; rather it treats the

requirements    of   the   two   Rules   as   a   single   jurisdictional

threshold.”    Torres at 2408.    Clause (3) of the first sentence of

former Rule 73(a) merely extends the otherwise applicable and


                                    23
jurisdictional thirty-day period provided in the initial clause of

the sentence by up to fourteen days, just as clause (1) employs a

sixty-day period for cases in which the United States is a party.

There is simply nothing in the wording or structure of the first

sentence of former Rule 73(a) to suggest that the time limit of its

clause (3) was any less mandatory and jurisdictional than any of

the other time limits specified in that sentence.      Indeed, the

history of the adoption of clause (3) of former Rule 73(a) clearly

reflects that it was intended to allow the fourteen additional days

following timely appeal by another party in order to avoid the

jurisdictional dismissal which otherwise ensued when an appellee

waited to see if another party would appeal, but the other party

did not do so until the last day, so the appellee was only able to

file his notice of cross-appeal after the thirty days had expired.

     It might be argued that the “cross-appeal” provision——clause

(3) of the first sentence of former Rule 73(a) and its successor,

Fed. R. App. P. 4(a)(3)——merely affords a “safe harbor,” so that a

party who complies therewith, after another party has timely

appealed, has the right to seek a modification in his favor of the

judgment below without being subject to any “rule of practice”

limitation on that right.   Such an argument, however, illogically

treats this “cross-appeal” time limit differently from the other

notice of appeal time limits specified in the same rule. Moreover,

it ignores the provisions of the second paragraph of former Rule

73(a)——now carried forward as the third sentence of Fed. R. App. P.

3(a)——that “failure of an appellant to take any step other than the


                                24
timely filing of a notice of appeal does not affect the validity of

the appeal” (emphasis added), and it likewise ignores both the

provision of Fed. R. App. P. 26(b)——carrying forward the similar

provision of former Fed. R. Civ. P. 6(b)——that “the court may not

enlarge the time for filing a notice of appeal” and the related

provision of Fed. R. App. P. 2 allowing the courts of appeal to

suspend the requirements of the rules in particular cases    “except

as otherwise provided in Rule 26(b).”    (Emphasis added).   See note

8, supra, and accompanying text.    It makes no sense to say that the

cross-appeal requirement is merely a rule of practice which does

not limit the jurisdiction or power of the court of appeals, but

that nevertheless the court of appeals is powerless to extend the

time allowed therefor provided in Rule 4(a)(3) (and its predecessor

former Rule 73(a)) despite being empowered       to suspend all the

other time limits provided in the appellate rules.

     Finally, Morley stood and stands as a clear statement of the

Supreme Court respecting the appellate court’s lack of “power,” in

the absence of a cross-appeal, to change a trial court judgment so

as to enlarge an appellee’s rights, or diminish those of the

appellant, thereunder.

     The inevitable conclusion is that without a timely cross-

appeal the appellate court lacks jurisdiction or power to modify

the lower court’s judgment adversely to the appellant.

     The notion that the requirement of a cross-appeal in order to

modify the judgment in a manner favorable to the appellee is merely

a “rule of practice” which the appellate court may disregard at its


                                   25
discretion       is   founded   on    essentially       three   propositions.     I

consider these seriatim.

     First, reliance is placed on Langnes v. Green, 51 S.Ct. 243

(1931), which does indeed contain “rule of practice” language. Id.

at 245-246. However, Langnes cannot sustain the weight thus sought

to be placed on it.          In the first place, Langnes predates Morley,

and Morley expressly speaks to the “power” of the appellate court.

The Supreme Court has never retreated from Morley.                    See note 2,

supra.      If    Langnes     and    Morley      conflict,   the   latter   clearly

controls.    Second, the “rule of practice” language in Langnes is

dicta, as Langnes expressly held that the respondent there, who had

not cross-petitioned, sought “not to overthrow the [court of

appeals] decree, but to sustain it” and hence was within that prong

of the rule of United States v. American Railway Express Co., 44

S.Ct. 560, 564 (1924),20 allowing an appellee who has not cross-

appealed to “‘urge in support of a decree any matter appearing in

the record, although his argument may involve an attack upon the

reasoning    of       the   lower   court     or   an   insistence   upon   matters

overlooked or ignored by it.’”           Langnes at 246.        While we relied on

Langnes in Calhoun County, we recognized that the rule of practice

language in Langnes was only “considered dictum.”                  Calhoun County,

137 F.2d at 132.21          Even the Langnes dicta stresses the admiralty


20
      Both prongs of the rule were later quoted in Morley and there
described as “inveterate and certain” and as measuring “[t]he power
of an appellate court.”
21
     It is to be noted that Calhoun County was decided before any
time limits were contained in former Rule 73(a); also, Calhoun

                                            26
nature of the proceedings there    in which appellate review was de

novo and under a separate statutory system; moreover, the language

is directed to Supreme Court certiorari review.   Id. at 245-246.22


County was an admiralty case, decided at a time when admiralty
appeals were governed by separate statutory provisions and review
was de novo. Id. at 132.
22
       It is to be doubted that the Langnes dicta is any longer
followed so as to allow a respondent who has not cross-petitioned
for certiorari to seek to modify in his favor the decree of the
court of appeals. See Northwest Airlines, Inc. v. County of Kent,
114 S.Ct. 855, 862 (1994). See also note 2, supra. In Trans World
Airlines, Inc. v. Thornton, 105 S.Ct. 613 (1985), the court of
appeals held that petitioner TWA was liable in damages to the
plaintiffs-respondents for violation of the Age Discrimination in
Employment Act (ADEA); and it also held that the Air Line Pilots
Association (ALPA) had violated the ADEA, but that the plaintiffs
could not recover damages from the ALPA because the ADEA did not
permit monetary recovery from unions. TWA petitioned for
certiorari, but the plaintiffs-respondents did not cross-petition.
The Supreme Court held it “was without jurisdiction” to consider
the correctness of the court of appeals’ ruling as to the ALPA’s
lack of liability for damages, which plaintiffs-respondents (as
well as TWA) urged it to reverse. Id., 105 S.Ct. at 620 n.14. The
Court stated:

          “In its petition for a writ of certiorari, TWA
     raised the issue of a union’s liability for damages under
     the ADEA. Although we granted the petition in full, we
     now conclude that the Court is without jurisdiction to
     consider this question. TWA was not the proper party to
     present this question. The airline cannot assert the
right of others to recover damages against the Union.
          Both the individual respondents and the EEOC argue
     that the issue of union liability is properly before the
     Court.   But the respondents failed to file a cross-
     petition raising this question. A prevailing party may
     advance any ground in support of a judgment in his favor.
     [citation] An argument that would modify the judgment,
     however, cannot be presented unless a cross-petition has
     been filed. [citation] In this case, the judgment of
     the Court of Appeals would be modified by the arguments
     advanced by the EEOC and the individual plaintiffs, as
     they are contending that the Union should be liable to
     them for monetary damages.” Id. (emphasis added).

     So far as the “rule of practice” approach is followed by the

                                  27
     The next argument in favor of the “rule of practice” approach

is founded on Fed. R. App. P. 2 (allowing courts of appeals to

suspend the rules in particular cases) and Fed. R. Civ. P. 1 (rules

“shall be construed and administered to secure the just, speedy and

inexpensive determination of every action”). See, e.g., Robicheaux

v. Radcliff Materials, Inc., 697 F.2d at 628 (declining to exercise

“any power we might have under Fed. R. App. P. 2 to suspend the

requirement for a timely cross-appeal, Fed. R. App. P. 4(a)(3)”).

Of course, as previously noted, Fed. R. App. P. 2 is expressly made

subject to Fed. R. App. P. 26(b), which provides that a court of


Supreme Court on certiorari, it seems to be only to limit the
rights of a respondent who has not cross-petitioned to seek to
sustain the judgment of the court of appeals on a different basis
than that relied on by the court of appeals. See, e.g., United
States v. ITT Continental Baking Co., 95 S.Ct. 926, 929 n.2 (1975):

          “Respondent recognizes that, not having cross-
     petitioned, it cannot attack the judgment insofar as it
     sustained the findings of violations and imposed
     penalties for such violations. United States v. American
     Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560,
     563, 68 L.Ed. 1087 (1924). Cf. Morley Construction Co.
     v. Maryland Casualty Co., 300 U.S. 185, 57 S.Ct. 325, 81
     L.Ed. 593 (1937).      Respondent argues that it may
     nevertheless seek to sustain the Court of Appeals’
     limitation on the penalties on the theory that no penalty
     should have been awarded at all. Ordinarily, however, as
     a matter of practice and control of our docket, if not of
     our power, we do not entertain a challenge to a decision
     on the merits where the only petition for certiorari
     presents solely a question as to the remedy granted for
a liability found to exist, even if the respondent is willing to
accept whatever judgment has already been entered against him.”

     This contrasts with the absolute duty of the court of appeals
to rule on issues properly presented by appellee and preserved
below which would result in affirmance of the district court’s
judgment, albeit on a different ground and even though no cross-
appeal has been taken. Mass. Mutual Life Ins. Co. v. Ludwig, 96
S.Ct. 2158, 2159 (1976).

                                28
appeals “may not enlarge the time for filing a notice of appeal.”

As to Fed. R. Civ. P. 1, the Rules of Civil Procedure have long

been inapplicable to giving notice of appeal, and when they were

applicable former Rule 6(b) prohibited notice of appeal time

enlargements not provided for in former Rule 73(a).          See note 8,

supra, and accompanying text.         In related contexts, the Supreme

Court has consistently rejected these or similar arguments.           See

Torres at 2407-08; Budinich at 1722; Griggs at 403.

     The final and most frequently invoked justification for the

“rule of practice” approach to cross-appeals is that the initial

appellant’s    notice   of   appeal    gives   the   court   of   appeals

jurisdiction over the whole case, so notice of appeal by any other

party is not a necessary precondition to exercise appellate power

or jurisdiction to modify the judgment in a manner adverse to the

appellant.23   However, as pointed out above, this approach ignores

the reason for the 1966 addition of the extra fourteen days for

cross-appeal by clause (3) of former Rule 73(a) and is likewise

inconsistent with the treatment in former Rule 73(a), and now in

Fed. R. App. P. 4(a), of the “cross appeal” time limits in the very

same way as the initial appeal time limits, except for the extra

fourteen days allowed for the “cross-appeal.”            Nor does this

approach account for the provision in the second paragraph of



23
      See, e.g., Hysell, 559 F.2d at 476 (“once a timely notice of
appeal has been filed from a judgment it gives us jurisdiction to
review the entire judgment; rules requiring separate appeals by
other parties are rules of practice, which may be waived . . .,”
citing Langnes).

                                  29
former Rule 73(a), now in Fed. R. App. P. 3(a), that “failure of an

appellant to take any steps other than the timely filing of a

notice of appeal does not affect the validity of the appeal”

(emphasis added).      This provision was plainly as applicable to

appeals under clause (3) of the first sentence of former Rule 73(a)

as to appeals under the other provisions of that sentence, just as

it is now as applicable to Fed. R. App. P. 4(a)(3) as to Fed. R.

App. P. 4(a)(1).24     Further, the rule of practice approach cannot

reasonably   account    for   the   provisions    of   Fed.   R.   App.   P.

26(b)——formerly contained in Fed. R. Civ. P. 6(b)——prohibiting

enlargement of the fourteen-day period specified in Fed. R. App. P.

4(a)(3) (and previously in former Rule 73(a)) or the fact that the

flexibility authorized to the courts of appeal by Fed. R. App. P.

2 is expressly made subject to this restriction.

     Finally, the theory that the initial appeal fulfills all

jurisdictional prerequisites so as to empower the appellate court

to dispose of all aspects of the entire case appears to be

necessarily inconsistent with Torres.            The Seventh and Third

Circuits have expressly so recognized.           See Young Radiator, 881



24
      I note that there is no basis for concluding that a party who
files a notice of appeal after another party has done so is not an
“appellant.” No distinction is made in Fed. R. App. P. 4(a)(3)——or
in its predecessor former Rule 73(a)(3)——between those parties who
are adverse or potentially adverse to the party first appealing and
those who are not.     This is also reflected in the above-cited
Committee Notes to the 1966 amendment to former Rule 73(a), which
state that the new clause (3) “is not restricted to cross appeals
in the technical sense, i.e. to appeals by parties made appellees
by the nature of the initial appeal.” See text accompanying note
7, supra.

                                    30
F.2d at 1416; E.F. Operating Corp., 993 F.2d at 1029 & n.1.25    We,

too, have twice recognized the strength of the Young Radiator

analysis of Torres in this connection, although not ultimately

resolving the matter.   See Crist at 1289; Stockstill at 1296-97.

In Torres, notice of appeal was timely filed naming as appellants

fifteen of the sixteen plaintiffs, but the name of the sixteenth

plaintiff, Jose Torres, was inadvertently left off the notice of

appeal.   The Supreme Court held that because Torres’ name was left

off the notice of appeal, the court of appeals never acquired

jurisdiction on appeal over the case as to Torres.   Obviously, had

the notice of appeal of the other plaintiffs——which was indisputably

timely and adequate——sufficed to bring up the whole case or the

entire judgment, then this would not have been so.      Torres thus

necessarily rejects the notion that a valid notice of appeal by one

party suffices to vest the court of appeals with jurisdiction over

the entire judgment of the district court, even as to parties not

giving notice of appeal.   As the Young Radiator Court stated:

     “. . . it could have been argued in Torres that the
     notice of appeal naming fifteen of the sixteen plaintiffs
     invoked the jurisdiction of the court over the whole
     case, so that a separate appeal by the sixteenth
     plaintiff would not be jurisdictionally required. Yet
     the Court’s holding made clear that the requirements of
     Rules 3 and 4 must be satisfied as to each party, and
     precludes the argument in this case that Celotex’s


25
      Another panel of the Third Circuit, however, rejected this
reading of Torres. See United States v. Tabor Court Realty Corp.,
943 F.3d 335, 343-344 (3d Cir. 1991).      Tabor Court is itself
apparently contrary to the Third Circuit’s New Castle County, 933
F.2d 1162, 1206 (3d Cir. 1991) (“Absent a cross-appeal, however,
the Carrier Appellees may not obtain more extensive relief on
appeal than they received in the district court”; emphasis added).

                                 31
     noncompliance with Rule 4(a)(3) can be waived.” Id., 881
     F.2d at 1416.

The theory that an initial appeal by one party brings up the entire

judgment so as to render appeals by other parties irrelevant for

purposes of the jurisdiction or power of the court of appeals is

likewise rejected, at least implicitly, by Osterneck v. Ernst &

Whinney, 109 S.Ct. 987 (1989).26


26
           There, the plaintiffs Osterneck, stockholders in a
corporation which merged into Barwick Industries, sued defendants
Barwick Industries, its officers, E.T. Barwick, Keller, and Talley,
and its accountants, Ernest & Whinney (E&W), claiming that the
merger was induced by fraud. On January 30, 1985, judgment was
entered on the jury verdict awarding the Osternecks damages against
Barwick Industries, Keller, and Talley, but exonerating E.T.
Barwick and E&W. Within ten days, the Osternecks filed a motion
for prejudgment interest. While this motion was pending, on March
1, 1985, the Osternecks filed a notice of appeal naming all
defendants, and on the same day Talley and Keller filed notices of
appeal. On July 9, 1985, the district court entered an amended
judgment, granting the Osternecks some but not all the prejudgment
interest they had requested (but otherwise not changing the January
30 judgment). Within thirty days thereafter, Keller and Talley
filed notices of appeal, as did the Osternecks on July 31. The
Osternecks’ July 31 notice of appeal named all the defendants
except E&W. Before the court of appeals the Osternecks claimed
that the judgment erroneously exonerated E&W and E.T. Barwick, and
also that the award of prejudgment interest was inadequate; Keller
and Talley argued, inter alia, that the Osternecks’ claims against
them were barred by limitations and that the evidence was
insufficient. The court of appeals held it had jurisdiction over
the July 1985 appeals of Keller and Talley, but found that the
issues raised by those defendants were without substantive merit.
Osterneck v. E.T. Barwick Industries, Inc., 825 F.2d 1521 (11th
Cir. 1987). The court likewise concluded that it had jurisdiction
over the Osternecks’ July 31, 1985, notice of appeal, but that this
notice of appeal did not suffice to bring forward the Osternecks’
claims against E&W, as E&W was not named therein. Id. at 1528-
1529. See, also, e.g., Capitol Parks v. Southeastern Advertising,
30 F.3d 627, 630 (5th Cir. 1994); Pope v. MCI, 937 F.2d 258, 266
(5th Cir. 1991), cert. denied, 112 S.Ct. 1956 (1992). The court of
appeals further held that the Osternecks’ March 1, 1985, notice of
appeal (and that of Keller and Talley filed the same day) was
rendered ineffective by the then provisions of Fed. R. App. P.
4(a)(4) because it was filed while the motion for prejudgment

                                   32
      In summary, the language and history of Fed. R. App. P. 3,

4(a), and 26 (b), and the Supreme Court’s decisions in Morley and

Torres, compel the conclusion that a court of appeals, despite a

timely and proper appeal from a district court judgment by one

party, lacks power or jurisdiction to modify that judgment so as to

make it either more favorable to another party who has not timely

appealed it or less favorable to the only party who has appealed

it.   The majority errs in its implicit holding to the contrary.

                                II.

      Finally, even if we were dealing with a rule of practice which

the Court might waive in a particular case, cf. Fed. R. App. P. 2,

I would still dissent from the majority’s modification of the

judgment, which only the plaintiff has appealed, from one of

dismissal without prejudice to one of dismissal with prejudice, and

from its apparent announcement of a new rule of practice that in


interest, which the court concluded was a Rule 59(e) motion, was
pending.    Osterneck, 825 F.2d at 1525-1529.       The Osternecks
petitioned for certiorari complaining of the dismissal of their
appeal as to E&W. The Supreme Court granted the writ and affirmed.
It noted that “[t]he Court of Appeals dismissed petitioners’ appeal
as to Ernest & Whinney for lack of jurisdiction.” Osterneck, 108
S.Ct. at 989.     It agreed with the court of appeals that the
Osternecks’ motion for prejudgment interest was a Rule 59(e)
motion, and since it was pending when the March 1 notice of appeal
was filed that notice of appeal was nugatory under the then
provisions of Fed. R. App. P. 4(a)(4). Id. at 990-992. The Court
declined to make any equitable exception to this ruling. Id. at
992-93. The Osternecks did not contend in the Supreme Court that
their July 31, 1985, notice of appeal was effective as to E&W. Id.
at 990 n.1. Of course, had the July 1985 notices of appeal by
Keller and Talley——which were properly before the court of
appeals——brought the whole July 9, 1985, judgment into the court of
appeals for jurisdictional purposes, then the court of appeals
would have had jurisdiction over the Osternecks’ complaints of that
judgment’s denial to them of recovery against E&W.

                                 33
all pre-service dismissals without prejudice of in forma pauperis

suits where only the plaintiff appeals this Court will sua sponte

determine whether the dismissal of any claim could properly have

been with, rather than without, prejudice, and will modify the

judgment accordingly.

     Courts that have espoused the rule of practice approach have

almost always emphasized that waiver or excuse of the failure to

file a protective or cross-appeal was available only in most

narrowly defined circumstances.        Those circumstances we listed in

Anthony, 693 F.2d at 497-98, and there refused to go beyond them,

as we similarly so refused in Robicheaux, Stockstill, and Crist.27

Other courts that have assumed arguendo that a rule of practice

“waiver” might theoretically be available in some cases have

refused   to   invoke   it   in   similar   circumstances.   See,   e.g.,

Lumbermens Mut. Cas. Co., 917 F.2d at 662-663.           Where “rule of

practice” waiver of failure to appeal has been invoked it has

almost always been in highly unusual cases involving three or more

parties where the rights of the parties are interdependent and on

the appeal by one party the appellate court changes the judgment in


27
      Anthony states:

     “. . . this discretion has been exercised only in
     narrowly defined situations: when the reversal ‘wipes
     out all basis for recovery against the nonappealing, as
     well as against the appealing defendant” [citations,]
     when the failure to reverse with respect to the
     nonappealing party will frustrate the execution of the
     judgment   in  favor   of  the   successful  appellant,
     [citation,] or when the appealed decision could
     reasonably be read as not being adverse to the
nonappealing party.” Id. at 497-98.

                                     34
a way that adversely affects the rights of one nonappealing party

as against another or eliminates the basis of the judgment against

a nonappealing party.      Thus, 15A Wright, Miller & Cooper, Federal

Practice and Procedure, (2d ed.) § 3904 at 219, states “[t]he cases

that   have   excused   separate     appeal   requirements      virtually   all

involved circumstances in which appeals were taken by one or more

defendants or third party defendants, but not by others.                    The

decision on appeal was inconsistent with the judgment against those

who did not appeal.”      See also 9 Moore’s Federal Practice (2d ed.)

¶ 204.11[5] (“In some cases, however, the rights of the parties are

tied together so closely that the court of appeals can render no

judgment that would be just without affecting the rights of the

parties who did not file a notice of appeal.”).

       No cases have been found granting a “rule of practice” waiver

of the failure to file a cross-appeal or protective appeal in a

situation, such as the present, where absent such a waiver the only

result would have been a simple affirmance of the judgment below.

The waiver is granted only where on the appeal timely taken the

appellate     court   properly   grants    relief    to   the   appellant   and

accordingly changes the judgment below in some respect; because of

that appellate change, nonappealing parties are sometimes, in

certain narrow and extreme cases, allowed to request other or

further changes in the judgment below under the “rule of practice”

theory   notwithstanding     their    failure   to    appeal,    because    the

appellate change in the judgment affects their rights against some

other nonappealing party or eliminates the basis of the judgment


                                      35
against them.   The Court’s decision in the instant case represents

a sharp break with this rationale, and in effect simply creates a

wholly new rule of practice.

     Moreover, our departure from the “inveterate and certain” rule

of Morley gains us next to nothing in judicial efficiency.      Any

gain in judicial efficiency presupposes both that if we had merely

affirmed the dismissal without prejudice the appellant would in

fact have timely filed another suit on the same claim against the

same defendant, and that because we have changed the dismissal so

that it is with prejudice, he will not actually do so.    This is a

lot of assuming.   But, to promote the efficiency of this Court——and

I believe the district courts generally can pretty well take care

of their own efficiency concerns——we must also further assume that

when the district court disposes of the second suit, which will

again doubtless be by dismissal, the plaintiff will again appeal to

us, but would not have done so had we on the first appeal changed

the district court’s original dismissal to be with prejudice.28 Nor

are these hypothetical efficiency gains without costs (apart from

the systemic costs of casually departing from established legal

rules), for we must now not only determine whether the dismissal

without prejudice violated the appellant’s rights, but we must also


28
       Experience has shown few, if any, occasions where we have
faced appeals by plaintiffs in second suits following our
affirmance of a section 1915(d) dismissal without prejudice of the
first suit on the same claim, particularly not where the initial
dismissal was on grounds which likely would have warranted
dismissal with prejudice; nor is there any reason to believe that
we would not have faced the second appeal had we, on the first
appeal, changed the dismissal to “with prejudice.”

                                 36
sua sponte determine the sometimes rather close question of whether

the dismissal should instead have been made with prejudice.                         In

this case, for example, we hold that the dismissal should have been

with prejudice as to three of the claims, but was properly without

prejudice as to the fourth.

                                        III.

      The plaintiff alone has appealed the judgment dismissing all

his claims without prejudice.               Instead of entering the obviously

merited    simple      affirmance,     we    have      undertaken   to   change    the

judgment to one of dismissal with prejudice as to three of the four

claims. That change exceeds our power and jurisdiction. Even were

we to follow the theory that the failure to take a protective or

cross-appeal may in certain rare instances be waived by a court of

appeals, this simple case——where absent the waiver there would be

only a plain vanilla affirmance——is totally beyond the universe of

cases in which that approach has been followed and is wholly

unsupported by their rationale.

      From one point of view, this is certainly a “nothing” case.

But   as   a   court    of   appeals   it        is   vitally   important   that   we

understand and observe the rules which govern our jurisdiction,

power, and proceedings. We should not so casually depart from such

inveterate and certain rules.




                                            37
