                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 CARL WEST,                                  No. 13-16909
               Plaintiff-Appellant,
                                               D.C. No.
                  v.                     2:13-cv-00304-GMS

 UNITED STATES OF AMERICA;
 JOE GORDWIN, an FBI agent,                    OPINION
         Defendants-Appellees.


        Appeal from the United States District Court
                 for the District of Arizona
         G. Murray Snow, District Judge, Presiding

           Argued and Submitted January 6, 2016
                San Francisco, California

                       Filed April 3, 2017

     Before: Alex Kozinski, Diarmuid F. O’Scannlain
      and M. Margaret McKeown,* Circuit Judges.

                 Opinion by Judge Kozinski;
         Partial Concurrence and Partial Dissent by
                     Judge O’Scannlain


     *
       Following argument in this case, Judge McKeown was drawn to
replace Judge Noonan.
2                    WEST V. UNITED STATES

                            SUMMARY**


           Federal Rule of Appellate Procedure 3

    The 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.

    The 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.

    Under 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 Gordwin.

    Under 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 suit.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   WEST V. UNITED STATES                        3

    The 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.

    The panel addressed the merits of West’s other claims in
a concurrently filed memorandum disposition.

    Judge 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 prejudiced.


                          COUNSEL

David W. Dow (argued), Phoenix, Arizona, for Plaintiff-
Appellant.

Peter M. Lantka (argued), Phoenix, Arizona, for Defendants-
Appellees.
4                 WEST V. UNITED STATES

                          OPINION

KOZINSKI, Circuit Judge:

    We consider whether an appellant’s notice of appeal
satisfied the requirements of Federal Rule of Appellate
Procedure 3.

                      BACKGROUND

   Carl West was convicted of robbery and sentenced to
twenty years in prison because Joe Gordwin, then an FBI
agent, “manufactured and coerced” the testimony of various
witnesses at West’s trial. When Gordwin’s actions were
exposed, West was released and the charges against him were
dropped. This appeal concerns West’s subsequent civil suit
against the United States and Gordwin based on the
misconduct in West’s criminal case.

    West alleged thirteen causes of action and requested
punitive damages against both the United States and
Gordwin. The United States filed a motion to dismiss West’s
complaint, addressing only West’s claims “against the United
States,” not those against Gordwin. The government noted
that it “d[id] not represent Defendant Joe Gordwin.” At that
time, West hadn’t served Gordwin with process. In fact, after
the United States filed its motion to dismiss, the district court
granted West an extension of time in which to serve Gordwin
under Federal Rule of Civil Procedure 4.

   The district court granted the government’s motion to
dismiss, but it dismissed all of West’s claims, including those
                  WEST V. UNITED STATES                      5

against Gordwin. The district court entered judgment “in
favor of defendants and against plaintiff” the same day.
Gordwin hadn’t been served yet, and West’s deadline for
service hadn’t passed.

    West then filed his notice of appeal (NOA). He included
Gordwin and the United States in the caption and listed the
district court’s order and judgment as the basis of his appeal.
West didn’t otherwise identify Gordwin or the claims against
him in the NOA. West did say that he was appealing “as to
the Defendant United States of America.” See infra p. 9. In
his opening brief, West argued that certain claims against
both the United States and Gordwin were wrongfully
dismissed.

                       DISCUSSION

    Federal Rule of Appellate Procedure 3 lists the
requirements for taking an appeal as of right in federal court.
The appealing party must file an NOA within the time set by
Rule 4. Fed. R. App. P. 3(a). The NOA must identify each
appellant, Rule 3(c)(1)(A); “designate the judgment, order, or
part thereof being appealed,” Rule 3(c)(1)(B); and “name the
court to which the appeal is taken,” Rule 3(c)(1)(C). These
requirements are jurisdictional, see Torres v. Oakland
Scavenger Co., 487 U.S. 312, 317 (1988), but the Rule
cautions against their formalistic application: “An appeal
must not be dismissed for informality of form or title of the
notice of appeal, or for failure to name a party whose intent
to appeal is otherwise clear from the notice.” Fed. R. App. P.
3(c)(4).
6                 WEST V. UNITED STATES

    While no party has raised an issue with West’s NOA or
our ability to review the district court’s dismissal of his
claims, “[a] court has a duty to assure itself of its own
jurisdiction, regardless of whether jurisdiction is contested by
the parties.” Peterson v. Islamic Republic of Iran, 627 F.3d
1117, 1125 (9th Cir. 2010). West’s NOA faces two potential
compliance issues as to his claims against Gordwin:
subsections (c)(1)(A) and (c)(1)(B).

    A. In Torres v. Oakland Scavenger Co., Torres was
barred from appealing because his name was omitted from
the NOA “due to a clerical error.” 487 U.S. at 313, 318. The
Supreme Court held that failing to identify an appellant in the
NOA deprives a U.S. Court of Appeals of jurisdiction over
that appellant’s case.       Id. at 315–18.        The Court
acknowledged that this caused a “harsh result” in Torres’s
case, but it explained that specificity in naming an appellant
is required by the clear text of Rule 3. See id. at 318. But
neither Rule 3 nor Torres mentions appellees. The rule’s
only subsection that requires naming the parties to the appeal
states that the NOA must

       specify the party or parties taking the appeal
       by naming each one in the caption or body of
       the notice, but an attorney representing more
       than one party may describe those parties with
       such terms as “all plaintiffs,” “the
       defendants,” “the plaintiffs A, B, et al.,” or
       “all defendants except X.”

Fed. R. App. P. 3(c)(1)(A) (emphasis added); see also
Chathas v. Smith, 848 F.2d 93, 93 (7th Cir. 1988) (“There is
no mention of appellees . . . .”).
                  WEST V. UNITED STATES                        7

     We have not addressed in a precedential opinion whether
failing to name an appellee is a jurisdictional bar to
considering an appeal against that appellee. But see Hale v.
Arizona, 967 F.2d 1356, 1361 (9th Cir. 1992) (“Rule 3(c)
does not require that appellees be listed, only appellants.”),
reh’g en banc, 993 F.2d 1387 (9th Cir. 1993). Other circuits
have held that failing to name certain appellees in an NOA
doesn’t necessarily preclude an appeal against those
appellees. See, e.g., Longmire v. Guste, 921 F.2d 620, 622
(5th Cir. 1991) (per curiam) (holding that appellant’s failure
to name appellee wasn’t a jurisdictional bar to review); Battle
v. District of Columbia, 854 F.2d 1448, 1450 (D.C. Cir. 1988)
(per curiam) (noting the same); cf. Chathas, 848 F.2d at 94
(finding omission of appellee’s name to be harmless error).
The Fifth Circuit held that “[t]he jurisdictional prerequisite of
[Rule] 3(c) only requires naming with specificity the
appellants taking the appeal and not the appellees against
whom the appeal is being taken.” Longmire, 921 F.2d at 622.
No circuit has reached a contrary conclusion.

    Consistent with other circuits and the plain language of
the rule, we hold that failing to name an appellee in an NOA
is not a bar to an appeal. Therefore, any ambiguity about the
identity of the appellees in West’s NOA doesn’t preclude our
review of West’s claims against Gordwin.

    B. The Supreme Court has also told us that “courts
should construe Rule 3 liberally when determining whether
it has been complied with.” Smith v. Barry, 502 U.S. 244,
248 (1992). “Thus, when papers are ‘technically at variance
with the letter of [Rule 3], a court may nonetheless find that
the litigant has complied with the rule if the litigant’s action
is the functional equivalent of what the rule requires.’” Id.
(alteration in original) (quoting Torres, 487 U.S. at 316–17).
8                 WEST V. UNITED STATES

In Smith, the Supreme Court held that we may construe an
appellant’s opening brief as an NOA if it contains all of the
information that Rule 3 requires. Id. at 248–50. In Foman v.
Davis, the NOA didn’t name the judgment, but the Court held
that it was error to treat the NOA as including only an appeal
from a specifically named order and not the judgment.
371 U.S. 178, 181 (1962). We have interpreted these rulings
as “reject[ing] a literal interpretation of Rule 3(c)(1)(B),”
which stands in contrast to the Court’s narrow application of
Rule 3(c)(1)(A). Le v. Astrue, 558 F.3d 1019, 1022 (9th Cir.
2009).

    “When ‘a party seeks to argue the merits of an order that
does not appear on the face of the notice of appeal,’ we
consider: ‘(1) whether the intent to appeal a specific judgment
can be fairly inferred and (2) whether the appellee was
prejudiced by the mistake.’” Id. at 1022–23 (quoting Lolli v.
County of Orange, 351 F.3d 410, 414 (9th Cir. 2003)). “In
determining whether ‘intent’ and ‘prejudice’ are present, we
apply a two-part test: first, whether the affected party had
notice of the issue on appeal; and, second, whether the
affected party had an opportunity to fully brief the issue.”
Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055
(9th Cir. 2009) (quoting Lynn v. Sheet Metal Workers’ Int’l
Ass’n, 804 F.2d 1472, 1481 (9th Cir. 1986)).

    Pursuant to this functional approach, we have considered
appeals from orders that weren’t named in the NOA and were
discussed only in appellate briefs. See, e.g., One Indus., LLC
v. Jim O’Neal Distrib., Inc., 578 F.3d 1154, 1159 (9th Cir.
2009); Lynn, 804 F.2d at 1481. In these cases, the appellants’
intent to appeal the otherwise unnamed orders were clear
from their briefs. The appellees suffered no prejudice
                  WEST V. UNITED STATES                      9

because they had opportunities to respond in their answering
briefs.

    West titled his NOA, “Plaintiff’s Notice of Appeal to the
Ninth Circuit Court of Appeals from the Order and Judgment
of the United States District Court” (capitalization altered).
The title alone contained all of the information that Rule 3
required. Moreover, the main text of West’s NOA stated:

       Notice is hereby given that Plaintiff in the
       above-entitled case, Carl West, hereby
       appeals to the United States Court of Appeals
       for the Ninth Circuit the Order of the Hon. G.
       Murray Snow dated August 21, 2013 and the
       Judgment of the Court entered August 21,
       2013 dismissing this action as follows:
       Plaintiff appeals the dismissal with prejudice
       of Counts 4, 7, 9, 10 and 14 as to the
       Defendant United States of America.

(capitalization altered). While West identified certain counts
against the United States, he twice named in full the district
court’s order and judgment.            Construing the NOA
functionally, we conclude that it sufficiently indicated West’s
intent to appeal the entire district court order and the
judgment dismissing the whole suit.

    West’s opening brief on appeal further clarified the scope
of his appeal. It stated that the same counts he appealed as to
the United States “as well as 42 U.S.C. § 1983 claims under
Counts 6 and 8 and 14, punitive damages, should not have
been dismissed against not yet served Defendant Joe
Gordwin.” West explained that the district court’s dismissal
order didn’t address the claims against Gordwin “but
10                WEST V. UNITED STATES

proceeded to dismiss the entire case.” That dismissal was
error, he argued. West’s argument was more than sufficient
to present the issue on appeal.

    C. The district court failed to distinguish between claims
against the United States and claims against Gordwin when
dismissing the case with prejudice. It was clear error for the
district court to dismiss the claims against Gordwin, who
wasn’t a party to the case because he hadn’t been served and
the time for service had not expired. See European
Community v. RJN Nabisco, Inc., 355 F.3d 123, 128, 139 (2d
Cir. 2004) (holding that there was no procedural basis for
dismissal when the plaintiffs’ deadline for service had not
expired), cert. granted, vacated on other grounds &
remanded, 544 U.S. 1012 (2005); cf. Franklin v. Murphy,
745 F.2d 1221, 1226 (9th Cir. 1984) (explaining that it was
error to dismiss a complaint without notice before the
plaintiff served it when the plaintiff had paid filing fees).

    The dissent claims that the result we reach is “both unfair
and inequitable” because “Gordwin never received notice of
the appeal nor had the opportunity to brief the issues
concerning him.” Dissent at 12–13. But the dissent’s
concerns arise out of the district court’s error, not any
problem with West’s NOA. Because the district court
prematurely dismissed Gordwin before West served him,
Gordwin couldn’t be on the service list for West’s brief. See
dissent at 12. West’s NOA and brief included sufficient
information to put any reader on notice of his appeal. His
intent to appeal was clear, and Gordwin suffered no
prejudice. Gordwin is in the exact same position he was in
prior to the district court’s error and this ensuing appeal:
waiting for West to serve him.
                  WEST V. UNITED STATES                    11

  We address the merits of West’s other claims in a
memorandum disposition filed concurrently with this opinion.

   REVERSED.



O’SCANNLAIN, Circuit Judge, concurring in part and
dissenting in part:

    While I concur in the court’s reversal of the final
judgment in the concurrent memorandum disposition with
regard to West’s claims against the United States, I must
respectfully dissent from the opinion’s holdings with regard
to West’s claims against Agent Gordwin. Because of a
serious jurisdictional defect, I would instead dismiss the
appeal as to him rather than reverse and remand and expose
him to further proceedings.

                              I

    We simply lack jurisdiction to review the district court’s
judgment with respect to Agent Gordwin because the Notice
of Appeal (“NOA”) specifies that West “appeals the dismissal
with prejudice of Counts 4, 7, 9, 10 and 14 as to the
Defendant United States of America.” See Fed. R. App. P.
3(c)(1)(B). Counts 6 and 8, the only counts which relate to
claims against Defendant Gordwin, are nowhere mentioned
and are presumably excluded from this appeal.

    Of course, when a party seeks to argue the merits of an
order that does not appear on the face of the NOA, Le’s two-
step analysis applies. Le v. Astrue, 558 F.3d 1019, 1022–23
(9th Cir. 2009) (quoting Lolli v. County of Orange, 351 F.3d
12                    WEST V. UNITED STATES

410, 414 (9th Cir. 2003)). But, the majority errs when it
concludes that West’s intent to appeal the judgment with
respect to Agent Gordwin can be inferred and that he was not
prejudiced. Maj. at 10.

    Such holding disregards Ninth Circuit precedent. “In
determining whether ‘intent’ and ‘prejudice’ are present, we
apply another two-part test: first, whether the affected party
had notice of the issue on appeal; and, second, whether the
affected party had an opportunity to fully brief the issue.”
Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051,
1055 (9th Cir. 2009) (quoting Lynn v. Sheet Metal Workers’
Int’l Ass’n, 804 F.2d 1472, 1481 (9th Cir. 1986)).

    It is undisputed that Agent Gordwin never received notice
of the appeal nor had the opportunity to brief the issues
concerning him. West briefly addressed the claims against
Agent Gordwin in his opening brief, but there is no evidence
such brief was ever properly served.1 Nor, unsurprisingly,
was there any response from Agent Gordwin. This
differentiates the present case from those in which the Court
has held that briefs discussing a judgment not referenced in
the NOA may provide notice. See, e.g., Lynn, 804 F.2d at
1481 (finding notice where “appellant served the affected
party . . . with a copy of the brief in which he raised the
issue,” and “the [affected party] filed a joint brief . . . in
which this issue was fully discussed”) (emphasis added);
United States v. One 1997 Mercedes Benz, 708 F.2d 444, 451
(9th Cir. 1983) (finding notice where appellant “address[ed]
the dismissal of the third-party action in her opening brief . . .
and served that brief on all third-party defendants”)

     1
       The relevant Certificate of Filing and Service only certifies delivery
to an Assistant United States Attorney representing the government.
                  WEST V. UNITED STATES                    13

(emphasis added). Thus, Ahlmeyer makes clear that West’s
failure to serve Agent Gordwin forecloses our ability to
review the claims against him. Ahlmeyer, 555 F.3d at 1055.

    The suit in which Agent Gordwin was named was filed
and dismissed in 2013. There is no evidence that he has been
served with papers at any stage of this litigation. It is both
unfair and inequitable to require, as the majority does, that
Agent Gordwin remain exposed to continued litigation, which
began four years ago, without notice to him should West
eventually decide to provide him with the due process to
which he was entitled from the start.

                              II

     For the foregoing reasons, I would dismiss the appeal
with respect to the claims against Agent Gordwin, rather than
let this case go forward as to him.
