The Honorable John Gleeson, United States District Judge for the Eastern District… v. City of Long Beach UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4…

* The Honorable John Gleeson, United States District
Judge for the Eastern District of New York, sitting by
designation.
11-4493-cv
Gusler v. City of Long Beach
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2012 5
6
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(Submitted: September 6, 2012 Decided: November 26, 2012) 8
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Docket No. 11-4493-cv 10
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JAY GUSLER, 14
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PLAINTIFF-APPELLEE, 16
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-v.- 18
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THE CITY OF LONG BEACH, THE LONG BEACH 20
VOLUNTEER FIRE DEPARTMENT, THE LONG BEACH 21
POLICE DEPARTMENT, CHARLES THEOFAN, GARRET 22
ROONEY, LISA HIRSCH, COREY KLEIN, ROBERT 23
AGOSTISI, MARCO PASSARO, JOHN GARGAN, SCOTT 24
KEMINS, STEPHEN FRASER, JOHN McLAUGHLIN, 25
MICHAEL GELBERG, TIMOTHY RADIN, 26
27
DEFENDANTS-APPELLANTS. 28
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Before: JACOBS, Chief Judge, Carney, Circuit 32
Judge, Gleeson, District Judge.*
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2
Plaintiff Jay Gusler, pro se, filed an action under 42 1
U.S.C. § 1983, alleging that the defendants unlawfully 2
retaliated against him. The district court (Feuerstein, J.) 3
dismissed some of the claims against some of the defendants. 4
The remaining individual defendants sought to appeal the 5
denial of their dismissal motion raising a defense of 6
qualified immunity. However, we lack jurisdiction to 7
consider their appeal because they did not file a timely 8
notice of appeal that specified that they intended to 9
appeal. 10
Dismissed. 11
Paul F. Millus and Virginia K. 12
Trunkes, Snitow Kanfer Holtzer & 13
Millus, LLP, New York, NY for 14
Defendants-Appellants. 15
Jay Gusler, pro se, Long Beach, NY, 16
for Plaintiff-Appellee. 17
DENNIS JACOBS, Chief Judge: 18
This appeal is taken from an order of the United States 19
District Court for the Eastern District of New York 20
(Feuerstein, J.), denying qualified immunity for certain 21
defendants on a retaliation claim asserted under 42 U.S.C. 22
§ 1983. We lack jurisdiction to consider this appeal 23
because the notice fails to comply with the requirement of 24
Federal Rules of Appellate Procedure Rule 3(c)(1)(A) that 25
the notice “specify the party or parties taking the appeal.” 26

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3
BACKGROUND 1
The factual allegations of the underlying suit are 2
irrelevant to the jurisdictional issue except insofar as 3
they assist in accounting for the procedural history. 4
Plaintiff Jay Gusler, pro se, alleges he suffered 5
retaliation for speaking out about issues involving his 6
employer, the Long Beach Fire Department. His suit names 7
the City of Long Beach, its police department and volunteer 8
fire department, and twelve individual officers and 9
officials of the city. The individual defendants moved to 10
dismiss for failure to state a claim and on grounds of 11
qualified immunity. The court denied qualified immunity as 12
to all the individual defendants, but as to eight of them 13
granted the motions to dismiss for failure to state a claim. 14
(Claims against another were withdrawn after he died.) 15
Thus, there remained claims against three: Charles Theofan, 16
Marco Passaro, and John Gargan. 17
A notice of appeal was filed within 30 days. See Fed. 18
R. App. P. 4(a)(1)(A). The notice of appeal contained the 19
full caption, naming fifteen defendants (including Theofan, 20
Passaro, and Gargan), but stated in the body: “Notice is 21
hereby given that the defendant Nassau County hereby appeals 22
. . . . to the extent that the [District] Court denied 23
defendants’ motion to dismiss the claims against the 24

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4
individual defendants on the grounds of qualified immunity.” 1
(Notice of Appeal, Docket No. 1, Oct. 26, 2011.) The City 2
of Long Beach is in Nassau County, but Nassau County itself 3
is not a party. 4
After the 30-day period to file a notice of appeal had 5
lapsed, the defendants (without seeking leave of court) 6
filed an amended notice of appeal listing as appellants all 7
twelve individual defendants--without distinguishing between 8
those who had been dismissed and those who had not. (Only 9
the amended notice was included in the appendix on appeal.) 10
11
DISCUSSION 12
The requirement that a party seeking to appeal be 13
specified in the notice of appeal is jurisdictional. Baylis 14
v. Marriott Corp., 906 F.2d 874, 877 (2d Cir. 1990) (citing 15
Torres v. Oakland Scavenger Co., 487 U.S. 312, 314 (1988)); 16
accord State Trading Corp. v. Assuranceforeningen Skuld, 921 17
F.2d 409, 412 (2d Cir. 1990). We are therefore obligated to 18
first satisfy ourselves of our jurisdiction even though the 19
parties here have not raised the issue. Gonzalez v. Thaler, 20
132 S. Ct. 641, 648 (2012); Reddington v. Staten Island 21
Univ. Hosp., 511 F.3d 126, 131 (2d Cir. 2007). 22
The original notice of appeal recites only that 23
“defendant Nassau County hereby appeals” the decision of the 24

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5
district court. That does not “provide notice to the court 1
[or] to the opposing parties of the identity of the 2
appellant or appellants” so that this Court, the district 3
court, and the plaintiff can “know . . . which parties are 4
bound by the district court’s [decision] [and] which parties 5
may be held liable for costs or sanctions on the appeal.” 6
Baylis, 906 F.2d at 877; accord Torres, 487 U.S. 318 (“The 7
purpose of the specificity requirement of Rule 3(c) [of the 8
Federal Rules of Appellate Procedure] is to provide notice 9
both to the opposition and to the court of the identity of 10
the appellant or appellants.”). Were it otherwise, “[t]he 11
party could sit on the fence, await the outcome [of the 12
appeal], and opt to participate only if it was favorable.” 13
Gonzalez, 132 S. Ct. at 652. 14
Rule 3(c)(1)(A) requires that a notice of appeal 15
“specify the party or parties taking the appeal by naming 16
each one in the caption or body of the notice” and permits 17
“an attorney representing more than one party [to] describe 18
those parties with such terms as ‘all plaintiffs,’ ‘the 19
defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all 20
defendants except X.’” (Emphasis added.) Obviously, the 21
individual defendants wishing to appeal were not specified 22
in the “body of the notice.” So the only way that the 23
appeal notice could possibly suffice would be if it is 24

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6
enough that the three parties against whom claims remain are 1
among the fifteen defendants listed in the caption of the 2
notice. 3
Because a notice of appeal must “specify the party or 4
parties taking the appeal,” Fed. R. App. P. 3(c)(1)(A), it 5
fails to do so if those parties are listed only in the 6
caption while the body of the notice states that someone 7
else is taking the appeal. See Minority Employees of the 8
Tenn. Dep’t of Emp’t Sec., Inc. v. State of Tenn. Dep’t of 9
Emp’t Sec., 901 F.2d 1327, 1335-36 & n.5 (6th Cir. 1990) (in 10
banc); Allen Archery, Inc. v. Precision Shooting Equip., 11
Inc., 857 F.2d 1176, 1176-77 (7th Cir. 1988) (per curiam) 12
(denying petition for rehearing). 13
Those cases pre-date the adoption of the 1993 wording 14
in Rule 3(c)(1)(A) (quoted above) which controls this 15
appeal; but they marked the trend that was codified in 1993. 16
A bit of background may be useful. In Torres v. Oakland 17
Scavenger Co., 487 U.S. 312 (1988), one of the appellants-- 18
unnamed in the body of the notice--was referenced in the 19
caption only by the “et al.” that followed the name of 20
another party. The Supreme Court held that appellate 21
jurisdiction was lacking: “The specificity requirement[] of 22
Rule 3(c) is met only by some designation that gives fair 23
notice of the specific individual or entity seeking to 24

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1 One example of the litigation spawned by Torres was
whether an appellate court had jurisdiction over a plaintiff
not listed in a caption when the body of the notice stated
that “plaintiffs,” “the plaintiffs,” or “all plaintiffs”
appealed. See, e.g., Minority Employees, 901 F.2d at 1335.
7
appeal.” Torres, 487 U.S. at 318. Some ensuing decisions 1
found it sufficient to list a party in the caption if that 2
party’s “intent to appeal . . . was manifest from a reading 3
of the body of the notice of appeal and the caption.” 4
Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1116 (1st Cir. 5
1989) (collecting cases); accord Minority Employees, 901 6
F.2d at 1336 (holding that a notice of appeal is 7
insufficient when the caption is “inconsistent with the body 8
of the notice,” because “any ambiguity” between the caption 9
and the body “will defeat the notice”). But litigation 10
persisted over various permutations of the facts in Torres.1
11
The Advisory Committee Notes explain that “[t]he [1993] 12
amendment is intended to reduce the amount of [such] 13
satellite litigation.” 14
In this light, the reference in Rule 3(c)(1)(A) to 15
“naming [the party] in the caption” is best understood to 16
mean that the notice of appeal is sufficient even if the 17
party taking the appeal is named nowhere but in the caption 18
if--and only if--it is manifest from the notice as a whole 19
that the party wishes to appeal. The notice of appeal then 20

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2 So, for example, Rule 3(c)(1)(A) permits “an attorney
representing more than one party [to] describe those parties
with such terms as ‘all plaintiffs,’ ‘the defendants,’ ‘the
plaintiffs A, B, et al.,’ or ‘all defendants except X’”
because, under such circumstances, it would be unambiguous
which parties seek to appeal.
3 A party who claims immunity but prevails in district
court on a ground that may subject him to defending an
appeal after final judgment might have an interest in
appealing the denial of immunity at the outset. The ability
to bring such an appeal is an issue that might be reached if
the eight defendants were appealing; that is what we do not
know.
8
meets the requisite of “specify[ing] the party or parties 1
taking the appeal.” 2 Fed. R. App. P. 3(c)(1)(A). 2
Our holding finds additional support in the text of 3
Rule 3(c): “An appeal must not be dismissed . . . for 4
failure to name a party whose intent to appeal is otherwise 5
clear from the notice.” Fed. R. App. P. 3(c)(4) (emphasis 6
added). The Advisory Notes for the 1993 Amendment to Rule 7
3(c) explain: “The test established by the rule for 8
determining whether . . . designations are sufficient is 9
whether it is objectively clear that a party intended to 10
appeal,” (emphasis added). The appeal notice may suffice 11
if it is clear that each of the eleven living individual 12
defendants listed in the caption of the notice--including 13
those against whom all claims had been dismissed--intended 14
to appeal.3 On the other hand, it would plainly fail “[t]he 15
test established by the rule” for a party to be listed in 16

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only the caption if the body of the notice leaves 1
uncertainty as to whether that party is appealing. That is 2
the case here: The three defendants against whom claims 3
remain are among the parties listed in the caption, but the 4
body of the notice states that someone else is appealing the 5
district court’s order. 6
Our holding is also consistent with the purpose of the 7
specificity requirement of Rule 3(c): “to provide notice 8
both to the opposition and to the court of the identity of 9
the appellant or appellants.” Torres, 487 U.S. at 318; 10
accord Baylis, 906 F.2d at 877; Cotton v. U.S. Pipe & 11
Foundry Co., 856 F.2d 158, 162 (11th Cir. 1988). Although 12
Torres construed the Rule before the 1993 Amendment, Torres 13
and the post-Amendment Rule both “require[] that the notice 14
of appeal make clear in some fashion the identity of each 15
party desiring to join the appeal.” Twenty Mile Joint 16
Venture, PND, Ltd. v. Comm’r of Internal Revenue, 200 F.3d 17
1268, 1274 (11th Cir. 1999). 18
It could be argued that, since the notice requirement 19
rules “should be liberally construed,” Marrero Pichardo v. 20
Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004), the specificity 21
requirement of Rule 3(c)(1)(A) should be deemed satisfied if 22
the party taking the appeal is listed in the caption 23
regardless of body of the notice of appeal. We disagree. 24

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10
Such a construction would not ensure that “it is objectively 1
clear” which party or parties “intended to appeal.” See 2
Fed. R. App. P. 3 advisory committee’s notes to 1993 3
Amendments. That would undermine the purpose of the Rule: 4
to inform the opposition and the courts of who is appealing. 5
Torres, 487 U.S. at 318. And it would leave uncertain which 6
parties have waived arguments that are not made, and which 7
parties are bound by the result on appeal. 8
The statement in the text of the notice--that the 9
appeal concerns the district court’s order "to the extent 10
that the Court denied defendants’ motion to dismiss the 11
claims against the individual defendants on the grounds of 12
qualified immunity"--may give reasonable grounds for 13
concluding that only the individual defendants have an 14
interest in appealing. It does not, however, resolve the 15
ambiguity about whether appeal is sought by all eleven 16
individual defendants still living, considering that eight 17
of them achieved dismissal on other grounds. And if it 18
should transpire in the future that it was error to dismiss 19
the claims against them, it is not clear whether they would 20
be bound by any decision we issued in this appeal with 21
respect to their entitlement to qualified immunity. Thus, 22
the notice fails to meet the basic requirement of informing 23
the court and the opposition of who is taking the appeal. 24

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Finally, the amended notice of appeal does not fix the 1
problem. The amended notice was filed after the time to 2
appeal had run. See Fed. R. App. P. 4(a)(1)(A). Defendants 3
did not seek an extension of time to amend and correct the 4
notice of appeal, Fed. R. App. P. 4(a)(5), and, the time to 5
do so has long since passed, Fed. R. App. P. 4(a)(5)(C). 6
* * * 7
Because the notice of appeal did not specify which 8
defendants were taking an appeal of the district court’s 9
decision, we lack jurisdiction to consider their appeal. 10
Torres, at 314-15, 317. 11
12
CONCLUSION 13
Accordingly, the appeal is dismissed for lack of 14
appellate jurisdiction. 15

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