945 F.3d 1237
9th Cir.2020Background
- Alexander Volkhoff, LLC filed an original qui tam FCA complaint as relator, then (shortly after) substituted itself out and Jane Doe was named relator in the First Amended Complaint (FAC).
- The FAC removed any reference to Volkhoff; the substitution was a tactical move to preserve an individual retaliation claim that an LLC could not bring.
- The district court dismissed Jane Doe’s FAC: applying the FCA "first-to-file" bar (finding Doe distinct from the original relator), dismissing the retaliation claim for lack of anonymity justification, and declining supplemental jurisdiction over state claims.
- Volkhoff (not a party to the FAC) filed a notice of appeal naming only "Alexander Volkhoff, LLC" as relator/plaintiff/appellant and did not name Jane Doe.
- The Ninth Circuit considered whether it had jurisdiction to hear an appeal filed by a nonparty (Volkhoff) and whether Jane Doe’s intent to appeal could be inferred from Volkhoff’s notice.
- The court dismissed the appeal for lack of jurisdiction: a nonparty that substituted itself out and did not meaningfully participate cannot appeal, and Rule 3(c) did not permit inferring Jane Doe’s intent from the notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nonparty Volkhoff may appeal dismissal of Jane Doe’s FAC | Volkhoff contends it may appeal because it was the original relator and claims ownership/identity overlap with Doe; equities do not preclude its appeal | Only parties may appeal; Volkhoff substituted itself out, did not meaningfully participate in district-court proceedings, and equities do not favor allowing a nonparty appeal | Dismissed for lack of jurisdiction: nonparty Volkhoff may not appeal because it ceased participation and failed to show equitable grounds for an exception |
| Whether Jane Doe’s intent to appeal can be inferred from Volkhoff’s notice under Fed. R. App. P. 3(c) | Volkhoff urges the court to treat the naming omission as inadvertent and to infer Doe intended to appeal; argues LLC and Doe are effectively interchangeable here | Notice named only Volkhoff; Rule 3(c) requires naming appellants or making their intent objectively clear; interchanging an LLC and a natural person is not permissible | Dismissed: Doe was not named and her intent to appeal was not objectively clear from the notice, so Rule 3(c) bars the appeal |
Key Cases Cited
- Marino v. Ortiz, 484 U.S. 301 (1988) (only parties or properly joined parties may appeal)
- Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988) (failure to name appellant in notice of appeal can be jurisdictional)
- Smith v. Barry, 502 U.S. 244 (1992) (contents of notice of appeal governed by Rule 3(c))
- Le v. Astrue, 558 F.3d 1019 (9th Cir. 2009) (noncompliance with Rule 3(c) can present a jurisdictional bar)
- Citibank Int’l v. Collier-Traino, Inc., 809 F.2d 1438 (9th Cir. 1987) (nonparty who chose not to intervene cannot later appeal)
- Raley v. Hyundai Motor Co., 642 F.3d 1271 (10th Cir. 2011) (refusal to infer an unnamed party’s intent to appeal from a notice naming only a different party)
- Commodity Futures Trading Comm’n v. Topworth Int’l, Ltd., 205 F.3d 1107 (9th Cir. 2000) (examples of when nonparty participation justified allowing an appeal)