[50] DAVID A. NELSON, Circuit Judge, concurring in part and dissenting in part.

Rule 3(c) of the Federal Rules of Appellate Procedure requires that a notice of appeal specify the party or parties taking the appeal. The question is whether, under the rule, there is only one form of specification that can possibly do the job. Must the party or parties taking the appeal be specified by name, or can a generic specification — e.g., "plaintiffs in the above case," the term used to designate the appealing parties here — pass muster if it gives what the Supreme Court has called "fair notice" of precisely who it is who is appealing? See Torres, 487 U.S. at 317-18, 108 S.Ct. at 2409, 101 L.Ed.2d at 292.

Unlike the majority of my colleagues, I believe that far from ruling out the "fair notice" approach, Torres endorses it. I can readily understand why, as a matter of efficient judicial administration, a rigid "specification by name only" rule might be considered preferable. But we are no more at liberty to disregard the actual language of the rule we now have than we are at liberty to disregard the reasoning the Supreme Court has used in applying it.

Fidelity to the text of the existing rule, respect for the reasoning of the Supreme Court, and appreciation of the difficulty busy lawyers have in trying to keep up with the minutiae of appellate court decisions, in my view, all counsel against our departing from the letter of the rule as promulgated. And we do depart from the letter of that rule, I think, when we summarily dismiss the appeals of parties who, although not specified as appellants by name, have been specified as appellants in a form that simply leaves no room for honest doubt as to who the appellants are.

I

To the average practicing lawyer, willing to take our procedural rules as the readily understandable guide they seem to be, the three short sentences of Rule 3(c) must seem beguilingly straightforward. The first sentence tells the reader that a notice of appeal shall "specify" the party or parties taking the appeal, shall "designate" the judgment or order appealed from, and shall "name" the court to which the appeal is taken. These are the only requirements it purports to impose. The second sentence refers the reader to a "suggested" form. And the next sentence — the third and last — makes clear that the suggested form is not mandatory; that sentence gives the reader to understand that an appellate court may not dismiss an appeal for "informality" in the form of the notice of appeal.

The notice filed by the plaintiffs in the case at bar was completely faithful to the plain commands of Rule 3(c) as far as I can see. There was nothing unclear, or vague, or imprecise about it. There was nothing in the notice that would even remotely suggest any need for a factual inquiry into whether the opposing parties had somehow been prejudiced, or what the scrivener's subjective intent may have been — questions that would be out of bounds in any event, of course.

The body of the plaintiffs' notice of appeal, to begin with, specified the parties taking the appeal as "plaintiffs" in the above case. There can be no possible reason to suppose that the plural form of the noun — "plaintiffs" — was being used here as the functional equivalent of the singular. And because of the plaintiffs' consistent and faithful compliance with another procedural rule, Rule 10(a) of the Federal Rules of Civil Procedure, no one examining the record could have any possible doubt as to who the "plaintiffs in the above case" actually were.

Under Rule 10(a), every pleading filed in a federal district court (which is where notices of appeal must be filed) has to contain a caption setting forth, among other things, the name of the court, the title of the action, and the file number. "In the complaint," Rule 10(a) continues, "the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties."

There are four plaintiffs in the present case. (There always have been four plaintiffs, incidentally — no party has been dropped or added at any stage of the proceeding.) In the complaint they filed in the district court, the plaintiffs gave their action a title that included the names and addresses of all four plaintiffs, starting with the corporate entity, Minority Employees, and including, after the fourth name and address, the designation "plaintiffs."

The complaint also contained a file number — No. 81-3114. That file number was used in all subsequent filings, including the notice of appeal. When the plaintiffs referred to themselves in their notice of appeal as the plaintiffs "in the above case," therefore, they can only have been referring to the plaintiffs in Case No. 81-3114.

The notice of appeal set out the title of the action in a form that did not reiterate the names of the second, third and fourth plaintiffs. Instead, the title made reference to those plaintiffs with the familiar shorthand expression " et al." The use of this form, under Rule 10(a), was "sufficient." Anyone wanting to know the given names of the remaining plaintiffs could readily ascertain them by looking at the complaint, the one pleading where the rules make it mandatory that such names be included.

In compliance with the first sentence of Rule 3(c), the notice of appeal went on to name the court to which the appeal was being taken — the United States Court of Appeals for the Sixth Circuit. Then, giving the exact date of each order being appealed from, the notice designated the orders in question as an order "denying the plaintiffs' motion for class certification," an order "dismissing plaintiffs' claims under Title VII of the Civil Rights Act of 1964," and an order "dismissing plaintiffs' claims under 42 U.S.C. §§ 1981, 1983 and 1985. . . ." (Emphasis supplied.)

When the "plaintiffs" in a multi-plaintiff lawsuit file a notice saying that they are taking an appeal from adverse rulings on their claims — the plaintiffs' claims — it is as certain as anything can be, I should have thought, that the appeal is not being taken by one plaintiff only. But this court's decision gives the notice of appeal precisely that effect. It makes the plural the functional equivalent of the singular.

This strange transformation flows from the court's application of what looks to me like a subtle revision in the text of Rule 3(c). Section I of the court's opinion adds to the first sentence of the rule a command as to form which I cannot find there — a command that appellants "include in the notice of appeal the name of each and every party taking the appeal."

If those who promulgated the rules of procedure had intended to say that the parties taking an appeal can only be specified by including their names in the notice of appeal, it would have been simple enough to say so. With regard to the complaint, as we have seen, Rule 10(a), Fed.R.Civ.P., imposes exactly this kind of requirement when it says that "the names of all of the parties" must be included. But nowhere in any set of rules that I have seen is any such requirement imposed in connection with the notice of appeal. Rule 3(c) merely requires that the notice of appeal "specify" the party or parties taking the appeal — and if words have meaning, the present notice of appeal does that.

Even as the court reads into Rule 3(c) a formalistic requirement which the drafters did not put there, it reads out of the rule a directive which the drafters clearly did put there. That directive, found in the rule's third sentence, is the directive not to dismiss an appeal for "informality" in the form of the notice.

The justification offered for treating the third sentence of Rule 3(c) as inapplicable is that an outright failure to specify someone as a party to the appeal is a defect not of form, but of substance. And so it is. But the issue here is whether there has actually been a failure to specify three of the four plaintiffs as parties to the appeal — and unless there has been such a failure, the third sentence of Rule 3(c) is plainly applicable, and we must obey it no less faithfully than appellants must obey the first sentence of the rule.

Does the given name of each party specified as an appellant have to be formally published within the four corners of the notice of appeal, as if the notice were some kind of baptismal certificate? That is a pure question of form, in my view. It is a question to which the third sentence of Rule 3(c) speaks directly. And the answer given by the rule — an appeal shall not be dismissed because of "informality" in the notice's form — is one I cannot reconcile with the answer given by the court.

Suppose that instead of beginning "[n]ow come plaintiffs in the above case and appeal to the Court of Appeals for the Sixth Circuit," the body of the notice of appeal had begun "[n]ow come each and every one of the plaintiffs named in the caption of the complaint filed in the above case on March 6, 1981, and appeal to the United States Court of Appeals for the Sixth Circuit." Such a notice would not include, within its four corners, the name of each and every party taking the appeal. But prior to the decision in Torres, at least, I do not believe that most practicing lawyers in this circuit could have doubted that such a notice would adequately "specify" the parties taking the appeal. Neither do I believe that the "spirit" of Torres somehow compels us to shut our eyes both to the actual language of Rule 3(c) and to the modes of expression commonly used by people who draft legal documents.

II

Unlike the instant case, Torres presented a situation in which, because of a clerical error in the notice of appeal, one would-be appellant was not specified as a party to the appeal in any way, shape or form. He was not specified by name, he was not specified by reference, he was not specified generically. There were 16 intervening plaintiffs in Torres, only 15 of whom were designated as appellants. The problem was not that the plaintiffs were specified as appellants by reference, as in the case at bar; the problem was that 15 were specified as appellants by repetition of their names in the body of the notice, and the odd man out was not specified as an appellant at all.

The Torres notice of appeal, reproduced as Attachment 2 to the court's opinion here, specified the following plaintiffs in intervention as the parties taking the appeal:

"JOAQUIN MORELES BONILLA, ARMAND CARDENAS, ENRIQUE CARDENAS, HELIODORO CARDENAS, BENJAMIN CEJA, JOSE GUZMAN, JOSE LOPEZ, LUIS MAGALLON, OCTAVIO MARQUEZ, RAUL MENDEZ, GILBERTO PALAFOX, JOEL PINEDO, FELIX R. SANCHEZ, JESUS SANCHEZ, and CURTIS STREDIC."

The individual whose name was accidentally omitted from this list, Mr. Jose Torres, was clearly an intervening plaintiff. Just as clearly, however, he was not an intervening plaintiff who had been specified as an appellant. The Torres notice did not so much as hint that Mr. Torres was among those participating in the appeal — and the Supreme Court held, not surprisingly, that the failure to "name" him with the other 15 was "more than excusable `informality;' it constitute[d] a failure of that party to appeal." 487 U.S. at 315, 108 S.Ct. at 2407, 101 L.Ed.2d at 290.

No such failure occurred in the case at bar. There was no clerical error here. There was no list of appellants from which one name had been omitted by accident. There is no reason to doubt that the plaintiffs' lawyer, an experienced and capable practitioner, intended the notice of appeal to specify as the parties taking the appeal the "plaintiffs" in Case No. 81-3114 — and those are precisely the parties the notice of appeal did in fact specify as appellants. There was no error at all, "harmless" or otherwise.

This court's opinion acknowledges, properly, that the factual circumstances in Torres differ from the factual circumstances in the case at bar. But in extending Torres to the facts of the present case, the court extends it to a situation where the reasoning of Torres demonstrates, I believe, that the extension is not justified.

It was function, not form, in which the Torres court was interested, just as it was function, not form, in which the drafters of Rule 3(c) were interested. (The Rules Advisory Committee noted in 1979, when the third sentence was added to the rule, that "so long as the function of notice is met . . . the substance of the rule has been complied with." (Emphasis supplied.)) "The purpose of the specificity requirement of Rule 3(c)," Torres explained, "is to provide notice both to the opposition and to the court of the identity of the appellant or appellants." 487 U.S. at 317-18, 108 S.Ct. at 2409, 101 L.Ed.2d at 292. The test of whether the specificity requirement has been met is a functional test: whether the parties to the appeal have been specified as such "by some designation that gives fair notice of the specific individual or entity seeking to appeal." Id. (Emphasis supplied.) That is the test prescribed by the Supreme Court in Torres: "The specificity requirement of Rule 3(c) is met only by some designation that gives fair notice of the specific individual or entity seeking to appeal." The form of notice is immaterial, but only some designation that does actually give "fair notice" will suffice.

The fair notice standard is, of course, an objective one. See Ford v. Nicks, 866 F.2d 865, 870 (6th Cir. 1989) ("`the function of notice' was met as to each of the defendants . . . by the filing of a notice of appeal on behalf of `the' defendants, without limitation"). Whether the function of notice has been performed in a particular case does not depend on the state of mind of the parties or their lawyers — it depends on the meaning the words of the notice would convey to the ordinary reader in the position of court and counsel. And applying that objective standard here, it seems to me, the words of the present notice of appeal gave fair notice that it was the plaintiffs — without limitation — who were appealing.

In Torres, by contrast, the notice of appeal gave fair notice that the 15 intervening plaintiffs specifically named as appellants were appealing, and it did not give fair notice that the unnamed intervenor, Mr. Torres, was also appealing. The omission of Mr. Torres meant that he, in the Supreme Court's words, "did not file the functional equivalent of a notice of appeal; he was never named or otherwise designated, however inartfully, in the notice of appeal filed by the 15 other intervenors." Id. (Emphasis supplied.)

Surely it cannot be said that the plaintiffs in the case at bar did not even file "the functional equivalent" of a notice of appeal. If they were not named as appellants by repetition of their actual names, surely they were "otherwise designated," at least "inartfully," by reference to their position as plaintiffs. Who else, if not these plaintiffs, could the notice possibly have been designed to specify?

The Supreme Court went out of its way, in Torres, to reaffirm the "important" principle, spelled out in Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962), "that the requirements of the rules of procedure should be liberally construed and that `mere technicalities' should not stand in the way of consideration of a case on its merits." 487 U.S. at 316, 108 S.Ct. at 2408, 101 L.Ed.2d at 291. It is ironic, to say the least, that in the case at bar the technicality that stands in the way of our considering the individual plaintiffs' appeals on their merits would disappear, under this court's own analysis, if the plaintiffs' district court filings had not consistently used a form of caption that the Federal Rules of Civil Procedure say will be "sufficient" for every pleading filed after the complaint.

To illustrate the point, suppose that the complaint in Case No. 81-3114 had been filed by plaintiffs John Doe, Richard Roe, and Morris Moe. Suppose further that the caption of every subsequent filing in the district court had included in the title of the action the full names of all the parties. If, after losing their case, the plaintiffs had filed a notice of appeal in which the names of all three of them appeared in the title of the action, it would have availed Mr. Moe nothing, under Torres, if the body of the notice had said "Now come plaintiffs John Doe and Richard Roe and appeal to the United States Court of Appeals for the Sixth Circuit." Such a notice, specifying only Doe and Roe as appellants, could only have been effective as to those particular plaintiffs, under Torres, because it would have specified no Moe in its actual designation of the parties to the appeal.

If, on the other hand, the body of the notice had said "Now come plaintiffs in the above case and appeal to the United States Court of Appeals for the Sixth Circuit," the notice would have been effective as to all of the plaintiffs, under the Torres test, because it would have given fair notice that all the plaintiffs were participating in the appeal. And even under the more restrictive test adopted by this court, I take it, such a notice would have been effective as to all the plaintiffs as long as the names of all the plaintiffs were included in the title of the action as set forth in the caption.

I have some difficulty, I must say, with an approach under which the effectiveness of a notice of appeal that gives fair notice that all the plaintiffs are appealing can be thought to turn on whether the title of the action happens to take the form required for the complaint alone, as opposed to the form that is "sufficient," under the rules, for every other pleading.

III

As the court suggests, there appears to be a split of authority in the prior decisions of this circuit as to whether specification of appellants by reference is always unacceptable, regardless of whether that form of specification gives fair notice of who is appealing. Compare Ford v. Nicks, 866 F.2d 865, 869-70 (6th Cir. 1989), with Van Hoose v. Eidson, 450 F.2d 746 (6th Cir. 1971).

A similar split existed, briefly, in the Ninth Circuit. Compare National Center for Immigrants Rights, Inc. v. INS, 892 F.2d 814 (9th Cir. 1989) (notice that "defendants in the above-referenced action hereby appeal" is effective as to all defendants, where the caption of the notice refers to the defendants as "Immigration and Naturalization Service, et al., Defendants") with Graves v. Raypak, Inc., 891 F.2d 254 (9th Cir. 1989) (withdrawn Feb. 2, 1990) (notice that "Plaintiffs hereby appeal" is not effective as to all plaintiffs, five in number, where the caption of the notice lists as plaintiffs "Sylvester Graves, individually and as Special Administrator of the Estate of Francis Milliner, Deceased, etc.") with Graves v. Raypak, Inc., 891 F.2d 254 (9th Cir. 1989) (withdrawn Feb. 2, 1990) (notice that "Plaintiffs hereby appeal" is not effective as to all plaintiffs, five in number, where the caption of the notice lists as plaintiffs "Sylvester Graves, individually and as Special Administrator of the Estate of Francis Milliner, Deceased, etc.") With the withdrawal of the latter decision in favor of the former, the Ninth Circuit now appears to have come down in favor of a position diametrically opposed to that being taken by our circuit in the case at bar.

Disagreement exists among the judges of the First Circuit. Without much analysis, however, that court has taken a position comparable to ours and contrary to the Ninth Circuit's. See Marin-Piazza v. Aponte-Rogue, 873 F.2d 432 (1st Cir. 1989), where Judge Coffin, who gave the court's decision, noted that he disagreed with his colleagues on the question whether a notice saying that "the codefendants in this action hereby appeal" was effective as to all codefendants. "This refers to a precise group of five persons," Judge Coffin said. "In my view," he continued, "this is sufficient to meet the holding in Torres requiring ` some designation that gives fair notice of the specific individuals seeking to appeal.'" 873 F.2d at 433, n. 1 (citation omitted; emphasis supplied by Judge Coffin).

Although there are other decisions in the First Circuit (and elsewhere) that seem to reject the idea that a designation giving fair notice of the specific individuals seeking to appeal complies with Rule 3(c) whether or not the parties are specified by name, the number of such cases is perhaps not as great as the reader might think. Our decision in Life Time Doors, Inc. v. Walled Lake Door Co., 505 F.2d 1165 (6th Cir. 1974), for example, is entirely consistent with the "fair notice" concept.

There were two plaintiffs in Life Time, an individual plaintiff named Gilbert and a corporate plaintiff the name of which (accurately transcribed) was Lifetime Doors, Inc. After the district court entered final judgment in favor of the defendant, the corporate plaintiff filed a notice of appeal that read thus:

"Notice is hereby given that Lifetime Doors, Inc., Plaintiff above named, hereby appeals to the United States Court of Appeals for the Sixth Circuit from the Amended Judgment entered in this action on the first day of August 1973."

The lawyer who had represented both plaintiffs in the district court subsequently filed an affidavit in our court stating that he had been authorized to perfect an appeal for both plaintiffs, and that his failure to specify plaintiff Gilbert as a party to the appeal was the result of an error on the lawyer's part. "[I]t was the intent of myself, my secretary and my clients," the lawyer's affidavit said, "to file the Notice on behalf of Gilbert as well as Lifetime Doors, Inc." Id.

This court, quite properly, refused to allow the lawyer's subjective intent to override the objective meaning of the words of the notice:

"The notice of appeal heretofore quoted strictly complied with the rule; the only trouble with it was that it did not specify Gilbert as one of the parties taking the appeal." Id. at 1168.

A notice that specifies a single entity as the party taking the appeal — "Lifetime Doors, Inc., Plaintiff above named" — obviously does not specify more than one appellant. It would be wrong to convert the singular into the plural merely because the lawyer claims he made a mistake, just as it is wrong to convert the plural into the singular where the lawyer does not claim to have made a mistake.

If the Supreme Court, in footnote 1 of its Torres opinion, did not expressly approve our resolution of the question presented in Life Time, no reason is apparent to me why the Court should not have done so. And Farley Transportation Co. v. Santa Fe Trail Transportation Co., 778 F.2d 1365 (9th Cir. 1985), cited by the Supreme Court in conjunction with Life Time, seems to fit the Life Time pattern exactly. In Farley, as the Ninth Circuit opinion explained, "The notice of appeal . . . lists only ` Farley Transportation Co., Inc.' as appellant." Id. at 1368. Where the notice specifies a single appellant, again, the court has no authority to convert the singular into the plural.

In Akins v. Board of Governors of State Colleges Universities, 867 F.2d 972 (7th Cir. 1988), similarly, it seems to me that the Seventh Circuit clearly reached the right result on the facts of the case. The body of the notice of appeal in that case said "Notice is hereby given that ROBIN AKINS, the plaintiff named above, hereby appeals. . . ." This gave fair notice that Robin Akins was appealing. It did not give fair notice that anyone else was appealing — and the caption of the notice could not change that fact. For other reasons, varying slightly from case to case, it seems to me that many — though by no means all — of the remaining cases cited by the majority here could be read as not inconsistent with the fair notice concept.

I once thought our decision in Van Hoose v. Eidson, 450 F.2d 746, was consistent with it too (see Ford v. Nicks, 866 F.2d at 869, (opinion by Nelson, J.)), but I have become more doubtful. The body of the Eidson notice said that "the above named Plaintiffs appeal to the United States Court of Appeals for the Sixth Circuit. . . ." The caption showed that there were multiple plaintiffs, whose names could be ascertained from the complaint, but only one plaintiff was actually named "above." A literal reading of the Eidson notice, unlike a literal reading of the notice in the present case, might conceivably lead one to the conclusion that there was an ambiguity that ought to be resolved by selecting the stricter of two possible interpretations. But my own view is that there was no ambiguity in Eidson; I think the decision was wrong and ought to be overruled.

Were it not for the special problem created in Eidson by the fact that the scrivener of the notice referred to plaintiffs not actually named "above" as "the above named plaintiffs," one could argue that because the Eidson notice used the definite article — "the" above named plaintiffs — it specified the parties to the appeal even more precisely than the notice given in the case at bar. In its opinion here, however, our court says "we cannot permit our jurisdiction to turn on the presence or absence of the definite article." I fully agree. If the meaning of the notice would be clear to the average lawyer or judge either way, it would be indefensible to let the efficacy of the notice turn on a semantic distinction such as this. In contemporary usage, as we all know, lawyers and judges omit the definite article all the time when referring to "plaintiffs," "defendants," or other parties. The omission of the article signifies nothing.

Support for our view may be found in National Center for Immigrants' Rights, Inc. v. INS, 892 F.2d 814, 816-17 (9th Cir. 1989), where the court that issued the decision upheld by the Supreme Court in Torres had this to say:

"Here [unlike Torres], no names were listed in the body of the notice, and no individual was inadvertently omitted as a result of clerical error. Instead, the term `defendants' was used in the body of the notice. The issue before us is whether that term fairly indicates that all and not just some of the defendants are appealing the decision below. We think that clearly it does.

"We hold that Torres does not require that the individual names of the appealing parties be listed in instances in which a generic term, such as plaintiffs or defendants, adequately identifies them. We find the reasoning of the Sixth Circuit in Ford v. Nicks, 866 F.2d 865, 870 (6th Cir. 1989), on this point persuasive.

* * * * * *

"Following the reasoning of Ford, we find that the notice of appeal here is also proper. Although the caption reads `Immigration and Naturalization Service, et al.,' the body of the notice reads `[n]otice is hereby given that defendants in the above-referenced action hereby appeal. . . .' It is sufficiently clear from the body of the notice that all of the defendants are seeking to appeal. While their intentions might arguably have been clearer had the defendants used the article `the' in front of the words `defendants,' the omission of the article does not require a different result from that reached by the Sixth Circuit. Defendants, in its normal usage, means all defendants not just some. Had only some defendants intended to appeal, the proper term to be used in the body of the notice would have been `certain defendants.' Alternatively, if only some defendants desired to appeal, those defendants could have identified themselves individually." (Footnotes omitted, emphasis in original.)

I think the National Center panel got it right. Aesthetically, perhaps, "the defendants" or "the plaintiffs" would be preferable to "defendants" or "plaintiffs." But the latter locution is probably more common than the former — lawyers must pick it up in law school, along with other questionable habits — and I do not see how anyone could quarrel with the Ninth Circuit's statement that "Defendants, in its normal usage, means all defendants not just some."

IV

Rejecting some over-broad language in the Seventh Circuit's Allen Archery opinion, 857 F.2d at 1177, our court concludes that because the actual name of plaintiff Minority Employees was used in the caption of the notice of appeal here, the designation of "plaintiffs in the above case" as the appellants was not ineffective as to plaintiff Minority Employees. The caption saves the day for the plaintiff who, having been named first in the complaint, was designated by name in the caption of the notice — and it saves the day, in the court's view, notwithstanding that the caption itself did not purport to specify anyone at all as an appellant.

I agree, obviously, with the court's ultimate conclusion that we have jurisdiction to hear plaintiff Minority Employees' appeal. As is equally obvious, I would reach that conclusion by a different route: In specifying "plaintiffs in the above case" as the parties taking the appeal, the notice necessarily specified each of the four plaintiffs, including plaintiff Minority Employees.

I agree also with the court's conclusion that the appeal of plaintiff Minority Employees fails on the merits.

Whether any of the other three plaintiffs had a meritorious claim, I do not know. Although the district court disagreed, a United States Magistrate did find that one of the individual plaintiffs had in fact been the victim of a racially discriminatory manipulation of the civil service process designed to pre-select a job seeker of another race. If the magistrate was right, it is doubly distressing that the appeal of this plaintiff should be dismissed for failure to comply with a procedural requirement not evident on the face of our procedural rules.

As suggested earlier, I think it is wrong to set traps for the unwary by reading into our rules requirements which the average lawyer would be unlikely to discern in the rules' actual text. If it be thought desirable to have a jurisdictional requirement that the given name of each and every party taking the appeal be included in the notice of appeal, the text of Rule 3(c) ought to be amended to impose such a requirement explicitly. Because the court's decision imposes such a requirement without an appropriate change in the text of the rule itself, I respectfully dissent.

[101] BOYCE F. MARTIN, Jr., Circuit Judge, dissenting.

Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), rejected the argument that the use of the term " et al." in the style of a notice of appeal cured the omission of a would-be appellant from the list of appellants in the body of that notice. The majority of my colleagues now extend that holding to reject the use of the term "appellants" in the body of a notice of appeal to include those seeking to appeal. I disagree.

This case does not concern the use of the term " et al." in the style of a notice of appeal to supply a missing name from the list of appellants. Rather, unlike Torres, this case concerns whether appellants may use a general, generic term, such as "appellants" or "plaintiffs" or "defendants," in the body of the notice of appeal in lieu of specifically listing, by proper noun, each party which appeals some ruling or activity in the district court or administrative body from which the appeal is generated.

Rule 3(c) of the Federal Rules of Appellate Procedure states that:

The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Form 1 in the Appendix of Forms is a suggested form of a notice of appeal. An appeal shall not be dismissed for informality of form or title of the notice of appeal.

In addition to being a prerequisite to our jurisdiction, see Torres, 487 U.S. at 316, 108 S.Ct. at 2408-09, 101 L.Ed.2d at 291-292, a notice of appeal simply states that a disagreement with a decision will be lodged before the court of appeals.

Judge Nelson best frames the purpose of Rule 3(c), stating in his dissent here at 901 F.2d at 1341:

It was function, not form, in which the Torres court was interested, just as it was function, not form, in which the drafters of Rule 3(c) were interested. (The Rules Advisory Committee noted in 1979, when the third sentence was added to the rule, that "so long as the function of notice is met . . . the substance of the rule has been complied with." (Emphasis supplied.)) "The purpose of the specificity requirement of Rule 3(c)," Torres explained, "is to provide notice both to the opposition and to the court of the identity of the appellant or appellants." 487 U.S. at 317, 108 S.Ct. at 2409, 101 L.Ed.2d at 292. The test of whether the specificity requirement has been met is a functional test: whether the parties to the appeal have been specified as such "by some designation that gives fair notice of the specific individual or entity seeking to appeal." Id. (Emphasis supplied.) That is the test prescribed by the Supreme Court in Torres: "The specificity requirement of Rule 3(c) is met only by some designation that gives fair notice of the specific individual or entity seeking to appeal." The form of notice is immaterial, but only some designation that does actually give "fair notice" will suffice.

In other words, did the notice of appeal in this case adequately and in a timely fashion provide notice that all of the losing parties wished to appeal the rulings of the district court? The rule does not require the best notice of appeal, rather, like the standard for stating a complaint in a civil action, it requires an adequate notice. Cf. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (complaint must only give fair notice of the claim).

I am inclined to accept Judge Nelson's hypothesis that the generic terms of "plaintiff" or "defendant" adequately notify their adversaries and the court that the plaintiff or defendant appeals a ruling of the lower court. The plural form of these generic terms, likewise, adequately announces that all of the plaintiffs or defendants are appealing a ruling of the lower court. I believe that this reading of Rule 3(c) is consistent with the rule, the commentary to the rule, and the Torres decision. In Torres, the majority dismissed Torres's attempt to join the rest of the named petitioners in the notice of appeal, stating that he "did not file the functional equivalent of a notice of appeal; he was never named or otherwise designated, however inartfully, in the notice of appeal." Torres, 487 U.S. at 316, 108 S.Ct. at 2408, 101 L.Ed.2d at 291 (emphasis supplied).

In situations not involving an all-or-one reference, I agree that blanket generic terms are inadequate. Unlike Torres, that is not the situation in the case before this court. The use of blanket, generic plural terms adequately and comprehensibly communicates the intent of the speaker in a host of everyday situations. For example, if I state that "my children" want to go outside, I notify the listener essentially the same information imparted by a listing of the names of each of my children prior to stating that they desire to be outside. While the listener has more knowledge about the number and names of my children if I name each one, the purpose of my statement is to announce that all of them want to go outside. My statement is quite possibly over-inclusive, but it does include all of my children like the term "plaintiffs" includes all of the plaintiffs. This is dramatically distinct from the notice of appeal in Torres where a would-be appellant is not in any way referenced in the notice of appeal. That is, in Torres, the notice was under-inclusive; in this case, at worst, the notice is over-inclusive.

The majority here, however, believes Torres requires that each appellant individually be named in the notice. That view flatly contradicts language in the Torres decision which provides for the appellants to be "otherwise designated." See Torres, 487 U.S. at 317, 108 S.Ct. at 2409, 101 L.Ed.2d at 292. In deciding the very issue before us, the Ninth Circuit, I think quite properly, allowed the use of a generic term to indicate that all of the defendants were filing a notice of appeal where no individual names were set out in the body of the notice of appeal. National Center for Immigrants' Rights, Inc. v. Immigration and Naturalization Service, 892 F.2d 814 (9th Cir. 1989) (holding that the issue was not governed by Torres). This view, espoused first by Judge Nelson in Ford v. Nicks, 866 F.2d 865 (6th Cir. 1989), which the majority here rejects, reflects not only a common sense understanding of the function of the notice of appeal, but also a fidelity to the spirit of the Federal Rules of Civil Procedure which were adopted to replace the highly technical code pleading requirements of the past. It is ironic that given the inconsistency and lack of clarity in recent appellate opinions, in which I recognize my own failings, we now demand such rigid and superfluous requirements from the attorneys practicing before us.

Nearly every litigant in the federal court system has some right to appeal to the court of appeals. The majority's ruling attempts to overlay these appeals with rigid and unnecessary booby traps for the average practitioner. Instead of reducing our docket load, I fear that this will create yet another opportunity for delay and senseless collateral battles among the attorneys who come before this court. Every notice of appeal will be subject to a motion to dismiss for lack of "proper" listing of the parties, or lack of timeliness. Consequently, our docket will be inundated with the sort of nitpicking squabbles that our modern rules of procedure were supposed to avoid. Under the majority's view, I would suggest that we hereafter refrain from using the term "Per Curiam" to denote that all of the judges on the panel agree with the decision in a case and list just our names.

Not only does the majority's opinion foreshadow a morass of appeals based on the sufficiency of future notices of appeal, its retroactive application of its reading of Torres to include notices of appeal filed well before that decision was announced opens a Pandora's box of potential appeals and requests to vacate prior judgments because of scantily-pled notices of appeal.

The majority holds that under Torres, a late notice of appeal is jurisdictional, therefore, we are powerless to consider retroactivity. I disagree. The distinction we should make is between the filing of a piece of paper entitled, "Notice Of Appeal," and the content of that piece of paper. In Torres, no notice of appeal was filed on Torres's behalf. Thus, the Court properly held that the Ninth Circuit had no jurisdiction over Torres's appeal. This case differs because a notice of appeal was filed on behalf of all the appellants, but the majority holds that the contents of the notice are deficient. That is a procedural, not a jurisdictional, decision. Because I believe our decision is procedural, not jurisdictional, retroactivity is a proper concern in implementing the majority's holding. See McMichael v. United States, 856 F.2d 1024, 1025 (8th Cir. 1988).

Moreover, I believe the majority's retroactive application of its reading of Torres is clearly improper absent an analysis under Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). See Carter v. City of Chattanooga, 850 F.2d 1119 (6th Cir. 1988) ( en banc). Under Chevron, we must consider three independent factors:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . , or by deciding an issue of first impression whose resolution was not clearly foreshadowed. . . . Second, it has been stressed that "we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.". . . Finally, we have weighed the inequity imposed by retroactive application, for "[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the `injustice or hardship' by a holding of nonretroactivity."

404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). In civil cases, the Chevron Oil standard has been somewhat refined:

In the civil context, in contrast, the "clear break" principle has usually been stated as the threshold test for determining whether or not a decision should be applied nonretroactively. Once it has been determined that a decision has "establish[ed] a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed," the Court has gone on to examine the history, purpose, and effect of the new rule, as well as the inequity that would be imposed by its retroactive application. Id., at 106-07, 92 S.Ct. at 355.

United States v. Johnson, 457 U.S. 537, 550 n. 12, 102 S.Ct. 2579, 2587 n. 12, 73 L.Ed.2d 202 (1982) (citations omitted).

The Court then amplified on what it determined to be such a "clear break":

In general, the Court has not subsequently read a decision to work a "sharp break in the web of the law," . . . unless that ruling caused "such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one. . . ." Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, . . . disapproves a practice this Court arguably has sanctioned in prior cases, . . . or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.

Johnson, 457 U.S. at 551, 102 S.Ct. at 2580. (citations omitted).

Here, I believe the Torres decision establishes an unforeseen issue of first impression — especially in view of our liberal pleading standards. Clearly, this decision disapproves a practice this court arguably has sanctioned in prior cases and overturns a longstanding and widespread practice among practicing attorneys. If applied retroactively, severe inequities will result in our revisitation of long-mouldering decisions on the rationale that the notice of appeal was defective. Consequently, this decision should not be retroactively applied.

Because I disagree with the reasoning of and am concerned with the consequences from the majority's decision, I respectfully dissent.