The opinion
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 *1349 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 *1350 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 retroac-tivity. 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, re-troactivity 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:
*1351 First, the decision to be applied nonretro-actively 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 “established] 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.