Comments Open for Proposed Amendments to Appellate Rule 3(c)

Updated August 22, 2019 with two additional thoughts.

The Rules Committee has published proposed amendments to Federal Rule of Appellate Procedure 3(c) for public comment. The amendments are good—they correct misreadings of Rule 3 that had senselessly deprived litigants of their appellate rights. But because the amendments correct a misreading of the rule as it’s currently written, they add complexity to Rule 3 that might prove confusing to those who were unaware of the problem.

The problem of limiting appeals to decisions specified in a notice of appeal

The amended rule aims to avoid the inadvertent loss of appellate rights that some courts have imposed when appellants designate only some district court decisions in their notices of appeal. Work on the amendment began with a letter from Neal Katyal and Sean Marotta, asking the Committee to look into cases holding that a notice mentioning only one interlocutory district court decision limits the scope of appeal to that one named decision. The Committee then uncovered similar problems. Other cases have held that a notice designating only the order that disposed of all outstanding claims limits the appeal to the specific claims addressed in that order; the court would not review prior orders disposing of other claims. And still other cases have held that a notice mentioning only a decision on a motion for reconsideration limits the scope of appeal to only that reconsideration decision, precluding review of the underlying judgment on which reconsideration was sought. (We saw one of these—PHL Variable Insurance Co. v. Town of Oyster Bay—in a recent weekly roundup.)

As the memo accompanying the proposed amendments notes, these limits on the scope of appeal make little sense. What really matters is that a notice specify the decision that gives the court of appeals jurisdiction and marks the time from which the filing deadline runs. There’s no reason to set the scope of the appeal in this notice; that can be done via briefing.

The changes to Rule 3(c)

The proposed rule thus amends Appellate Rule 3(c)(1)(B) to require that a notice “designate the judgment—or the appealable order—from which the appeal is taken.” (Rule 3(c) still requires that the notice specify the appealing parties and the court to which the appeal is taken.) The proposed rule also adds a new subsection (c)(4) to clarify the scope of the appeal:

The notice of appeal encompasses all orders that merge for purposes of appeal into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal.

Then there is the new subsection (c)(5), which is designed to avoid those cases in which courts had limited appeals to the order that disposes all remaining claims (which would exclude prior decisions) or to the denial of reconsideration (which would exclude the underlying judgment):

In a civil case, a notice of appeal encompasses the final judgment, whether or not that judgment is set out in a separate document under Federal Rule of Civil Procedure 58, if the notice designates:

(A) an order that adjudicates all remaining claims and the rights and liabilities of all remaining parties; or

(B) an order described in Rule 4(a)(4)(A).

(For those who don’t have the Appellate Rules memorized—a group that includes me—the orders listed in Rule 4(a)(4)(A) are those disposing of (i) motions for judgment under Rule 50(b); (ii) to to amend or make additional factual findings under Rule 52(b); (iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58, (iv) to alter or amend the judgment under Rule 59, (v) for a new trial under Rule 59; or (vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.)

The last new addition is subsection (c)(6), which allows parties to expressly limit the scope of their appeals if they want to.

Finally, the proposed amendment would amend Appellate Form 1 to reflect these changes (and actually create two forms, 1A and 1B), and it would amend Rule 6 to reflect the change in form names.

A worthy change with some complicated language

These amendments are a necessary fix for a bad practice. The inadvertent loss of appellate rights is rarely a good thing, and the doctrines that courts had made out of Appellate Rule 3(c) made little practical sense.

But the new rule initially struck me as a bit complicated. (I wasn’t alone in this assessment.) As the memo accompanying the proposed amendments notes, the purpose of specifying a decision in a notice of appeal is to identify the decision that creates appellate jurisdiction and from which the time for appealing is calculated. The amended rule returns notices of appeal to this purpose. But it does so by adding a lot to the rule.

And I think that’s because this is a corrective amendment. That is, the new language corrects what were misreadings of the current Rule 3(c). Courts should have read the current Rule 3(c) to reach the same outcomes as the proposed rule. But they didn’t. So a corrective amendment was necessary. Indeed, subsections (c)(4) and (5) directly address the three scenarios mentioned above when courts currently limit the scope of an appeal.

Corrective amendments like this can be confusing for those who were never aware of the original problem. But they seem to be the only way to correct courts’ misreadings of the rules absent Supreme Court intervention. Perhaps this is an argument for the Rules Committee to have—as Scott Dodson has suggested—an amicus role in Supreme Court litigation.

Or perhaps all of this complication is necessary to achieve Rule 3(c)’s intended purpose; I haven’t thought about this nearly as long as the Advisory Committee on Appellate Rules has. And maybe it’s necessarily complicated because the law on when litigants can appeal is itself so complicated.

Information for submitting comments

The proposed amendments and the process for commenting are available on the Rules Committee’s website. The comment period closes on February 19, 2020.

Update: Two additional thoughts

Since posting this, I’ve had two additional thoughts about these proposed amendments:

First, a Twitter conversation with Sean Marotta made me think that maybe we could simplify the amendment: change Rule 3(c)(1)(B) like the current proposal does and then just add that the designation does not affect the scope of appellate review.

I think this would work, though I’m not sure. The scope of appellate review normally encompasses all preserved issues that subsequent events have not rendered moot. And the three groups of cases that the amendment addresses all seem to limit that scope due to something said in the notice of appeal. But (as discussed in the proposal’s memo and above) notices aren’t supposed to set the scope of appellate review. So maybe the problem can be fixed by just saying as much.

Second, should Rule 4(a)(4)(B)(ii) also be amended? That rule requires filing a second or amended notice to challenge a decision on a motion listed in Rule 4(a)(4)(A) (the same motions I mentioned above) or the change in a judgment due to one of those motions:

A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.

This rule seems to use a notice of appeal to set the scope of appellate review—a practice that the amended Rule 3(c) rejects. And I can’t see a good reason why. How often are appellees surprised (much less harmed) when a party who appealed the underlying judgment also wants to challenge the decision on one of these motions?

A simple fix might be to just remove everything under romanette (ii) from Rule 4(a)(4)(B) and renumber the section.