Another Failure to Apply the Amended Rule 3(c)

For years, several courts of appeals limited the scope of an appeal to the orders designated in a notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. These amendments took effect in December 2021. Yet some courts have overlooked these changes, continuing to apply caselaw that the amendments abrogated.

Yesterday’s Eleventh Circuit decision in Vera v. Market Wood LLC is yet another example. The court relied on a pre-amendments case to hold that the failure to designate a particular order meant the court lacked jurisdiction to review that order.

The Vera Appeal

Simplifying a bit, in Vera, the district court initially dismissed some of the plaintiffs’ claims at the pleading stage. It later dismissed the remaining claims after the parties had seemingly abandoned the case. The plaintiff then appealed. His notice of appeal designated this second dismissal—“the Court’s Order Dismissing Plaintiff’s Complaint and Final Order of Dismissal.” In his appeal, the plaintiff sought review of both dismissals.

Rule 3(c) & the Scope of Appeal

Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal designate (among other things) “the judgment—or the appealable order—from which the appeal is taken.” For years, several courts of appeals limited the scope of appeal to orders designated in the notice. So, for example, a notice that designated one interlocutory order but not others encompassed only the designated order. A notice that designated the last order in an action—which resolved some of the claims—would not encompass earlier orders resolving other claims. And a notice designating only a decision on reconsideration precluded review of the underlying order on which reconsideration was sought.

In 2017, at the suggestion of Sean Marotta and Neal Katyal, the Advisory Committee on Appellate Rules began looking into Rule 3(c). The Committee ultimately recommended several amendments to the rule, two of which are particularly relevant to the present discussion. Rule 3(c)(4) now provides that a notice of appeal “encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order.” So “[i]t is not necessary to designate those orders in the notice of appeal.” And Rule 3(c)(7) states that “[a]n appeal must not be dismissed . . . for failure to properly designate the judgment if the notice of appeal was filed after entry of the judgment and designates an order that merged into that judgment.” In this scenario, the Committee Notes explain, “a court should act as if the notice had properly designated the judgment.”

Ignoring the Amendments

These (and other) changes should have abrogated the practice of limiting appeals to the orders designated in the notice of appeal. Yet not everyone got the message. Last March, the Eighth Circuit did not mention (much less apply) the amendments to a notice of appeal. (Although that notice came before the amendments’ effective date, the court could and should have applied them retroactively.) And despite my and Sean Marotta’s efforts to get them to do so, the Tenth Circuit refused to apply the amendments to a pending case.

The Eleventh Circuit’s decision in Vera provides another example. The court said that a notice of appeal is limited to the designated orders, and the court “‘will not expand it to include judgments and orders not specified unless the overriding intent to appeal these orders is readily apparent on the face of the notice.’” (Quoting Osterneck v. E.T. Barwick Industries, Inc.) “And ‘where some portions of a judgment and some orders are expressly made part of the appeal, we must infer that the appellant did not intend to appeal other unmentioned orders or judgments.’” (Same.) Because the plaintiff had not mentioned the first dismissal in his notice of appeal, the Eleventh Circuit lacked jurisdiction to review it.

This is all wrong. By all indications, the plaintiff in Vera filed his notice of appeal after entry of the district court’s final judgment. The second dismissal merged into that judgment. So under Rule 3(c)(7), the court of appeals “should act as if the notice had properly designated the judgment.” Under Rule 3(c)(4), the notice encompassed all orders—such as the first dismissal—that merged into that judgment. So the first dismissal should have been within the scope of the appeal.

Vera also illustrates the danger of not reading the rules. As noted above, the Eleventh Circuit quoted and relied on its 1987 decision in Osterneck v. E.T. Barwick Industries, Inc. That case interpreted an old version of Rule 3(c). And the amendments to Rule 3(c) abrogated Osterneck and other decisions that used the notice of appeal to limit the scope of appeal.

Vera v. Market Wood LLC, 2023 WL 3596431 (11th Cir. May 23, 2023), available at the Eleventh Circuit and Westlaw