Another Dated Discussion of Rule 3(c)

In T.A. ex rel. Harmandjian v. County of Los Angeles, the Ninth Circuit determined that a notice of appeal designating the denial of a Rule 60(b) motion was sufficient to appeal the underlying judgment.

The decision was correct. But the discussion was entirely off point. Like several courts before it, the Ninth Circuit failed to recognize that Rule 3(c) was amended in 2021. And those amendments expressly address the situation in which a party designates only a post-judgment motion.

The Notice in T.A.

The district court in T.A. dismissed the plaintiff’s claims and then denied the plaintiff’s subsequent motion under Federal Rule of Civil Procedure 60(b). The plaintiff then appealed. And in that notice of appeal, the plaintiff designated only the denial of her Rule 60(b) motion.

On appeal, the defendant argued that this designation limited the scope of appeal to the Rule 60(b) denial. Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal designate (among other things) the order or judgment being appealed. The defendant in T.A. thought that by specifying only the Rule 60(b) denial—and not the underlying judgment—the plaintiff had failed to appeal the latter decision.

Inferring an Intent to Appeal

The Ninth Circuit rejected the defendant’s argument and concluded that it could review both the Rule 60(b) denial and the underlying judgment.

The Ninth Circuit noted that Rule 3(c)(1)(B) requires that a notice designate the appealed order or judgment. But “a mistake in designating the judgment appealed from should not bar appeal as long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced or misled by the mistake.” And given that the Rule 60(b) motion sought reconsideration of the underlying judgment, the Ninth Circuit determined that the intent to appeal the underlying judgment could be fairly inferred. The court added that reviewing the underlying judgment did not prejudice the defendant.

A Dated Discussion of Order Designation

This was the correct outcome. But this discussion is entirely outdated.

Until a few years ago, several courts of appeals held that designating one order in a notice of appeal limited the scope of appellate review to the designated order. The thought was that by designating some orders, the appellant intended not to appeal any others. Expressio unius and all that.

As of December 2021, however, amendments to Rule 3(c) abrogated this practice. Now, a “notice of appeal encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal.” If litigants want to limit the scope of an appeal, they must expressly state as much in their notice.

The amended Rule 3(c) also specifically addresses the situation in T.A. Rule 3(c)(5) says that “a notice of appeal encompasses the final judgment . . . if the notice designates . . . an order described in Rule 4(a)(4)(A).” A Rule 60 motion is one of the motions listed in Rule 4(a)(4)(A). So under Rule 3(c)(5), the plaintiff’s notice in T.A. was sufficient to appeal the underlying judgment. That means the defendant’s argument in T.A. did not merely rely on abrogated law. It was directly contrary to the text of the amended Rule 3(c).

The amendments to Rule 3(c) took effect in December 2021. Initially, several courts failed to recognize the amendments and continued applying abrogated circuit law. Things have gotten better. But as T.A. illustrates, we’re still not where we should be.

T.A. ex rel. Harmandjian v. County of Los Angeles, 2024 WL 1300003 (9th Cir. Mar. 27, 2024), available at the Ninth Circuit and Westlaw