The Eighth Circuit didn’t apply the recently amended Rule 3(c) to a pending case (or even mention the amendment). Did the court not think it was “just and practicable” to apply the new rule? Or did the court overlook the amendment?
March 30, 2022
The Supreme Court recently amended Federal Rule of Appellate Procedure 3(c). Before these amendments, several courts of appeals had used Rule 3(c)’s order-designation requirement to limit the scope of an appeal. The amendments—which were a necessary fix to a bad misreading of Rule 3(c)—became effective December 1, 2021. The Supreme Court’s order adopting the amendments said that the new rule would “govern in all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”
The Eighth Circuit was one of the courts that had used Rule 3(c) to limit the scope of appeals. Indeed, in Neal Katyal and Sean Marotta’s letter asking the Advisory Committee on Appellate Rules to look into the issue, they focused on the Eight Circuit’s caselaw. But in Monday’s Gustafson v. Bi-State Development Agency, the Eighth Circuit again said that designating one interlocutory order in a notice of appeal bars review of other interlocutory orders. The decision never mentioned the revisions to Rule 3(c). To be fair, the case was appealed before the new Rule 3(c) became effective. Perhaps the Eighth Circuit did not think it was “just and practicable” to apply the amended rule to a pending case.
As I’ve said many times, these amendments to Rule 3(c) couldn’t have come soon enough. I hope the Eighth Circuit will soon acknowledge the abrogation of its cases that misread Rule 3(c) and needlessly limited the scope of appeal.
The Fixed Misreading of Rule 3(c)
Federal Rule of Appellate Procedure 3(c) specifies the content requirements for notices of appeal. It requires (among other things) that litigants designate the order or judgment they’re appealing.
Before the recent amendments, several cases interpreted this order-designation requirement to limit the scope of an appeal to the designated decisions. Some cases held that a notice mentioning one interlocutory district court decision barred review of any other orders. Other cases held that a notice designating the order that disposed of all outstanding claims limited the appeal to the claims addressed in that order. The court of appeals would not review prior orders disposing of other claims. And still other cases held that a notice mentioning only a decision on a motion for reconsideration limited the scope of appeal to that reconsideration decision, precluding review of the underlying judgment on which reconsideration was sought.
In 2017, the Advisory Committee on Appellate Rules began looking into Rule 3(c). The Committee ultimately recommended several amendments to the rule.
First was a change to Rule 3(c)(1)(B). Before the amendments, that subsection required that a notice of appeal “designate the judgment, order, or part thereof being appealed.” The amendments eliminated the phrase “or part thereof” and require only that a appellant designate “the judgment—or appealable order—from which the appeal is taken.”
A new subsection (c)(4) provides the notice “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.”
Then there is new subsection (c)(5) which is designed to avoid those cases in which courts had limited appeals to the order that disposes of 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 Federal Rule of Appellate Procedure 4(a)(4)(A) memorized, it lists orders disposing of (i) motions for judgment under Federal Rule of Civil Procedure 50(b); (ii) 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.)
There is also the addition of subsection (c)(6), which allows parties to expressly limit the scope of their appeals if they want to:
An appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited. Without such an express statement, specific designations do not limit the scope of the notice of appeal.
The Notice of Appeal in Gustafson
Simplifying a bit, the plaintiff in Gustafson brought several disability-discrimination claims against a local transportation agency. At some point in the litigation, the district court denied the plaintiff’s request to amend the complaint to add a new claim. The district court eventually granted summary judgment to the agency on all claims.
The plaintiff then appealed. In his notice of appeal, the plaintiff designated both the final judgment and the district court’s summary-judgment decision. He did not mention the district court’s denial of leave to amend.
The Eighth Circuit held that it lacked jurisdiction over the amendment decision. The court said that it has “held on numerous occasions that a notice which manifests an appeal from a specific district court order or decision precludes an appellant from challenging an order or decision that he or she failed to identify in the notice.” The plaintiff’s notice of appeal—which mentioned the summary-judgment decision—was thus ineffective to appeal the amendment decision. The plaintiff had “not expressly reserved the right to appeal the denial of his motion to amend his complaint, nor ha[d] he complied with [Rule 3(c)].” So the Eighth Circuit lacked jurisdiction to review the amendment decision.
What About the Amended Rule 3(c)?
Under the new Rule 3(c), it would seem that the notice of appeal in Gustafson was sufficient to appeal the amendment decision. The plaintiff designated the final judgment, and the amendment decision would have merged into that judgment.
So why didn’t the Eighth Circuit apply the new Rule 3(c)? It didn’t say. It instead relied on pre-2021 cases, such as Parkhill v. Minnesota Mutual Life Insurance Co., which the amendments were supposed to abrogate.
One possibility is that the court of appeals did not think the amendments were retroactive. The Supreme Court’s order adopting the amendments said that the new rule would “govern in all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” Perhaps the Eighth Circuit thought it was not “just and practicable” to apply the new rule.
I don’t buy it. For one thing, the Eighth Circuit didn’t say as much. For another, the amendments abrogated a line of cases that misread Rule 3(c) to needlessly deprive litigants of full appellate review. And I doubt the defendant in Gustafson was surprised (much less prejudiced) when the plaintiff challenged the amendment decision. So it would seem “just and practicable” to apply the amended rule.
The only other explanation I can think of is that the Eighth Circuit didn’t think of the amended rule. That might be the parties’ fault, at least partially. I didn’t notice any discussion of the revised Rule 3(c) in the briefs, which were filed before the amendments became effective. And my quick scan of the Eighth Circuit docket didn’t find a Federal Rule of Appellate Procedure 28(j) letter after the amendments became effective.
Still, I hope Gustafson doesn’t lead future Eight Circuit panels to overlook the amendments to Rule 3(c).
Gustafson v. Bi-State Development Agency, 2022 WL 893008 (8th Cir. Mar. 28, 2022), available at the Eighth Circuit and Westlaw.