Comments on the Proposed Amendments to Rule 3(c)

Last summer, the Rules Committee proposed amending Federal Rule of Appellate Procedure 3(c). The rule requires that appellants designate the judgment or order they are appealing in their notice of appeal. Several courts of appeals have read this requirement to mean that appellate jurisdiction exists over only the specified judgment or order. This order-designation rule deprives litigants of a full appeal. And courts apply it with some frequency.

The proposed amendments abrogate the order-designation rule. As I wrote when the amendments were proposed and several times since, these amendments cannot come soon enough; they’re a necessary fix for a bad misreading of Rule 3(c). The inadvertent loss of appellate rights is rarely a good thing, and the doctrines that courts had made out of Rule 3(c) make little practical sense. But the new language might be a bit more complicated than necessary. The proposed amendments also raise the question of whether Rule 4(a)(4)(B)(ii) should also be amended.

I recently raised these points in comments submitted to the Advisory Committee on Appellate Rules. I’ve reproduced them below. The comment period closes on February 19, 2020, and instructions for submitting comments are available on the Rules Committee’s website.

Proposed amendment to Federal Rule of Appellate Procedure 3(c).

Dear Judge Chagares & Professor Hartnett:

I write in support of the proposed amendments to Federal Rule of Appellate Procedure 3(c). The amendments are an important and necessary fix to that rule. But I ask that the Committee consider two questions. First, can the proposed rule be simplified? And second, should Rule 4(a)(4)(B)(ii) also be amended?

Simplifying the amendment

As the Committee noted in its memorandum, several courts of appeals have used Rule 3(c)(1)(B)‘s order-designation requirement to limit the scope of appeals. Amendments to abrogate those decisions cannot come soon enough. The order-designation requirement exists to help identify the decision that creates appellate jurisdiction and from which the time for appealing is calculated. It is not supposed to set the scope of an appeal. I doubt appellees are often surprised—much less harmed—when the appellants’ brief challenges an order that was not mentioned in the notice of appeal. And if an appellee is ever surprised, any harm can probably be mitigated by extending the briefing deadlines. There is simply no good reason for using the order-designation requirement to deprive litigants of a full opportunity to appeal.

But the proposed rule strikes me as a bit complicated, and the amendment adds a lot to what could be a simple rule. I am particularly concerned about the new subsections (c)(4) and (5), which directly address scenarios that the Committee uncovered in its research. These new provisions might be confusing to those who are unaware of the practices they are supposed to abrogate. More to the point, the rule does not tackle the underlying problem—using the order-designation requirement to limit the scope of review. Without addressing that underlying problem, it is possible that courts will create other improper limits via interpretations of Rule 3(c).

I think the amended rule could be simplified by changing Rule 3(c)(1)(B) as the current proposal does and then add to 3(c)(1) that the designation does not affect the scope of appellate review. The scope of appellate review normally encompasses all preserved issues that subsequent events have not rendered moot. 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 are not supposed to set the scope of appellate review. So perhaps the problem can be fixed by just saying as much.

A revised rule might read:

(c) Contents of the Notice of Appeal.

(1) The notice of appeal must:

(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”;

(B) designate the judgment or appealable order from which the appeal is taken; and

(C) name the court to which the appeal is taken.

Unless the notice states otherwise, the designation of a judgment or order does not affect the scope of appellate review.

I think this new language would have the same effect as the proposed (c)(4) and (5) without all of the detail. It would foreclose courts from using Rule 3(c) to create additional limits on the scope of appellate review. And it would retain the option of expressly limiting the scope of appellate review via a notice of appeal.

Amending Rule 4(a)(4)(B)(ii), too

The Committee might also consider amending Rule 4(a)(4)(B)(ii). That rule requires filing a second or amended notice to challenge a decision on a motion listed in Rule 4(a)(4)(A) (motions for judgment as a matter of law under Rule 50(b), to amend or make factual findings under Rule 52(b), etc.) 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 provision seems to use a notice of appeal to set the scope of appellate review; the order disposing of the motion is within the scope of review only if the order is designated in a notice. But that is precisely what the amended Rule 3(c) rejects. And I cannot see a good reason why the rule should limit the scope of appellate review in these circumstances. Again, I doubt appellees are often surprised or harmed when a party who appealed the underlying judgment also wants to challenge the decision on one of the Rule 4(a)(4)(A) motions.

I saw in the minutes of the Committee’s April 5, 2019, meeting that Rule 4(a)(4)(B)(ii) was discussed, and it was said that the rule was not affected by these amendments. I cannot tell from the minutes how much this issue was discussed. But I think it is worth considering again. The matter might be as simple as deleting subparagraph (ii) and renumbering the other provisions in Rule 4(a)(4)(B).

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Again, I fully support the Committee’s efforts to amend Rule 3(c). I offer these thoughts only in case they might improve those amendments. Thank you for your consideration, and please let me know if there is anything I can do to assist the Committee in its work.