The Eleventh Circuit became the first court to limit a scope of appeal under the amended Rule 3(c)(6). But the rationale risks undoing the Rule 3(c) amendments.
September 13, 2023
Until recently, several courts of appeals limited the scope of appeals to the orders designated in the notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. But those amendments also provided a way for litigants to limit the scope of an appeal. The new Rule 3(c)(6) lets appellants “designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited.”
In United States v. Sylvain, the Eleventh Circuit became the first court that I’m aware of to limit the scope of an appeal via Rule 3(c)(6). The court concluded that designating one order in a notice of appeal limited the appeal to that order. That is, specifying one order—and not any others—was an express statement limiting the scope of appeal under Rule 3(C)(6).
That can’t be right. Designating one order while not mentioning others is hardly an express statement limiting the scope of appeal. Indeed, the Rule 3(c) amendments were supposed to prevent courts from limiting the scope of appeal in this situation. The Eleventh Circuit’s application of Rule 3(c)(6) thus risks undoing the Rule 3(c) amendments.
The Notice of Appeal in Sylvain
Simplifying a bit, Sylvain stemmed from several challenges to a criminal defendant’s sentence. In one motion, the defendant sought compassionate release under paragraph (c)(1) of 18 U.S.C. § 3582. In another, the defendant sought a sentence reduction under paragraph (c)(2) of § 3582. The district court denied both of these motions in August 2022.
A few months later, the defendant again sought a sentence reduction under § 3582(c)(2). In September 2022, the district court denied this motion, too.
The defendant then appealed. And his notice of appeal specified the district court’s September decision denying a sentence reduction:
This notice is for my 3582(c)(2) that was denied on 9/14/2022.
The notice did not mention the district court’s earlier decisions denying compassionate release or a sentence reduction.
Rule 3(c)’s Order-Designation Requirement
Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal designate (among other things) “the judgment—or appealable order—from which the appeal is taken.” Until recently, several courts of appeals used this order-designation requirement to limit the scope of an appeal. Invoking the “expressio unius” rationale (the express mention of one thing excludes all others), these courts reasoned that designating one particular order meant that the appellant had no intention to challenge any other orders.
This was a silly use of Rule 3(c). The notice of appeal (as the name implies) gives notice of the intention to appeal. It’s not supposed to set the scope of appeal.
In 2021, the Supreme Court (via the Rules Committee) amended Rule 3(c) to abrogate this misuse of the order-designation requirement. Rule 3(c)(4) now provides that “[t]he 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.” Under Rule 3(c)(5), a notice encompasses the final judgment if it designates (among other things) “[a]n order that adjudicates all remaining claims and the rights and liabilities of all remaining parties.” And Rule 3(c)(7) adds 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.”
The Rules Committee recognized that, in some cases, parties might want to limit the scope of appeal. So in Rule 3(c)(6), the Committee said that “[a]n appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited.” But “[w]ithout such an express statement, specific designations do not limit the scope of the notice of appeal.”
A Misuse of Rule 3(c)(6)
In Sylvain, the Eleventh Circuit applied Rule 3(c)(6)’s “express-statement” provision. It held that the defendant’s notice of appeal expressly limited the scope of the appeal to that decision. “[E]ven under the most liberal construction possible, [the] notice show[ed] no overriding intent to appeal anything other than the [September order].” The court of appeals thus lacked jurisdiction to consider the other order.
Sylvain misuses Rule 3(c)(6). The rule requires an “express statement” limiting the scope of appeal. So for Rule 3(c)(6) to apply, we should expect something in the notice about limiting the appeal to a particular order.
That didn’t happen in Sylvain. Granted, the defendant mentioned only one district court order. But that’s hardly an express statement about the scope of appeal. In fact, it’s the sort of scenario that the amendments to Rule 3(c) contemplate. And those amendments provide that in most cases naming an order that merges into the final judgment is enough for an appeal to encompass that final judgment. Moreover, those amendments were supposed to do away with the notion that the notice of appeal shows what issues an appellant intends to raise. That’s the job of the briefs. So the Eleventh Circuit’s observation that the notice in Sylvain showed “no overriding intent to appeal anything” beyond the named order is irrelevant. That’s not the notice’s job.
By using Rule 3(c)(6) in this manner, the Eleventh Circuit effectively resuscitated courts’ old, abrogated usage of Rule 3(c) to limit the scope of an appeal. Indeed, the Eleventh Circuit relied on a pre-amendments case (Osterneck v. E.T. Barwick Industries, Inc) that the amendments abrogated. And this is not the first time the Eleventh Circuit has misapplied Rule 3(c)—earlier this year, that court overlooked the amendments entirely.
In a footnote in Sylvain, the Eleventh Circuit added that even if the other orders were within the scope of appeal, the court would summarily affirm on the merits. So perhaps this misuse of Rule 3(c)(6) was harmless. But opinions like this risk undoing the advancements of the Rule 3(c) amendments.
United States v. Sylvain, 2023 WL 5842006 (11th Cir. Sep. 11, 2023), available at the Eleventh Circuit and Westlaw