A catalogue of failed efforts to get the Tenth Circuit to apply the recent amendments to Federal Rule of Appellate Procedure 3(c).
November 15, 2022
Several courts of appeals have 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 became effective last December. Yet some courts have overlooked these changes, continuing to apply caselaw that the amendments abrogated.
When the Tenth Circuit did so in Dawson v. Archambeau, Sean Marotta and I decided to try and do something about it. We filed an amicus brief pointing out that the court had neglected to apply the new rule. The Tenth Circuit responded with a second opinion saying that the amended Rule 3(c) did not apply to notices filed before the amendments’ effective date. Sean and I disagreed with that conclusion. So we filed a second amicus brief, this time asking the court to sit en banc to address the retroactivity of the Rule 3(c) amendments.
Last week, the Tenth Circuit adhered to its conclusion that the notice of appeal limited the scope of the appeal to the designated order. The court said that even if the amended Rule 3(c) applied, the appealed order did not merge into a subsequent judgment to which Rule 3(c) would apply. This conclusion can’t possibly be correct. But it looks like the end of the road for this effort.
The Rule 3(c) Problem
Federal Rule of Appellate Procedure 3(c) governs the contents of a notice of appeal. It requires that a would-be appellant designate (among other things) the order or judgment from which the appeal is taken.
Several courts of appeals read this order-designation requirement to limit the scope of 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—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. Of particular relevance to the present discussion are the additions of subsections (c)(4) and (c)(7). Subsection (c)(4) provides that 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.” And subsection (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.”
These (and other) changes were meant to abrogate the practice of limiting appeals to the orders designated in the notice of appeal. Yet it appears not everyone got the message.
The Dawson Litigation
The plaintiff in Dawson sued several defendants. The district court resolved some of the plaintiff’s claims in two summary-judgment orders. The first granted summary judgment for three defendants. The second (entered sometime after the first) granted summary judgment for another defendant. The plaintiff and remaining defendants later stipulated to a with-prejudice dismissal of all unresolved claims.
The plaintiff then appealed. His notice of appeal mentioned the second summary-judgment decision. It did not mention the first.
The First Opinion
The Tenth Circuit initially held that only the second summary-judgment decision was within the scope of review. Citing to its pre-amendments decision in Foote v. Spiegal, the court said that the order “designation limits [the court’s] jurisdiction.” Because the notice of appeal designated only the second summary-judgment decision, the Tenth Circuit determined that it had jurisdiction over only that decision.
Our First Suggestion for Rehearing
As I wrote at the time of this decision, this was all wrong. The Rule 3(c) amendments abrogated the authority on which the Tenth Circuit relied. Granted, the notice in Dawson was filed before those amendments took effect. But the order adopting those amendments said that they apply to pending proceedings “insofar as just and practicable.” And there’s no reason not to apply these amendments to pending appeals.
So I wasn’t happy with the decision. Neither was Sean Marotta, one of the co-authors of the proposal that led to the Rule 3(c) amendments. We figured this was merely a case of a court overlooking a recent rule change. The plaintiff was pro se, and neither party’s brief mentioned the change to Rule 3(c).
So Sean and I co-authored an amicus brief pointing out the court’s apparent overlooking of the amendments and suggesting rehearing. (When we moved to file that brief, the plaintiff had not yet sought rehearing. We accordingly got to invoke Federal Rule of Appellate Procedure 2 and ask the Tenth Circuit to suspend any rule that would prevent a non-party suggestion for rehearing. The plaintiff eventually sought rehearing, mooting that issue.)
The Second Opinion
Shortly thereafter, the Tenth Circuit issued a modified opinion. The court added a footnote on the retroactivity of the Rule 3(c) amendments:
After Mr. Dawson filed the notice of appeal and his opening brief, a new version of Rule 3 went into effect. We don’t regard it “just” or “practicable” to apply the new rule here because it governs the contents of the notice of appeal, which had already been filed. See Order (Roberts, C.J.) (Apr. 14, 2021).
The second opinion accordingly reached the same outcome as the first one: the designation of the second summary-judgment decision placed the first summary-judgment decision outside of the Tenth Circuit’s appellate jurisdiction.
Our Second Suggestion for Rehearing
This was a crummy decision. For one thing, it created an unacknowledged split with the First Circuit, which had applied the Rule 3(c) amendments to a pending case. For another, it was inconsistent with how the Tenth Circuit had approached the 1993 amendments to Rule 3(c). And the decision was simply wrong. The amendments fixed a misreading of Rule 3(c) that limited litigants’ right to appeal for no good reason. And the defendants could hardly claim to be surprised—much less harmed—when the plaintiff wanted to challenge both summary-judgment decisions.
So Sean and I filed a second amicus brief. This time we suggested that the Tenth Circuit rehear the case en banc.
The Third Opinion
Last week, the Tenth Circuit again limited its review to the second summary-judgment decision. This time, the court said that even if the amended Rule 3(c) applied, the notice of appeal was still insufficient to appeal the first summary-judgment decision. The rationale: the second summary-judgment decision did not merge into a judgment.
Put aside for a second whether that rationale makes sense (it doesn’t). Recall that the new Rule 3(c)(7) provides 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 Committee Notes say that in this scenario “a court should act as if the notice had properly designated the judgment.” And the new Rule 3(c)(4) says that a notice “encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order.” So if a would-be appellant designates an order that merged into a judgment and files its notice after entry of that judgment, Rule 3(c)(7) says that the court of appeals should treat the notice as if it designated the judgment. Rule 3(c)(4) then says that this designation of the judgment encompasses all orders that merged into it.
Together, subsections (c)(4) and (c)(7) should have saved the Dawson plaintiff’s notice of appeal. He designated the second summary-judgment decision. That decision should have merged into the final judgment. So the designation of that decision should have been treated as if it designated the final judgment. And the first summary-judgment decision should also have merged into the final judgment. So designation of the judgment permits review of the first summary-judgment decision, too.
Not so, said the Tenth Circuit. It noted that the district court proceedings in Dawson ended with a stipulated, with-prejudice dismissal of all unresolved claims. And according to the court, that meant there was no subsequent judgment into which the second summary-judgment order could merge. So Rule 3(c)(7) didn’t apply—the notice would be treated as if it designated only the second summary-judgment decision. That left the first summary-judgment decision outside the scope of appeal.
A Hash of the Merger Rule
This is—once again—all wrong.
The court’s holding relies on the premise that no judgment followed the second summary-judgment decision. But that can’t possibly be correct. All cases should end with a judgment—what we often call the “final judgment.” After all, the time to appeal normally begins running with entry of the judgment. Absent a judgment, the appeal clock would not start. So there must have been a judgment in Dawson.
Moreover, that judgment must have come after the second summary-judgment decision. In fact, it must have come after the subsequent stipulated dismissal of the unresolved claims. Before that point, there was no final decision and thus no appellate jurisdiction. And without an appealable decision, there normally cannot be a judgment. Otherwise, the time to appeal could run before there’s any appellate jurisdiction—that is, before a would-be appellant could appeal.
In short, there must have been a judgment once the plaintiff stipulated to dismiss his unresolved claims. That judgment might not have been set out in a separate document as Federal Rule of Civil Procedure 58 requires. The Tenth Circuit appeared to think that this lack of a separate document mattered—it noted that no court order followed the stipulated dismissal and that a clerk-entered docket entry “recognizing the closure of the case . . . did not not constitute an entry of judgment or appealable order.” But the lack of a separate document (which Rule 58(b)(1)(C) probably required the clerk to enter) affects only when the appeal clock begins to run. It does not affect the existence of the judgment. The final judgment still exists. And all interlocutory decisions merged into it.
Dawson v. Archambeau, 2022 WL 16748511 (10th Cir. Nov. 7, 2022), available at the Tenth Circuit and Westlaw