Changes to Notices of Appeal

On December 1, 2021, several welcome amendments to Rule 3 of the Federal Rules of Appellate Procedure will take effect (barring highly unlikely Congressional action). These changes clarify and simplify the requirements for notices of appeal.

First, the amendments make clear that a notice of appeal encompasses all interlocutory orders that merge into the designated judgment or appealable order. Appellants need not specifically designate such interlocutory orders in the notice.

Those provisions eliminate a waiver trap that some courts had created by holding that an appellant’s designation of certain interlocutory orders in the notice of appeal excluded review of undesignated orders. The amendments provide that designations of specific orders will not limit the scope of the notice of appeal without an express statement that the notice is so limited.

Second, the amendments make clear that a notice encompasses the final judgment when it identifies a final order that resolves all remaining claims or an order that resolves a post-judgment motion. That change removes waiver traps that had developed based on Rule 3’s prior requirement that a notice designate the “judgment.”

Some courts had held that where an appellant described a final order as an “order” rather than a “judgment,” the notice was limited to that order, excluding review of interlocutory orders that merged into the judgment. Likewise, some courts treated a notice of appeal that designated only an order disposing of a post-judgment motion as limited to that order, excluding review of the judgment itself. The amendments eliminate both traps.

While the amendments reflect the law that already governed in many jurisdictions, they are still a welcome change. The amendments eliminate ambiguity that had caused problems in certain jurisdictions and provide clarity for practitioners.