Potential Changes Coming to Requirements for Notices of Appeal in Federal Courts
Author: Luke Hasskamp
It’s probably safe to assume that most appellate practitioners are familiar with notices of appeal. They are the mechanisms by which appeals are initiated. And there are strict time limits for initiating appeals. This means that, in the typical federal appeal, the notice “must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. Civ. P. 4(a)(1)(A). (In cases involving the federal government, the Rules provide for a 60-day timeline.)
Most practitioners will also know that the timely filing of a notice of appeal is extremely important. Indeed, it is mandatory, and the failure to do so is jurisdictional, i.e., precludes appellate review of the substantive issue(s), a potentially devastating outcome for the client. Matter of Combined Metals Reduction Co., 557 F.2d 179, 203 (9th Cir. 1977) (Rule 4(a) establishes mandatory time period for filing a notice of appeal as thirty days after entry of judgment or order and court has no jurisdiction over untimely appeals). Compliance cannot be waived by either the opposing party or the court. United States v. Green, 89 F.3d 657 (9th Cir. 1996); United States v. Christunas, 126 F.3d 765 (6th Cir. 1997).
Thus, while we all stress to ensure that timely notices of appeal are filed to ensure appellate review of key issues, we probably have spent much less time worrying about the contents of the notice of appeal. And this is understandable. A notice of appeal is generally a pretty simple document. Rule 3 addresses notices of appeal, and it identifies just three requirements: (1) the name of the parties; (2) the judgment or order being appealed; and (3) the name of the court to which the appeal is taken. Indeed, the sample form available on the Second Circuit’s website is a straightforward, one-page document:
Simple, right? Especially when one is appealing a final judgment, where one would think that simply identifying the final judgment should bring up for review all prior orders affecting the final judgment--meaning that it would be unnecessary to designate all prior orders in the notice. Well, some recent decision in several Circuits, as well as a proposed amendment to the Federal Rules of Appellate Procedure, suggests that it may be wise to pay a bit more attention to those requirements, especially when it comes to specifying the judgment or order being appealed.
For example, recently the Eighth Circuit allowed an appeal to proceed on the issue of the propriety of summary judgment, even though the summary judgment order was not explicitly designated in the notice of appeal. Johnson v. Leonard, 929 F.3d 569, 575 (8th Cir. 2019). Normally, this would not seem to merit much discussion, as the appeal was one from a final judgment, and the Eighth Circuit has previously noted that such appeals include all previous rulings and orders affecting that judgment. See Greer v. St. Louis Reg’l Med. Ctr., 258 F.3d 843, 846 (8th Cir. 2001) (“Ordinarily, a notice of appeal that specifies the final judgment in a case should be understood to bring up for review all of the previous rulings and orders that led up to and served as a predicate for that final judgment.”). Yet, in Johnson, the court engaged in a surprisingly extensive discussion on the matter, reasoning that it should construe the notice liberally, especially because it was a pro se appellant.
Now, most of the problems seem to arise when practitioners include only some orders in the notice of appeal. By implication, this suggests that any unmentioned orders were intended to be excluded by appellant. Indeed, the Eighth Circuit has previously noted that “[w]here an appellant specifies one order of the district court in his notice of appeal, but fails to identify another, the notice is not sufficient to confer jurisdiction to review the unmentioned order.” Rosillo v. Holten, 817 F.3d 595, 597 (8th Cir. 2016).
Many other Circuits have numerous similar decisions. See Strange v. Sterba, No. 17-6471, 2018 U.S. App. LEXIS 7941, at *3 (6th Cir. Mar. 28, 2018) (holding the court had “jurisdiction only over the areas of a judgment specified in the notice of appeal as being appealed”); Foudy v. Saint Lucie Cty. Sheriff’s Office, 677 F. App’x 657, 658 n.1 (11th Cir. 2017) (“The general rule in this circuit is that an appellate court has jurisdiction to review only those judgments, orders or portions thereof which are specified in an appellant’s notice of appeal.”); City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 453 (2d Cir. 2008) (distinguishing between a notice of appeal in which “the [appellant] appealed from ‘each and every part’ of the final judgment,” which evidenced intent to appeal from the entire judgment, and notices of appeal that “generally specified certain aspects of an order or judgment, or particular orders, but not others, [and where] intent to appeal from the entire final judgment could not be inferred”). Indeed, many decisions looked to both the intent of the appellant and the prejudice to the appellee in construing a notice of appeal. See Vinh Le v. Astrue, 558 F.3d 1019, 1022-23 (9th Cir. 2009) (“When a party seeks to argue the merits of an order that does not appear on the face of the notice of appeal, we consider: (1) whether the intent to appeal a specific judgment can be fairly inferred and (2) whether the appellee was prejudiced by the mistake.”) (internal quotations omitted).
Proposed Amendments to the Federal Rules of Appellate Procedure
This trend caught the attention of the Advisory Committee on the Federal Rules of Appellate Procedure. In August 2019, the Committee announced a proposed amendment to the Rule 3, after what it described as a “troubling line of cases . . . [and] substantial confusion both across and within circuits” where circuits applied an “expressio unius rationale” to the contents of a notice of appeal. Specifically, where a notice of appeal from a final judgment mentioned one interlocutory order but not others, the courts treated this as limiting the appeal to that order, rather than reaching all interlocutory orders that merged into the judgment.
The Committee also found “numerous decisions that would treat a notice of appeal that designated an order that disposed of all remaining claims in a case as limited to the claims disposed of in that order.” Further, the Committee observed cases holding that a notice of appeal that designated an order denying a motion for reconsideration did not bring up for review the underlying judgment sought to be reconsidered.
In making these observations, the Committee highlighted a recent opinion from the Supreme Court that described filing a notice of appeal as “generally speaking, a simple, nonsubstantive act,” and observed that filing requirements for notices of appeal “reflect that claims are . . . likely to be ill defined or unknown” at the time of filing. Garza v. Idaho, 139 S. Ct. 738, 745-46 (2019). Thus, the Committee’s goal in proposing the amendments “is fully in accord with Garza: to reduce the inadvertent loss of appellate rights caused by the phrasing of a notice of appeal.”
The Committee’s proposed changes are fairly extensive. First, it proposes adding three new subparts to Rule 3 making clear that: (i) a “notice of appeal [of a final judgment] encompasses all orders that merge for purposes of appeal into the designated judgment or appealable order” meaning it is “not necessary to designate those orders in the notice of appeal” and (ii) an “appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited” but that “[w]ithout such an express statement, specific designations do not limit the scope of the notice of appeal.”
Second, the Committee proposes adding a several page Committee Note explaining the rationale for the modifications, explaining that “notice of appeal is supposed to be a simple document” and that it is “the role of the briefs, not the notice of appeal, to focus and limit the issues on appeal.”
Finally, the Committee proposes that Form 1 be replaced by Form 1A (dealing with an appeal from a final judgment) and Form 1B (dealing with an appeal from an appealable order) to simplify the process.
These proposed amendments would, if finalized, simplify the process of initiating an appeal—as well as help practitioners preserve issues (and avoid heartburn). But the public comment period on the proposed amendments remains open until February 2020, so it will be a while before any changes are made, if they are made at all. Until then, practitioners should be mindful of the current requirements and diligent when it comes to specifying the orders they intend to appeal in their notices of appeal, particularly if they are appealing something other than a final judgment.