New Amendments to Rule 3(c): Removing 'Traps for the Unwary'. Some important takeaways from the recent amendments to Federal Rule of Appellate Procedure 3(c)

• Author: Ahmad Huda
• Pages: 1-4

Appellate Practice

American Bar Association Litigation Section

Winter 2022, Vol. 41 No. 2

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ARTICLES

December 21, 2021

New Amendments to Rule 3(c): Removing

“Traps for the Unwary”

Some important takeaways from the recent amendments to

Federal Rule of Appellate Procedure 3(c).

By Ahmad Huda

At first glance, the preparation of a notice of appeal is an easy task. Federal Rule of

Appellate Procedure 3 (Rule 3) requires that the notice of appeal designate certain

information—the underlying adverse order(s) or judgment(s) being appealed, the parties,

and the case. If this sounds easy enough, remember that this requirement is jurisdictional

in nature and cannot be waived. In other words, if the notice of appeal has certain defects,

those defects bar an appellate court’s review of the adverse ruling. So, practitioners must

ensure that they comply with Rule 3’s requirements to avoid waiver of any ruling or issue.

As the Committee Notes recognize, the rule contained “trap[s] for the unwary,” which new

amendments, effective December 1, 2021, seek to eliminate. This article describes these

new amendments to Rule 3(c) and explains some of the key takeaways.

Takeaway #1

You do not need to designate prior interlocutory orders that merge into the final

judgment. As the Committee Notes indicate, it is well settled that “a party cannot appeal

from most interlocutory orders, but must await final judgment, and only then obtain review

of interlocutory orders on appeal from the final judgment.” See 28 U.S.C. § 1291 (providing

for appellate jurisdiction over “final decisions”); see also 28 U.S.C. § 1292 (providing

appellate jurisdiction over a limited set of interlocutory orders). So, designation of the

judgment in a notice of appeal “encompasses not only that judgment, but also all earlier

interlocutory orders that merge in the judgment.” John’s Insulation v. L. Addison & Assocs.,

156 F.3d 101, 105 (1st Cir. 1998) (emphasis added) (collecting cases from other circuits for

the same principle). This principle is known as the “merger doctrine.” See

id. Notwithstanding this well-settled doctrine, litigants have at times argued that an