Amendments to ten of the Federal Rules of Appellate Procedure took effect on December 1, 2019. Another round of proposed amendments to the appellate rules was published for public comment this summer; the comment period closed on February 19, 2020.
Amendments Effective December 1, 2019
The text of the amendments, a marked version pointing out the changes, the published committee notes explaining each amendment, and a report explaining the amendments in greater detail is available at https://www.uscourts.gov/sites/default/files/2019-04-25-congressional_rules_package_final_0.pdf.
Broader Disclosure of Interested Persons
The most important of the December 2019 amendments broaden the parties’ disclosure requirements to help judges determine whether they should recuse themselves on the ground that a judge owns an “interest that could be affected substantially by the outcome of the proceeding.” Code of Judicial Conduct Canon 3(C)(1)(c) (2009). Some of these changes were inspired by circuit rules that required disclosures in addition to what Appellate Rule 26.1 already required.
Rule 26.1(a) previously required each party that was a nongovernmental corporation to disclose parent corporations and publicly held corporations that own at least 10 percent of the party’s stock. The amendment requires the same disclosure by a nongovernmental corporation that seeks to intervene in an appeal.
A new Rule 26.1(b) requires the government, in a criminal case, to identify any organization that is a victim of the alleged criminal activity, unless the government shows good cause for not identifying the organization in a particular case. As an example of good cause, the committee note posits a case in which there are many organizational victims, but the effect on each one is relatively small. This amendment is modeled on an amendment to Federal Rule of Criminal Procedure 12.4(a)(2), which also became effective December 1, 2019.
A new Rule 26.1(c) requires disclosure, in a bankruptcy case, of any debtor that is not included in the caption. This can occur in adversary proceedings. New subdivision (c) also requires the same disclosure of debtors that are nongovernmental corporations that subdivision (a) requires of parties. The debtor, the trustee, or, if neither is a party, the appellant is responsible for making this disclosure.
The amendment to Rule 26.1 changes the name of the required disclosure from “Corporate Disclosure Statement” to “Disclosure Statement,” with conforming amendments throughout the rules.
Incorporation of Electronic Filing and Service into the Rules
The amendments to the Federal Rules of Appellate Procedure, effective December 1, 2019, continue the multiyear project of incorporating electronic filing and service into the rules.
The most important of these amendments eliminates from Rule 25(d)(1) the requirement of filing proof of service for documents served through the courts’ electronic filing system. Implicitly, this amendment recognizes that the records maintained by the electronic filing system are more reliable indicia of actual notice to opposing parties than certificates or declarations of service. Conforming amendments delete references to proof of service where papers are served by electronic filing. Proof of service is still required where service is made by any means other than electronic filing.
Other amendments are more in the nature of tidying house. Throughout the appellate rules, references to mail and mailing are replaced by send and sending. References to other forms of service are deleted. The wording of Rule 26(c) is simplified with no change in meaning. Amendments to Rules 5(a)(1), 21(a)(1), and 32(f) entail only copy editing—which is not to denigrate the value of copy editing.
Proposed Amendments Published for Comment
In August 2019, the Judicial Conference, on the Appellate Rules Advisory Committee’s recommendation, published for comment proposed amendments to the Federal Rules of Appellate Procedure. The period for public comments ended on February 19, 2020.
These proposed amendments—typically with changes that result from public comments, testimony, and further committee deliberations—will probably become effective on December 1, 2021.
Clarification of Rule 3 and Revised Forms for Notice of Appeal
Proposed amendments to Appellate Rule 3 are designed to avoid inadvertent waiver of the right to appeal and to correct misapprehension stemming from some appellate decisions. These proposed amendments also exemplify the federal rule amendment process working at its best.
Rule 3(c)(1)(B) requires that a notice of appeal “designate the judgment, order, or part thereof being appealed.” However, filing a notice of appeal is supposed to be “a purely ministerial task that imposes no great burden on counsel.” Garza v. Idaho, 139 S. Ct. 738, 745 (2019) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 474 (2000)). In Garza v. Idaho, the Supreme Court observed that appellants typically have only a short time within which to file a notice of appeal, and they normally would not yet have a trial transcript to analyze. Therefore, it is unreasonable to expect appellants to know the issues that they will argue when they file a notice of appeal.
With limited exceptions, the federal courts of appeals’ subject matter jurisdiction extends only to appeals from “final decisions of the district courts.” 28 U.S.C. § 1291. An appealable “final decision” typically is a final judgment, or an order that leads to entry of a final judgment, by which the district court disassociates itself from the case. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009); Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42 (1995). Under common law as applied by federal courts, an appeal from a final judgment brings up for review earlier interlocutory orders that merge into the final judgment. E.g., AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236–37 (10th Cir. 2009); Greer v. St. Louis Reg’l Med. Ctr., 258 F.3d 843, 846 (8th Cir. 2001); Harvey v. Waldron, 210 F.3d 1008, 1012 (9th Cir. 2000). Most states have the same rule. E.g., Auto Owners Ins. Co. v. Hillsborough Cty. Aviation Auth., 153 So. 2d 722 (Fla. 1963); Navistar, Inc. v. Testa, 143 Ohio St. 3d 460, 39 N.E.3d 509, 517 (2015).
While he was a lawyer member of the Appellate Rules Advisory Committee, former Acting Solicitor General Neal Katyal came across a line of decisions in the U.S. Court of Appeals for the Eighth Circuit that was inconsistent with the settled interpretation of Rule 3(c). In Stephens v. Jessup, the court of appeals disregarded the settled interpretation of Rule 3(c) and the doctrine that prior interlocutory orders merge into the final judgment and are therefore open for appellate review with the final judgment. 793 F.3d 941 (8th Cir. 2015).
In Stephens, the district court had entered two orders on consecutive days. The first order granted one defendant’s motion to dismiss the complaint for failure to state a claim against that defendant. That order was not an appealable final decision because the plaintiff’s claim against the other defendant remained in the case. The next day, the district court granted the other defendant’s motion to dismiss based on issue preclusion. That order was an appealable final decision because it decided the only claim that remained in the case. See, e.g., Elliott v. City of Hartford, 823 F.3d 170, 173–74 (2d Cir. 2016). The plaintiff’s notice of appeal designated the appealable order but not the prior order. Without discussing the principle that interlocutory orders merge into the final decision, the Eighth Circuit held that the first order was not reviewable because the plaintiff’s notice of appeal did not designate it. 793 F.3d at 943.
Katyal prepared a memo for the advisory committee that outlined the problem. He explained that the Eighth Circuit’s disregard of the merger principle created a trap for the unwary: implicitly, the Eighth Circuit would require an appellant to list in the notice of appeal all orders and rulings that the appellant intends to challenge on appeal. In addition, of course, the Eighth Circuit created a circuit split.
The chair of the advisory committee appointed a subcommittee to study the issue. In studying this issue, the subcommittee discovered that the problem that Katyal found was not limited to the Eighth Circuit. According to some decisions, if a notice of appeal designated only a final judgment, the appellant could challenge all orders and rulings that merged in the judgment; but if the notice of appeal designated the final judgment plus one or more interlocutory orders, the appeal was limited to the designated orders—in effect applying the canon of construction expressio unius est exclusio alterius. The U.S. Supreme Court has denied petitions for certiorari to resolve the circuit split. Rosillo v. Holten, 137 S. Ct. 295 (2016); Schramm v. LaHood, 559 U.S. 1067 (2010). Not only are the circuits split: some circuits have conflicting panel decisions on this issue. Commentators have pointed out that this area of the law is in disarray.
The subcommittee found other problems lurking in the courts of appeals’ treatment of Rule 3(c)(1)(B)’s requirement of designating the judgment or order being appealed. With limited exceptions, Civil Rule 58(a) requires that each judgment be set out in a separate document. An amendment in 1963 added the separate document requirement to eliminate confusion that sometimes arose about when a party’s time to appeal begins to run. However, district courts do not always enter a judgment as a separate document. The problem is most likely to arise in a case with multiple claims that are decided at different times in multiple orders. The district clerk does not necessarily notice that the fourth order deciding a defendant’s summary judgment motion disposed of the last claim in the case. Nevertheless, the order that decides the last claim in the case is appealable as a final decision under 28 U.S.C. § 1291. If a notice of appeal designates only the appealable last order, do the prior orders merge into the last order such that the appellant may challenge them by appealing the last order? In most circuits, they do, but some decisions are to the contrary.
The proposed amendments to Rule 3 address these issues and resolve them all against limiting the scope of the appeal.
First, amended Rule 3(c) would require the appellant to designate the judgment or appealable order being appealed. Adding appealable should make clear that a notice of appeal need not designate interlocutory orders or other rulings that the appellant intends to challenge.
Second, a new Rule 3(c)(4) would provide that a “notice of appeal encompasses all orders that merge for purposes of appeal into the designated judgment or appealable order” and that it “is not necessary to designate those orders in the notice of appeal.” The Advisory Committee considered stating the merger rule in Rule 3(c). It rejected that idea out of concern that a statement of the merger rule might miss some nuance or otherwise engender litigation over interpretation. Some states have codified the merger rule. E.g., N.Y. C.P.L.R. 5501(a)(1).
Third, a new Rule 3(c)(5) would provide that, in a civil case, “a notice of appeal encompasses the final judgment,” regardless of whether the judgment is set out in a separate document as Civil Rule 58 requires, if the notice designates either “an order that adjudicates all remaining claims and the rights and liabilities of all remaining parties” or an order deciding a posttrial motion listed in Appellate Rule 4(a)(4)(A) that tolls the running of the time to appeal. This last part was included because a notice of appeal sometimes designates, for example, an order denying a motion for a new trial but fails to designate the final judgment. The Appellate Rules Advisory Committee concluded that a party should not forfeit an appeal because of such a technical error.
Fourth, a new rule would replace some limiting language. Current Rule 3(c)(1)(B) requires that a notice of appeal designate the judgment, order, “or part thereof being appealed.” Some decisions have limited the scope of an appeal by construing the notice of appeal as designating only a part of the judgment or order being appealed. The proposed amendment would strike or part thereof being appealed from Rule 3(c)(1)(B) and add the following new Rule 3(c)(6): “An appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited. Without such an express statement, specific designations do not limit the scope of the notice of appeal.”
The proposed amendments would replace Appellate Form 1 (an example of a notice of appeal) with Form 1A (a notice of appeal from a judgment) and Form 1B (a notice of appeal from an appealable order).
Clarification of Rule 42(b) on Agreed Dismissals of Appeal
In 1991, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States undertook to adopt a uniform style for all of the federal rules of practice and procedure, i.e., the rules governing appeals, bankruptcy, civil procedure, criminal procedure, and evidence. The goal was to promote clarity and consistency without changing the substance of the rules. Bryan A. Garner served as the project’s consultant. His book, Guidelines for Drafting and Editing Court Rules (5th printing 2007), explains the stylistic policies and usages that the federal rules adopted. The Federal Rules of Appellate Procedure, effective in 1998, was the first set of rules to undergo restyling.
Before restyling, Appellate Rule 42(b) provided that if the parties agreed in writing to dismiss an appeal and paid all fees owed to the court, “the clerk shall enter the case dismissed.” Restyling banished the word shall from the federal practice rules because it is hopelessly ambiguous: sometimes shall means “must,” but other times it is permissive or simply future tense. Bryan A. Garner, The Elements of Legal Style 140 (2d ed. 2002). The restyled rules use must for a mandatory duty, must not for prohibition, and may for a discretionary act.
As restyled, and as now in effect, Rule 42(b) provides that “[t]he circuit clerk may dismiss a docketed appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any fees that are due.” Some courts of appeals or circuit clerks have understandably interpreted this may as discretionary. Before restyling, the obligation to dismiss an appeal upon the parties’ agreement was always interpreted as mandatory; the restyled rule should have used must rather than may. The proposed amendment corrects this mistake. Dismissal in the Supreme Court in this circumstance is mandatory under its Rule 46.1.
The amended Rule 42(b) would carry forward, unchanged, the last sentence of current Rule 42(b) as a new subdivision:
(2) Appellant’s Motion to Dismiss. An appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the court.
This addresses the situation where the appellant wants to voluntarily dismiss an appeal but the appellee wants something in return that the appellant will not agree to. Normally, a court of appeals will allow an appellant to dismiss an appeal. However, the court has the discretion to impose conditions on the dismissal to protect the appellee’s legitimate interests. For example, the court of appeals could require the appellant to reimburse costs that the appellee incurred as a result of the appeal.
On the other hand, if the parties want the court of appeals to grant other relief—such as to vacate the district court’s judgment or to approve the parties’ settlement—that would require a motion and exercise of the judge’s discretion. A court is not bound to grant as relief whatever the parties may agree to in their settlement. E.g., Clarendon Ltd. v. Nu-W. Indus., Inc., 936 F.2d 127, 128–29 (3d Cir. 1991). The Supreme Court has held that “mootness by reason of settlement does not justify vacatur of a judgment under review” because “[j]udicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26, 29 (1994).
Therefore, the amendment would replace the current second sentence of Rule 42(b) with the following new subdivision:
(3) Other Relief. A court order is required for any relief beyond the mere dismissal of an appeal—including approving a settlement, vacating an action of the district court or an administrative agency, or remanding the case to either of them.
The amendment would also add the following new subsection:
(c) Court Approval. This Rule 42 does not alter the legal requirements governing court approval of a settlement, payment, or other consideration.
For information about the process and timetable for enacting and amending federal rules of procedure and practice, including the Federal Rules of Appellate Procedure, see Steven Finell, Appellate Rules and Statutes Focus: Amendments to the Federal Rules of Appellate Procedure, App. Prac. J., Fall 2009, at 4.
Steven Finell is an attorney at Finell Law in San Francisco, California. He chairs the Appellate Rules and Statutes Subcommittee of the Section of Litigation Appellate Practice Committee and is a past chair of the ABA Council of Appellate Lawyers Rules Committee.
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