The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has issued a preliminary draft of amendments to various rules, including Federal Rules of Appellate Procedure 3 and 42. The amendments and related information are available here.
The public is invited to comment on the proposed amendments. The deadline for doing so is February 19, 2020. There will be hearings where live testimony can be presented on October 30, 2019 in Washington, DC and on January 27, 2020 in Phoenix, AZ.
Rule 3 deals with the contents of a notice of appeal. The current language of that rule has given rise to cases that have effectively deprived appellants of their right to appeal, entirely or as to certain aspects, based on the language used in the notice of appeal. For example, some courts have taken the position that designating one interlocutory order in the notice of appeal precludes an appeal of other such orders, under the principle of expressio unius est exclusio alterius.
The proposed amendments refer to “the judgment or the appealable order,” rather than just a “judgment,” as before. They provide expressly that a “notice of appeal encompasses all orders that merge into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal.” And, for extra clarity, there is new language stating that 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 a notice of appeal.”
There is a lengthy Committee Note that provides further background and explanation of the proposed amendments. As the Note observes, in order to implement these changes, Form 1 is proposed to be replaced by new Forms 1A and 1B, and Form 2 would be amended.
Rule 42 deals with dismissals of appeals. Currently, Rule 42(b) provides that a Circuit clerk “may” dismiss a docketed appeal if all filed a signed dismissal agreement specifying how costs are to be paid and pay any fees that are due. The amendment changes “may” to “must,” reverting to prior practice under which the language said “shall.” The amendment also clarifies that the “fees” to be paid are “court” fees, to avoid any inference that attorneys’ fees might be the subject of that provision.
A new Rule 42(b)(3) would provide that “[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.” And a new Rule 42(c) would state that “[t]his Rule 42 does not alter the legal requirements governing court approval of a settlement, payment, or other consideration.”
These amendments all appear to be appropriate measures.