Federal Appellate
Procedure Update:
New Merger Principle
for Notices of Appeal

A variety of proposed amendments to the Federal Rules of Appellate Procedure took effect on December 2, 2021 as adopted by the Supreme Court on April 14, 2021. One amendment revises Rule 3, titled “Appeal as of Right — How Taken.” Under the amendment, the requirements for a notice of appeal are revised to clarify the procedures for identifying the scope of the appeal. Understanding the amendment’s merger principle is critical to taking the steps that are required to limit the scope of the appeal when that is desired. Litigation attorney Julia Armendariz summarizes the revisions below. The committee notes provide a comprehensive examination of the amendment in Rule 3.

Issue Addressed

Some courts of appeals have treated a notice of appeal from a final judgment that mentions one order but not others as limiting the appeal to that one order, rather than reaching all the orders that merged into the judgment.

Rule 3 Amendment

The amendment changes the language in Rule 3(c)(l)(B) to require the notice of appeal to “designate the judgment — or the appealable order — from which the appeal is taken.” The amendment further provides that “[t]he notice of appeal encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal.”

New Merger Principle

This amendment changes the language in various sections of Rule 3 to indicate that the notice of appeal does not require the appellant to designate every order of the district court that the appellant may wish to appeal. Designation of the final judgment confers appellate jurisdiction over all the orders that merged into the final judgment. Although not expressly codified as such, this is known as the merger principle according to the committee notes and is found as an addition in Rule 3(c). Under the merger principle, the appellant needs only to designate the judgment.

Takeaway for Appellate Practice

Under the amended Rule, if the appellant wants to limit the appeal, they must provide an express statement doing so.  The recommended approach is now to designate the final judgment unless the intention is to limit the scope of the appeal. The committee notes further explain how to limit the scope of the appeal if that is intended.

The new provisions are added as Rules 3(c)(4), 3(c)(5), and 3(c)(6), with the existing Rules 3(c)(4) and 3(c)(5) renumbered. In addition, to reflect these changes to the rule, Form 1 is replaced by Forms IA and lB, and Form 2 is amended.


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