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.

About McDonald Carano

McDonald Carano has been shaping Nevada’s legal, business, and policy landscape since our founding in 1949. With more than 60 lawyers and government affairs professionals working from offices in Las Vegas, Reno and Carson City, we are Nevada’s law firm for business. Our local, national and global clients include Fortune 500 corporations, fast-growth and mid-market companies, entrepreneurs and startups, non-profit organizations, government entities, and high-net-worth individuals. Our attorneys deliver cross-discipline, one-stop, commercial law and government affairs counsel. Our dedication to clients, innovative thinking and practical solutions based in sound business and legal judgments are at the heart of our practice. For more information, please visit mcdonaldcarano.com or send an email to info@mcdonaldcarano.com.

Media Contact

Mark Buckovich


You have chosen to send an email to McDonald Carano. The sending or receipt of this email and the information in it does not in itself create an attorney-client relationship. If you are not already a client, you should not provide us with information that you wish to have treated as privileged or confidential without first speaking to one of our lawyers. If you provide information before we confirm that you are a client and that we are willing and able to represent you, we may not be required to treat that information as privileged, confidential, or protected information, and we may be able to represent a party adverse to you.

I have read this and want to send an email.