I saw on the Civil Procedure & Federal Courts Blog that the Supreme Court adopted an amended FRAP 3 last week.
The new amendment is focused on getting rid of some pitfalls in the previous procedure for filing a notice of appeal.
The old rule required a party to file a notice of appeal identifying the "judgment, order, or part thereof" that it is appealing. As explained in the comments to the amendment (embedded below), some courts interpreted that language strictly to hold that a party who named a specific order waived their right to otherwise appeal the judgment:
Whether due to misunderstanding or a misguided attempt at caution, some notices of appeal designate both the judgment and some particular order that the appellant wishes to challenge on appeal. A number of courts, using an expressio unius rationale, have held that such a designation of a particular order limits the scope of the notice of appeal to the particular order, and prevents the appellant from challenging other orders that would otherwise be reviewable, under the merger principle, on appeal from the final judgment. These decisions inadvertently create a trap for the unwary.
The revised rule attempts to fix that issue, to prevent parties from inadvertently waiving their rights.
The new rule and commentary also address a number of other, similar pitfalls, such as when a party inadvertently refers to the final decision as an "order" rather than a "judgment," or appeals a final order dismissing all claims but the Court later issues a separate final judgment.
So, heads up: remember to check the new rule if you are thinking about whether to raise issues with the scope of a notice of appeal.
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