Rescuing Rule 3(c) from the 800-Pound Gorilla: The Case for a No-Nonsense Approach to Defective Notices of Appeal
48 Pages Posted: 3 Sep 2007
Rule 3(c) of the Federal Rules of Appellate Procedure prescribes that a notice of appeal specify the party or parties taking the appeal; designate the judgment, order, or part thereof being appealed; and name the court to which the appeal is taken. When confronted with a notice that fails to comply with one or more of these requirements, the federal courts of appeals have resorted to a variety of differing responses. Some courts, viewing the dictates of Rule 3(c) as jurisdictional in nature, have simply dismissed the appeal in question for want of jurisdiction. Rejecting this jurisdictional conception, other courts have reached the merits of the appeal, despite the violation of Rule 3(c), as long as the violation did not prejudice or mislead the appellee. Alternatively, in order to avoid the difficult choice between dismissing the appeal and excusing the violation, some courts have distorted the relevant requirement of Rule 3(c) in order to conclude that there was no violation after all.
In fairness to the courts of appeals, their disordered enforcement of Rule 3(c) stems from faulty direction on the part the Supreme Court of the United States. In Foman v. Davis, the Court characterized noncompliance with the content requirements of a notice of appeal as mere technicalities that can be readily forgiven when the pertinent defect does not mislead or prejudice the appellee. The Court radically shifted course in the subsequent case of Torres v. Oakland Scavenger Co., where it held that Rule 3(c) is a jurisdictional prerequisite and emphasized that noncompliance with its requirements was fatal to an appeal. However, rather than repudiating Foman as incompatible with its new approach, the Torres Court simply distinguished Foman on a dubious basis. To further complicate matters, the Court has favorably cited incompatible aspects of Foman on several occasions since Torres.
This Article contends that the confusion and unpredictability that has plagued the enforcement of Rule 3(c) in the courts of appeals can be easily remedied through the Supreme Court's prescription of a no-nonsense approach to defective notices of appeal. First and foremost, this approach would demand that a court of appeals treat a litigant's violation of a requirement of Rule 3(c) as such, rather than resorting to crafty interpretations of the requirement at issue in an effort to cleanse the notice of the defect. Second, once satisfied that a violation exists, the court must dismiss the appeal for lack of jurisdiction pursuant to the jurisdictional conception of Rule 3(c) espoused in Torres. To the extent that Foman would authorize the court to reach the merits of the appeal notwithstanding the defect, it is irreconcilable with Torres and must be expressly overruled.
The proposed approach would have the unfortunate effect of depriving many litigants of the opportunity to prosecute an appeal, including those litigants who would have prevailed on appeal were it not for a dismissal based upon a violation of Rule 3(c). But while the courts of appeals will lack the authority to determine where justice lies in those individual appeals, a no-nonsense enforcement of Rule 3(c) would lead to a significantly greater degree of justice in the totality of appeals by securing a fair and orderly process. Moreover, the mechanism of rule amendment can always be utilized to ease compliance with those requirements, or to abolish one or more of them altogether. For these reasons, a court of appeals may, in good conscience, resist the temptation to sustain an appeal either by forgiving a Rule 3(c) violation because it did not mislead or prejudice the appellee, or by dodging that inquiry through the creation of an 800-pound gorilla rule, as one circuit judge characterized his court's determination that a notice of appeal containing the name of no court of appeals whatsoever had somehow managed to name the court to which the appeal [was] taken within the meaning of Rule 3(c).
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