In Jenkins v. Woodard, No. 22-6197 (4th Cir. July 22, 2024), the Fourth Circuit confronts an issue arising under 2021 amendment to Fed. R. App. P. 3: how to apply the new “general merger rule” to a federal notice of appeal that names just the summary judgment order.
The amendment of Rule 3 was meant to address a trap for the unwary. Previously, Rule 3(c)(1) required that the notice of appeal “designate the judgment, order, or part thereof being appealed” (emphasis added). Some federal courts of appeals took this language to mean that if the appellant failed to specify an interlocutory order in the notice of appeal, the court lacked appellate jurisdiction to review it.
The Advisory Committee, amending this subsection, observed:
“In an effort to avoid the misconception that it is necessary or appropriate to designate each and every order of the district court that the appellant may wish to challenge on appeal, Rule 3(c)(1) is amended to require the designation of ‘the judgment—or the appealable order—from which the appeal is taken,’ and the phrase ‘or part thereof’ is deleted. In most cases, because of the merger principle, it is appropriate to designate only the judgment. In other cases, particularly where an appeal from an interlocutory order is authorized, the notice of appeal must designate that appealable order.”
While clearing away the weeds that had grown around Rule 3, the Advisory Committee nevertheless noted that it would leave further development of the merger rule to the courts of appeals: “The general merger rule can be stated simply: an appeal from a final judgment permits review of all rulings that led up to the judgment. Because this general rule is subject to some exceptions and complications, the amendment does not attempt to codify the merger principle but instead leaves its details to case law.”
In this case, the pro se plaintiff in a § 1983 case – asserting conditions of confinement and deliberate indifference claims arising from his detention in jail – appealed summary judgment to the Fourth Circuit. On appeal, he also “challenge[d] the district court’s denials of his requests for counsel and for additional time for discovery. However, he did not list any of those decisions in his notice of appeal, which explicitly challenged only the court’s summary judgment decision.”
The Fourth Circuit nevertheless holds that the notice of appeal preserved appellate jurisdiction over those interlocutory orders under the new Fed. R. App. P. 3(c)(4). While recognizing that there is scarce case law under the 2021 re-write of Rule 3, “because interlocutory orders are not otherwise appealable in most cases, we have assumed that the merger principle applies to them in the absence of case law to the contrary.” Because the plaintiff “explicitly challenged the district court’s order granting Sheriff Woodard’s summary judgment motion and dismissing his case. That order encompassed all prior district court orders, including those denying Jenkins’s requests for appointment of counsel and additional time for discovery.”
The panel goes on to hold that the district court clearly erred in denying appointment of counsel to the plaintiff. “[I]t is obvious from the record before us that Jenkins lacks the ability to present his claims given his physical, mental, and intellectual limitations. Thus, even assuming the district court considered all the necessary factors [for appointment of counsel], albeit without documenting its analysis, the court’s determination that this case does not present exceptional circumstances demonstrates a clear error of judgment under our prior decisions.”
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