Interlocutory Appeals Require Explicit Designation of Each Appealable Order Under FRAP 3(c)(1)(B); “Merger” Does Not Save an Omitted Preliminary-Injunction Order

Case: Utah Vapor Business Association v. State of Utah (No. 25-4046)
Court: United States Court of Appeals for the Tenth Circuit
Date: August 31, 2026
Author: EBEL, Circuit Judge

I. Introduction

Utah enacted 2024 “Electronic Cigarette Amendments” featuring (1) a “Flavor Ban” barring sale of most flavored e-cigarettes and (2) an “Inspection Program” authorizing warrantless inspections of tobacco retailers during business hours. Plaintiffs—Utah Vapor Business Association, Inc. and The Smoke House LLC (retail tobacco specialty businesses)—sued Utah and state agencies/officials, arguing:

• Federal preemption: the Flavor Ban is preempted by the Federal Family Smoking Prevention and Tobacco Control Act (“TCA”).
• Fourth Amendment: the Inspection Program permits unconstitutional warrantless searches.

At the preliminary-injunction stage, the district court denied injunctive relief on preemption (allowing the Flavor Ban to proceed), but granted injunctive relief on the Inspection Program (enjoining warrantless searches) while finding that program severable. After Utah amended the Act to change enforcement, the parties agreed the Fourth Amendment/severability disputes were moot, leaving only preemption. The Tenth Circuit never reached that merits issue because it dismissed for lack of appellate jurisdiction: Plaintiffs’ notice of appeal did not designate the order denying the preliminary injunction against the Flavor Ban.

II. Summary of the Opinion

The court held that in a civil case, compliance with FED. R. APP. P. 3(c)(1)(B) is jurisdictional. Plaintiffs’ notice of appeal listed March 24, 2024 orders but omitted the February 13, 2024 order (ECF No. 44) denying a preliminary injunction against the Flavor Ban. Because the only remaining live issue was tied to the omitted order, the court lacked jurisdiction and dismissed the appeal.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1) Appellate jurisdiction over preliminary injunctions

• Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011): Cited for the general rule of finality under 28 U.S.C. § 1291 and the exception allowing immediate appeal of preliminary injunction rulings under 28 U.S.C. § 1292(a)(1). This framed why there could be interlocutory appellate jurisdiction—if properly invoked.

2) Rule 3 compliance as jurisdictional in civil cases

• Bowles v. Russell, 551 U.S. 205 (2007): Used to underscore that certain appellate requirements in civil matters are jurisdictional and not waivable.
• Emann v. Latture (In re Latture), 605 F.3d 830 (10th Cir. 2010): Reinforced within the Tenth Circuit that failure to comply with the rules governing notices of appeal deprives the court of authority to hear the appeal.

3) The “liberal construction” principle—and its limits

• Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988): Quoted for the notion that procedural rules should be liberally construed so “mere technicalities” do not bar merits review, but also cited (via other authorities) as a foundation for treating Rule 3’s notice requirements as jurisdictional.
• Constructora Andrade Gutierrez, S.A. v. Am. Int'l Ins. Co. of Puerto Rico, 467 F.3d 38 (1st Cir. 2006): Cited for the proposition that Rule 3’s content requirements are jurisdictional and cannot be waived (with a note about later recognition in Gonpo v. Sonam's Stonewalls & Art, LLC, 41 F.4th 1 (1st Cir. 2022), on other grounds).

4) The Tenth Circuit’s “functional equivalent” approach

• Berrey v. Asarco Inc., 439 F.3d 636 (10th Cir. 2006): Provided the “functional equivalent” test—jurisdiction can survive technical defects if the filing contains the Rule 3(c) notice elements.
• Denver & Rio Grande W. R.R. v. Union Pac. R.R., 119 F.3d 847 (10th Cir. 1997): Explained that if the notice omits the order, other timely filings might supply the “functional equivalent.” The court found none here relating to the preemption ruling.
• Kotler v. American Tobacco Company, 981 F.2d 7 (1st Cir. 1992): Used as an analogy: naming one order while omitting another “loudly proclaims” an intent not to appeal the omitted one, especially when the designated order is “separate and independent.”

5) The merger doctrine—and why it did not apply

• McBride v. CITGO Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002), and Montgomery v. City of Ardmore, 365 F.3d 926 (10th Cir. 2004): Cited for the rule that a notice appealing a final judgment can support review of earlier interlocutory orders that “merge” into it. The court distinguished those cases because this appeal was not from a final judgment, but from interlocutory orders.
• Fed. R. App. P. 3 advisory committee's note to 2021 Amendment: Treated as a key interpretive anchor: merger is a “corollary of the final judgment rule,” and where an interlocutory appeal is authorized, the notice “must designate that appealable order.”

6) Substantive preemption context (not reached)

The court noted (in a footnote) that “Four of our sister circuits” rejected similar TCA preemption arguments, citing:

• Nat'l Ass'n of Tobacco Outlets, Inc v. City of Providence, 731 F.3d 71 (1st Cir. 2013)
• U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428 (2d Cir. 2013)
• R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542 (9th Cir. 2022)
• R.J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170 (8th Cir. 2023) (per curiam)

Those citations served only to contextualize the underlying dispute; the dismissal prevented the Tenth Circuit from adopting or rejecting those merits approaches.

B. Legal Reasoning

The court’s reasoning proceeded in a straight jurisdictional sequence:

1. Identify the only live issue: After statutory amendment mooted the Inspection Program and severability disputes, only the Flavor Ban preemption issue remained.
2. Determine what order must be appealed: The preemption issue arose from the district court’s February 13, 2024 order denying a preliminary injunction against the Flavor Ban (ECF No. 44), an interlocutory order appealable under 28 U.S.C. § 1292(a)(1).
3. Apply Rule 3(c)(1)(B): The notice of appeal must “designate the judgment—or the appealable order—from which the appeal is taken.” Plaintiffs’ notice listed only March 24, 2024 orders (ECF Nos. 55, 56, 57) plus a catchall (“any and all underlying issues…”), but did not identify ECF No. 44.
4. Reject “functional equivalent” salvation: Because neither the notice nor any other timely filing supplied notice that the February 13 order was being appealed, the “functional equivalent” doctrine could not establish jurisdiction.
5. Reject “merger” as inapplicable: Merger is tied to appeals from final judgments; it does not allow an appellant to omit an independently appealable interlocutory order and still obtain review.
6. Dismiss: With no jurisdiction over the only remaining issue, dismissal was mandatory.

C. Impact

• Practical rule for litigants: In multi-issue preliminary-injunction litigation producing multiple appealable interlocutory orders, parties must list each appealable order they intend to challenge. A general “all underlying issues” clause is not a substitute for designating the correct order.
• Doctrinal clarification in the Tenth Circuit: The opinion draws a bright line between (a) merger review on appeal from final judgment and (b) authorized interlocutory appeals, where designation of the specific order is required.
• Strategic consequences: When subsequent legislative amendments moot some issues, appellants may be left with only one remaining claim. If the notice of appeal fails to capture the order tied to that claim, the entire appellate effort can collapse—regardless of the potential merits.
• Substantive law left open: The Tenth Circuit did not decide whether the TCA preempts statewide flavored e-cigarette sales bans; future cases in the circuit remain open on the merits (subject to proper appellate procedure).

IV. Complex Concepts Simplified

• Preliminary injunction: A temporary court order entered early in a case to preserve the status quo or prevent harm while the case proceeds. Orders granting or denying these can usually be appealed immediately.
• Interlocutory order: A non-final order issued before final judgment. Some are immediately appealable by statute (like preliminary-injunction orders).
• Notice of appeal (FRAP 3): The document that starts an appeal. It must identify the specific judgment or appealable order being appealed.
• Jurisdictional requirement: A mandatory condition for the court’s power to act. If it is not met, the court must dismiss even if the arguments are strong.
• Functional equivalent doctrine: A limited safety valve: if another timely filing (or the notice itself, read fairly) conveys the required information, courts may treat it as satisfying Rule 3. Here, nothing did.
• Merger doctrine: Typically, if you appeal a final judgment, you can also challenge earlier non-final rulings that “merge” into that final judgment. The key point here: merger does not excuse failure to designate a separately appealable interlocutory order.
• Mootness: A court cannot decide issues that no longer matter because intervening events (like statutory amendments) eliminate the live dispute.

V. Conclusion

Utah Vapor Business Association v. State of Utah establishes a procedural lesson with dispositive force: when appealing in a civil case from multiple appealable interlocutory orders, a party must explicitly designate in the notice of appeal each appealable order it seeks to challenge. The merger doctrine—useful on appeal from final judgment—does not rescue an appellant who omits the relevant preliminary-injunction order. Because Plaintiffs failed to designate the order denying an injunction against Utah’s Flavor Ban, the Tenth Circuit lacked jurisdiction and dismissed without reaching the TCA preemption merits.