With the enactment of Senate Bill 4  last week, the Court of Appeals now has the statutory authority to hear and rehear cases en banc.  Right on schedule, the Court of Appeals released a batch of opinions this morning.  What will happen if a litigant wants to seek rehearing en banc from one of those decisions?

Currently, there are no procedures in place—none—governing the process of how a litigant might seek rehearing en banc, how the Court of Appeals might consider that motion or petition, or how those steps affect other appellate deadlines.  But let’s think through a couple of examples of how this process might play out.

Many of the decisions issued today were decided by a vote of 3-0, affirming the final judgment below  See, e.g., Corbett v. Lynch.  The losing party might, say, file a “Petition for Rehearing En Banc” within the same time period set forth for filing a petition for panel rehearing under Appellate Rule 31, which is 35 days from today.  It is anybody’s guess how the Court of Appeals would then consider the petition.  But, if the Fourth Circuit procedure is any guide, the Court might allow the petition to be automatically denied within a short window (like 14 days) unless a judge calls for a response to the petition and then calls for a vote.  It would take a majority of the sitting judges (8 of 15) for the case to be reheard.

But what happens to the losing party’s ability to seek discretionary review in the Supreme Court? Appellate Rule 15(b) requires a petition for discretionary review to be filed within that same 35-day time period.  Would that time be tolled by virtue of the filing of the petition for rehearing en banc?  That is the result in the Fourth Circuit, and it certainly makes sense as a way to avoid having separate petitions pending in separate courts simultaneously.

What about a decision issued today by a vote of 3-0 that does not end the case but instead remands for further proceedings? See, e.g., News & Observer Publ’g Co. v. McCrory.  When a losing party seeks discretionary review from such an “interlocutory” decision of the Court of Appeals, it must jump through the Appellate Rule 15(h) hoop, showing that any delay in further review “would cause a delay in final adjudication which would probably result in substantial harm to a party”—a very high standard.  Should a similar standard be imported to discourage the seeking of en banc review from an interlocutory panel decision?

Finally, what about a decision issued today by a vote of 2-1? See, e.g., State v. Moore.  Before SB 4, the losing party would have had an automatic right to an immediate appeal from that decision to the Supreme Court under N.C. Gen. Stat. § 7A-30(2).  SB 4 makes several revisions to the statute, however:

7A-30. Appeals of right from certain decisions of the Court of Appeals.

Except as provided in G.S. 7A-28, an appeal lies of right to the Supreme Court from any decision of the Court of Appeals rendered in a case:

(1) Which directly involves a substantial question arising under the Constitution of the United States or of this State, or

(2) In which there is a dissent when the Court of Appeals is sitting in a panel of three judges. An appeal of right pursuant to this subdivision is not effective until after the Court of Appeals sitting en banc has rendered a decision in the case, if the Court of Appeals hears the case en banc, or until after the time for filing a motion for rehearing of the cause by the Court of Appeals has expired or the Court of Appeals has denied the motion for rehearing.

SB 4 appears to preserve the statutory right to appeal from a 2-1 Court of Appeals decision. But that “appeal of right . . . is not effective” right away.  Instead, the losing party must let the en banc process run its course, either by petitioning for rehearing and having that petition denied; by petitioning for rehearing and having the petition granted and the case re-decided by the full Court of Appeals; or by having the time for seeking rehearing expire without action.  This single change raises many questions:

Is the notice of appeal to the Supreme Court due within 35 days, pursuant to Rule 14(a), even though the “appeal of right” is not effective until after that same 35 days has run?

  • Notice that the statute says that the “appeal of right” is not immediately effective, not that the “right to appeal” is not immediately effective. That is, the statute appears to allow that the right to appeal attaches immediately pursuant to the first sentence of revised subsection (2), but that any such appeal so noticed is itself “not effective” until later.  In other words, the statute would appear to allow a party to appeal as of right within the 35 days, which notice is not effective until the en banc process has run its course.

Are petitions for discretionary review as to additional issues still due within 35 days pursuant to Rules 14(a) and 15(c)?

  • This presents the “simultaneous petitions” problem highlighted above.  One way around this is through a creative reading of Appellate Rule 31.  Notice that Rule 31 does not actually refer to “panel rehearing.”  Instead, it refers generally to “rehearing.”  Could practitioners simply read the provisions of Rule 31 to govern petitions for rehearing en banc until more detailed rules can be promulgated?  This interpretation would have several benefits, most importantly that the deadlines for noticing appeal and for petitioning the Supreme Court for discretionary review are tolled during the time in which the Court of Appeals is considering the petition for rehearing under Rule 31. See Rule 14(a) and Rule 15(b).

How does the Court of Appeals’ en banc decision affect the “appeal of right” set forth in Section 7A-30(2)?

  • The statute could be read to suggest that either party has a right to appeal from a 2-1 decision of the Court of Appeals, regardless of how the en banc court decides the case.  In other words, the plain language of the statute suggests that it makes no difference whether the en banc court decides the case by a vote of 15-0, 0-15, or anywhere in between—“an appeal lies of right to the Supreme Court” because there was “a dissent when the Court of Appeals [was] sitting in a panel of three judges” that became “effective . . . after the Court of Appeals sitting en banc has rendered a decision in the case.”  Appellate Rule 16, governing the scope of review in appeals involving a dissenting opinion, will of course need substantial revisions to better fit this scenario.

To add one more wrinkle: suppose the Court of Appeals issued an opinion in your case on December 6.  The mandate has not yet issued.  Can you petition for rehearing en banc as well?  What if the Court issued an opinion in your case on November 15, and the mandate has already issued, but today is day 35?

Now for the good news. Our Supreme Court and our Court of Appeals include a dedicated group of justices and judges, with agile clerks’ offices and law clerks in tow.  I trust that the appellate division will give us all a little grace as they develop interim procedures and new rules.

–Matt Leerberg