A month ago, I excitedly reported that the North Carolina Court of Appeals had granted its first motion for rehearing en banc. Turns out that the en banc party invitations were for naught.
In a special order entered this morning, the Court of Appeals notified the parties that “after further consideration by the Court as a whole, the Court’s 30 July 2021 order allowing en banc rehearing of the appeal is rescinded. The appeal is returned to the original panel for further consideration.”
So the Court of Appeals’ first en banc rehearing order has become a catalyst for panel reconsideration. But as it turns out, spotting a unicorn doesn’t mean that unicorns actually exist.
h/t Annick Lenoir-Peek
Update 10/26/2021: We recently learned that after en banc review was accepted, but before en banc review was rescinded, the Supreme Court granted a PDR in another case raising the same issue. Compare In re J.N., 276 N.C. App. 275, 2021-NCCOA-76 with Order Granting PDR (N.C. Aug. 10, 2021). Thoughts on whether the Supreme Court’s actions impacted this en banc saga?
We are also hearing that a recent Court of Appeals order denying a motion for en banc review disclosed that the decision was “unanimous.” It will interesting to see if future orders disclose when the Court of Appeals is divided as to whether to grant en banc review–and if so, whether that disclosure impacts the odds of a case being accepted for discretionary review.