A few years ago I wrote about The Curious Cases(s) of the Published Denial of Rehearing.  In that post,  which focused on two published denials of rehearing from the Fourth Circuit in the span of a week, I noted a prior instance of this relatively rare occurrence in the much publicized case of Gavin Grimm (then known in the caption as “G.G.”),… Continue Reading

Is there institutional disharmony in the Fourth Circuit? That’s the question that one judge suggested, in a concurring opinion, that lawyers and judges might be asking after an en banc opinion released on Tuesday.  In response, the judge whose dissenting opinion prompted the question submitted that the apparent tension we are witnessing within the Court is simply a “vigorous exchange of views over basic and fundamental principles of law,” and that such a “robust” exchange enhances “mutual respect and collegiality.”… Continue Reading

On Tuesday, the Court of Appeals issued its latest batch of opinions. Good news: the impending turkey feast has not slowed the court’s pace in grappling with interesting appellate issues.  Bad news: still no real resolution for most of them.

Rule 3.1 No-Merit Briefs: A Middle Ground?

In July and October, Kip wrote about the evolving disagreement in the Court of Appeals as to what type of appellate review is required when appointed counsel files a no-merit brief under Appellate Rule 3.1. … Continue Reading

Since December 2016, we have been monitoring the status of the North Carolina Court of Appeals’ new en banc authority.  Several motions for en banc review have been filed, but to our knowledge, the North Carolina Court of Appeals has not yet accepted a case for en banc review.

Not to be outdone, the Fourth Circuit is generating its own en banc buzz.… Continue Reading

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. … Continue Reading

Yesterday’s batch of opinions contained an unusual nugget: an entire opinion devoted to arguably the most powerful of all appellate tools, the writ of certiorari. In State v. Biddix,  the Court of Appeals denied a petition for writ of certiorari by concluding that the court was prohibited from invoking certiorari to address an issue on appeal, rather than simply exercising its discretion to deny the petition. … Continue Reading

The circuit courts of appeals have limited appellate jurisdiction. In two important cases, the Fourth Circuit recently dismissed appeals because the court did not have jurisdiction. These opinions provide an important reminder for those involved in the appellate process: before proceeding to the merits of the appeal, think through (and brief!) the question of whether the court has jurisdiction.

In Dickens v.Continue Reading