Can a party “manufacture” appellate jurisdiction for an otherwise interlocutory appeal through the voluntary dismissal of remaining claims? That question was generally answered in the negative by the Supreme Court in 2017 in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017). There, the Court held that plaintiffs could not subvert the final-judgment requirement for appellate jurisdiction from 28 U.S.C.… Continue Reading
The Fourth Circuit yesterday amended its prior Order suspending the oral argument requirement for published cases to apply to “cases tentatively calendared for May 5-8, 2020.” The Court noted that
… Continue ReadingAlthough the pressures of the public health crisis preventing in-person argument in
March, April, and May 2020 have occasioned a temporary change in the court’s practices,
the court is nonetheless affording these cases equal jurisprudential rigor and attention.
The Fourth Circuit this morning released a public advisory on its upcoming remote oral arguments. See here. The Court is scheduling certain upcoming arguments for videoconference or teleconference, and released a schedule for these arguments. Similar to what the Court did for some of the recent high profile arguments, such as the “travel ban” case, the arguments will be available to listen to live.… Continue Reading
Fourth Circuit Chief Judge Gregory today issued “Standing Order 20-01,” which temporarily suspends Fourth Circuit Local Rule 36(a) requiring that any published opinion have oral argument. Due to the social distancing required by the coronavirus pandemic, “cases calendared for oral argument in March or April 2020 but not presented at oral argument may be decided by published opinion with the unanimous consent of the panel.” … Continue Reading
The Fourth Circuit this morning joined a growing list of courts that have issued public advisories and instructions regarding operations during this unprecedented time. This includes the closing of the Powell Courthouse in Richmond to the public. Oral arguments that were set to take place during this week’s argument session and the April 7 argument session might be rescheduled, heard through remote means, or submitted on the briefs, depending on the decision and direction of the assigned panel. … Continue Reading
Our state appellate courts have long held that a timely notice of appeal is a jurisdictional requirement. See, e.g., State v. Patterson. (For an interesting discussion on this topic, see section 28.02[3] in Beth and Matt’s treatise.)
Federal courts, on the other hand, have taken a different approach. For example, the Supreme Court in 2017 clarified that unless prescribed by statute, a rule-based timeline for filing a notice of appeal is “not jurisdictional” but is instead a “mandatory claim-processing rule.”… Continue Reading
Almost two years ago, 
I blogged about a relatively rare phenomenon: a published denial of a petition for rehearing. Back then, two recent Fourth Circuit cases had produced petitions for rehearing and then subsequent denials of those petitions. But while decisions denying rehearing are typically just one-sentence orders, with nothing more by way of explanation, those two cases had prompted judges to write separately to express their views on the issues at the core of the petitions.… Continue Reading
Last week I blogged about an en banc opinion from the Fourth Circuit for which authorship of the majority opinion was attributed to two judges. (See here) This week from the Fourth Circuit came another two judge oddity-a panel opinion in which the panel consisted of only two judges.
28 U.S.C. § 46 governs the makeup of Circuit Court panels, and directs in subsection b that each circuit “may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges…unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency including, but not limited to, the unavailability of a judge of the court because of illness.”… 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
A while back I wrote about the collateral order doctrine as discussed by the Fourth Circuit in Williams v. Strickland. (See prior blog post here). Williams involved an alleged excessive force claim against a law enforcement officer and an interlocutory appeal from the denial of the officer’s motion for summary judgment on the ground of qualified immunity. The Court held that the officer was not entitled to qualified immunity (at least at that point in the case) because the established law is that the use of deadly force by an officer may be justified at one point in an encounter with a suspect, but unjustified a moment later in the same encounter. … Continue Reading