Another week, another published ruling on an en banc rehearing petition from the Fourth Circuit.  Last week we saw Judge Niemeyer arguing in a published concurring opinion that en banc review should be denied so that the case of Gavin Grimm could proceed more quickly to the Supreme Court.  (Conversely, Judge Wynn concurred with the denial on the grounds that the panel majority was completely consistent with Supreme Court’s recent precedent, and thus there was no need for further review at all, by any court.)   … Continue Reading

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

The Fourth Circuit announced today that in-person oral arguments would continue to be suspended for the October 27-30 argument session.  As with the September session, cases assigned to pre-argument review “will be scheduled for argument by video-conference or teleconference, submitted on the briefs, or continued to a later session, at the direction of the panels in each case.”

Link to announcement is here.… Continue Reading

The Fourth Circuit has extended its suspension of the Local Rule 36(a) requirement that published opinions have oral argument.  Effective immediately, Chief Judge Gregory has extended Standing Order 20-01, originally adopted on March 23, 2020, to allow for published opinions without argument in “cases assigned for pre-argument review, tentatively calendared, or calendared for argument while in-person argument sessions are suspended due to the coronavirus.” … Continue Reading

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

Although 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.

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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