United States Court of Appeals

I.  You Can’t Have One Without the Other: Notice of Appeal Must Designate Both Final Judgment and Intermediate Order

Approximately three years ago, I blogged on Majerske v. Majerske, an unpublished Court of Appeals decision that dismissed an appeal for a notice of appeal defect.  Reason: The notice of appeal identified the intermediate order that the appellant was challenging on appeal, but not the trial court order that converted the case into a final judgment.… 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

The federal corollary to the oft-blogged about “substantial right doctrine” in the North Carolina appellate courts is the “collateral order doctrine.”  As is the case under North Carolina law, the jurisdiction of the United States Circuit Courts of Appeals is generally limited to final decisions of the district court.  Therefore,  a federal appellate court ordinarily cannot review interlocutory orders.  But, as in North Carolina, there are exceptions. Continue Reading

In an opinion highlighting an interesting federal appellate jurisdictional issue, the Fourth Circuit on Monday vacated a “gag order” that had been entered by the district court.  That gag order, however, had already been vacated by the district court itself.  This raised the possibility that the Fourth Circuit was without jurisdiction to address the gag order, which had been challenged in the appellate court through a petition for a writ of mandamus. … Continue Reading

Note: much of the information below comes from The American Lawyer’s October 23 “Daily Dicta,” by Jenna Greene.

He started as a pro se plaintiff alleging First Amendment (and other) violations by a number of federal judges, an FBI agent, and a US Marshal.  Now William Bond has been represented by some of the heaviest of legal heavyweights as his case makes its way up towards the highest court in the land. … Continue Reading

In light of Matt’s post from yesterday, does anyone perceive an uptick in dismissals of appeals for notice of appeal problems? Are North Carolina lawyers unique in their propensity to screw up notices of appeal?  Are dismissals for notice of appeal violations common in other appellate systems?  Let’s say, for instance, the federal appellate courts?  If not, why?  Matt and I have been discussing and debating these questions for a few months. … Continue Reading

Twice this week the Fourth Circuit took the relatively unusual step of issuing published opinions on orders denying rehearing of a case.  Ordinarily such orders are not published for the simple reason that there is no accompanying written opinion to publish.  Not so this week, however.

On Monday the Court denied a request for panel rehearing and rehearing en banc in US v.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

Most attorneys have had a least one unfavorable final judgment entered before trial.  The attorney may feel that the trial court completely misunderstood her argument. Perhaps the trial court entered a summary judgment order that missed a key appellate case.  Or perhaps the trial court issued a Rule 12(b)(6) dismissal that appeared inconsistent with an earlier ruling.  The natural inclination is to devise a motion that will give the trial court the opportunity to fix its mistakes without having to take an appeal. … Continue Reading

We have blogged several times on the fact that North Carolina is one of only two states that does not allow a federal court to certify questions to its state courts for guidance on issues of state law.  Recently, a Fourth Circuit concurrence by Judge Thacker contained another public plea for North Carolina to adopt a certification mechanism–quickly. In Stahle v.Continue Reading