Search results for: en banc

As we discussed recently on this blog, the Fourth Circuit took the unusual step of ordering initial en banc review of President Trump’s revised federal travel ban.  But not only is the Court hearing the case en banc, it is also planning to allow the audio of the May 8 hearing to be broadcast in real time on C-SPAN.  This is, I believe, a first for the Fourth Circuit, which typically makes audio of its hearing available to the public the following day.  Meanwhile, the Ninth Circuit, which is also hearing a challenge to the revised travel ban on May 15 (although not by the en banc Court), will allow broadcast of live video of that hearing on C-SPAN.

–Patrick Kane

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. The Fourth Circuit has long had the authority to hear cases en banc.  En banc review in the Fourth Circuit is extremely rare (at least in recent years). Initial en banc review–before a three-judge panel decides the case–is virtually unheard of in the Fourth Circuit.  That may be about to change.

As reported by Maryland’s Appellate Blog, the Fourth Circuit recently took the unusual step of sua sponte ordering the parties to brief the “appropriate[ness] of initial en banc review” of the revised federal travel ban.  As noted by the Maryland blog,

The decision to order the parties to brief whether they consider initial en banc review appropriate is even more unusual because the purely discretionary decision has no underlying legal principle that must be upheld. Unlike a question of subject-matter jurisdiction or evidence admissibility, it is not a decision that the court can possibly “get wrong.” Instead, the decision on the propriety of hearing the case initially en banc rests entirely on the preference of the court. It really doesn’t matter what the parties think.

Both parties have reportedly rushed to assure the Fourth Circuit that the case is “exceptionally important” and worthy of initial en banc review.  For federal appellate practice and procedure aficionados, the Maryland blog post on this case is worthy of an independent read.  [Side Note: the Fourth Circuit judges’ individual email boxes were recently flooded with approximately 7,500 outside messages urging the judges to overturn the federal district court’s travel ban injunction–which lead the Fourth Circuit Clerk to issue this notice to the attorneys of record.]

Like Rule 31.1 of the North Carolina Rules of Appellate Procedure, Federal Appellate Rule 35 utilizes the same criteria for determining whether to grant initial hearing en banc as for determining whether to grant rehearing en banc.  Under both the state and federal rule, hearing or rehearing may be ordered if (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.  These two criteria are generally easier to show when a party is requesting rehearing en banc.

So while we wait to see what case will trigger the North Carolina Court of Appeals’ first en banc review, we also wait to see whether the Fourth Circuit will be hearing its first initial en banc hearing in recent memory.

–Beth Scherer

The Court of Appeals’ opinions from two weeks ago contain a hodgepodge of appellate nuggets that could not be ignored–despite the hustle and bustle of the impending holidays and the last two days excitement over breaking Supreme Court news.

Tetra Tech Tesoro, Inc. v. JAAAT Tech. Servs., LLC

First, We told you months ago that filing a Rule 59 motion after anything other than a trial can be dangerous.  That advice still stands

In Tetra Tech, the Court of Appeals held that a self-styled “Rule 59” motion to alter or amend a judgment does not toll a party’s deadline for filing a notice of appeal from an interlocutory order.  Providing one of the most detailed analyses to date on this issue, Judge Dietz also warned practitioners that Rule 59 likely “only applies to post-trial motions.”  While the opinion also states that Rule 59 “applies only after a trial on the merits or, at a minimum, a judgment ending a case on the merits,” don’t be surprised if Rule 59 does not toll your deadline for filing an appeal from any non-trial order—interlocutory or final.  Granted, conflicting Court of Appeals opinions exist on this last point. See, e.g., Rutherford Plantation, LLC v. Challenge Golf Grp. of Carolinas, LLC, 225 N.C. App. 79, 86, 737 S.E.2d 409, 414 (2013).  Thus, this issue seems well-suited for the Court of Appeals’ new en banc review authority.

Interestingly, while the appellant’s appeal from the underlying preliminary injunction order was dismissed as untimely, the Court of Appeals nonetheless reviewed the trial court’s denial of a motion to modify the preliminary injunction order. However, does a trial court’s interlocutory ruling on a motion to modify a preliminary injunction affect a substantial right? The Court of Appeals quoted case law stating that the preliminary injunction order affected a substantial right, but a motion to modify a preliminary injunction seems like it could be a different beast. For example, just because you have the right to immediate appellate review of an interlocutory order does not mean that there is a right to immediate appellate review of a motion to reconsider that order—especially if the party failed to timely appeal the underlying order.  On the other hand, the trial court did modify the preliminary injunction. Perhaps the Court of Appeals’ decision in this case reflects an understanding that by modifying the prior preliminary injunction, the trial court had superseded the earlier preliminary injunction order (making any appeal from the initial order moot?). Alternatively, perhaps facts arose between the granting of the preliminary injunction and the motion to modify that resulted in the order to modify implicating substantial rights.  In any event, I would be surprised if the Court was implying that all orders denying a motion to modify affect substantial rights.

That said, if the motion to modify had not been immediately appealable, the Court of Appeals would likely have reached a different outcome on the final Tetra Tech issue: whether the trial court erred in imposing sanctions on the appellant for violating the preliminary injunction order.  The Court of Appeals concluded that under N.C. Gen. Stat. § 1-294, the trial court lacked jurisdiction to conduct contempt proceedings and impose sanctions because the preliminary injunction order was being challenged on appeal. While noting that the General Assembly had recently amended § 1-294 to create exceptions to the general rule that an interlocutory appeal divests a trial court of jurisdiction, the opinion also noted that the Supreme Court had not yet amended the Appellate Rules in response to this statutory change.

One last note on Tetra Tech.  The opinion is careful to explain that the trial court is free on remand to conduct contempt proceedings and to generally manage this case.  However, the opinion concludes by handing out some free case management advice.  A central issue in this case is apparently whether a North Carolina statute that invalidates certain types of forum selection clauses is enforceable for federal construction projects. The opinion suggested that “before the parties in this action pursue multiple, costly parallel suits in parallel jurisdictions, at considerable waste of judicial resources, it might be sensible for the trial court to … determine whose law applies at the site of these projects and thus whether the forum selection clause is enforceable or not.”

State v. Ledbetter & State v. Biddix

Second, an update on State v. Biddix and State v. Ledbetter.  If you recall, one hot-bed issue in criminal law has been whether Appellate Rule 21’s failure to explicitly reference a particular form of certiorari review means that the Court of Appeals 1) does not have jurisdiction to hear these petitions, and 2) if it has jurisdiction, is the Court of Appeals required to invoke Appellate Rule 2 to hear these certiorari petitions? We previously blogged on these issues here , here, and here. The Supreme Court appeared ready to weigh into this arena again based on a dissent from Judge Geer in Biddix. However, right before oral argument, the Biddix defendant-appellant withdrew his appeal. (Sigh!)

The Supreme Court recently remanded Ledbetter I to the Court of Appeals for reconsideration in light of the Supreme Court’s opinions in Thomsen and Stubbs.  These cases held that if certiorari review is statutorily authorized, the appellate courts have jurisdiction to issue these writs even if Rule 21 fails to specifically authorize a particular type of writ review. On remand in Ledbetter II, the Court of Appeals stated in response to the remand:

Our initial opinion in this case neither denies, nor purports to limit, this Court’s jurisdiction to issue the writ under N.C. Gen. Stat. § 15A-1444(e), or any other statute.  The issue in the present case does not pertain to the existence of appellate jurisdiction under the statutes. Rather, the issue pertains to the “govern[ing] procedure” and processes available to properly exercise our jurisdiction and guide our discretion of whether to issue a writ of certiorari, following a defendant’s guilty plea. Defendant’s petition, purportedly under N.C. Gen. Stat. § 15A-1444(e), does not invoke any of the three grounds set forth in Appellate Rule 21 to guide this Court’s discretion to issue the writ under this Rule to review her guilty plea.

Because “no procedural mechanism exists under that Rule to issue the discretionary writ of certiorari to review the trial court’s judgment … under N.C. Gen. Stat. § 15A-1444(e),” the Court of Appeals held that writ review could only issue if the Court exercised its discretion to invoke “Rule 2 to suspend the Rules”—which the Court declined to do.

Now that Judge Geer is no longer on the Court, it will be interesting to see if any other Court of Appeals judges adopt a more expansive view of Rule 21.   Petition for en banc review anyone?

Happy Holidays!

–Beth Scherer

 

The Supreme Court of North Carolina just adopted new Appellate Rule 31.1  entitled “Motions for En Banc Consideration by the Court of Appeals.”

While I am still digesting this rule, I noticed that Rule 31.1(d) states that the denial of a motion for rehearing en banc “will trigger the time for taking an appeal of right to the Supreme Court” or “filing a petition for discretionary review.” However, Rule 31.1(e) indicates that the mandate under Appellate Rule 32 is not automatically stayed by the filing of the motion for en banc consideration.  Instead, a party may apply for a stay under Rule 8.  Appellate Rules 14 and 15, which govern the time for appealing or filing a petition for discretionary review to the Supreme Court, both state that these appellate filings are due 15 days after the issuance of the mandate. If the mandate is not automatically stayed, how are these timelines calculated?

A few other highlights:

  • There are two criteria for en banc consideration: 1) review is “necessary to secure or maintain uniformity of the court’s decision” and 2) “the case involves a question of exceptional importance”
  • Motions for initial en banc consideration may be made before the case is heard by the panel, but the motion will not stay the time for briefing
  • Motions for rehearing en banc after the issuance of a panel opinion are due 15 days after the panel opinion is filed.  Note this is different than a petition for rehearing, which is due 15 days after the mandate issues (35 days after issuance of opinion).
  • New en banc briefs are not allowed as of right, but may be requested by the court. Rule 31.1 also does not contemplate the filing of amicus briefs. While amicus briefs are not specifically prohibited, the new rule states that “the case will be reconsidered solely upon the record on appeal, the motion for en banc rehearing, and any responses thereto, new briefs of the parties if requested by the court, and oral argument if the court decides to hear oral argument.”
  • “Entry of the en banc opinion vacates the original panel opinion.”  Presumably the filing of any new en banc opinion will trigger the mandate to issue 20 days later, thus restarting the familiar timelines for seeking review by the Supreme Court under Appellate Rules 14 and 15.  However, if the en banc decision replaces the panel decision, how does that interact with newly amended § 7A-30(2) which states that there is an appeal of right when there is “a dissent when the Court of Appeals is sitting in a panel of three judges” but that this appeal of right “is not effective” until the Court of Appeals sitting en banc has rendered a decision in the case?
  • If both a Rule 31.1 en banc consideration motion and a Rule 31 petition for rehearing are filed, the Court will rule on the motion for rehearing en banc first.
  • Unlike Rule 31, Rule 31.1 contains no prohibition on motions for rehearing en banc in criminal cases.
  • No prohibition or disfavor for en banc review of interlocutory opinions.
  • No specific provision allowing Court of Appeals to hear case en banc on its own motion

-Beth Scherer

A couple of years ago, the North Carolina Supreme Court found itself with a heftier docket, thanks to new laws like the Business Court Modernization Act that sent certain appeals directly to the Supreme Court.

If a bill introduced today in the General Assembly becomes law, the Court of Appeals will now have its own surprising increase in work.  Among many other things, Senate Bill 4 would:

  • Create en banc jurisdiction in the Court of Appeals, wherein a majority of the court’s fifteen judges could vote to hear a case as a full court;
  • Eliminate the direct appeal to the Supreme Court from orders finding an act of the General Assembly facially unconstitutional, returning jurisdiction over such appeals to the Court of Appeals; and
  • Make appellate judge and justice elections partisan again.

Our Court of Appeals judges have quite heavy workloads already.  This bill would impose a substantial burden on those fifteen judges, their law clerks, and the clerk of court and his staff.  Consider that nearly 600 petitions for discretionary review are filed every year in the Supreme Court.  Those petitions are granted at a rate of less than 10%, but they are filed anyway.  Thus, I think it is not unlikely that many would-be Supreme Court petitioners would, if this bill becomes law, first avail themselves of the new Court of Appeals en banc pathway, adding another step in the already arduous appellate journey.

It is also notable that the bill contains no procedures for how en banc hearings or rehearings would be sought.  If the bill passes, it becomes effective immediately.  The Supreme Court may be required to swiftly prepare appellate rules governing the new pathway.

Finally, it is worth considering the interplay between the en banc legislation and this, from Article IV of the North Carolina Constitution:

Sec. 7. Court of Appeals.

The structure, organization, and composition of the Court of Appeals shall be determined by the General Assembly. The Court shall have not less than five members, and may be authorized to sit in divisions, or other than en banc. Sessions of the Court shall be held at such times and places as the General Assembly may prescribe.

For Professor Orth’s take on the meaning of “other than en banc,” see here.

We will keep you posted as this bill progresses.

–Mat Leerberg

 

On March 20, the Supreme Court issued an opinion in In re N.M.W., No. 159PA25, 2026 WL 796105 (N.C. Mar. 20, 2026).  But as many of you know, I’m not here to discuss the holding or outcome of that case.  I want to talk about Justice Berger’s concurrence.

Background first.  Readers of this blog will undoubtedly be familiar with In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989).  This case stands for the proposition that one panel of the Court of Appeals cannot overrule another, also known as horizontal stare decisis.  As In re Civil Penalty explains: “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”

The concurrence in In re N.M.W. asks whether it is time to retire In re Civil Penalty.  Horizontal stare decisis, Justice Berger explains, can create a problem at the Court of Appeals and a loophole around North Carolina Supreme Court precedent.

Here’s the issue.  What happens when an initial Court of Appeals panel distinguishes and declines to apply North Carolina Supreme Court precedent?  Under In re Civil Penalty, is a later-in-time Court of Appeals panel bound by the initial panel’s decision or by the otherwise-applicable North Carolina Supreme Court decision?  If the former, wouldn’t that allow the second panel to bypass binding precedent of the North Carolina Supreme Court, the ultimate legal arbiter in our State. 

This has played out in the Court of Appeals time and again.  For instance, in State v. Mostafavi, 253 N.C. App. 803, 809, 802 S.E.2d 508, 512-13 (2017), reversed on merits, 370 N.C. 681, 811 S.E.2d 138 (2018), a later-in-time panel declined to follow existing Court of Appeals decisions because they conflicted with Supreme Court precedent.  Did that decision violate In re Civil Penalty?  Or did it properly follow the precedent of our highest Court?  That question was not addressed during the Supreme Court’s subsequent review of the case.

According to the concurrence, there’s no reason we should leave open that question at all.  If our Supreme Court has spoken, a panel should feel free to follow it, prior Court of Appeals precedents notwithstanding.

Aren’t there drawbacks to letting different panels come to different conclusions, though?  The concurrence has an answer for that as well:  en banc review by the full Court of Appeals.  

In a world where In re Civil Penalty is gone, en banc review could be invoked to resolve tensions between competing lines of Court of Appeals cases.  Or, if In re Civil Penalty is kept in place, couldn’t en banc review be the pathway for a second panel to unseat an earlier panel decision it disagrees with?

There’s also the practical overlay here.  In the 8 years since en banc procedures were created, the Court of Appeals has never actually sat en banc.  Should we rely on the fix promised by a procedure that is never actually deployed?

The appellate bar is abuzz in light of Justice Berger’s concurrence.  Is it time to discard In re Civil Penalty?  Or should it be kept in place, but clarified so that a Court of Appeals panel must always follow Supreme Court precedent, even if some prior panel thought it found a way to distinguish it?  That way, In re Civil Penalty would still encourage uniformity as to questions the Supreme Court has yet to reach.

What do you think?

In 1904, North Carolina Supreme Court Justice Robert M. Douglas wrote a separate opinion in a case called Westbrooks v. Wilson, 135 N.C. 400, expressing some reservations about the majority’s opinion.  He signed his opinion “Douglas, J. (dubitante),” using the Latin word for “doubting.”

No North Carolina judge has entered a “dubitante” opinion since.  Until now.

A panel of the North Carolina Court of Appeals issued three separate opinions in State v. Hardaway this week—a per curiam opinion, a concurrence by Chief Judge Dillon, and an opinion “concurring dubitante” by Judge Hampson. 

The case sadly involves a charge of first-degree murder, but along the way involves a fascinating question of statutory interpretation: does a drive-by shooting count as discharging a firearm “within” an enclosure under N.C. Gen. Stat. § 14-34.10?  As Judge Hampson sees it, the statute would have to say “from within” to cover a drive-by.  Alas, another panel of the Court of Appeals decided just a few weeks ago in State v. Jenkins that a drive-by does count under that statute.  Since one panel of the Court of Appeals cannot overrule an earlier panel of the same court on the same issue, Judge Hampson recognized that he was bound to follow it under In re Civil Penalty.  Chief Judge Dillon, in his State v. Hardaway concurrence, likewise found himself bound by State v. Jenkins.

This situation comes up a fair bit.  A Court of Appeals judge can’t really dissent when there’s a prior panel opinion on point, but might not want to fully embrace a prior opinion with which (s)he disagrees.

I, for one, think a “concurrence dubitante” is a concise way of flagging the conflict for further review, whether via en banc review before the Court of Appeals or discretionary review before the Supreme Court.

Although our fine state has been a stranger to the opinion dubitante for over a hundred years, that hasn’t been the case nationwide.  By my count, there have been about a dozen such opinions penned by federal circuit court judges over the last 24 months, although none here in the Fourth Circuit since, well, ever.

Want to learn more?  There’s a short law review essay on the topic.  Czarnezki, Jason J. (2006) “The Dubitante Opinion,” Akron Law Review: Vol. 39: Iss. 1, Article 1.  And the National Law Journal had a piece on it just last year.  Zoppo, Avalon (2024) “When in Doubt: What’s a Dubitante Opinion, and Why Do Judges Write Them?“

Will this become the next hot trend?  I’m dubitante.

On Tuesday, the Fourth Circuit issued an important opinion in United States v. Canada, No. 22-4519, holding that 18 U.S.C. § 922(g)(1) (the “felon in possession” statute) is facially constitutional even after Bruen—the Supreme Court’s current framework for testing criminal statutes for compliance with the Second Amendment.

First, background. Since 2022, Bruen has required courts to analyze such statutes using a two-step inquiry. Under the first part of that inquiry, the court determines whether the Second Amendment’s plain text covers the conduct. If the answer is yes, then the burden shifts to the government to show that the statute falls within the country’s historical tradition of firearm regulation. We have seen this applied across the country to criminal laws related to firearm possession—including recently here in North Carolina with the Radomski case.

Let’s start where the opinion does, explaining what it does not cover. This is not an as-applied challenge. (Check out Range v. Att’y Gen. United States of Am., 69 F.4th 96 (3d Cir. 2023) (en banc) for an as-applied challenge that was upheld by the Third Circuit). For that reason, the Fourth declines to wade into the full Bruen analysis.

Instead, the Court reminds us that no federal court has found 922(g)(1) to be facially unconstitutional—and the Fourth Circuit will not be the first. The statute is facially constitutional because it has a “‘plainly legitimate sweep’ and may be constitutionally applied in at least some ‘set of circumstances.’” So, for now, the government may continue to forbid people convicted of a felony from possessing firearms without running afoul of the Second Amendment.

922(g)(1) is not facially unconstitutional, but questions remain.  What is the definition of “people” under the Second Amendment, and where do convicted felons fit into this? What is the historical and traditional practice in our country of disarming dangerous people? What do we make of Supreme Court references in Heller and Bruen to “law-abiding citizens” and “longstanding prohibitions on the possession of firearms by felons”? Finally, does Bruen permit courts to revisit prior post-Heller decisions upholding the constitutionality of 922(g)(1)? The Fourth Circuit leaves those questions for another day.

Next, a South Carolina “criminal domestic violence” conviction is not a violent felony under the Armed Career Criminal Act, the Court held. That is because South Carolina “criminal domestic violence” can be committed with a mens rea of mere recklessness.  Under Borden v. United States, 593 U.S. 420 (2021), such a crime no longer qualifies as a “violent felony” under ACCA.

While the holdings here are simple, how the Court got here is not and highlights an interesting procedural mechanism available to the Fourth Circuit in many states but not here in North Carolina. As the opinion notes, the criminal intent necessary under state law to be found guilty of a particular state crime is determined by the supreme court of the state involved. If there is not a case directly on point, how does the Fourth Circuit get an answer? Well, in South Carolina they can certify a question to the Supreme Court of South Carolina. Look at the case that the Court references here, United States v. Clemons, No. 2022-001378, 2024 WL 1900632, at *4 (S.C. May 1, 2024), to see how the Supreme Court of South Carolina responded to the Fourth Circuit’s certified questions about mens rea in certain state convictions.

Interesting practice point. North Carolina is the only state in the country that does not allow a federal circuit court to certify questions to the state courts.  See Town of Nags Head v. Toloczko, 728 F.3d 391, 393 (4th Cir. 2013). Virginia does. See Rule 5:40, Va. R. Sup. Ct. Maryland does. See Md. Code Ann., Cts. & Jud. Proc. § 12-603. West Virginia does, too. See W. Va. Code §§ 51-1A-1 to 51-1A-13.  Longtime NC appellate practitioners may recall stalled efforts to amend our constitution to fix that omission a few years back.

-Morgan Reece

As some of our readers may know, I write a monthly column for North Carolina Lawyers Weekly. The topics are what I’d call appellate-adjacent. But this month’s column is right in the wheelhouse of this blog’s readership.

I was privileged to have Justice Dietz sit down with me for a long interview. You can check out the full interview on LinkedIn, where you’re free to leave a comment. You can also check out the print version here.

But there were lots of other interesting tidbits that didn’t make the print version but are likely of interest to the appellate bar.

The following is a grab bag of other snippets from my interview, in no particular order. But I think you’ll find it to be catnip for appellate nerds.

  • Working from home. Dietz has been a big fan of working from home, even before the pandemic. When he wants to focus on opinion drafting, he often works from home to avoid interruptions. Dietz lives just a few blocks away from the courthouse, so he can walk over for meetings even on days he plans on working from home.
  • En banc. Justice Dietz is among those who wish the Court of Appeals would sit en banc to clean up conflicting strands of its case law.
  • Strategies for petitions for discretionary review. Besides pointing to conflicts within the COA, “one of the surest ways to get a PDR allowed is to point out that something the court of appeals did is in conflict with a case from the Supreme Court.”
  • Handling petitions. Dietz wants a full revamp of how petitions are handled at the Supreme Court. He wants to follow the practice of the U.S. Supreme Court, where the petition is scheduled to be decided at an upcoming conference as soon as the response is filed. Right now, there’s a big disparity in how petitions get ruled on because each petition gets assigned to one chamber that’s working on it, and then sharing it with everyone else whenever it’s deemed ready. But there’s no timetable for the assigned justice to finish the memo. I can vouch for that: I’m in a case with a pending petition that’s about to have its second birthday. There’s no good reason for that. At a minimum, Dietz would like a way to communicate the status of the petition to litigants, so they don’t wonder whether the petition has fallen into a black hole.
  • Amici. Dietz considers amici to be “most important at the discretionary review stage.” That’s because the Court wants to know how important the decision is to people besides the litigants. One of Dietz’s priorities is trying to amend the appellate rules so that there’s a procedure for filing amicus briefs at that stage. Experienced practitioners know that such briefs are usually allowed, but the rule itself doesn’t contemplate filing amicus briefs at this stage.
  • Campaigning. Dietz also shared his thoughts on the lack of big-firm attorneys as appellate judges. In his words, running a campaign is “brutal.” Many of the most qualified appellate lawyers aren’t willing to put themselves through that.
  • State constitutional law. Dietz recently published a law review article on state constitutional law. He’s a fan of the work of Judge Jeff Sutton, a judge on the Sixth Circuit. Dietz believes that, for constitutional provisions unique to our state constitution, our state should have its own unique standards, not tiers of scrutiny from federal case law, which have their own, different historical context. Dietz wants litigants to help the Court in crafting rules that will sure that the spirit of what the people wanted lives on in the state constitution’s protections. If necessary, litigants should even look at how other states, with similar provisions, have put them to work. He thinks it’s fine for litigants to propose their own standards, even novel ones, so long as they explain how the test works and how it puts the constitutional principles its practice.

If you’ve regularly read my blog posts here over the past few years (in other words, if you are my mom), you will know that I find Fourth Circuit published denials of petitions for rehearing to be of particular interest.  Well, another one came out today.  Published Denial here.

This particular denial of rehearing en banc produced three written opinions.  After a 9-5 split of the judges against rehearing en banc, and a 2-1 split against panel rehearing, Judge Niemeyer wrote an opinion supporting the denial of rehearing en banc. Judge Motz wrote an opinion dissenting from the denial of rehearing en banc and voting to grant rehearing en banc, and was joined by Judges King, Wynn, and Thacker. Judge Wynn then also wrote an opinion voting to grant rehearing en banc, joined by Judges Motz, King, and Thacker joined.  Curiously, although Chief Judge Gregory was part of the group that voted in favor of rehearing, he joined neither Judge Motz’s nor Judge Wynn’s opinions advocating for that particular result.

According to Judge Niemeyer, “[a]t the root of this case lies the question of whether the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), overruled its earlier decision in Stinson v. United States, 508 U.S. 36 (1993), for determining the enforceability of and weight to be given the official commentary of the Sentencing Guidelines.”   In deciding the rehearing request, the Fourth Circuit judges grappled with questions of if and when the Fourth Circuit may conclude that the Supreme Court has overruled an earlier decision, especially when the nation’s highest court has not expressly said that it has done as much.  This question, in turn, raised the question of whether two opinions of Fourth Circuit panels on this substantive issue (including the opinion on which rehearing was being sought) are in irreconcilable conflict.

It’s an interesting read.  And, as is often the case when a petition for rehearing spawns a published denial, there is of course the chance that we may now see this case make its way to Washington, DC.  Stay tuned.

–Patrick Kane