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Fourth Circuit Holds that Trial Court Cannot Prevent Appellate Review of Decision by Vacating that Decision After Appellate Proceedings Have Commenced

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.  Indeed, the respondent moved to dismiss the mandamus petition on mootness grounds after the district court vacated the gag order that was the subject of the appellate proceeding.  The Fourth Circuit rejected this argument.  The Court noted that in the usual case “a district court loses jurisdiction when the court of appeals assumes jurisdiction,” and thus a district court cannot ordinarily revisit an order while that order is on appeal.  However, the Court further recognized that mandamus presents an unusual case, such that it would not be appropriate to extend a “broad jurisdictional rule addressing district court actions during the pendency of a mandamus petition.” (For example, consider a mandamus petition seeking to force the district court to commence discovery in an action–it would seem odd to prevent the district court from commencing discovery simply because it had to wait until the circuit court of appeals addressed the mandamus petition.)  Nevertheless, in this particular situation, the Court held that the lower court’s decision to revisit the gag order while appellate review was pending was in error.  Judge Wilkinson’s opinion points out the potential “mischief” that could arise if such action were to be allowed:

Allowing the [district court’s] August 31 rescission of the June 27 gag order to stand would invite district courts to track cases on the appellate court’s docket, and when a reversal seemed possible or imminent, to pull the rug out from the appellate court and the parties.  This sets up an endless game of cat and mouse.  One need only contemplate the advisability of a court of appeals revisiting its opinions sua sponte on the eve of a Supreme Court argument to understand the inappropriateness of the course of action below.

Thus, the Fourth Circuit held that the district court’s order vacating its prior order, entered while jurisdiction over the original order was in the appellate court, was inappropriate and could not be allowed to moot the mandamus petition.  The Court then, after articulating additional reasons why the mandamus petition was not moot (“capable of repetition yet evading review”), denied the motion to dismiss and proceeded to address the merits of the petition, ultimately vacating the district court’s original gag order.

NOTE: this will be my last blog post as a Smith Moore Leatherwood attorney.  Beginning tomorrow, my colleagues and I will embark on an exciting new adventure as we merge our firm with Fox Rothschild.  See here.  But have no fear on this Halloween day, the North Carolina Appellate Practice Blog will continue on after the merger with very little change.  To the extent there is change, it will most assuredly be positive, and you may see posts from some of our new appellate colleagues at Fox as we expand both our geographic reach and our appellate bench strength.

–Patrick Kane

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