If you have had a case tentatively calendared for oral argument in the Fourth Circuit recently, then you likely received a notice to submit a specific form indicating whether you are aware of any cases currently pending in the Fourth Circuit or Supreme Court that raise issues similar to the issues raised in your case. That notice may have come as a surprise to you. But if you thought this request from the Court meant that there was something unique about your case, or that perhaps the Court was suggesting that there is a similar case on appeal, you were wrong. While that inquiry has long been on the docketing statement that an appellant must file at the outset of a Fourth Circuit appeal (the “Case Handling Requirements” section asks for “Identification of any case pending in this Court or Supreme Court raising similar issue”), the Court now will require both Appellant and Appellee to also specifically answer that question after the case is tentatively calendared for argument. You may receive the electronic notice to submit the form immediately after you receive notice that your case is being tentatively calendared, or you may receive it within a few days. But you will receive it. And when you do, don’t be alarmed (or excited)–it’s just the Fourth Circuit’s new procedure.
This new procedure raises a few questions: Why is the Court adopting it? What constitutes sufficiently “similar” such that one would identify another pending case on the form? What happens if you do, in fact, identify another case that you contend is similar? I suspect we will get some clarity on these questions as this new practice moves forward.
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