In Hyman v. City of Gastonia, the Fourth Circuit in an opinion by Judge Karen Williams, joined by Judge Gregory and District Judge Floyd, held that it was without jurisdiction for the appeal pursuant to 28 U.S.C. 2105, which says simply: "There shall be no reversal in the Supreme Court or a court of appeals for error in ruling upon matters in abatement which do not involve jurisdiction."
I'm not at all sure that I understand what are "matters in abatement."
In Virginia civil procedure, we know that "pleas in abatement" have been abolished, and that statutes deal with the question of, for example, when and whether death, change of name, or marriage shall result in abatement of an action.
Of the Gastonia decision, Howard Bashman notes:
"Recognizing that "Section 2105 [of Title 28, U.S. Code] may be '[o]ne of the most commonly ignored provisions of the Judicial Code,'" today a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a decision refusing to ignore the statutory provision. . . .
Today's ruling arguably creates a circuit split and also criticizes other federal appellate courts for having construed the statutory provision in a manner that could cause federal appellate courts to give advisory opinions in violation of Article III's case or controversy requirement."