Waiver, Forfeiture, and Fundamental-Error Review after Sines v. Schoep: The Fourth Circuit’s Latest Word on Preserving Issues for Appeal

Introduction

The Fourth Circuit’s unpublished opinion in Elizabeth Sines v. Jeff Schoep, decided on 16 June 2025, arose out of the infamous “Unite the Right” civil litigation in Charlottesville, Virginia. Nine individual plaintiffs sued numerous white-supremacist organizers and participants, alleging a racially motivated conspiracy that culminated in violence during the 2017 rally. After a lengthy jury trial, the district court entered judgment for the plaintiffs on several federal and state counts and awarded compensatory and punitive damages.

Two defendants—Jeff Schoep, former head of the National Socialist Movement, and Christopher Cantwell, known as the “Crying Nazi”—brought separate pro se appeals, now consolidated as Nos. 23-1123 and 23-1125. Schoep challenged venue, pleadings, and joint-and-several liability; Cantwell challenged, inter alia, attorneys’ fees, discovery access, expert testimony, jury instructions, sufficiency of the evidence, and punitive damages.

Although the decision is unpublished and therefore non-precedential under Fourth Circuit Rule 32.1, it nevertheless clarifies several doctrinal points that appellate practitioners ignore at their peril—especially the strict application of waiver and forfeiture doctrines and the court’s framework for “fundamental-error” review in civil cases.

Summary of the Judgment

• Venue Transfer (Schoep): The district court correctly held that neither §1404(a) nor §1404(b) authorized transfer from Charlottesville to Lynchburg. Schoep waived appellate review by not briefing this ruling.
• Pleadings & Joint Liability (Schoep): Challenges raised for the first time on appeal were reviewed only for “fundamental error,” which the court did not find.
• Attorneys’ Fees (Cantwell): The court lacked jurisdiction to review magistrate-judge recommendations that had not been adopted by the district judge at the time of notice of appeal.
• New-Trial Motion (Cantwell): No abuse of discretion in denying a new trial; Cantwell waived or was estopped from complaining about discovery access after refusing severance.
• Expert Testimony & Evidentiary Rulings: District court’s harmless-error analysis under Southern States factors upheld; hearsay-based expert opinions satisfied Rule 703.
• Jury Instructions & Sufficiency of Evidence: Curative instruction was adequate; sufficiency arguments were largely forfeited for failure to comply with Rule 50(b); the one preserved argument failed on de novo review.
• Punitive Damages: Cantwell’s challenges moot after an amended judgment altered the award.
• Outcome: Judgment affirmed in full for both appellants; Cantwell’s IFP motion for transcripts denied.

Analysis

Precedents Cited and Their Influence

The precedents collectively guided the court’s step-by-step dismissal of each alleged error. Notably, the panel doubled down on the Milla / Olano “fundamental-error” lens—a searching but still rare corrective mechanism reserved for extraordinary circumstances. Similarly, Belk and Unitherm supplied the procedural scaffolding for shutting down Cantwell’s sufficiency attack.

Legal Reasoning

1. Waiver vs. Forfeiture:
   • Arguments omitted from an opening brief are deemed waived.
   • Arguments raised for the first time on appeal are forfeited and reviewed—if at all—for fundamental error.
   The court treated Schoep’s venue-transfer and joint-liability objections, and most of Cantwell’s evidentiary issues, under this dichotomy.
2. “Fundamental Error” Applied: Borrowing from criminal plain-error doctrine, the panel required Schoep to show (i) an error, (ii) that is clear or obvious, (iii) affecting substantial rights, and (iv) seriously impairing the fairness or integrity of the proceedings. He failed at multiple prongs.
3. Appellate Jurisdiction over Magistrate Recommendations: Because Cantwell appealed only the magistrate’s recommendations—not yet adopted—there was no final order under §1291, nor a collateral order under Cohen.
4. Discovery-Access/Due Process Claim: The panel emphasized Cantwell’s strategic choice to proceed jointly with co-defendants, invoking waiver and equitable estoppel to bar his renewed complaints.
5. Rule 50 Trap: The opinion is a textbook reminder that a mid-trial Rule 50(a) motion must specify the grounds, and a post-verdict Rule 50(b) motion must renew the same grounds. Failure forecloses appellate review.
6. Harmless-Error Framework for Untimely Expert Disclosures: The district court’s analysis under the Southern States factors insulated the evidentiary ruling, illustrating deference owed to trial courts.
7. Punitive Damages Mootness: Because an amended judgment had superseded the earlier award, Cantwell’s objections targeted a legal nullity—rendering the issue moot.

Impact on Future Litigation

Even though the decision is non-precedential, its meticulous application of waiver and forfeiture rules will likely be cited persuasively in subsequent Fourth Circuit briefing—and perhaps adopted as published authority in a future opinion. The ruling:

• Reinforces the circuit’s intolerance for “sandbagging” appellants who bypass trial-level objections.
• Signals that “fundamental-error” review in civil cases remains practically insurmountable.
• Clarifies the non-appealability of magistrate-judge recommendations absent district-judge adoption.
• Provides a roadmap for district courts assessing late expert disclosures and Rule 703 hearsay reliance.
• Warns litigants that the mootness doctrine can extinguish punitive-damage appeals after post-verdict adjustments.

Complex Concepts Simplified

Conclusion

Sines v. Schoep does not blaze new doctrinal trails, but it fortifies existing ones, delivering a cautionary tale about issue preservation. Appellants who neglect to object, to renew, or to brief with specificity will find the Fourth Circuit an inhospitable venue. The panel’s disciplined adherence to waiver, forfeiture, and fundamental-error thresholds underscores the judiciary’s commitment to orderly process and finality, reminding litigants that appellate courts are not forums for second-guessing tactical choices made below. The decision’s treatment of expert-evidence challenges, discovery grievances, and punitive-damages mootness rounds out a comprehensive affirmation of the district court’s management of an exceptionally complex, high-profile civil rights trial.

In the broader legal context, the opinion serves as an unofficial primer on appellate procedure in the Fourth Circuit and will likely be wielded by appellees seeking to uphold judgments where appellants failed to preserve their grievances—a small but significant legacy springing from the tumultuous events of Charlottesville.