Regular readers may remember that last fall, a three-judge panel of the Fifth Circuit Court of Appeals quietly issued an opinion on a Friday afternoon in Comer v. Murphy Oil Co., holding that plaintiffs who blamed Hurricane Katrina on climate change caused by energy, mining and oil companies had standing to bring a claim and were not precluded by the political question doctrine. I discussed that opinion here.
Not surprisingly, the defendants petitioned for rehearing en banc. The Fifth Circuit granted the petition, but before oral argument could be held, another judge recused, making the total number of unrecused judges less than a majority of the court. The Fifth Circuit directed the parties to address what should be done where there was no longer a majority of the court available to hear the en banc appeal.
True to form, the Fifth Circuit once again dropped an important opinion in this case on Friday afternoon, and it managed to garner virtually no media attention over the weekend.
The panel of eight judges in Comer v. Murphy Oil Co. issued an opinion that surprised most of those who had made predictions about what the Fifth Circuit might do: it dismissed the appeal, observing that the prior opinion and judgment of the three-judge panel had been properly vacated when nine judges voted to rehear the case en banc. Now that there were only 8 judges, the majority reasoned, they did not have a quorum to hear the appeal and could do nothing more than dismiss it. They could not re-instate the three-judge panel's opinion, they reasoned. And so that panel's prior opinion and judgment remain vacated. (Most commentators had predicted the Fifth Circuit would leave the three-judge panel's opinion and judgment in place.)
This, of course, creates a tremendous mess for those seeking to appeal to the U.S. Supreme Court. And it threatens to overshadow the underlying substantive legal issues with a potpourri of procedural arguments.
A good preview of those arguments can be found in the dissents. The three judges who had authored the original Comer decision made impassioned arguments as to why the court could hear the case. Judge W. Eugene Davis (a Reagan appointee), submitted a dissent in which Judge Carl E. Stewart (a Clinton appointee) joined, agreeing that the Fifth Circuit had lost its quorum of judges to hear the case en banc, but arguing that the rule vacating an opinion once rehearing was granted was never meant to permanently vacate an opinion if the en banc appeal could not be heard. He also urged that the acting Chief Judge had the authority to request the appointment of a Circuit Judge from another Circuit to sit by designation.
Judge James L. Dennis (a Cllinton appointee who wrote the original Comer decision) wrote a much longer dissent. Judge Dennis stressed the fact that the Fifth Circuit has a duty to decide all appeals that come before it. By leaving the prior decision vacated, the court was breaching its duty to decide, he argued.
The court had plenty of ways in which to rehear and decide the appeal, Judge Dennis admonished. First, its reading of the statute requiring a quorum was wrong, he said. The rule only requires a quorum of non-disqualified judges, not all judges. Thus, the 8 remaining judges could decide the appeal, he said.
Moreover, he agreed with Judge Davis that the Acting Chief Judge had the authority to request appointment of a judge to sit by designation.
The Fifth Circuit has a vacancy, Judge Dennis reminded the court, and thus it also could delay decision on the matter until President Obama fills the vacancy. (The majority had rejected this approach as possibly taking months, and even then presenting the possibility that the new appointee would have a recusal problem.)
Judge Dennis also included a lengthy discussion of the so-called Rule of Necessity, in which judges who ordinarily would recuse themselves from a matter decline to do so where doing so would prevent the ability of the court to decide the question. Judge Dennis encouraged the court to invite those judges who had recused themselves to re-visit the question in light of the Rule of Necessity.
Judge Dennis took issue with the majority's argument that it had no power to do anything other to dismiss the appeal. Indeed, he argued that dismissing the appeal was in fact a decision not to take a number of different courses of action:
[T]he majority's dismissal in this case is a decision to reject several legally valid courses of action, not a merely ministerial application of settled rules as the majority suggests. It is therefore inconsistent with the majority's own rationale, which is predicated on the claim that we lack a quorum and therefore lack the power to take any action in this case. . . . The majority instead has decided to dismiss a case over which we have jurisdiction, thereby violating the longstanding rule, dating back to Cohens v. Virginia, that we lack the power to decline to exercise the jurisdiction that has been conferred on us. Because this court has an absolute duty to render a decision in this appeal, I respectfully dissent.
Dennis' dissent at 23.
You can bet that the certiorari petitions to the U.S. Supreme Court will be chock full of arguments as to why the Fifth Circuit was wrong not to decide the Comer appeal. But the real underlying question remains more important: Do victims of natural disasters have standing to sue a subset of those who allegedly contribute to "climate change" based on the hypothesis that the disaster might have been milder if the ocean had been a few degrees cooler? The causal chain on such climate change theories are simply too attenuated to support legal standing. And the sooner we get a definitive ruling from the Supreme Court on that issue, the better off we'll be.