No dis-en bancing allowed


Before discussing a few recent Maine SJC decisions, the Fifth Circuit came down with a decision on May 28 of some generic appellate interest, and so I note it here – Comer v. Murphy Oil, USA,

This is one of the recent global warming cases.  In this one, various private plaintiffs sued various power companies in nuisance and other tort law for global warming, claiming that their greenhouse gas emissions aggravated the results of Hurrican Katrina.  The district court dismissed the case on justiciability grounds, lack of standing and a political question.  A Fifth Circuit panel reversed, 3-0, reinstating the claim (one judge specially concurred, suggesting that the complaint failed to state a claim, but adhering to the majority's decision to rule only on the justiciability issue).

The Court of Appeals then granted en banc review, vacating the panel decision.  In the May 28 decision, the Court dismisses the appeal.  This leaves the district court dismissal intact.

The Fifth Circuit has 16 judges.  7 of them had recused themselves when the petition for en banc review was reviewed – leaving a slim quorum of 9 to grant the petition (6:3).  After the petition was granted and the panel decision vacated, one of the 9 recused herself, killing the quorum.  A majority five of the remaining eight judges ruled that they couldn't reinstate the panel decision, couldn't or wouldn't invoke the rule of necessity or accept other arguments for going ahead with review without a quorum, and that meant the Court couldn't hear the appeal.  This in turn meant that the district court's decision was the final word, absent certiorari to the Supreme Court.

There were two dissents by a total of 3 of the 8 judges.  The three dissenters thought many options were available to hear the appeal — indeed, one dissent opined that the majority's reading of the quorum requirement in 28 U.S.C. s. 46 was wrong in the first place — that the rule doesn't require a majority of all generally active judges, but only those not recused.  (Note that the First Circuit, Rule 35.0(a), along with a couple of other circuits, defines quorum as a majority of all the judges, including the disqualified ones.)  In any event, in the dissents' view, the court had an absolute duty to hear the appeal, so the rule of necessity applied, "requir[ing] some or all of our fellow active circuit judges to set aside their recusals."  The dissents also opined that the majority's view was inconsistent, in that it found no power to act without a quourm, yet acted, by dismissing the appeal.  They also concluded that that the initial panel's decision should be treated as having been only provisionally vacated pending the outcome of the rehearing (which seems a little inconsistent in its own right - if that's correct, so the panel decision is reinvigorated, then where is the necessity to go forward with less than a quorum en banc?). 

The three dissenters to the decision were the three panel members who initially ruled to reverse the district court.