Saturday, May 29, 2010

A miscarriage of justice

Carefully timed for late Friday release on Memorial Day Weekend is the Fifth Circuit's unbelievable decision in Comer v. Murphy Oil, the "global warming caused Katrina" case that, rather surprisingly, obtained a panel decision reversing the district court's motion to dismiss. We had previously noted the case's going en banc, with only 9 judges hearing the case and 7 recused.

Well, since that time, another judge has found it necessary to recuse, depriving the en banc court of a quorum to hear the case. What's the result? The appeal is dismissed!
In sum, a court without a quorum cannot conduct judicial business. This court has no quorum. This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.
The rules provided for vacating the panel decision merely pursuant to the forthcoming en banc decision. The result, of course, is to dismiss an appeal that's been decided on the merits for appellants, through no fault of their own, not on the merits, but on a strained and suspicious hyperliteralistic application of the court's own rules.

If the SCOTUS doesn't grant cert here and reinstate the panel's decision -- which, remember, merely allows the case to proceed to discovery -- then it's going to be very difficult to avoid the conclusion that Americans can't sue Big Oil and win. And that the Fifth Circuit has some judges who are unclear on the concept of "justice."

... The ever-diplomatic Howard Bashman describes the decision as "curiouser and curiouser." Indeed.

... N.b. that the court dismissed the case on a hyperliteral interpretation of a local rule. But the five judges voting to dismiss -- Jolly, Smith, Clement, Prado, Owen -- chose to ignore another rule:
On its own or a party’s motion, a court of appeals may — to expedite its decision or for other good cause — suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).
None of the FRAP are binding on the court where good cause exists, which if it ever existed, it exists here. (Rule 26(b) merely forbids the court to extend time for filing an appeal beyond what Rule 4 allows.)

Just when you think you can't be any more appalled, you're more appalled. What a sorry stunt.


  1. I agree with you. I don't think much of the case, but I think even less of the way the appeal has been treated.

  2. Anderson check your voice mail - DLM