The Fifth Circuit recently decided a case in an utterly bizarre and, in my opinion, completely unreasonable way that violated the Court's duty to decide cases properly before it and that deprived the parties to the case of their (statutory) right to a first appeal. I think this is an appalling result that has been underpublicized and that people ought to know about. Basically, the en banc Court of Appeals dismissed an appeal (i.e. took substantive action) on the ground that it lacked a quorum, and thus could not take substantive action. In doing so, it vacated a panel decision without ever providing a judgment on the merits from the court of appeals. (If you're reading this and thinking this is really geeky and technical, it only gets worse from here, so you might want to stop here. I'm not really a civil procedure specialist, but this has me really worked up and I want to let other law geeks know about this.)
Comer v. Murphy Oil is a case about global warming, although the substance of the case is completely irrelevant to the issue that I'm concerned about. The District Court judge dismissed the case on political question and standing grounds. I have no opinion as to whether that decision was substantively correct--it doesn't really matter for the issue I care about here. The plaintiffs appealed, and problems related to recusal cropped up immediately. The first panel to hear the case consisted of two judges (the third judge had a family emergency and missed oral argument); when one of the judges subsequently recused himself, the panel lacked a quorum, so the case was reassigned to a new three-judge panel, which reversed the district court and reinstated the case. For people who aren't familiar with federal procedural rules, in almost all cases, including this one, there is a right to an appeal to a three-judge panel of the court of appeals. Note that this doesn't mean that the plaintiffs would win, just that they would get to proceed further in the trial court. This decision matched a decision in a similar case from the 2nd Circuit, although several other trial courts have gone the other way. The defendants petitioned the full Fifth Circuit for a rehearing en banc (meaning a rehearing by all of the active judges of the circuit). There is no right to an en banc rehearing, but courts of appeals can grant them in appropriate cases.
Many of the judges on the Fifth Circuit had conflicts of interest and recused themselves-- 7 out of 16. But nine judges is a quorum, and they voted, 6 to 3, to rehear the case en banc. By a local rule of the Fifth Circuit, when rehearing en banc is granted, the panel decision is vacated--rendered a legal nullity. So far, so good. Here's where it gets bizarre. After rehearing en banc was granted, one of the judges recused herself--apparently because of a newly developed conflict, although I don't know if that's actually supported by any evidence beyond her say-so. So that left the en banc court with a problem. Their interpretation of the statute defining a quorum is that it requires nine judges (a majority of the total number of active judges) to constitute a quorum. So, the eight judges left then voted, 5 to 3, to apply the law to the facts of the situation, and to dismiss the appeal. You can get the order in Comer v. Murphy Oil here
. Mind you, they didn't dismiss the en banc proceeding--they dismissed the entire appeal, reinstating the district court opinion that had been reversed by a panel. It's at this point that I start screaming foul and wondering when a referee will give the members of the Court red cards for blatantly violating the rules and spirit of the game. (Or something like that.)
Apparently, they didn't have a quorum to do anything, but "dismissing an appeal" is somehow not doing anything? And it's worth noting that they say that they lack a quorum so they can't "transact judicial business," but that they can still state the facts as they exist and apply the rules to the facts--but what does it mean to transact judicial business except to (A) make findings of fact, (B) make holdings of law, and (C) apply the law to the facts? What they claim to have the power to do without a quorum is precisely to "transact judicial business"--exactly what they just said that they could not do without a quorum. Likewise, I find it shocking that they would consider a local rule vacating a panel decision as justifying violating a federal statute that umabiguously provides for a right to a first appeal.
The Fifth Circuit suggests that it had no choice, but this is blatantly wrong. First, the chief judge could have asked the Chief Justice of the United States to designate another judge to sit by designation (may I suggest that one of the retired justices would have made a good choice?) to fill the quorum of the Fifth Circuit. Second, if they had the power to dismiss the case, they surely had the power to conclude that the grant of en banc rehearing was not valid in the absence of a court capable of hearing it en banc, restoring the panel decision. Third, they could have applied the Rule of Necessity, which allows judges to hear cases even when conflicted out if the alternative is the failure of a court to function. Fourth, they could have waited for new appointments to render the court able to hear the case en banc--leaving it pending due to a lack of any court capable of taking any action (the logical consequence of a strict interpretation of quorum requirements) until such time as a court can hear it. Fifth, (although not mentioned by the dissents), they could have declared that in the absence of a quorum and in the absence of an in-force panel decision, the case should be reassigned to a new panel for rehearing. Instead, they took the extraordinary and totally unjustified step of failing to actually provide a substantive ruling on an appeal as of right.
This is monstrously irresponsible behavior on the part of the Fifth Circuit. And it is particularly troubling because it smacks of judges manipulating the interpretation of the most formal rules of the court to produce the outcome they want. Five of the eight judges left on the en banc court voted to grant rehearing--they probably all wanted to reverse the panel decision. They lacked a quorum to actually reverse it--and that would have created a clear circuit split anyway. So instead, they reversed it without admitting that they had reversed it, leaving no court of appeals decision from which to appeal to the Supreme Court. (They assert that a petition for certiorari would remain proper, and I assume that they are correct--but that's a pretty hollow hope.) Madness.
I hope that the Supreme Court accepts cert simply for the purpose of rejecting this insane procedure of the Fifth Circuit.