Fifth Circuit Quorum Conundrum Revisited: Proposed Rule Amendment on Grants of En Banc Review

We covered earlier the strange turn of events in Comer v. Murphy Oil USA, a class action lawsuit against several chemical and energy companies alleging that their operations “caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina.” Here's how things unfolded:

(1)    District court dismisses the case on political question grounds.

(2)    Fifth Circuit panel reverses [585 F.3d 855 (2009)] and remands for further proceedings.

(3)    En Banc Fifth Circuit grants rehearing, which automatically vacated the panel opinion. Due to several recusals, only nine of the sixteen judges voted.

(4)    An additional Fifth Circuit judge is recused, leaving only eight judges—one less than a quorum—to hear the case en banc.

(5)    A majority of the quorum-less en banc Fifth Circuit reinstates the district court’s order dismissing the case. It does not reinstate the validly issued Fifth Circuit panel decision that had reversed the dismissal. It reasoned:

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 Fifth Circuit has now proposed an amendment that would prevent this situation from arising in the future. New Fifth Circuit Rule 41.3 would read:

41.3 Effect of Granting Rehearing En Banc. Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate. If, after voting a case en banc, the court lacks a quorum to act on the case for 30 consecutive days, the case is automatically returned to the panel, the panel opinion is reinstated as an unpublished (and hence nonprecedential) opinion, and the mandate is released. To act on a case, the en banc court must have a quorum consisting of a majority of the en banc court as defined in 28 U.S.C. § 46(c).

For commentary, check out Prof. Jonathan Adler (Case Western) at The Volokh Conspiracy, and Aaron Bruhl (Houston) at PrawfsBlawg.

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(Hat Tip: How Appealing)