Thursday, May 16, 2013

Sequel to the Fifth Circuit’s Quorum Conundrum: Comer v. Murphy Oil II

Two years ago we covered the strange set of developments in Comer v. Murphy Oil USA, a class action lawsuit against a number of chemical and energy companies based on their alleged contribution to climate conditions that exacerbated the force and effect of Hurricane Katrina. The district court had dismissed the case on political question grounds, but a Fifth Circuit panel reversed — rejecting the political question argument and finding that the plaintiffs had standing. See 585 F.3d 855 (2009).

The en banc Fifth Circuit granted rehearing, although due to several recusals only nine of the sixteen Fifth Circuit judges were able to vote. Then one of those nine judges recused, thus depriving the en banc court of its quorum. However, the quorum-less en banc court chose not to revert to the Fifth Circuit panel’s decision, which would have reversed the district court’s dismissal and remanded the case for further proceedings. Rather, the quorum-less en banc court (per five of the remaining eight judges) dismissed the appeal in its entirety, thereby reinstating a district court ruling that had already been unanimously reversed by a three-judge Fifth Circuit panel. See 607 F.3d 1049 (2010).

In 2011, the plaintiffs filed a new lawsuit alleging many of the same claims. This week, a Fifth Circuit panel affirms the dismissal of that lawsuit, finding it barred by res judicata. In Comer II (No. 12-60291, May 14, 2013), the panel concludes that — despite the unusual chain of events at the Fifth Circuit two years ago — the first lawsuit satisfied all the elements of res judicata: “(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.” [Slip Op. 7]


(Hat Tip: David Coale)

Federal Courts, Recent Decisions | Permalink


I continue not to understand why FRAP 2 didn't militate heavily in favor of reinstating the panel op. It looked very much like a procedural trick to undo a substantive result. Anyone who can explain otherwise & restore my faith in the court?

That said, hard to see how res judicata doesn't apply now.

Posted by: Anderson | May 16, 2013 2:18:11 PM

Arnold v. Eastern Airlines, Inc., 712 F.2d 899 (4th Cir. 1983), held that only the non-recused judges should be counted in the en banc vote.

Posted by: Frederick C. Schafrick | May 17, 2013 9:09:10 AM

Post a comment