Global Climate Change Law Under Review: ... Comer v. Murphy Oil USA
July, 2010
by Amy R. Paulus and Michelle R. Valencic and Timothy F. Jacobs and Hillary R. Ahle and Amber N. Oleson
Fifth Circuit Loses Necessary Quorum To Rehear Comer v. Murphy Oil USA Resulting In Dismissal Of Comer Appeal; Plaintiffs Expected To Seek Supreme Court Review
Just three weeks before the scheduled en banc rehearing of the Comer v. Murphy Oil USA appeal, and after the filing of hundreds of pages of supplemental briefing, the Fifth Circuit Court of Appeals notified the parties that the oral argument scheduled for May 24, 2010 was canceled. The Order entered April 30, 2010 indicated that another judge had recused due to new circumstances, leaving only eight judges able to participate in the case. Consequently, the Fifth Circuit had lost the necessary quorum to reconsider the Comer appeal. Furthermore, as the Court had already vacated the three-judge panel’s decision to remand by voting to rehear the matter en banc, the disposition of the appeal remained uncertain.
On May 6, 2010, the Fifth Circuit issued another order which invited the parties to submit additional briefing to address potential avenues for resolution of the appeal given the unprecedented procedural quandary. Based on this briefing, the Fifth Circuit considered and rejected the following procedural options:
- • Asking the Chief Justice to appoint a judge from another Circuit pursuant to 28 U.S.C. §291;
- • Declaring a quorum under the provisions of the Federal Rule of Appellate Procedure 35(a);
- • Adopting the Rule of Necessity to allow the disqualified judges to sit;
- • “Dis-enbancing” the case and ordering the panel decision reinstated; and
- • Holding the case in abeyance until the composition of the court changes.
Ultimately, the Fifth Circuit reasoned that the loss of its quorum precluded it from conducting any judicial business with respect to Comer, including reinstating its panel decision. The Fifth Circuit dismissed the Comer appeal on May 28, 2010, leaving the plaintiffs to petition the Supreme Court of the United States for review of the District Court dismissal. Three of the eight acting justices dissented from the dismissal order, ardently arguing that the Fifth Circuit could and should have decided this appeal by application of the procedural options above.
We will continue to monitor all developments and provide updates on this landmark climate change lawsuit. Please contact our Global Warming and Climate Change Liability Coverage Team if you have any questions via CM partner Amy Paulus, apaulus@clausen.com, (312) 606-7848.
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