Fifth Circuit Dismisses Comer Appeal; Supreme Court Review Near Certainty
June 1, 2010
Global Warming Climate Change Law Update:
After voting to rehear the matter en banc, and subsequently “losing” the quorum necessary to do so, the Fifth Circuit Court of Appeals dismissed the appeal in Comer v. Murphy Oil USA in an order entered late in the day on Friday, May 28th. As a result, the plaintiffs may now petition the Supreme Court of the United States for review of the District Court dismissal.
In resolving the disposition of this appeal, given the loss of its quorum, 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 that there is a quorum under the provisions of the Federal Rule of Appellate Procedure 35(a);
- • Adopting the Rule of Necessity to allow 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. 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.
