Fifth Circuit Loses Necessary Quorum To Rehear Comer, Leaves Comer Status In Limbo
May 7, 2010
Global Warming Climate Change Law Update:
Just three weeks before the scheduled en banc rehearing, and after the filing of hundreds of pages of supplemental briefing, the Fifth Circuit Court of Appeals notified the parties to Comer v. Murphy Oil USA that the oral argument scheduled for May 24, 2010 was cancelled. The Order entered April 30, 2010 indicates that another judge has recused due to new circumstances, leaving only eight judges able to participate in the case. Consequently, the Court no longer has the necessary quorum to reconsider this case on its merits.
Procedurally, the Fifth Circuit has already vacated the three-judge panel’s decision to remand; thus, it is unclear how this case will proceed. The defendants immediately filed papers seeking reinstatement of the rehearing for practical reasons. Absent a rehearing, however, the Fifth Circuit could reinstate the three-judge panel’s decision, or decide to throw it out. If the panel’s decision is thrown out, the district court decision would become controlling law, forcing Plaintiffs to appeal to the U.S. Supreme Court. Accordingly, the recent turn of events could result in an expedited petition for cert from the U. S. Supreme Court.
On May 6, 2010, the Fifth Circuit issued another order inviting the parties to address the matter “as they think appropriate” but specifically directing them to analyze the interplay between the following rules and statute in resolving the disposition of the appeal: Fed. R. App. P. 35(a), 28 U.S.C. §46 (c) and (d), Fed. R. App. P. 41 (a) and (d) (1), 5th Cir. Local Rule 41.3, and Fed. R. App. P. 2. The Court also instructed the parties that they may consider the rulings of Chrysler Corp. v. United States, 314 U.S. 583 (1941) and North American Co. v. Securities & Exchange Comm’n, 320 U.S. 708 (1943) and the Rule of Necessity. The Order states that each side is requested to file one 12 page letter brief by May 12, 2010. The parties will then be allowed to respond to the opposite filings in six page letter briefs to be submitted by May 17, 2010.
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.
