On May 28, 2010, the U.S. Court of Appeals for the 5th Circuit
dismissed the appeal in Comer v. Murphy Oil, which
resulted in the reinstatement of the trial court's dismissal of
all claims against the energy company defendants. The court
dismissed the appeal for a very odd reason – the court
did not have a quorum of nine active members to hear the case,
because half of the members of the court had recused
themselves.
While a decision from the 5th Circuit affirming the district
court on the merits would have been preferable, and while lawsuits
seeking damages arising from climate change continue to be a threat
to oil, coal, chemical and power companies, this is still a welcome
victory for the defendants.
The trial court initially dismissed this lawsuit by Mississippi
property owners against numerous oil, coal and chemical companies
who alleged the defendants' activities contributed to climate
change and magnified the effects of Hurricane Katrina. The trial
court concluded that the plaintiffs did not have standing and that
the political question doctrine barred their claims.
On appeal, a panel of the 5th Circuit reversed on Oct. 16, 2009,
holding that the plaintiffs did have standing to pursue their
claims and that the political question doctrine did not apply. The
full 5th Circuit granted the defendants' petition for rehearing
en banc on Feb. 26, 2010, by a vote of 6-3.
In its latest ruling, the court found that because it no longer
had a quorum of nine active members to hear the case, it would not
hear the appeal on the merits. This was not unexpected, as the
court had announced almost a month earlier that it no longer had a
quorum to rule on the merits of the case. What was unexpected was
what the court decided to do as a result of this finding.
By a 5-3 vote, the court refused to reinstate the panel decision
that had been automatically vacated by local rule due to the grant
of rehearing en banc. The court reasoned that "[t]here is no
rule that gives this court authority to reinstate the panel
opinion, which has been vacated." Accordingly, the court
concluded that "[b]ecause 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 court rejected five other less-drastic options suggested by
the parties: (1) asking the Chief Justice to appoint a judge from
another circuit to sit by designation; (2) declaring that a quorum
existed by defining quorum as constituting a majority of
non-recused judges of the court; (3) adopting the Rule of Necessity
which allows disqualified judges to sit under certain
circumstances; (4) "dis-enbancing" the case and ordering
the panel opinion reinstated; and (5) holding the case in abeyance
until the composition of the court changes.
Dissents
Judge Eugene Davis, joined by Carl Stewart, dissented. He
declared that "[t]he dismissal of this appeal based on a local
rule has the effect of depriving appellants of their right to an
appeal and allows the local rule to trump federal statutes."
He also said that he found "an inexplicable disconnect between
the notion that a majority of the eight unrecused judges has no
authority to do anything except literally apply [the local rule
requiring that the panel decision be vacated] strictly as written;
yet they do have the authority to dismiss the appeal."
Judge Dennis also filed a blistering, 16-page dissent in which
he lamented that "the particular timing of one single
judge's recusal [was] being allowed to conclusively determine
the outcome of this case." Indeed, no reason or explanation
was given as to why Judge Jennifer Elrod saw fit to recuse herself
after voting in favor of rehearing the case en banc. He attacked
the majority decision as "shockingly unwarranted,"
"drastic," "precipitous," and "manifestly
contrary to law and Supreme Court precedents." He argued that
the court should have found that it did indeed have a quorum, and
also argued that even if it did not, it had an absolute duty to
hear and decide an appeal of right by applying the Rule of
Necessity, appointing a judge from another circuit, reinstituting
the panel decision, or holding the case in abeyance until the
vacancy on the court is filled.
Significance of the Decision
There are five significant implications as a result of this
decision.
1. Blunt Momentum of Climate
Change Litigation
The largest and arguably most visible
of the climate change lawsuits is once again dead, and now can only
be revived by the unlikely scenario of the U.S. Supreme Court
granting certiorari and reversing. This is obviously a welcome
result for the Comer defendants in the short term,
especially since it is as if the 5th Circuit panel decision never
occurred. At the very least, this decision will blunt some of the
momentum the plaintiffs' bar has achieved in climate change
litigation over the last nine months.
2. Winning the Battle but
Losing the War?
Though a win is a win, the result may
ultimately prove unsatisfying and even disappointing for the
defendants. Many observers predicted that the 5th Circuit en banc
would affirm the district court, setting up a clear split with the
2nd Circuit decision in Connecticut v. American Electric
Power (AEP) and making it likely that the U.S. Supreme Court
would accept certiorari of Comer, AEP,
or both. Simply put, the defendants and the energy industry in
general hoped that Comer would be the battle that would
win the climate change litigation war once and for all. That is
unlikely to happen now.
The U.S. Supreme Court is less likely
to accept certiorari of either Comer or
AEP without a true circuit split. And the litigation war
now shifts from the relatively defendant-friendly terrain of the
5th Circuit to the Kivalina appeal pending in the much
more plaintiff-friendly 9th Circuit. Rather than a resounding
victory for defendants, Comer may be viewed as little more
than a victory based on a technicality with little precedential
value, especially since there was no written decision by the
district court. Depending on what happens in the future,
Comer might be looked back on as a classic case of winning
the battle but losing the war.
3. Less Likely That U.S.
Supreme Court Will Review
Even if the U.S. Supreme Court was
inclined to view Comer as being a split with the
AEP decision, the procedural posture of Comer
makes it less likely for the court to grant certiorari.
Without any ruling on the merits at all by the 5th Circuit, the
U.S. Supreme Court would have to agree to review only the district
court decision, akin almost to a direct review. This would be
highly unusual and might be seen as "beneath" the court
to delve into such matters without a full appellate record. In
addition, the court is unlikely to agree to review the 5th
Circuit's decision because it was based on a local rule, and
the U.S. Supreme Court will almost certainly defer to the 5th
Circuit's interpretation of its own rule.
4. Recusal Issues for the
U.S. Supreme Court?
As discussed in a previous alert, the
mass recusal of members of the 5th Circuit in Comer begs
the question as to whether such recusals would be an issue for the
U.S. Supreme Court as well. Initial analysis suggests that it
would. Justice Samuel Alito has recused himself on several
occasions from cases involving ExxonMobil due to his ownership of
its stock. See, e.g., Exxon Shipping v. Baker; American Isuzu
v. Ntsebeza. Likewise, Justice Steven Breyer has recused
himself from cases involving BP due to his ownership of its stock.
See, e.g., New Jersey v. Delaware; Morgan Stanley Capital Group
v. Public Utility Dist. 1. Both ExxonMobil and BP are
defendants in the Comer suit.
Similarly, Justice Sonia Sotomayor
would also likely recuse herself due to her participation in the
Connecticut v. American Electric Power case when she was
on the 2nd Circuit. This is true even as to Comer since
the issues presented in Comer and American Electric
Power are so similar. Therefore, it is likely that Justice
Alito, Justice Breyer and Justice Sotomayor would recuse themselves
from the decision of whether to grant certiorari as well
as any merits decision. This would leave the Supreme Court with the
minimum quorum of six. If one more justice were forced to recuse,
then the U.S. Supreme Court would be unable to decide the merits
even if it wanted to. This is not unheard of in the U.S. Supreme
Court, and recently occurred in the case of American Isuzu
Motors v. Ntsebeza in 2008 when four justices recused
themselves.
In fact, if Justice Kagan is
confirmed, the chances that the U.S. Supreme Court will not have a
quorum is as high as 50/50. The last time a sitting Solicitor
General became a U.S. Supreme Court justice was Thurgood Marshall,
and he recused himself from approximately 57% of the court's
cases in his first term due to his duties as Solicitor General
(recusal in 98 of 171 cases). Justice Kagan could be expected to
recuse herself to a similar degree. This same point likely applies
to any appeal of Kivalina from the 9th Circuit as well.
However, it is worth noting that because the recusals
disproportionately affect the more liberal wing of the U.S. Supreme
Court, if certiorari is granted and the court is able to
move forward, any resulting decision would almost certainly be in
favor of the defendants.
Likewise, such recusals may also
affect the decision to grant certiorari. Four members of
the court usually must vote to consider the case in order for
certiorari to be granted (known as the rule of four). Even
if there is a bare-minimum quorum of six, all but two must agree to
review Comer. Though Roberts, Scalia and Thomas would
likely vote to grant certiorari for Comer or
AEP, the likely recusal of Alito means at least one more
justice would have to sign on. Ginsberg would be unlikely to do so
as would Kagan (assuming she did not recuse). That would leave
Justice Kennedy, who is unpredictable when ruling on environmental
issues (see Massachusetts v. EPA). It is far from
clear that Kennedy would vote to accept certiorari even
under normal circumstances, let alone the unusual circumstances
that now exist in Comer.
5. Renewed Dialogue on
Recusal Policies
One can expect a renewed dialogue on
recusal policies for appellate courts. The 5th Circuit has been
thoroughly embarrassed by this saga as evidenced by releasing its
decision on the Friday before Memorial Day in an attempt to draw as
little attention to it as possible. Indeed, it was clear the court
did not even know how to handle the situation, as it asked for
advice from the parties. Furthermore, a recent Wall Street Journal
editorial complained about the possibility of parties gaming the
judicial system by forcing mass recusals of judges. Defendants in
mass litigation should be cognizant of the possibility of recusal
of judges; should closely review judges' financial disclosures;
and should be aware of a court's recusal policy when analyzing
what strategy to take. Such policies vary widely from jurisdiction
to jurisdiction.
Comer highlights the
unpredictability of such litigation when numerous judges are forced
to recuse themselves, making the outcome that much harder to
predict.
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