Writ of Mandamus Sought in Comer v. Murphy Oil

It’s a big week for climate change litigation.  In addition to the SG filing I noted below, the plaintiffs in Comer v. Murphy Oil, a public nuisance suit against multiple energy companies, have filed a petition for a writ of mandamus with the Supreme Court in an effort to revive their litigation.  It’s an interesting and unusual request, but this has been an interesting and unusual case.

Here’s some background.  The initial suit alleged that defendant energy companies’ contributions to global climate change contributed, in turn, to the intensity of Hurricane Katrina.  The district court dismissed on standing and political question grounds.  A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed, rejecting the political question claim and finding the plaintiffs had standing to assert inter alia their private and public nuisance claims.  The Fifth Circuit then agreed to hear the case en banc, and issued an order vacating the panel decision.  But then one of the nine judges on the en banc panel recused, leaving the court without an en banc quorum.  As a consequence, the court dismissed the case, claiming that the absence of a quorum left it no other choice and (here’s the kicker) prevented it from reinstating the since-vacated original panel opinion.  The Court’s order, including two dissenting opinions, is available here.

This placed the plaintiffs in a bit of a tough spot — hence the petition for a writ of mandamus asking the Supreme Court to direct the Fifth Circuit, if it still lacks an en banc quorum, to reinstate the appeal and return it to the original panel.   I was no fan of the fifth Circuit panel’s opinion, but this certainly seems like an inappropriate way to end a case, and would appear to deprive the plaintiffs of their appeal of right.  Definitely one worth watching.

I’ll post a link to the petition when I find it online.  In the meantime, I’ve copied the questions presented below the jump.

Where the litigants have perfected a right to an appeal under 28 U.S.C. § 1291, does the Circuit Court have a duty to render a decision?

When an en banc court loses its quorum after granting rehearing but before hearing argument en banc, can the remaining judges dismiss an appeal of right without a decision on the merits?

When an en banc court loses its quorum before deciding an appeal on rehearing en banc, does the
original panel maintain control over the case?