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?
Anderson says:
Yes, that was a truly egregious move by the (rump) en banc court. I gave it a little analysis at the time.
August 27, 2010, 5:33 pmruuffles says:
There is now a nominee for said vacancy but don’t hold your breath Judge Dennis.
August 27, 2010, 5:58 pmml says:
I’m curious as to the reason why Comer is seeking review via mandamus as opposed to certiorari. Seems like mandamus is unnecessary if they can simply ask the supreme court to vacate and remand with instructions via certiorari.
August 27, 2010, 5:59 pmAnderson says:
I don’t know, ML, but one guess is that they don’t have an appealable order. Only a guess though.
I would’ve sought *both* if possible, cert and the writ, so as not to lose by finding out next year that you filed the wrong one.
August 27, 2010, 6:01 pmJay says:
That might make sense if this was a district court case and review was being sought in the court of appeals, but the certiorari jurisdiction statute (28 USC 1254) permits the SC to review, by cert, “Cases in the courts of appeals” “before or after rendition of judgment or decree.” So I don’t really understand what the deal is with the mandamus petition here either. Plus, even assuming 1291-type limitations on appellate jurisdiction, a dismissal would normally constitute a final, appealable, order.
August 27, 2010, 6:35 pmHouston Lawyer says:
I would dismiss the case because there is no relief that the court could enforce that would address the grievance at hand. You could put all of these people out of business and, even if AGW is true, it wouldn’t make any difference to anyone.
August 27, 2010, 7:10 pmFiftycal says:
The whole question is insane. I should be able to have my neighbor arrested because my neighbor killed a butterfly and, lacking the wind from it’s wings, I endured a year long drought that killed my trees. The lack of shade made my airconditioning bill go up and caused my airconditioner to overheat and explode. The exploding A/C caught my house on fire and the ensuing fire killed my cat. Thusly, my neighbor is guilty of animal cruelty and I should be able to sue him for $11 billion dollars.
August 27, 2010, 7:11 pmMartinned says:
But in this example, you’d certainly have standing and there’s no way this is a political question. I agree that the plaintiff’s shouldn’t win, but I don’t see how the District Court wound up dismissing the case as it did. AFAIK, it’s a fairly straightforward causation problem as you see them in nuisance law all the time.
August 27, 2010, 7:35 pmAnderson says:
The merits are irrelevant. The procedure here was a joke, and I defy any lawyer to demonstrate otherwise.
If the panel erred, reverse it.
August 27, 2010, 8:19 pmLior says:
The case is wholly without merit, but how could it raise a political question? Whether the actions of defendants contributed to the intensity of hurricane Katrina is a question of science. Whether this contribution was sufficiently foreseeable so as to be negligent is partly a question of science and partly a question of fact (whether a reasonable person at the time would have been aware of the science).
Yes, a ruling on the merits would have public policy implications, but this is generally true for tort cases and has never stopped the system from going forward, even in cases where similar public policy issues are debated in the political arena.
August 28, 2010, 12:57 amDavid Schwartz says:
Lior: The issue is not just whether it contributed and not just whether the damage was foreseeable but also whether this was the type of damage one has the legal right to do or the type of damage one does not have the legal right to do. That is a political question.
August 28, 2010, 6:02 amMartinned says:
Since when?
August 28, 2010, 6:18 amAnderson says:
Schwartz, got a case to cite?
August 28, 2010, 10:43 amRoscoe says:
Not so sure. The fact that a majority of the eligible Circuit judges voted for re-hearing en banc means that the panel decision was extremely unlikely to hold up. I can’t recall a case where an en banc rehearing resulted in just approving the initial panel opinion.
I do think that the Court could have tried a little harder to get around the lack of a quorum, for example by bringing in a district court judge, or a judge from another Circuit. On the other hand, I understand the desire to have the “law of the Circuit” decided by actual judges of the Circuit. So I would put this into the category of “wrong, but not unreasonable.”
August 28, 2010, 12:54 pmTexas Lawyer says:
Roscoe
In in re Volkswagen, a venue case, the en banc fifth circuit basically followed the panel opinion. So it happens
August 28, 2010, 2:11 pmkrs says:
Fiftycal’s basically talking about Palsgraf…
But there’s also an analogue in modern standing doctrine to the “fairly traceable” injury in fact requirement.
August 28, 2010, 2:40 pmruuffles says:
This happened in the Arar case in the 2nd ct. Panel dismissed on merits, en banc granted, en banc agreed with panel 7-4. I think there were changes in membership though, for example Sotomayor participated in the vote to take it en banc and in oral argument but was elevated before the final opinion.
Another notable case was the one about Clinton’s bombing on some drug factory in the DC circuit. Panel dismissed as political question, en banc granted, en banc reached same result as panel, though the splits might have resulted in different reasoning as panel.
August 28, 2010, 3:55 pmruuffles says:
I should add that when en banc is granted, the 3 judge panel opinion is vacated, resulting in the situation we have here if something goes awry with the en banc panel. In other words, the en banc opinion starts from scratch, and a judge doesn’t usually copypasta the previous panel opinion.
August 28, 2010, 4:23 pmConnecticut Lawyer says:
The only really interesting issue here is why the DC did not in the first instance assess Rule 11 sanctions against the plaintiffs.
August 28, 2010, 7:59 pmSF Alpha Geek says:
I don’t want to accuse the court of bad faith, but is it just possible that the en banc panel a) thought it was a silly case, and were horrified that the initial panel actually took it seriously, and b) thus thought it was a good place to make a point about the continuing vacancy on the court by not issuing a decision – if they wanted to put something out, even something that basically said “get out of my courtroom,” they could have designated a DC judge to sit on the panel.
August 29, 2010, 10:18 pmSCOTUSblog » Monday round-up says:
[...] the Volokh Conspiracy, Jonathan Adler reports on a petition for a writ of mandamus recently filed by the plaintiffs in [...]
August 30, 2010, 9:34 amMonday round-up Internet Related Technologies Monday round-up says:
[...] the Volokh Conspiracy, Jonathan Adler reports on a petition for a writ of mandamus recently filed by the plaintiffs in [...]
August 30, 2010, 9:55 amAnderson says:
I don’t want to accuse the court of bad faith, but is it just possible that the en banc panel a) thought it was a silly case, and were horrified that the initial panel actually took it seriously
En banc review could’ve solved that problem, by exercising the privilege to dismiss the case on grounds not argued below; I don’t think that the appellate court is *required* to ignore such grounds, where it’s a matter of law. Courts routinely affirm lower courts on different grounds than those argued.
No, I think “bad faith” is quite possibly the answer here, and I’m very disappointed with the five judges who pulled this.
August 30, 2010, 11:29 amMonday round-up | theConstitutional.org says:
[...] the Volokh Conspiracy, Jonathan Adler reports on a petition for a writ of mandamus recently filed by the plaintiffs in [...]
August 30, 2010, 1:16 pm