The U.S. Court of Appeals for the Fifth Circuit is proposing an amendment to Circuit Rule 41.3, governing the effect of a granting a rehearing en banc. The proposed revision provides that if a motion for rehearing en banc is granted and the court subsequently lacks a quorum to decide the case en banc, the case will be returned to the original panel, the mandate reinstated, and the opinion issued as an unpublished, non-precedential opinion. The rule makes sense, even if it addresses a scenario that (one would think) is quite unlikely to occur.
Although there is no explanation accompanying the proposed amendment, it is clearly prompted by the recent case of Comer v. Murphy Oil, in which the precise scenario addressed by the rule occurred — and given that there was no rule in place, the original panel opinion was never reinstated. In Comer, the Fifth Circuit reversed the district court’s dismissal of a class action lawsuit against several energy companies alleging that their activities (including their greenhouse gas emissions) contributed to the intensity of Hurricane Katrina. The Fifth Circuit initially voted to hear the case en banc, vacating the panel opinion in the process, but then one of the judges recused, depriving the en banc court of a quorum. The case was then dismissed on the grounds that the absence of the quorum left the court unable to hear the case, or even to reinstate the panel opinion. (See the order and dissenting opinions here.) The plaintiffs subsequently filed a writ of mandamus with the Supreme Court, seeking to reinstate the panel opinion, but to no avail.
Although I think the initial Fifth Circuit opinion was in error, the result of the Comer proceedings was quite incongruous. If there were not enough judges to hear the case en banc, then en banc review should never have been granted, and the Fifth Circuit opinion should not have been vacated. What appears to have occurred here is that a conflict of interest was discovered, or came into being, after the conflicted judge had already participated in the vote to grant the en banc petition. As a consequence, the initial vote to rehear en banc (and vacate the decision) was procedurally proper and could not be undone as the recusal left the en banc court without jurisdiction to enter any additional orders. Following the rules as written resulted in a result that rubbed most observers the wrong way — hence the need for a revised rule. The proposed amendment will not do anything for the Comer plaintiffs, but it will fix this potential problem for future litigants — should this odd sequence of events ever actually recur.