Litigation

Recusable, non-justiciable, dis-enbancable

By Carter Wood

When an eighth judge recused herself* from hearing the lawsuit on global warming damages, the U.S. Fifth Circuit of Appeals found itself without a quorum for en banc consideration of Comer v. Murphy Oil. The court on Friday determined it had no legitimate alternatives for hearing the appeal after the court had vacated the three-judge panel's ruling in anticipation of the en banc review. The result is that the U.S. District Court judge's original dismissal of the Comer lawsuit stands.

This is a strange one. What would have compelled a recusal after the en banc court had already been properly constituted? The Fifth Circuit would only say that "new circumstances arose." The Wall Street Journal speculated in an earlier editorial: "In Comer, did one of the more liberal Fifth Circuit judges buy stock specifically to blow up the quorum?" The Journal provides no evidence -- the court is not talking -- but the logic is that by blowing up the case, the recusing judge is pushing the global warming issue to the U.S. Supreme Court, increasing pressure for a political resolution of the policy issues. It's the judiciary's version of EPA's power play to regulate greenhouse gas emissions under the Clean Air Act: You don't like it? Legislate!

One can reasonably infer a legal strategy based on recusal from the fact the plaintiffs -- Mississippi residents trying to apportion blame and win cash for damages from Hurricane Katrina -- sued some 150 energy and industrial companies. (Having engaged in years of respiration, we breathed a sigh of relief at having escape the suit.)

The Fifth Circuit's order says the court considered alternatives:

• Asking the Chief Justice to appoint a judge from another Circuit pursuant to 28 U.S.C. § 291.
  
• Declaring that there is a quorum under the provisions of Federal Rule of Appellate Procedure 35(a).
  
• Adopting the Rule of Necessity, allowing disqualified judges to sit.
  
• "Dis-enbancing" the case and ordering the panel opinion reinstated, and issuing the mandate thereon.
  
• Holding the case in abeyance until the composition of the court changes.

In a dissent, Judge Eugene Davis, joined by Judge Carl Stewart, writes:

appeal. The five judges who entered this order reasoned that this result was mandated by our Local Rule 41.3, which provides: "Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate."

But Local Rule 41.3 is a "provisional, practical rule" not intended for this kind of circumstance -- the loss of a quorum -- and it makes no sense to it to have an impact on the merits of the case, Davis argued.

Lawyers we talk to cannot recall a similar case; the judges are making new interpretations of their rules based on a recusal occurring in the middle of the process.

All this makes us even more curious as to what the "new circumstances" were. Did they arise from a judge's politically motivated act or something more mundane? We demand transparency!

More from Howard Bashman at How Appealing. As of 9:45 a.m. Monday, we find no news (non-blogging) accounts of the court's action.

* Judge Davis identifies the recusing judge as a "her," but that doesn't narrow down things too much: Seven of the 16 judges on the Fifth Circuit are women.

Full post as published by Point of Law on May 31, 2010 (boomark / email).