Fifth Circuit's dip stick decision not to decide Comer v Murphy Oil

I would be remiss if I didn’t yield this space to someone who said all that needs to be said better than any post I could compose – and with that I yield to TBA and A miscarriage of justice:

Carefully timed for late Friday release on Memorial Day Weekend is the Fifth Circuit’s unbelievable decision in Comer v. Murphy Oil, the “global warming caused Katrina” case that, rather surprisingly, obtained a panel decision reversing the district court’s motion to dismiss. We had previously noted the case’s going en banc, with only 9 judges hearing the case and 7 recused.

Well, since that time, another judge has found it necessary to recuse, depriving the en banc court of a quorum to hear the case. What’s the result? The appeal is dismissed!

In sum, a court without a quorum cannot conduct judicial business. This court has no quorum. This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because 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 rules provided for vacating the panel decision merely pursuant to the forthcoming en banc decision. The result, of course, is to dismiss an appeal that’s been decided on the merits for appellants, through no fault of their own, not on the merits, but on a strained and suspicious hyperliteralistic application of the court’s own rules.

If the SCOTUS doesn’t grant cert here and reinstate the panel’s decision — which, remember, merely allows the case to proceed to discovery — then it’s going to be very difficult to avoid the conclusion that Americans can’t sue Big Oil and win. And that the Fifth Circuit has some judges who are unclear on the concept of “justice.” (emphasis added)

… The ever-diplomatic Howard Bashman describes the decision as “curiouser and curiouser.” Indeed.

… N.b. that the court dismissed the case on a hyperliteral interpretation of a local rule. But the five judges voting to dismiss — Jolly, Smith, Clement, Prado, Owen — chose to ignore another rule:

On its own or a party’s motion, a court of appeals may — to expedite its decision or for other good cause — suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).

None of the FRAP are binding on the court where good cause exists, which if it ever existed, it exists here. (Rule 26(b) merely forbids the court to extend time for filing an appeal beyond what Rule 4 allows.)

Just when you think you can’t be any more appalled, you’re more appalled. What a sorry stunt.

A “sorry stunt” indeed – and a big h/t to Anderson!

6 thoughts on “Fifth Circuit's dip stick decision not to decide Comer v Murphy Oil”

  1. We live in the worst federl circuit in the country. Pure idelogues— who is for the appointment of judges? Only a fool.

    There’s a special place in you know where for many of the 5th Cir. judges.

  2. OOOOOOOOOOOOOwweeeeeeeeeeeeee”Curiouser and curiouser”-Hey, I’ll have to check Funk and Wagner’s on that one – but I’m not curious cause its clear these federal judges are and have been out of control for several years. Anyone chosen for a lifetime job has no incentive to do good and/or improve a work product.Just ask the Oakland Raiders and Jamarcus Russell. The original purpose of lifetime assignment was to give the judges independencce and job security in order to do constitional universal justice for the weak, as well as the strong. Yet it seems like everyday the wrong (ACLU,big oil,etc.) parties are dominating and we’re losing our Christian identity of our nation and without that we are doomed.I fear that BP will be the next big oil to dominate the Fifth Circuit despite the ecological and economic interests of the region the Circuit is to ideally represent. There needs to be some constitional amendment mechanism (recall vote after 6 years)to keep the federal judges honest and responsive to their grass roots constituants!!!!! OOOOOOOOOOOOOOOOOwweeeeeeeeeeeeee

    1. Well put George. If you recall the political buzzwords were judicial activism and run away juries. And while there always has been a certain amount of bench legislation through time the proper response was not to stack the bench with even more judicial activist.

      The result is ordinary citizens gave up very basic long held rights via tort reform. Worst part is the public was outright mislead or lied to by the politicians and the moneyed interests who owned them such as the US Chamber of Commerce and their major benefactors such as AIG’s Hank Greenberg. You remember that famous McDonald’s Hot Coffee case where the lady spilled coffee on her lap, sued and won a huge verdict? What you heard in the media about that case was mostly myth, in particular the TV news which completely failed to get the story right for the most part. Simply put, the public was punked by big business shills. (Those so interested in finding out a bit more on Sheila Birnbaum check the comments to the post.)

      So now the bench is stacked, especially at the 5th circuit with ideologues that will find a way to rule in favor of moneyed interests ever chance they get and they’ll make new law to do it if they have to. Make no mistake this case was a dog but instead of doing their jobs the 5th circuit instead tried to punk everyone. Two words fit this bunch: chicken $hit$.

      In Mississippi our Supreme Court was hijacked by the same ilk and in one famous case literally centuries of common law were overturned when a jury verdict in a wrongful death case was overturned with new fangled reasoning being the statute of limitation expired due to it beginning at the point of the injury causing the death, rather than the death itself. One Justice in particular, Jess Dickinson, beclowned himself as the opinion revealed him as a whore for big business.

      And to think a family lost a loved one/breadwinner and then were hosed by this small, greedy man that bought his way on the court. I wasn’t there when it happened but the nuns drilled into us that our country was not founded on such principles and I take them at their word.

      I like your idea of retention elections.


  3. I won’t speak for the Bayrat but I have several links going on Howard and the entire mess as we speak.

    The Warren wing at the Inn is almost full but we’re trying to make room.


  4. well, you said it, Nowdy, just when you think you’ve heard it all, you HAVEN’T!! (well, you said appalled)….


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