We have reached a denouement of sorts in the “blame XYZ companies for causing global warming which caused Hurricane Katrina which damaged my property” lawsuit that I’ve previously discussed and in which Cato filed an amicus brief. When last I blogged about this, the Fifth Circuit had apparently lost its en banc quorum — a late judicial recusal left only 8 of 16 judges available to hear the appeal — and was figuring out what to do.
Well, on Thursday the court issued an order determining that it lacked a quorum, but that the panel opinion — the one that allowed the tendentious causation claims to proceed — remained vacated. The money quote: “In sum, a court without a quorum cannot conduct judicial business.… 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.” This means that the district court opinion dismissing the suit stands, though plaintiffs are free to seek Supreme Court review. Not surprisingly, the three judges on the panel dissented from this order (which means that the order was decided by a 5–3 vote).
The upshot of all this is that the plaintiffs ended up botching their strategy of suing companies whose shares are owned by Fifth Circuit judges. This clever legerdemain successfully removed seven judges, but that left a quorum of nine. Of course, had the late‐recusing eighth, Jennifer Elrod — who would’ve been expected to rule against the plaintiffs — recused when the first seven did, the court could not have vacated the panel opinion in the first place. We’ll never know what happened after the court’s prior decision to grant rehearing that caused Judge Elrod to recuse, but at least we’re left with the second‐best result: no strong decision from an important federal appellate court, but the reinstatment of the correct decision below.
