By Derek Y. Brandt
Simmons Law Firm
Because exceptionally few cases ever result in U.S. Supreme Court review, we're accustomed to thinking that a ruling from one of the 12 U.S. Circuit Courts of Appeals is, for all practical purposes, the final say on the law.
And while we're all familiar with splits between the various circuits, at least in cases giving rise to a circuit split, the litigants in a given case receive the benefit of their own circuit's ruling, varied though it may be from a ruling another circuit might have reached. But what happens when the circuit simply can't reach a conclusion in a given case? That's exactly what happened in our own 7th U.S. Circuit Court of Appeals just two months ago.
Del Marcelle v. Brown County Corp., F.3d, 2012 WL 1816190 (7th Cir. May 17, 2012), involved a so-called "class of one" equal protection claim asserted against a Wisconsin county and law enforcement officers in that county. The plaintiff alleged that the defendants denied him equal protection by failing to respond to his complaints about harassment from gangs that forced him to sell his house and move to another village. The district court dismissed for failure to state a claim.
A three-judge panel of the appellate court was prepared to rule that the plaintiff's equal protection claim failed for its lack of any allegation that the state (in)action had been the result of some personal animosity toward the plaintiff. Before an opinion was issued, though, the 7th Circuit decided to hear the case en banc, hoping "that the judges might be able to agree on an improved standard for this difficult class of cases." 2012 WL 1816190 at *2 (Posner, J., "lead opinion"). Instead, the circuit came to a 5-5 tie (a single vacancy prevails in the 7th Circuit), thus yielding an affirmance, but no majority opinion. In what might be the only thing quirkier than an en banc tie, it is the 5-vote dissent — which would have remanded for further proceedings — that actually garnered the most votes. This was stacked up against Judge Richard A. Posner's four-vote "lead opinion" and Chief Judge Frank H. Easterbrook's opinion concurring in the judgment. The result was affirmance of the trial court's dismissal "because it takes a majority to reverse a judgment." Id. at *1 (per curiam).
Even if many have called a tie like kissing your sister, at least the plaintiff in Del Marcelle knows that the initial appellate panel was prepared to affirm dismissal anyway and that, ultimately, he received the benefit of the 7th Circuit's considered judgment.
That was decidedly not the case in the 5th Circuit's handling of Comer v. Murphy Oil USA in 2010. In Comer, Gulf Coast property owners sued various oil and energy companies, alleging that greenhouse gas emissions attributable to the defendants contributed to the increased potency of (and resulting damage from) Hurricane Katrina. The Southern District of Mississippi dismissed, ruling that the plaintiffs lacked standing and that the claims asserted nonjusticiable political questions.
A three-judge panel of the 5th Circuit reversed as to the plaintiffs' nuisance, trespass and negligence claims. See Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009).
This, however, was just where things got interesting. Although seven of the 5th Circuit's 16 judges initially recused themselves, nine judges — still a quorum — remained and six of those voted to rehear the case en banc.
Under circuit rules, this immediately vacated the panel's ruling and stayed the mandate to the district court. Then, according to the 5th Circuit, "new circumstances arose that caused the disqualification and recusal of one of the nine judges[.]" Comer v. Murphy Oil USA, 607 F.3d 1049, 1053-54 (5th Cir. 2010). The appellate court reasoned that this resulted in a loss of quorum and the inability to "transact judicial business." Accordingly, the appeal was dismissed. Id.
The effect of this series of events is a quirk far more confounding than in Del Marcelle. In Comer, there exists today no 5th Circuit decision on the merits of the appeal, even though each of the three judges on the initial appellate panel actually ruled that the district court's dismissal should be reversed. Instead, that duly-reached appellate decision was vacated by a court that ultimately was unable to preside over the case at all.
Thus, although powerless to rule on the case's merits and without issuing an en banc decision, the 5th Circuit "un-did" the panel's reversal and gave way to the district court's dismissal as the final judgment.
In Del Marcelle, there might be solace in the fact that the initial panel never issued a decision (and that, had it done so, it would have affirmed the district court). But in Comer, the panel did issue a written decision, now vacated, and notwithstanding that it was the highest-level decision reached on the merits of the case, it effectively was replaced by the contrary district court decision. We can all hope that this is not a situation that repeats itself in our nation's jurisprudence.
To close the loop, though, having failed in their bid for a writ of mandamus from the Supreme Court, the Comer plaintiffs refiled in the district court.
Earlier this year, the district court (again) dismissed and the plaintiffs have (again) appealed to the 5th Circuit.
Here we go again.