Last week, the Fifth Circuit decided Comer v. Murphy Oil USA, Inc.. Here are some excerpts:
Plaintiffs first filed suit in the Southern District of Mississippi in 2005, alleging that emissions by energy company Defendants “[c]ause[d]” global warming which, increased the “[d]estructive [c]apacity” of Hurricane Katrina, which, in turn, damaged the class members’ property. Plaintiffs asserted claims of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy against the companies.
The district court dismissed the case with prejudice, holding that Plaintiffs lacked standing, and that their claims were not justiciable under the political questions doctrine.
A panel of this court reversed and remanded, in part, the district court’s decision.
. . .
The same group of Gulf Coast residents and property owners filed a new complaint in the Southern District of Mississippi in 2011. They asserted nuisance, trespass, and negligence claims arising from Hurricane Katrina against many of the same energy companies.6 They acknowledged that “this cause of action was filed originally” in 2005.
The same district court again dismissed their claims. The district court held: that their claims were barred by the doctrine of res judicata, and the applicable statute of limitations; that their claims raised nonjusticiable political questions; that their claims were preempted by the Clean Air Act; that they could not establish proximate causation; and that they lacked Article III standing.
Before the panel opinion’s mandate issued, six of this court’s nine active, unrecused judges—seven of this court’s then-sixteen active judges were recused—voted to rehear the case en banc, in the process vacating the panel’s opinion under then-Fifth Circuit Rule 41.3.2 However, before the en banc court reheard the case, an additional judge was recused, leaving only eight active,
unrecused judges.
Five of the remaining eight judges issued an order dismissing the appeal for lack of a quorum. Comer v. Murphy Oil USA, 607 F.3d 1049, 1053-55 (5th Cir. 2010). They reasoned that “[a]bsent a quorum”—that is, less than a majority of “all circuit judges in regular active service,” 28 U.S.C. § 46(c)—“no court is authorized to transact judicial business.” Id. at 1054. They explained that “[t]he absence of a quorum, however, does not preclude the internal authority of the body to state the facts as they exist in relation to that body, and to apply the established rules to those facts.” Id. Finally, they observed that “[t]he parties, of course, now have the right to petition the Supreme Court of the
United States.”
. . .
In sum, the district court correctly held that true res judicata bars Appellants’ claims because the district court’s judgment in Comer I was final and on the merits. Because true res judicata compels good repose and bars Appellants’ claims, we do not need to address whether collateral estoppel applies, see Osherow, 200 F.3d at 391, or decide Appellants’ other claims.
