Readers of this blog will recall the bizarre history of Comer v. Murphy Oil.  In 2005, Plaintiffs brought tort claims against major GHG emitters, claiming that those emissions, by causing global warming, led to plaintiffs’ damages from Hurricane Katrina.  The District Court dismissed, ruling both that plaintiffs had no standing and that the claims were really non-justiciable political questions.  The Fifth Circuit Court of Appeals reversed and remanded.  However, before the mandate issued, six of the court’s nine active, unrecused judges voted to hear the case en banc.  That vote also vacated the panel decision, leaving the District Court judgment in place until the full en banc panel could hear the case.

This is when Comer took a left turn.  Before the en banc panel could hear the case, an additional judge was recused, leaving the court without a quorum to hear the case.  In a truly Dickensian move, the court concluded that, while it had no quorum to hear the case, it did not need a quorum to dismiss the appeal, leaving the plaintiffs with only a right to petition the Supreme Court to issue a writ of mandamus, an uphill battle if ever there were one.  The Supreme Court denied the writ in 2011, thus leaving the plaintiffs with no opportunity to have their appeal heard.  Sounds like a due process issue to me.  I do believe that most lawyers – and most non-lawyers – would have said that there is an automatic right to an appeal from the district courts of the United States.  Silly us.

Plaintiffs weren’t quite done, however.  They basically just refiled the same case, in 2011.  The District Court again dismissed, this time on res judicata grounds.  After all, as a result of the odd happenings before the 5^th Circuit Court of Appeals, the original final judgment from the District Court was never disturbed.

On Tuesday, the 5^th Circuit affirmed.  The critical issue was the third element of the res judicata demonstration:  that “the prior action was concluded by a final judgment on the merits.”  The Court concluded that it had been.  As a purely legal matter, the Court was probably correct, as the Supreme Court, in United States v. Munsingwear, Inc., had previously declined “to create an exception to res judicata for ‘those who have been prevented from obtaining the review to which they are entitled.’”

The bottom line, though, is that the Comer plaintiffs’ claims now have a second stake through their heart.  The claims are gone, with no opportunity for appellate review (notwithstanding that they actually had appellate review for a brief shining moment, and had prevailed).  If that’s what the law says, then, to borrow from a different Dickens work, the law is an ass.

As a footnote, literally, to this case, the Court noted that its local rule has been changed to provide that, in the future, if the full court loses its quorum after taking a case en banc, the panel decision will be reinstated.  Cold comfort to the plaintiffs here.