By Michael A. Mahone, Jr.

The United States Court of Appeals for the Fifth Circuit recently dismissed the appeal in Comer v. Murphy Oil USA et al. because of the lack of a quorum. The appeal had been taken from the Southern District of Mississippi and a panel of the Fifth Circuit ruled on the merits. The case was then “voted en banc by a duly constituted quorum of the court consisting of nine members in regular active service who [were] not disqualified.” However, “[a]fter the en banc court was properly constituted, new circumstances arose that caused the disqualification and recusal of one of the nine judges, leaving only eight judges in regular active service, on a court of sixteen judges, who [were] not disqualified.” This, therefore, prevented the court from having a quorum.

Faced with this unique situation, the Fifth Circuit recognized that it could not conduct judicial business with respect to the appeal and could not reinstate the panel’s decision, as it had been vacated. So, the court instead chose to order the clerk to dismiss the appeal without ever having reached the merits. Judges Davis and Dennis both authored dissenting opinions. Judge Davis argued that Chief Judge E. Grady Jolly should have, pursuant to 28 U.S.C. § 291, appointed a judge from another circuit so as to constitute a quorum. Judge Dennis first argued that the court, in fact, had a quorum as the en banc panel included a majority of all of the judges who were not disqualified (rather than a majority of all of the judges). He also provided several additional arguments against the action taken by the majority: (1) because the panel’s decision was vacated, the en banc panel had a duty to decide the case; (2) the Rule of Necessity would require the disqualified judges to participate in the decision because the appellants’ constitutional right to an appeal would otherwise be infringed; (3) as Judge Davis argued, the court could have invited a judge from another circuit to participate in the decision; and (4) the court could have held the case in abeyance until an additional judge was appointed to the Fifth Circuit, assuming, of course, that this judge was not also disqualified.