The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Unencumbered by any law, my personal view is that the district court probably got it right and the underlying lawsuit is passing strange and nonjusticiable.  But it is equally strange that there is now no appellate ruling declaring that to be so.  

The en banc court did not review the merits, the district court opinion essentially became law of the case.  Why?  Because The United States Court of Appeals for the Fifth Circuit lost its quorum and ceased to exist as an adjudicative body.  Judge Davis, a member of the Panel, dissented to the dismissal of the appeal and explained:

[A] panel of this court, after full consideration of the briefs and oral argument, decided appellant’s appeal. Appellee then applied for en banc rehearing and a vote was taken. Only nine of the seventeen active judges were unrecused and qualified to participate in a vote. By 6 to 3, the nine qualified judges voted to grant rehearing en banc. Shortly after the case was voted en banc, one of the six judges voting for en banc declared herself recused thereby causing the court to lose its quorum. Instead of declaring that the loss of a quorum automatically dis-en banced the case causing the case to return to its status before it was voted en banc, five of the eight remaining unrecused judges voted to enter the attached order dismissing the appeal. The five judges who entered this order reasoned that this result was mandated by our Local Rule 41.3, which provides: “Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate.”

So there was no more Panel Opinion, but no body capable of adjudicating the case.  Judge Dennis, also a member of the panel, dissented to the dismissal and saw no need for such an outcome:

It is worth emphasizing once more that the majority’s dismissal of this case is a decision to reject several legally valid courses of action, not a merely ministerial application of settled rules as the majority suggests. It is therefore inconsistent with the majority’s own rationale, which is predicated on the claim that we lack a quorum and therefore lack the power to take any action in this case. Despite our supposed lack of power, the majority has made the decision not to recognize that we have a quorum under 28 U.S.C. § 46; not to follow the example of the Supreme Court in North American Co.; not to invite an outside judge under 28 U.S.C. § 291; and not to apply the Rule of Necessity under Will. The majority has instead decided to dismiss a case over which we have jurisdiction, thereby violating the longstanding rule, dating back to Cohens v. Virginia, that we lack the power to decline to exercise the jurisdiction that has been conferred on us. Because this court has an absolute duty to render a decision in this appeal, I respectfully dissent.

Whether one sides with Judge Dennis in believing that the Court does have power to proceed or with the former en banc majority in believing that it does not, one thing probably ought to spark some agreement.  This Court, one of the busiest in the nation, ought not be shut down or stymied by such stuff. 

The Supreme Court of Texas famously had the "All Woman Court" appointed by Governor Pat Neff in 1925 when every member of the court (and darn near every lawyer in the state) were unable to proceed because they were members of the organization in suit.   And the Fifth Circuit managed to desegregate the deep south through both threats and acts of violence against the institution. 

But now this?

The public needs the Fifth Circuit to function.  There ought be no set of facts under which the Court cannot consider the merits of a case over which it has jurisdiction.  If it were otherwise, the Court and its decisions become subject to manipulation.  If the current rules and recusal standards subject the court to such manipulation or if they cannot protect against the loss of a judicial forum capable of exercising power, then they are inadequate and must be changed.