Making Sense of the 7-1-1-8 Split in Environment Texas Citizen Lobby v. ExxonMobile
On Wednesday, the en banc Fifth Circuit decided Environment Texas Citizen Lobby v. ExxonMobil. The procedural posture of this case resides in the ninth circle of Dante’s Inferno. I won’t even try to explain it here. Instead, I will try to make sense of the extremely unusual split.
Reuters reported the case as a 9-8 split. Not quite.
The case was heard before seventeen members of the en banc court: Elrod, Davis, Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Duncan, Engelhardt, Oldham, Wilson, and Douglas. (Judge Ramirez joined the court after the case was submitted so she did not participate). Simple math would suggest that a majority of a seventeen member court would require nine votes. But there is no actual nine member majority.
Seven members of the court would have affirmed the District Court’s decision from April 2017: Davis, Stewart, Southwick, Haynes, Graves, Higginson, and Douglas.
One member of the court would have reinstated a panel majority opinion from 2011: Chief Judge Elrod.
Eight members of the Court would have reversed the District Court’s decision: Jones, Smith, Richman, Willett, Duncan, Engelhardt, Oldham, and Wilson.
For those of you counting at home, you will notice I’ve listed sixteen judges so far. Who is #17? Judge Ho. He did not vote to affirm or reverse. Instead he voted to dismiss rehearing en banc as improvidently granted–a DIG in the parlance. The Supreme Court will often DIG a case, but on rare occasion, an individual Justice will vote to DIG. Justice Gorsuch has individually DIG’d a few cases.
As I count things, the split is 7 votes to affirm the district court, 8 votes to reverse the district court, and 2 votes to do something else. Is your head spinning? Well then turn to 2 of the PDF. There is a paragraph labelled “Per Curiam.” That paragraph concludes, “We accordingly AFFIRM the judgment of the district court, dated March 2, 2021.” I use scare quotes quite deliberately. Per Curiam is Latin for “by the Court.” But there is not a single thing that nine members agreed upon. Who exactly is the “We” in that final sentence. I can only count to seven. This paragraph labelled “Per Curiam” cannot possibly be “by the Court.” Who assembled the second page of the PDF? I have more questions than answers.
Is your head still spinning? Well, check the docket. Immediately after the opinion was filed, a judgment was entered. It states:
IT IS ORDERED and ADJUDGED that the judgment of the District Court is AFFIRMED.
IT IS FURTHER ORDERED that Appellants pay to Appellees the costs on appeal to be taxed by the Clerk of this Court.
W. Eugene Davis, Circuit Judge, concurring, joined by Stewart, Southwick, Haynes, Graves, Higginson, and Douglas, Circuit Judges.
James C. Ho, Circuit Judge, in support of dismissing rehearing en banc as improvidently granted.
Edith H. Jones, Circuit Judge, joined by Smith, Richman*, Willett, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges, dissenting.
Priscilla Richman, Circuit Judge, dissenting.
Andrew S. Oldham, Circuit Judge, joined by Jones, Smith, Willett, Duncan, Engelhardt, and Wilson, Circuit Judges, dissenting.
By what authority did the Court issue that the judgment of the District Court should be affirmed, if only seven out of seventeen judges voted to affirm the judgment of the District Court?
If you’ve followed this far, hang on. This will get messy.
The starting point for this analysis is Judge Ho’s concurrence. He explains what the effect of his DIG is:
When eight judges would affirm, eight judges oppose affirmance, and one would dismiss as improvidently granted, then our court lacks a sufficient majority to do anything other than affirm—as Judge Richman’s dissent appears to acknowledge.
I think that Judge Ho would group Judge Elrod with the Davis-Seven as affirming. But Elrod was voting to affirm something different than the Davis-Seven. The Davis-Seven would affirm the District Court’s decision. Elrod would affirm a panel opinion. But maybe those can be lumped together for purposes of determining whether a court is evenly-divided. I’m not sure.
If that math is right, there are eight votes to affirm (Elrod+Davis-Seven) and eight votes to not affirm (the Jones dissent). Judge Ho, by DIGing the case, did not cast his judgment to affirm or not-affirm, so he falls into neither camp. As a result, the en banc court effectively split eight-eight. It is as if a sixteen member court (with a recusal) was evenly divided. And what happens if the en banc court is evenly divided? Ho says that the judgment of the lower court would be affirmed.
Judge Rich
Article from Reason.com
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