In an intriguing political saga, the Fifth Circuit for the second time denied relief to Mississippi property owners who alleged that emissions from over 80 energy companies had contributed to global warming, which had made Hurricane Katrina more powerful and destructive, thereby damaging the plaintiffs.  See Comer v. Murphy Oil USA, Inc., 12-60291, --- F.3d ---, 2013 WL 1975849 (5th  Cir. May 14, 2013) (slip opinion).

The plaintiffs first filed suit in 2005, and the district court dismissed their suit, holding they lacked standing and their claims were non-justiciable political questions.  On appeal to the Fifth Circuit, seven of the court’s 16 active judges were recused, presumably due to personal Katrina claims or financial connections to one or more of the many corporate defendants.  Initially, a panel of the Court partially reversed the district court’s dismissal of the plaintiffs’ claims, holding the plaintiffs did in fact have standing to proceed with their claims for nuisance, trespass,  and negligence.  Before the mandate could issue, a majority of the remaining unrecused justices voted for en banc rehearing, which vacated the panel opinion and halted the mandate.  After the en banc vote, but before the rehearing, an additional judge was recused, leaving only seven of the 16 judges available to rehear the case.  At that point, the Court concluded it lacked the quorum necessary to proceed, and the appeal was dismissed.  The plaintiffs sought mandamus relief from the United States Supreme Court, which was denied.

Plaintiffs tried again in 2011, and the same Mississippi district court once again dismissed their claims adding res judicata to the list of reasons for dismissal.  The plaintiffs once again appealed to the Fifth Circuit and in last month’s opinion, were once again denied the right to appellate review of the district court’s original 2005 decision.  The Court noted that the district court’s 2005 order of dismissal was a final judgment that had never been altered or disturbed during the course of the first appeal.  Relying on existing case law holding that a pending appeal does not deprive a final judgment in the trial court of its res judicata effect, the Fifth Circuit upheld the second dismissal on res judicata grounds.  Plaintiffs argued for an equitable exception on the basis that they were denied meaningful appellate review in their first case.  Although the court openly acknowledged the plaintiffs had never received a true adjudication on the merits, the court observed that res judicata is not subject to equitable exceptions. Thus, the plaintiffs’ plea for equitable relief fell on deaf ears.

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