IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60756

NED COMER; BRENDA COMER; ERIC HAYGOOD, husband of Brenda

Haygood; BRENDA HAYGOOD; LARRY HUNTER, husband of Sandra L

Hunter; SANDRA L HUNTER; MITCHELL KISIELWESKI, husband of

Johanna Kisielweski; JOHANNA KISIELWESKI; ELLIOTT ROUMAIN,

husband of Rosemary Roumain; ROSEMARY ROUMAIN; JUDY OLSON;

DAVID LAIN

Plaintiffs - Appellants

v.

MURPHY OIL USA; UNIVERSAL OIL PRODUCTS (UOP); SHELL OIL

COMPANY; EXXONMOBIL CORP; AES CORP; ALLEGHENY ENERGY

INC; ALLIANCE RESOURCE PARTNERS LP; ALPHA NATURAL

RESOURCES INC; ARCH COAL INC; BP AMERICA PRODUCTION

COMPANY; BP PRODUCTS NORTH AMERICA INC; CINERGY CORP;

CONOCOPHILLIPS COMPANY; CONSOL ENERGY INC; THE DOW

CHEMICAL COMPANY; DUKE ENERGY CORP; EON AG; E I DUPONT DE

NEMOURS & CO; ENTERGY CORP; FIRSTENERGY CORP;

FOUNDATION COAL HOLDINGS INC; FPL GROUP INC; HONEYWELL

INTERNATIONAL INC; INTERNATIONAL COAL GROUP INC; MASSEY

ENERGY CO; NATURAL RESOURCE PARTNERS LP; PEABODY ENERGY

CORP; RELIANT ENERGY INC; TENNESSEE VALLEY AUTHORITY;

WESTMORELAND COAL CO; XCEL ENERGY INC; CHEVRON USA INC;

THE AMERICAN PETROLEUM INSTITUTE

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

United States Court of Appeals

Fifth Circuit

F I L E D

May 28, 2010

Lyle W. Cayce

Clerk
No. 07-60756

* Chief Judge Jones and Judges King, Wiener, Garza, Benavides, Elrod, Southwick, and

Haynes are recused.

2

Before JOLLY, Acting Chief Judge, and DAVIS, SMITH, STEWART, DENNIS,

CLEMENT, PRADO, and OWEN, Circuit Judges.*

ORDER:

This case was voted en banc by a duly constituted quorum of the court

consisting of nine members in regular active service who are not disqualified.

Fed. R. App. P. 35(a); 28 U.S.C. § 46(d).

The grant of rehearing en banc in this case “vacate[d] the panel opinion

and judgment of the court and stay[ed] the mandate.” 5th Cir. R. 41.3.; see also

Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009) (en banc) (same).

After 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 are

not disqualified in this en banc case. Upon this recusal, this en banc court lost

its quorum. Absent a quorum, no court is authorized to transact judicial

business. See Nguyen v. United States, 539 U.S. 69, 82 n.14 (2003) (quoting

Tobin v. Ramey, 206 F.2d 505, 507 (5th Cir. 1953)).

The absence of a quorum, however, does not preclude the internal

authority of the body to state the facts as they exist in relation to that body, and

to apply the established rules to those facts.

In arriving at our decision, directing the clerk to dismiss this appeal, this

en banc court has considered and rejected each of the following options:

1. Asking the Chief Justice to appoint a judge from another

Circuit pursuant to 28 U.S.C. § 291. We have rejected this

argument as precluded by our precedent, United States v. Nixon,

827 F.2d 1019 (5th Cir. 1987), and because § 291 provides an

inappropriate procedure, unrelated to providing a quorum for the en

banc court of a circuit.
No. 07-60756

3

2. Declaring that there is a quorum under the provisions of

Federal Rule of Appellate Procedure 35(a). We believe that a

quorum is properly defined under 28 U.S.C. § 46 as constituting a

majority of the judges of the entire court who are in regular active

service, and not as a body of the non-recused judges of the court,

however few.

3. Adopting the Rule of Necessity. The Rule of

Necessity—allowing disqualified judges to sit—is not applicable in

this case because it would be inappropriate to disregard the

disqualification of the judges of this Court when the appeal may be

presented to the Supreme Court of the United States for decision.

Moreover, there is no established rule providing that an en banc

court lacking a quorum, may disregard recusals and

disqualifications of all judges so that an en banc court may be

formed. Nor is there any method to select one particular judge

among the several disqualified judges in order to provide a bare

minimum for a quorum.

4. “Dis-enbancing” the case and ordering the panel opinion

reinstated, and issuing the mandate thereon. This case was

properly voted en banc. The panel opinion and the judgment of the

panel were lawfully vacated. Without a quorum to conduct any

judicial business, this en banc court has no authority to rewrite the

established rules of the Fifth Circuit for this one case and to order

this case, properly voted en banc, “dis-enbanced.” Moreover, we

have no authority to interpret a plainly applicable rule as simply a

blank, on grounds that “it was not designed to apply” to a situation

where its terms have undisputed application. 

5. Holding the case in abeyance until the composition of the

court changes. It is purely speculative as to when the current

vacancy on this court will be filled and it is, of course, unknown

whether that judge may also be recused. Furthermore, we have no

way of knowing when another sitting judge in regular active service

of the Court may become “undisqualified” or indeed whether

another judge of this en banc court may become disqualified to sit

further. The Wright and Miller treatise has observed:

Any decision ofthis character, however, should be made

as promptly as possible; delay that spans several
No. 07-60756

4

months and the addition of new judges, and that

creates at least the appearance of a decision that could

not have been reached earlier, should be avoided at all

costs.

16AA WRIGHT & MILLER § 3981.3, at 448 (2008) (emphasis added).

In sum, a court without a quorum cannot conduct judicial business. This

court has no quorum. This court declares that because it has no quorum it

cannot conduct judicial business with respect to this appeal. This court, lacking

a quorum, certainly has no authority to disregard or to rewrite the established

rules of this court. There is no rule that gives this court authority to reinstate

the panel opinion, which has been vacated. Consequently, there is no opinion or

judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because neither this en banc court, nor the panel, can conduct further

judicial business in this appeal, the Clerk is directed to dismiss the appeal.

The right of individual judges to write further after entry of this Order is

preserved. 

The parties, of course, now have the right to petition the Supreme Court

of the United States.

This, the 28th day of May, 2010.

Judges Davis dissents with reasons, joined by Judge Stewart. Judge Dennis

dissents with reasons.
No. 07-60756

5

W. EUGENE DAVIS, Circuit Judge, joined by CARL E. STEWART, Circuit

Judge, Dissenting.

I dissent from the order dismissing this appeal for the following reasons.

As the order states, we do not have a quorum of the court to act in this

case. By way of background, 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.”

1. Local Rule 41.3 was never designed to apply in this situation where the

court, after voting a case en banc, loses its quorum and the en banc court never

considers the appeal on its merits. It is a provisional, practical rule that alerts

practitioners and courts of the fact that the panel opinion is not precedential

pending consideration of the merits of the case by the en banc court.

It makes no sense to allow a vote to take a case en banc to dictate the

result on the merits. Judges vote for en banc consideration for any number of

reasons other than the fact that they conclude that the panel has reached an

erroneous result. They may vote for en banc simply because they believe it
No. 07-60756

6

presents a serious question that the full court should consider or simply because

they have some question about the correctness of the result. Judges are rarely

prepared to definitively decide the merits of the case when they vote for or

against en banc reconsideration.

2. Appellants in this case have a statutory right to appeal the adverse

judgment of the district court to this court. The dismissal of this appeal based

on a local rule has the effect of depriving appellants of their right to an appeal

and allows the local rule to trump federal statutes. 

3. Moreover, I find an inexplicable disconnect between the notion that a

majority of the eight unrecused judges has no authority to do anything except

literally apply our Local Rule 41.3 strictly as written; yet they do have the

authority to dismiss the appeal.

4. Alternatively, 28 U.S.C. § 291 provides an avenue that would avoid

depriving appellant of his direct appeal. Section 291 permits the Chief Justice

to appoint a judge from another circuit to allow this court to have a quorum to

consider the case en banc. 28 U.S.C. § 291 provides that: “(a) the Chief Justice

of the United States may, in the public interest, designate and assign

temporarily any circuit judge to act as circuit judge in another circuit upon

request of the chief judge or circuit justice of such circuit.” Acting Chief Judge

E. Grady Jolly indicated his willingness to requestthe Chief Justice to designate

such a temporary judge if a majority ofthe eightjudges had requested it. We are

aware that it would be an unusual request to appoint a judge from another

circuit to constitute a quorum of the en banc court but we believe such a request

is justified here where the alternative is the appellant must completely lose his

right to a direct appeal. 
No. 07-60756

1 The language of the order of dismissal underscores the contradiction inherent in

issuing such an order while simultaneously claiming to lack the power to take any action in

this case. The order asserts the authority “to state the facts as they exist . . . and to apply the

established rules to those facts.” But United States circuit judges have no independent

authority to apply law to facts and issue orders thereupon. We can issue orders only through

a properly constituted quorum (with limited exceptions not relevant here, see Fed. R. App. P.

27(c)). A quorum is “the minimum number of members . . . who must be present for a

deliberate assembly to legally transact business.” Black’s Law Dictionary (8th ed. 2004). 

If we lack a quorum, then the group of judges who are purporting to issue the order of

dismissal cannot issue such an order any more than a single circuit judge can dismiss a case

on behalf of a three-judge panel. 

7

DENNIS, Circuit Judge, dissenting:

I respectfully dissent from the decision by the majority of this en banc

court to refuse to hear oral argument or to decide this appeal on its merits, but

to take the shockingly unwarranted actions of ruling thatthe panel decision has

been irrevocably vacated and dismissing the appeal without adjudicating its

merits. The majority’s decision to declare that we no longer have a quorum, and

to take the drastic action of dismissing the appeal without hearing its merits,

but with the intention of reinstating the district court’s judgment, is manifestly

contrary to law and Supreme Court precedents. The majority’s action is deeply

lamentable because it was forewarned of the reasons militating against its

erroneous rush to judgment by the parties’ letter briefs and by internal

memoranda. If the five-judge en banc majority’s precipitous summary dismissal

of the appeal is not corrected, it will cause the sixteen–active judge body of this

United States Court of Appeals to default on its absolute duty to hear and decide

an appeal of right properly taken from a final district court judgment.

The majority’s order mischaracterizes itself as merely stating the facts and

“apply[ing] the established rules to those facts.” In truth, however, the majority

is making the fully informed choice to dismiss this unadjudicated appeal and

finally terminate this litigation, even while turning a blind eye to several legally

viable alternative courses of action and claiming to have no power to take any

further action in the case due to the supposed lack of a quorum.1
No. 07-60756

I believe that we do have a quorum under 28 U.S.C. § 46 and must decide the appeal,

but since the majority believes we lack a quorum,they contradict themselves by asserting that

they have the power to dismiss the case.

8

The majority’s decision to dismiss this appeal rests, first of all, on an

implausible interpretation of the statute that defines a quorum of an en banc

court of appeals, 28 U.S.C. § 46(c)-(d). Second, it contravenes the longestablished rule that “federal courts lack the authority to abstain from the

exercise of jurisdiction that has been conferred.” New Orleans Public Service,

Inc. v. Council of the City of New Orleans, 491 U.S. 350, 358 (1989). There are

several affirmative grounds that authorize us to fulfill “the absolute duty of

judges to hear and decide cases within their jurisdiction.” United States v. Will,

449 U.S. 200, 215 (1980). These grounds are as follows: (1) we do have a quorum

under the correct reading of § 46(c)-(d), which is also supported by Fed. R. App.

P. 35(a); (2) the acting chief judge of this court has the authority to seek the

designation and assignment of a judge from another circuit under 28 U.S.C. §§

291 & 296; (3) we can follow the Supreme Court’s example in North American

Co. v. SEC, 320 U.S. 708 (1943), and hold the case over until the President and

the Senate fill this court’s current vacancy and give us nine out of seventeen

active judges who can decide the case; and if all else fails, (4) we should comply

with the ancient common-law doctrine known as the Rule of Necessity, which

overrides the federal statute governing judicial recusals, as the Supreme Court

held in Will, 449 U.S. at 217. The Rule of Necessity, and not dismissal, is the

appropriate last resort in this situation because it fulfills this court’s absolute

duty to decide cases within its jurisdiction. The majority’s action flouts that

duty.

Last but not least, the dismissal of this appeal — with the apparent

intention to effectively reinstate the district court’s order dismissing the case,

even though a panel of this court has already held that the district court erred,
No. 07-60756

2

I agree with almost all of Judge Davis’s dissent, including his well-considered view

that if the en banc court lacks a quorum, then it is effectively dissolved and Fed. R. App. P.

41(d)(1) requires the panel’s mandate to issue notwithstanding anything in our local rules to

the contrary. The panel’s decision is the most recent and authoritative decision concerning the

issues raised in this appeal; that decision, not the district court’s overruled decision, should

control if the en banc court is unable to act.

Despite my agreement with Judge Davis, at some points in this opinion I will assume

for the sake of argument that the panel’s decision has been irrevocably vacated under 5th Cir.

R. 41.3 and that its mandate cannot issue.

My only point of disagreement with Judge Davis concerns his view that the en banc

court lacks a quorum. As I explain herein, that view is based on an erroneous reading of 28

U.S.C. § 46. 

9

585 F.3d 855 (5th Cir. 2009) — is contrary to common sense and fairness.

Indeed, it is injudiciously mechanistic and arbitrary. For example, if the most

recently recused judge had become recused three months earlier, the outcome of

this case would have been precisely the opposite: the court could not have

granted rehearing en banc (at least not while following the majority’s current

definition of an en banc quorum), so the panel’s decision reversing the district

court’s dismissal ofthe case would have remained in effect. Thus, because of the

majority’s erroneous interpretation of 28 U.S.C. § 46(c)-(d) and its refusal to

discharge this court’s absolute duty to decide cases within its jurisdiction, the

particular timing of one single judge’s recusal is being allowed to conclusively

determine the outcome of this case.2

I. FACTS

The district court dismissed this case on the grounds that the plaintiffs

lacked standing and that the case presented a nonjusticiable political

question. The plaintiffs filed their notice of appeal in September 2007. The

case was assigned to a three-judge panel of this court. Oral argument was

held before a quorum of two judges because the third judge had a family

emergency. One of the two remaining judges then recused himself, depriving

the panel of a quorum. The case was then rescheduled for oral argument
No. 07-60756

3 This seemingly self-evident point is also made by the Advisory Committee Notes to the

2005 amendment to Fed. R. App. P. 35(a): “It is clear that ‘all circuit judges in regular active

service’ in the second sentence [of § 46(c)] does not include disqualified judges, as disqualified

judges clearly cannot participate in a case being heard or reheard en banc.” 

10

before a second three-judge panel. That panel issued its ruling in October

2009, reversing the district court’s dismissal of the case. 585 F.3d 855 (5th

Cir. 2009).

The defendants-appellees petitioned for rehearing en banc. The nine

active circuit judges who were not recused at that time granted rehearing en

banc by a vote of six to three. 598 F.3d 208 (5th Cir. 2010). Then, in April

2010, one of those nine judges became recused, leaving eight out of sixteen

active judges still able to participate in the case, and forcing the eight

nondisqualified judges to decide whether we still have a quorum and, if not,

what is to be done. We asked the parties to submit letter briefs on the issue. 

Now, a majority of the nondisqualified judges — five out of eight — have

voted to dismiss the case.

II. ANALYSIS

A. This en banc court has a quorum as defined by 28 U.S.C. § 46.

The majority’s reading of the statutory quorum requirement as

requiring nine out of sixteen active judges for an en banc quorum is

erroneous. 28 U.S.C. § 46(c) defines an en banc court as follows: “A court in

banc shall consist of all circuit judges in regular active service,” with certain

exceptions that are not relevant here. The majority reads “all circuit judges

in regular active service” as including judges who are disqualified from taking

part in a particular case. But if it really meant that, then the statute would

necessarily require all disqualified active judges to sit as part of the en banc

court in every case that is heard or reheard en banc.3 However, no one thinks

that Congress wanted to require disqualified judges to sit in en banc cases, so
No. 07-60756

4 This reading of the statute does not render the quorum requirement meaningless; it

only defines a quorum as a majority of the nondisqualified active judges. A majority of the

qualified active judges still must be present in order for the court to conduct business. Thus,

a quorum can be lost through circumstances other than disqualification, such as illnesses or

family emergencies that may render judges temporarily unable to participate.

5 The 2005 amendment clarified that only a majority ofnondisqualified judges is needed

in order to vote a case en banc. The history and reasons behind it are explained in the

Advisory Committee Notes. The amended version of Rule 35(a) adopts a uniform national

interpretation of § 46(c) and requires us to read the phrase “the circuit judges ofthe circuit who

are in regular active service” in the first sentence of § 46(c) to exclude disqualified judges.

Nonetheless, the majority in this case insists on reading the phrase “all circuit judges in

regular active service” in the second sentence of § 46(c) to include disqualified judges.

6 The pre-2005 version of 5th Cir. R. 35.6 said, “Judges in regular active service who are

disqualified for any reason or who cannot participate in the decision of an en banc case

nevertheless shall be counted as judges in regular active service.”

11

we do not read the statute that way. Instead, we routinely conduct en banc

hearings and rehearings while excluding disqualified judges. Thus, our

ordinary understanding of the category “all circuit judges in regular active

service” excludes disqualified judges.

The statute goes on to define a quorum as “[a] majority of the number of

judges authorized to constitute a court or panel thereof, as provided in

paragraph (c).” Id. § 46(d). Thus, a quorum of an en banc court is a majority

of “all circuit judges in regular active service,” a category that has to exclude

disqualified judges because the alternative would be absurd. Therefore, in

this case, “all circuit judges in regular active service” under § 46(c) simply

means the eight judges who are not disqualified, and a quorum is a majority

of those judges.4

That has always been the most logical reading of the statute. The 2005

amendment to Fed. R. App. P. 35(a)5effectively did away with our circuit’s

former version of a local rule, 5th Cir. R. 35.6, which had followed a contrary

reading.6 After the 2005 amendment was passed, we did not adopt a rule

(like those the First, Third, and Federal Circuits have adopted) defining a
No. 07-60756

7 See 1st Cir. R. 35.0(a); 3d Cir. I.O.P. 9.5.3; Fed. Cir. R. 47.11. Such local rules appear

to be permitted by the final paragraph of the Advisory Committee Notes to the 2005

amendment to Rule 35(a), which states, “the amendment is not intended to foreclose the

possibility that § 46(d) might be read to require that more than half of all circuit judges in

regular active service be eligible to participate in order for the court to hear or rehear a case

en banc.”

12

quorum for conducting en banc court business as a majority of all active

judges including disqualified judges.7 Despite the absence of any such rule in

this circuit, the majority is proceeding as if we actually had a local rule

defining a quorum as a majority of all active judges including disqualified

judges. Because we have no such rule, we must instead simply follow the

statute itself, which requires only a majority of nondisqualified judges to

constitute a quorum.

The majority’s erroneous interpretation of § 46(c) is simply inconsistent

with our routine practice of excluding disqualified judges from participating

in rehearing en banc. We should accept that we have a quorum, as defined by

§ 46(c)-(d), and decide the case.

B. The dismissal of this case violates the rule that federal courts

have an absolute duty to render decisions in cases over which they

have jurisdiction.

1. The Absolute Duty to Decide Cases

The Supreme Court’s “cases have long supported the proposition that

federal courts lack the authority to abstain from the exercise of jurisdiction

that has been conferred. For example: ‘We have no more right to decline the

exercise of jurisdiction which is given, than to usurp that which is not given. 

The one or the other would be treason to the Constitution.’” New Orleans Pub.

Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 358 (1989)

(quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821)). There is a good reason
No. 07-60756

8

“Law . . . must resolve disputes finally and quickly.” Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 597 (1993). “The province of the court is, solely, to decide on the rights of

individuals . . . .” Marbury v. Madison, 5 U.S. 137, 170 (1803). “The fundamental role of the

courts is to resolve concrete and present disputes between parties.” Principal Life Ins. Co. v.

Robinson, 394 F.3d 665, 671 (9th Cir. 2005).

9

“Only Congress may determine a lower federal court’s subject-matter jurisdiction.”

Kontrick v. Ryan, 540 U.S. 443, 454 (2004). “[T]he judicial power of the United States . . . is

(except in enumerated instances, applicable exclusively to [the Supreme] Court) dependent for

its distribution and organization, and for the modes of its exercise, entirely upon the action of

Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court)

. . . and of investing them with jurisdiction either limited, concurrent, or exclusive, and of

withholding jurisdiction from them in the exact degrees and character which to Congress may

seem proper for the public good.” Ankenbrandt v. Richards, 504 U.S. 689, 698 (1992) (quoting

Cary v. Curtis, 44 U.S. 236, 245 (1845)).

10 See United States v. Will, 449 U.S. 200, 211 (1980) (explaining that the federal

statute governing judicial recusals, 28 U.S.C. § 455, “does not affect the jurisdiction of a

court”).

Because this appeal involves the standing and political question doctrines, one side

argues that the federal courts ultimately do not have jurisdiction over this case. Nonetheless,

there is no doubt that the panel had jurisdiction and that we still have jurisdiction to decide

this appeal, because “itis familiar law that a federal court always has jurisdiction to determine

its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 (2002).

11 E.g., Marshall v. Marshall, 547 U.S. 293, 298-99 (2006) (“Chief Justice Marshall

famously cautioned: ‘It is most true that this Court will not take jurisdiction if it should not:

but it is equally true, that it must take jurisdiction if it should. . . . We have no more right to

decline the exercise of jurisdiction which is given, than to usurp that which is not

given.’”(quoting Cohens, 19 U.S. at 404)); Pierson v. Ray, 386 U.S. 547, 554 (1967) (“It is a

13

why this rule has been in place for two centuries: society depends on the

courts to resolve disputes in accordance with the laws.8 The political

branches should be able to count on the federal courts to decide all the cases

over which they have been given jurisdiction.9 This court has jurisdiction

over this case because it is an appeal from a final order of a federal district

court, in a suit between parties from different states, in which more than

$75,000 is at stake. See 28 U.S.C. §§ 1291, 1332. The majority does not and

cannot deny that this court has jurisdiction10 — yet it chooses not to exercise

that jurisdiction, in the face of two centuries of jurisprudence dating back to

Chief Justice Marshall.11
No. 07-60756

judge’s duty to decide all cases within his jurisdiction that are brought before him . . . .”); Kline

v. Burke Const. Co., 260 U.S. 226, 234 (1922) (“[The plaintiff] had the undoubted right . . . to

invoke the jurisdiction of the federal court and that court was bound to take the case and

proceed to judgment.”); Willcox v. Consol. Gas Co. of N.Y., 212 U.S. 19, 40 (1909) (“When a

Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its

duty to take such jurisdiction . . . .”); Chicot County v. Sherwood, 148 U.S. 529, 534 (1893)

(“[T]he courts of the United States are bound to proceed to judgment and to afford redress to

suitors before them in every case to which their jurisdiction extends.” (quoting Hyde v. Stone,

61 U.S. 170, 175 (1857)). 

12 Ifthe court had believed it could not grant rehearing en banc due to lack of a quorum,

there would have been no violation of the court’s duty or of the parties’ rights because there

is no statutory or constitutional right to rehearing en banc. See United States v. Nixon, 827

F.2d 1019, 1022 (5th Cir. 1987) (per curiam). 

13 I agree with Judge Davis’s reading of Rule 41.3, under which the panel’s decision

should be treated as having been only provisionally vacated pending the outcome of rehearing

en banc, and the panel’s mandate should therefore issue pursuant to Fed. R. App. P. 41(d)(1)

14

Just as courts have an “absolute duty . . . to hear and decide cases

within their jurisdiction,” United States v. Will, 449 U.S. 200, 215 (1980),

litigants have a corresponding due process right to have their cases decided

when they are properly before the federal courts. “The parties to a civil action

may appeal ‘as a matter of right’ under Fed. R. App. P. 3 from the final

judgment of a district court to the circuit court of appeals except where direct

review may be had in the Supreme Court.” Matter of McLinn, 739 F.2d 1395,

1398 (9th Cir. 1984) (en banc). “The right of appeal is statutory, and the

grant is subject to due process requirements.” United States v. DeLeon, 444

F.3d 41, 58 (1st Cir. 2006) (citing Evitts v. Lucey, 469 U.S. 387, 393 (1985)). 

The right to appeal would be of little value if the courts of appeals were not

required to render decisions in cases that are properly brought before them.

This court initially fulfilled its duty to decide this case when the panel

rendered its decision in this appeal. 585 F.3d 855 (5th Cir. 2009). If the

panel’s decision had been allowed to take effect, then the court’s duty would

have been discharged.12 But the court’s decision to rehear the case en banc

had the effect of vacating the panel’s decision under Fifth Circuit Rule 41.3.13
No. 07-60756

because of the dissolution of the en banc court.

Here, however, I nonetheless assume for the sake of argument that we should treat the

panel’s decision as having been vacated.

15

Because the panel’s decision has been vacated, the court is now back in the

position it was in before the panel rendered its decision: it has an absolute

duty to hear and decide the appeal. The only difference is that now the en

banc court, rather than the panel, has control over the case and therefore has

the duty to render a decision.

2. The Rule of Necessity

Assuming for the sake of argument that the en banc court lacks a

quorum, and also assuming that all other possible means of carrying out this

court’s duty have been ruled out, this court’s last resort should be to decide

that the Rule of Necessity applies and, accordingly, ask the active circuit

judges who have recused themselves from this case to consider setting aside

their recusals in order to decide this appeal. The Supreme Court in United

States v. Will explained the Rule of Necessity as follows: it is the “well-settled

principle at common law that . . . ‘although a judge had better not, if it can be

avoided, take part in the decision of a case in which he has any personal

interest, yet he not only may but must do so if the case cannot be heard

otherwise.’” 449 U.S. at 213 (quoting Frederick Pollock, A First Book of

Jurisprudence 270 (6th ed. 1929)). The Court held in Will that the Rule of

Necessity overrides the federal statute providing for the disqualification of

judges, 28 U.S.C. § 455. Id. at 217 (“We therefore hold that § 455 was not

intended by Congress to alter the time-honored Rule of Necessity.”). If there

is no other way for this court to carry out its duty, then we are required to

follow Will and recognize that the Rule of Necessity requires some or all of

our fellow active circuit judges to set aside their recusals.
No. 07-60756

16

As the Court explained in Will, the Rule of Necessity arises directly

from the rule that federal courts cannot decline to exercise their jurisdiction:

Chief Justice Marshall’s exposition in Cohens v. Virginia could

well have been the explanation of the Rule of Necessity; he wrote

that a court “must take jurisdiction if it should. The judiciary

cannot, as the legislature may, avoid a measure because it

approaches the confines of the constitution. We cannot pass it by,

because it is doubtful. With whatever doubts, with whatever

difficulties, a case may be attended, we must decide it, if it be

brought before us. We have no more right to decline the exercise of

jurisdiction which is given, than to usurp that which is not given.

The one or the other would be treason to the constitution. 

Questions may occur which we would gladly avoid; but we cannot

avoid them.”

Id. at 216 n.19 (citation omitted) (quoting Cohens, 19 U.S. at 404). Moreover,

the Rule goes back more than five centuries, id. at 213, and “has been

consistently applied in this country in both state and federal courts,” id. at

214.

The Rule of Necessity is often invoked when every judge, or all the

judges of a particular court, would otherwise be disqualified. For example,

Will involved a challenge to the validity of statutes that affected the salaries

of all federal judges, see id. at 209-10, and the Second Circuit applied the Rule

in Tapia-Ortiz v. Winter when a litigant had sued every judge in the circuit,

185 F.3d 8, 10 (2d Cir. 1999) (per curiam). But the Rule is not limited to such

extreme cases; it also applies to situations in which even a single judge’s

disqualification would have the effect of preventing a properly brought case

from being heard. This point is clearly established by the Supreme Court’s

opinion in Will and the cases quoted and cited therein.

For instance, the Will Court approvingly quoted the following passage

from a Kansas Supreme Court case in which only one justice’s disqualification

was at issue:
No. 07-60756

14 That justice preferred not to participate but had to do so, in compliance with the Rule

of Necessity, because the court was unable to reach a decision without him. 143 P.2d at 656.

17

[I]t is well established that actual disqualification of a member of

a court of last resort will not excuse such member from

performing his official duty if failure to do so would result in a

denial of a litigant’s constitutional right to have a question,

properly presented to such court, adjudicated.

Will, 449 U.S. at 214 (emphasis added) (quoting State ex rel. Mitchell v. Sage

Stores Co., 143 P.2d 652, 656 (Kan. 1943)). The disqualification issue in

Mitchell was that one justice had previously been involved in the case while

serving as the state’s attorney general.14

Will also gave the example of “Mooers v. White, 6 Johns. Ch. 360

(N.Y.1822), [in which] Chancellor Kent continued to sit despite his

brother-in-law’s being a party; New York law made no provision for a

substitute chancellor. See In re Leefe, 2 Barb. Ch. 39 (N.Y.1846).” Will, 449

U.S. at 214 n.15. In addition, Will approvingly cited Moulton v. Byrd, in

which the Alabama Supreme Court held that the Rule of Necessity compelled

a justice of the peace who had previously acted as an attorney for the plaintiff

not to recuse himself from deciding the case. 449 U.S. at 214 n.16 (citing

Moulton v. Byrd, 140 So. 384 (Ala. 1932)). Each of these situations — a

judge’s previous involvement in a case as a government official, a judge being

a party’s brother-in-law, or a judge’s previous service as a party’s attorney —

concerned the disqualification of a single judge, not of all judges. But the

Supreme Court in Will held them all up as examples of the proper application

of the Rule of Necessity, because each of them met the essential criterion for

the Rule’s applicability: “the case cannot be heard otherwise.” Will, 449 U.S.

at 213.

The Rule of Necessity is also not limited to courts of last resort. The

cases cited in Will make that clear: neither Mooers nor Moulton, for instance,
No. 07-60756

15 Moreover, as a practical matter, “the circuit courts of appeal . . . are the courts of last

resort in the run of ordinary cases.” Textile MillsSec. Corp. v. Comm’r of Internal Revenue, 314

U.S. 326, 335 (1941).

16 The decision whether to invoke the Rule of Necessity properly rests with each of the

active judges who are currently recused, rather than with the eight nondisqualified judges.

Only they have the power to set aside their own recusals; we cannot order them to do so.

Each recused judge would need to address the debatable issue of exactly which judges

should set aside their recusals. Perhaps they should all do so, because they each owe a duty

to prevent this court from defaulting on its duty to decide this appeal which is properly within

its jurisdiction. Or perhaps only those judges who have relatively small interests in the case,

such as owning small amounts of stock which can easily be sold, should unrecuse themselves.

But, regardless of how this issue is resolved, it remains clear that “the absolute duty

of judges to hear and decide cases within their jurisdiction,” Will, 449 U.S. at 215, requires

that at least some recused judges participate in the case if there is no other means of carrying

out the court’s duty to render a decision.

17 In most cases, the Supreme Court has discretion as to whether to hear a case at all,

so the Rule of Necessity does not come into play when the Court affirms a lower court’s decision

due to lack of a quorum. See, e.g., Am. Isuzu Motors, Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008)

(mem.). But the Chrysler case cannot be distinguished in this way because it came to the

Supreme Court on direct appeal from a district court, rather than on a writ of certiorari.

18

involved a judge of a court of last resort. This court has also invoked the Rule

before, in Duplantier v. United States, 606 F.2d 654, 662-63 (5th Cir. 1979).15

Thus, under Will, the Rule of Necessity clearly applies to cases in which

the court is deprived of a quorum by the recusals of some (rather than all)

judges, and it applies even if the court is not a court of last resort. If the en

banc court lacks a quorum in this case, and if we have no other way of making

it possible to decide this appeal, then the bottom line is that this court is

required to invoke the Rule of Necessity rather than dismissing the case.16

The only authority that anyone has offered in opposition to the Rule of

Necessity is Chrysler Corp. v. United States, 314 U.S. 583 (1941) (mem.), in

which five Justices of the Supreme Court dismissed a case on direct appeal17

because they lacked a quorum of six Justices as required by statute. Chrysler

is a memorandum opinion containing no reasoning or authorities, so it is

unknown why the Supreme Court did not apply the Rule of Necessity in that
No. 07-60756

18 If the situation in Chrysler arose today, the Court could instead remit the case to a

court of appeals as provided by 28 U.S.C. § 2109, but that statute had not yet been enacted in

1941.

19 Additionally, two years after dismissing the appeal in Chrysler, the Supreme Court

in North American Co. v. SEC, 320 U.S. 708 (1943) (mem.), followed a different approach which

was consistent with the Rule of Necessity. See infra section B(4).

19

case. But the dismissal of the case in Chrysler was plainly inconsistent with

the Rule of Necessity as the Court subsequently explained it in Will: the

recusals of four Justices meant the case could not be heard otherwise,18 so

under Will, the Rule ought to have overridden the recusals that deprived the

Chrysler Court of a quorum. Thus, Chrysler and Will appear to be

inconsistent. The question for this court, therefore, is which of the two we

should follow. Chrysler is a bare memorandum opinion issued in 1941 by five

Justices without a quorum, whereas Will is a fully reasoned, unanimous

opinion joined by eight Justices and issued in 1980. The fact that Will is

more recent than Chrysler should be enough to tell us what to do: when two

Supreme Court precedents disagree, the more recent one obviously controls. 

If there were any remaining doubt about whether to follow Will or Chrysler, it

should be erased by the fact that the Supreme Court’s decision in Will rested

on more than five hundred years of precedent, 449 U.S. at 213, whereas the

Chrysler decision was supported by no explanation whatsoever.19

Nonetheless, the majority ignores Will and follows Chrysler.

In summary, under Will, a judge is obligated to take part in the

decision of a case, even if he or she has a personal interest in it, if the case

cannot be heard otherwise. 449 U.S. at 213. This obligation overrides the

federal statute on disqualification. Id. at 217. It arises from “the absolute

duty of judges to hear and decide cases,” id. at 215, and from the rule that

federal courts cannot decline to exercise their jurisdiction, id. at 216 n.19. 

Therefore, if the en banc court lacks a quorum and if we can find no other way
No. 07-60756

20 This court’s previous decision not to use § 291 in United States v. Nixon, 827 F.2d

1019 (5th Cir. 1987) (per curiam), does not control here. In Nixon, after a three-judge panel

had decided the appeal, the defendant-appellant sought rehearing en banc and was denied.

There were not enough nondisqualified active circuit judges to make up an en banc quorum

as defined under this circuit’s old Rule 35.6. However, in that case, the court was not obligated

to invite outside judges to make up an en banc quorum, because a litigant has no statutory or

constitutional right to rehearing en banc. See id. at 1022. The difference between Nixon and

this case is that here, the panel’s decision has been vacated by the granting of rehearing en

banc, so this court has not fulfilled its duty to decide the appeal.

21 The Chief Justice might have denied the request and pointed out that we already

have a quorum under 28 U.S.C. § 46(c)-(d), as discussed above. That, too, would have helped

us to decide this case.

20

of carrying out our duty to decide this case, then as a last resort we must

apply the Rule of Necessity rather than dismissing the appeal.

3. Inviting a Judge from Another Circuit

As Judge Davis has also observed, another way to fulfill our duty to

decide this appeal would be to follow the procedure set out in 28 U.S.C. § 291:

“The Chief Justice of the United States may, in the public interest, designate

and assign temporarily any circuit judge to act as circuit judge in another

circuit on request by the chief judge or circuit justice of such court.” In

accordance with § 291, Judge Jolly, the acting chief judge in this case, can

request the designation and assignment of a judge from another circuit to

give us a quorum.20 He does not need the authorization or votes of any other

judges in order to make that request, and he ought to do so: it would surely be

“in the public interest,” since it would enable this court to avoid defaulting on

its duty to hear and decide this appeal.21 Indeed, it is not uncommon for

active circuit judges to sit by designation in other circuits, even without the

kind of exigent circumstances that have arisen here. E.g., Fleming v. Yuma

Reg’l Med. Ctr., 587 F.3d 938 (9th Cir. 2009) (Tymkovich, J., of the Tenth

Circuit, sitting by designation); E.I. DuPont de Nemours & Co. v. United
No. 07-60756

22 Furthermore, the same statute expressly allows a judge who is designated and

assigned to another circuit to participate in the rehearing en banc of any matter that has come

before him or her:

A justice or judge who has sat by designation and assignment in another district

or circuit may, notwithstanding his absence from such district or circuit or the

expiration of the period of his designation and assignment, decide or join in the

decision and final disposition of all matters submitted to him during such period

and in the consideration and disposition of applications for rehearing or further

proceedings in such matters.

28 U.S.C. § 296 (emphasis added).

21

States, 508 F.3d 126 (3d Cir. 2007) (Michel, C.J., of the Federal Circuit,

sitting by designation).

The idea that a judge of another circuit could take part in an en banc

rehearing of this court may seem counterintuitive to some, but it is

authorized by statute: “Such justice or judge shall have all the powers of a

judge of the court, circuit, or district to which he is designated or assigned,”

subject to minor exceptions that are not relevant here. 28 U.S.C. § 296

(emphasis added). Moreover, that “judge shall discharge, during the period of

his designation and assignment, all judicial duties for which he is designated

and assigned” and “[h]e may be required to perform any duty which might be

required of a judge of the . . . circuit to which he is designated and assigned.” 

Id. Thus, a judge temporarily assigned to the Fifth Circuit becomes, for all

intents and purposes, a full-fledged member of this court.22

For the acting chief judge to seek the designation and assignment of a

judge to participate in the en banc rehearing of this case would certainly be

an unusual step upon a rare occasion, but it is authorized by the relevant

statutes. Moreover, such a step would be no more unusual than the situation

that calls for it, in which the en banc court has (supposedly) lost its quorum

after granting rehearing en banc and thereby vacating the panel opinion. We

therefore ought to make use of § 291 in order to enable us to carry out our

absolute duty to render a decision in this case.
No. 07-60756

22

4. Holding the Case Over Until We Have a Quorum

One more way in which we could fulfill our duty to decide this case

would be to follow the example set by the Supreme Court in North American

Co. v. SEC, 320 U.S. 708 (1943) (mem.). In that case, the Supreme Court,

which was one Justice short of a quorum, decided to hold the case over until

such time as it had a quorum. Eventually the Court obtained a quorum and

was able to decide the case. 327 U.S. 686 (1946).

The circumstances of North American Co. were similar to those of this

case in an important way. In 1943, the Supreme Court had reason to believe

that Congress would soon amend the relevant statute in order to make it

possible for the Court to obtain a quorum. See John P. Frank,

Disqualification of Judges, 56 Yale L.J. 605, 626 & nn.82-84 (1947). 

(Ultimately Congress did not amend the statute, but Chief Justice Stone

withdrew his recusal to allow the Court to decide the case. See id.) In the

instant case, there is no indication that Congress will alter our quorum

requirement, but there is an eight-month-old vacancy on this court. When

the President and the Senate fill the vacancy, then nine out of seventeen

active judges of this court — a majority — will be able to hear and decide this

case (provided that the judge who is appointed is not disqualified). Thus, like

the Supreme Court in North American Co., we have reason to believe that the

political branches will soon give us a quorum, and we can wait for them to do

so. It is unlikely that this court’s current vacancy will continue for more than

the two and a half years that the Supreme Court waited in North American

Co.

The majority has chosen to follow the Supreme Court’s example in

Chrysler while ignoring the Court’s more recent example in North American

Co. This is the wrong choice because following North American Co. would
No. 07-60756

23

allow us to fulfill our absolute duty to decide this case, whereas dismissing

the case contravenes that duty.

* * *

In closing, 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.