Fifth Circuit Conservatives Snipe Over Handling of En Banc Case

A pair of Donald Trump appointees to the Fifth Circuit exchanged barbs as the court fractured over how to handle a longrunning case over a multimillion-dollar fine against Exxon Mobil Corp.

Judges James Ho and Andrew Oldham, both leading conservative members of the circuit, each authored separate opinions as part of the ruling issued Wednesday.

Ho, writing alone, said that because the en banc court couldn’t reach a majority, he would’ve dismissed the order granting rehearing en banc as improvidently granted and reinstated a three-judge panel judgment.

Oldham’s dissent took issue with that approach. He wrote that the circuit couldn’t make such a finding because it stems from a writ of certiorari, the mechanism through which the US Supreme Court agrees to review rulings.

Oldham said that the circuit vacates a three-judge panel opinion when it grants en banc rehearing, and that it would lose jurisdiction over the case if the en banc court said it shouldn’t have taken up the matter. He said vacating a grant of en banc rehearing also wouldn’t work.

The dissent also took issue with Ho saying that, were he on the three-judge panel, he would’ve vacated the finding by the trial court.

Alongside a chart, Oldham wrote that Ho had cast four different votes in the case—joining the per curiam ruling, vacating the lower court ruling, finding that the court improvidently granted en banc rehearing, and reinstating the panel’s decisions.

“Those are different and inconsistent judgments,” Oldham wrote.

His dissent was joined by Judges Edith Jones, Jerry Smith, Don Willett, Stuart Kyle Duncan, Kurt Engelhardt and Cory Wilson.

Ho responded to Oldham, saying that his colleague opened his dissent “by invoking Roman, ecclesiastical, and other historical practices, in a quixotic effort to prove that dismissal of rehearing en banc as improvidently granted somehow offends ‘millennia of legal tradition.’”

“I like history too, but nothing in his historical gesturing remotely demonstrates how justice or tradition requires appeal before seventeen judges rather than three,” Ho added.

On the claim of inconsistent judgments, Ho wrote that happens when judges disagree with a panel decision but don’t think the en banc court should rehear the case.

“So there’s no need for a fainting couch. The dissenters only feign incredulity—they don’t really mean it,” Ho said.

Oldham and Ho’s opinions were among five issued in Wednesday’s ruling. The court said in a per curiam ruling that it was affirming a lower court decision after the case spent years being reviewed at the Fifth Circuit.

Judge Priscilla Richman, who was chief judge of the court when the case was reheard en banc, suggested that the court’s members struggled with the matter.

“To say that I am disappointed in the process that has been employed in our en banc proceedings in this case would be an understatement,” Richman wrote. “Because we do not ordinarily discuss the process by which we decide cases, I will not go into all that is behind what is being issued today.”

The case is Environment Texas Citizen Lobby v. Exxon Mobil Corp., 5th Cir. en banc, No. 17-20545, Opinion 12/11/24