"A court without a quorum cannot conduct judicial business." With that, in Comer v. Murphy Oil USA,the 5th U.S. Circuit Court of Appeals dismissed an appeal from a landmark panel decision issued in October 2009 in a public nuisance case. The history leading up to this decision is as follows. By reversing a district court decision that found that the climate change case created a non-judicable political question, a three-judge panel reinstated plaintiffs' claims that greenhouse gas emissions from utility, chemical and oil companies had increased the intensity of Hurricane Katrina. The defendants appealed the decision to the entire 5th Circuit which agreed to rehear the case en banc; a decision which automatically vacated the panel opinion. Most assumed the 5th Circuit would reverse itself, setting up the case up for review by the U.S. Supreme Court. This never happened, however, because the court lost its quorum during the briefing stage after an eighth judge on the 16-judge court recused himself. The court sought briefings by the parties to determine its options. Ultimately, the court ruled that the three-judge panel decision to vacate the reversal stood, but that the loss of quorum left the court with no choice but to dismiss the appeal. Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009). In response, the plaintiffs have filed a writ of mandamus with the U.S. Supreme Court asking it to order the 5th Circuit to either reinstate the vacated panel opinion or hear the appeal. Interestingly enough, however, the plaintiffs did not petition for certiorari of the district court opinion.