Posted on December 22, 2017 by Patrick A. Parenteau
In a stunning development, Judge Alex Kozinski announced on Monday December 18 that he was resigning effectively immediately from the Ninth Circuit after multiple former clerks and junior staffers came forward with allegations of sexual misconduct against him.
Kozinsky was a member of a three judge panel that had just heard arguments on December 11 in United States v US District Court for the District of Oregon in which the Trump administration is seeking a writ of mandamus to bar the climate lawsuit filed by 21 youth plaintiffs in Juliana v United States which is scheduled for trial in February before the federal district court in Oregon.
By way of background, in November 2016, the district court denied motions to dismiss the action, allowing federal public trust and Fifth Amendment due process claims to proceed. After unsuccessfully seeking permission for interlocutory appeal, the United States filed the petition for writ of mandamus under the All Writs Act, arguing that the district court committed clear error in denying the motions to dismiss. The government also argued that the discovery process would be unduly burdensome and would distract senior administration officials like Scott Pruitt and Rick Perry from the more important work of dismantling the regulatory programs adopted by the Obama administration and increasing the nation’s reliance on fossil fuels.
Kozinski, as is his wont, was the most aggressive questioner at oral argument peppering plaintiffs’ counsel with questions regarding standing and justiciability and making it pretty clear how he was going to come down. By contrast, the other members of the panel, Chief Judge Sidney Thomas and Marsha Berzon, focused on the narrower question whether mandamus was the proper remedy at this stage of the case. Both noted that the court had never granted mandamus where there was no conflict over discovery orders. Both noted that the case had become much more manageable with the departure of the industry interveners who had been the major target of discovery requests. Both noted that District Judge Aiken and Magistrate Coffin had narrowed discovery and had pledged to exercise a “firm hand” on the pretrial proceedings. Though each judge expressed reservations about various aspects of the plaintiffs’ claims and standing neither thought those were appropriate grounds for mandamus. Commenting on the unprecedented nature of what the government was seeking Judge Thomas observed: “We would be absolutely flooded with appeals from people who think their case should be dismissed by the district court.”
Kozinski’s resignation throws a bit of a monkey wrench into the proceedings. Judge Thomas must decide whether to replace Kozinski on the panel and schedule a new oral argument or proceed to decide the mandamus issue. If he and Judge Berzon are in agreement that the writ should be denied the simplest solution would be to issue a decision to that effect.
There is precedent for this. In Connecticut v AEP a three judge panel of the Second Circuit heard arguments in a case involving a public nuisance action brought by a number of states against utilities operating coal fired power plants. While the case was pending one member of the panel, Judge Sonia Sotomayor, was nominated to the Supreme Court and had to recuse herself. The remaining members of the panel proceeded to decide the case in the states’ favor and Judge Peter Hall wrote an exhaustive opinion on standing and political question in the context of climate litigation. Though the Supreme Court ultimately reversed on other grounds the jurisdictional holdings were affirmed by a divided vote.
The upshot is that there is a good chance we will see the “trial of the century” unfolding sometime next year. Mr Pruitt may get a chance to try out his “red team, blue team” climate science debate in a real courtroom.