On December 11, 2024, the United States Court of Appeals for the Fifth Circuit affirmed a district court decision imposing over $14 million in penalties on an ExxonMobil refinery in Baytown, Texas.

A split three-judge panel had affirmed the district court. The 5th Circuit vacated that decision by granting a request for en banc rehearing, a rarely used procedure that has all active judges reconsider a panel ruling.

Panel Ruling Vacated, No 5th Circuit Precedent
When the 5th Circuit agreed to an en banc rehearing, it had 17 active judges. These judges split eight for affirming, eight for reversing, and one judge refusing to either affirm or reverse. The result of this “tie” among voting judges is 1) the district court’s judgment assessing over $14 million is affirmed; 2) the majority opinion of the 3-judge panel remains vacated; and 3) none of the numerous opinions accompanying the action (170 pages) can be cited as binding 5th Circuit precedent.

7-1-1-8 Result
Seven judges issued an opinion affirming the district court judgment but with different reasoning than that of the panel majority. An eighth judge concurred in affirming the district court but said the majority opinion from the three-judge panel was better reasoned.

Eight judges dissented; the opinion of seven of the dissenters suggests, but does not explicitly state, that they would have reversed and rendered judgment reducing the penalty against ExxonMobil from over $14.5 million to approximately $500,000. An eighth dissenting judge joined only parts of the seven-judge dissent and would have reversed and remanded the case to the trial court.

One judge did not vote to affirm or reverse; that judge wrote an opinion “in support of dismissing rehearing en banc as improvidently granted.” This judge’s refusal to vote resulted in an 8-8 split between affirming and reversing. When an appellate court evenly splits, the lower court decision is affirmed but the appellate court’s action has no precedential effect.

To see the 170 pages of non-precedential opinions https://www.ca5.uscourts.gov/opinions/pub/17/17-20545-CV3.pdf