OUTER CONTINENTAL SHELF LANDS ACT'S PROVISIONS ON JURISDICTION, REMEDIES, AND CHOICE OF LAW: CORRECTING THE FIFTH CIRCUIT'S MISTAKES, THE

Journal of Maritime Law and Commerce, Oct 2007 by Robertson, David W

I. Introduction 488

II. Congress's and the Supreme Court's OCSLA: A Primer on Jurisdiction, Remedies, and Choice of Law 492

A. Defining some common terms 492

B. Historical background 493

C. Analyzing OCSLA's key provisions 496

D. The key to understanding OCSLA: a good map 527

III. A Catalogue of Fifth Circuit Mistakes 531

A. Misreading Rodrigue 531

B. Ignoring explicit statutory language 534

C. Inattention to the requirements for and ramifications of admiralty jurisdiction 540

IV. A Wish List: Three Imagined En Banc Determinations 552

A. Demette 552

B. Diamond 556

C. Texaco Exploration 561

V. The Solutions Presented in this Article are Docket-Side Neutral 567

VI. Conclusion 568

I

INTRODUCTION

The United States Court of Appeals for the Fifth Circuit comprises sixteen active and three senior judges. It decides cases in rotating three-judge panels. In a court so constituted, discrepancies between decisions of different panels are bound to develop. When such discrepancies become important enough, the Fifth Circuit is supposed to convene en banc in order to resolve the conflict and announce a binding circuit-wide rule.

But Fifth Circuit en banc hearings are infrequent.1 More routinely, the court tries to minimize the incidence and effects of conflicting panel decisions by promulgating the following rules:

In the event of conflicting panel opinions from this court, the earlier one controls, as one panel of this court may not overrule another.2

[I]t follows from our rule that one panel of the circuit may not overrule a prior panel that a later decision in conflict with the previous, controlling authority is not precedent.3

These rules contemplate that a disagreeing later panel should dutifully follow the earlier case while feeling free to call for an en banc rehearing to resolve the disagreement. If the later panel rebels, its decision is not entitled to respect.

These rules have not worked at all well. They are sometimes simply ignored.4 And even when the disagreeing later panel follows the rules and goes along with its putatively errant predecessor, it can do so in such an overtly grudging way as to destabilize future jurisprudence.5 Moreover, a panel that disagrees strongly enough with an earlier panel decision can sidestep the problematic case in many ways, such as by pronouncing it correct in its "result [but not its] method of analysis,"6 or by declaring the problematic case itself nonprecedential because of its conflict with stid earlier decisions,7 or by simply "confining the problematic decision] to its facts."8

The inherent weaknesses of the constraints on panels' treatments of one another's work-in combination with the court's reluctance to conduct en banc hearings9-have produced judicial complaints Idee the following:

In each new case, a panel of this court must comb through a bewildering array of cases that rely on inconsistent reasoning in the hope of finding an identical fact situation. Absent en banc reconciliation, cases thus are decided on what seems to be a random factual basis.10

Here the court was characterizing a segment of its copious jurisprudence treating the Outer Continental Shelf Lands Act (OCSLA),11 an infamously chaotic area of the law. Commentators routinely proclaim it so,12 and the court itself is remarkably critical of its own work.13 Probably few will dispute that reconciliation and reformation are long overdue.14

The problems in the Fifth Circuit's OCSLA jurisprudence will have to be corrected by the Fifth Circuit itself. The OCSLA gets little treatment in any circuit but the Frfth, so that the kind of inter-circuit conflict that gains Supreme Court attention is unlikely to develop.15 And there is nothing particularly wrong with the OCSLA itself-the problems stem from the Fifth Circuit's misreadings of the Act-so no one can or should expect help from Congress. What needs to happen is several grants of en banc rehearing.

Disappointed counsel in any case involving any of the issues treated in this article should seek rehearing en banc, and the court should grant these applications. There are multiple problems with the Fifth Circuit's reading of the OCSLA and of the relevant Supreme Court jurisprudence. To put it more directly, the Fifth Circuit has made at least six (and arguably as many as twelve) verifiable mistakes in its reading of these controlling sources. However, because these mistakes are interrelated, only two or three en banc decisions could suffice to straighten out the whole mess.

Section II below presents an analysis of the OCSLA's jurisdiction, remedies, and choice of law provisions in their intended and proper operation. The authorities supporting the propositions put forth in this section include the OCSLA itself, the relevant Supreme Court decisions treating OCSLA, and the better-reasoned decisions of panels and district and state courts in the Fifth Circuit. The arguments and citations in this section will assist counsel in seeking rehearing en banc in cases calling for correcting the Fifth Circuit's mistakes. Nothing (aside from mistaken decisions and expressions from some Fifth Circuit panels and district courts) stands in the way of the court's making the recommended corrections. There is no constitutional impediment. There is no impediment in OSCLA's language or legislative history. There is no impediment in any Supreme Court decision.