The United States Court of Appeals for the Fifth Circuit held that disqualified judges must be counted to determine the number of judges required for a quorum; because half the judges could not participate due to recusal and one vacancy, the court could no longer hear the case en banc, nor could they reinstate the earlier panel decision. Comer v. Murphy Oil USA, 607 F.3d 1049, 1055 (5th Cir. 2010).

 

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