SUPREME COURT OF THE UNITED STATES
JIM YOVINO, FRESNO COUNTY SUPERINTENDENT OF
SCHOOLS v. AILEEN RIZO
on petition for writ of certiorari to the
united states court of appeals for the ninth circuit
No. 18–272. Decided February 25, 2019
Per Curiam.
The petition in this case presents the following
question: May a federal court count the vote of a judge who dies
before the decision is issued?
A judge on the United States Court of Appeals
for the Ninth Circuit, the Honorable Stephen Reinhardt, died on
March 29, 2018, but the Ninth Circuit counted his vote in cases
decided after that date.[
1]* In
the present case, Judge Reinhardt was listed as the author of an en
banc decision issued on April 9, 2018, 11 days after he passed
away. By counting Judge Reinhardt’s vote, the court deemed Judge
Reinhardt’s opinion to be a majority opinion, which means that it
constitutes a precedent that all future Ninth Circuit panels must
follow. See
United States v.
Caperna,
251 F.3d 827, 831, n. 2 (2001). Without Judge Reinhardt’s
vote, the opinion attributed to him would have been approved by
only 5 of the 10 members of the en banc panel who were still living
when the decision was filed.
Although the other five living judges concurred
in the judgment, they did so for different reasons. The upshot is
that Judge Reinhardt’s vote made a difference. Was that lawful?
I
Aileen Rizo, an employee of the Fresno County
Office of Education, brought suit against the superintendent of
schools, claiming, among other things, that the county was
violating the Equal Pay Act of 1963, 77Stat. 56–57, 29
U. S. C. §206(d). The District Court denied the county’s
motion for summary judgment, and the Ninth Circuit granted the
county’s petition for interlocutory review. A three-judge panel of
the Ninth Circuit vacated the decision of the District Court based
on a prior Ninth Circuit decision,
Kouba v.
Allstate Ins.
Co., 691 F.2d 873 (1982), that the panel “believed it was
compelled to follow.” 887 F.3d 453, 459 (2018) (en banc). The court
then granted en banc review “to clarify the law, including the
vitality and effect of
Kouba.”
Ibid. Like other
courts of appeals, the Ninth Circuit takes the position that a
panel decision like that in
Kouba can be overruled only by a
decision of the en banc court or this Court, see
Naruto v.
Slater, 888 F.3d 418, 421 (2018), and therefore a clear
purpose of the en banc decision issued on April 9 was to announce a
new binding Ninth Circuit interpretation of the Equal Pay Act issue
previously addressed by
Kouba. The opinion authored by Judge
Reinhardt and issued 11 days after his death purports to do that,
but its status as a majority opinion of the en banc court depends
on counting Judge Reinhardt’s vote.
The opinions issued by the en banc Ninth Circuit
state that they were “Filed April 9, 2018,” and they were entered
on the court’s docket on that date. A footnote at the beginning of
the en banc opinion states:
“Prior to his death, Judge Reinhardt fully
participated in this case and authored this opinion. The majority
opinion and all concurrences were final, and voting was completed
by the en banc court prior to his death.” 887 F. 3d, at 455,
n. *.
II
The Ninth Circuit did not expressly explain
why it concluded that it could count Judge Reinhardt’s opinion as
“[t]he majority opinion” even though it was not endorsed by a
majority of the living judges at the time of issuance, but the
justification suggested by the footnote noted above is that the
votes and opinions in the en banc case were inalterably fixed at
least 12 days prior to the date on which the decision was “filed,”
entered on the docket, and released to the public. This
justification is inconsistent with well-established judicial
practice, federal statutory law, and judicial precedent.
As for judicial practice, we are not aware of
any rule or decision of the Ninth Circuit that renders judges’
votes and opinions immutable at some point in time prior to their
public release. And it is generally understood that a judge may
change his or her position up to the very moment when a decision is
released.
We endorsed this rule in
United States v.
American-Foreign S. S. Corp.,
363
U.S. 685 (1960), which interpreted an earlier version of 28
U. S. C. §46(c), the statutory provision authorizing the
courts of appeals to hear cases en banc. The current version of
this provision permits a circuit to adopt a rule allowing a senior
circuit judge to sit on an en banc case under certain
circumstances, but at the time of our decision in
American-Foreign S. S. Corp., this was not allowed.
Instead, only active judges could sit en banc. See 28
U. S. C. §46(c) (1958 ed.).
In
American-Foreign S. S. Corp.,
Judge Harold Medina was one of the five active judges on the Second
Circuit when the court granted a petition for rehearing en banc.
After briefing was complete but before an opinion issued, Judge
Medina took senior status. When the en banc court issued its
decision, the majority opinion was joined by Judge Medina and two
active Circuit Judges; the two other active Circuit Judges
dissented. We vacated the judgment and remanded the case, holding
that “[a]n ‘active’ judge is a judge who has not retired ‘from
regular active service,’ ” and “[a] case or controversy is
‘determined’ when it is decided.” 363 U. S., at 688. Because
Judge Medina was not in regular active service when the opinion
issued, he was “without power to participate” in the en banc
decision.
Id., at 687, 691; cf
., id., at 691–692
(Harlan, J., dissenting).
Our holding in
American-Foreign S. S.
Corp. applies with equal if not greater force here. When the
Ninth Circuit issued its opinion in this case, Judge Reinhardt was
neither an active judge nor a senior judge. For that reason, by
statute he was without power to participate in the en banc court’s
decision at the time it was rendered.
In addition to §46(c), §46(d) also shows that
what the Ninth Circuit did here was unlawful. That provision
states:
“A majority of the number of judges
authorized to constitute a court or panel thereof, as provided in
paragraph (c), shall constitute a quorum.”
Under §46(c), a court of appeals case may be
decided by a panel of three judges, and therefore on such a panel
two judges constitute a quorum and are able to decide an
appeal—provided, of course, that they agree. Invoking this rule,
innumerable court of appeals decisions hold that when one of the
judges on a three-judge panel dies, retires, or resigns after an
appeal is argued or is submitted for decision without argument, the
other two judges on the panel may issue a decision if they agree.
See,
e.g., United States v.
Allied Stevedoring Corp.,
241 F.2d 925, 927 (CA2 1957);
Murray v.
National
Broadcasting Co., 35
F.3d 45, 47 (CA2 1994);
Singh v.
Ashcroft, 121
Fed. Appx. 471, 472, n. (CA3 2005);
ASW Allstate Painting &
Constr. Co. v.
Lexington Ins. Co.,
188 F.3d 307, 309, n. (CA5 1999);
Clark v.
Metropolitan Life Ins. Co., 67 F.3d 299, n. ** (CA6
1995);
Kulumani v.
Blue Cross Blue Shield Assn,
224 F.3d 681, 683, n. ** (CA7 2000). See also
Nguyen v.
United States,
539 U.S.
69, 82 (2003) (“[S]ettled law permits a quorum to proceed to
judgment when one member of the panel dies or is disqualified.”).
With the exception of one recent decision issued by the Ninth
Circuit after Judge Reinhardt’s death but subsequently withdrawn,
see
supra, at 1 n., we are aware of no cases in which a
court of appeals panel has purported to issue a binding decision
that was joined at the time of release by less than a quorum of the
judges who were alive at that time.
* * *
Because Judge Reinhardt was no longer a judge
at the time when the en banc decision in this case was filed, the
Ninth Circuit erred in counting him as a member of the majority.
That practice effectively allowed a deceased judge to exercise the
judicial power of the United States after his death. But federal
judges are appointed for life, not for eternity.
We therefore grant the petition for certiorari,
vacate the judgment of the United States Court of Appeals for the
Ninth Circuit, and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
Justice Sotomayor concurs in the judgment.
