9th Circuit reassignment policy for dead and retired panel members causes confusion

What happens when a federal appeals court judge dies or leaves office while considering a case?

It's a question with which the 9th U.S. Circuit Court of Appeals has wrestled recently, following the loss of three of its most prominent jurists over a period of five turbulent months.

Last November, Senior Judge Harry Pregerson, still carrying a relatively active caseload, died. Weeks later, Judge Alex Kozinski resigned abruptly amid a series of accusations of sexual misconduct. And Judge Stephen R. Reinhardt died suddenly this March. Each judge left behind a raft of undecided cases.

The situation has been a bit of uncharted territory for the court, as deaths or departures of active judges are rare. The last 9th Circuit jurist to die as an active member of the court was Pamela Ann Rymer in 2011. Before that, the most recent of such deaths was J. Blaine Anderson's passing in 1988.

The court's internal rule for assigning new judges to panels when one dies or leaves is not, on its face, entirely clear.

9th Circuit General Order 3.2(h), which addressed the issue for cases under submission -- those that have been fully briefed and argued -- says simply that the clerk of court "shall draw a replacement as needed, utilizing a list of active judges randomly drawn by lot," but doesn't elaborate on what "as needed" means.

In recent months, that language has caused come confusion and concern among attorneys and law professors. Two weeks ago, the court in a split decision ruled that the Internal Revenue Service was entitled to Chevron deference on a dispute over whether a section of the Code of Federal Regulations was valid under the Administrative Procedure Act.

Reinhardt, four months after his death, cast the deciding vote in the case, allowing Chief Judge Sidney R. Thomas to author a two-judge majority opinion. Judge Kathleen M. O'Malley of the U.S. Court of the Appeals for the Federal Circuit, sitting by designation, dissented. Altera Corp. v. Commissioner of Internal Revenue, 2018 DJDAR 7238 (9th Cir. Jul. 24, 2018).

The panel decision noted that Reinhardt "fully participated in this case and formally concurred in the majority opinion prior to his death."

But the explanation wasn't enough to assuage concern entirely.

"I'm very uncomfortable with the judicial decisionmaking process here," wrote The Ohio State University Michael E. Moritz College of Law professor Christopher J. Walker in the Yale Journal on Regulation Notice & Comment blog.

Walker, who speculated that Thomas likely consulted with his colleagues before publishing the opinion, was not the only person to express concern. And on Tuesday, the court withdrew the opinion shortly after Judge Susan P. Graber was assigned to the case, saying it would "allow time for the reconstituted panel to confer on this appeal."

This isn't the first time Reinhardt's presence on the court influenced a decision released after his death.

His last published majority opinion was released 11 days after he died. In an en banc majority opinion, Reinhardt said that prior pay could not be used to justify salary differences between men and women.

Five of his colleagues signed onto his opinion. Five others wrote or joined separate concurrences, meaning that his absence filled with a new judge could have, in theory, turned the court's majority into a plurality opinion or scattered the concurring judges among the existing separate concurrences. Rizo v. Yovino, 2018 DJDAR 3122 (9th Cir. April 9, 2018).

As of now, the court has not published any opinions authored by Kozinski since he resigned.

In one high profile en banc case to which he was assigned, Judge Richard Paez took his stead. The case tested whether a federal labor law preempted a Washington state statute challenge to a collective bargaining agreement controlling the allocation of vacation days.

Early this month, the newly constituted en banc panel split along liberal/conservative lines in a 6-5 vote, ruling that the federal law did not preempt. Alaska Airlines v. Schurke, 2018 DJDAR 7557 (9th Cir. Aug. 1, 2018).

Part of the confusion about the rule stems from the fact that the decision to assign a new judge to a case is at the discretion of remaining panelists.

General Order 3.2 (h) "has been consistently applied, but because each situation is different, it may appear that there's no certain outcome," 9th Circuit clerk of court Molly Dwyer said in a phone interview Thursday.

"Generally, it all comes down to timing and both remaining judges decide" whether there is a need to add a new judge to the panel, she said.

The decision is made based on how far along the panel was in deciding the case. If the case was heard and submitted to a panel, the three judges participated at post argument conference, a draft opinion was circulated and all the judges on the panel expressed a vote to concur in a proposed decision or drafted a full dissent before a judge's death or departure, panels can opt, based on a totality of the circumstances, to decide the case using a deceased judge's vote because the now unavailable judge "fully participated," Dwyer added.

But when deliberations are in their early phase, argument hasn't yet been heard and there is no decision in circulation or there is no affirmative vote in writing to concur in a decision, panels routinely request the assignment of a replacement judge before issuing a final opinion.

"In my experience, one judge's request for a replacement is enough to trigger the general order's application," Dwyer said.

"It just depends on the exact circumstances of each case," Dwyer said. "From the public's perception, I can see the confusion, especially given the unprecedented situation we have been in this year with two active judges with full caseloads suddenly, and without warning, become unavailable."

Dwyer said the same rule applies to en banc panel sittings.

But just because a published opinion has been issued before a judge's death doesn't mean it will necessarily remain good law.

One of Pregerson's final opinions attracted the attention of many immigration attorneys. Broad in its implications, the decision articulated that speculation about someone's race could not justify a detention for immigration enforcement purposes. Sanchez v. Sessions, 2017 DJDAR 8550 (9th Cir. Aug. 30, 2017).

Though Pregerson died months after his opinion was released, an en banc petition filed by the government required that a new judge be assigned to the case. That duty fell on Judge Kim McLane Wardlaw. On July 18, the court withdrew the opinion. "A new disposition will be filed in due course," the order said.

Because a court's order is not final until the mandate issues -- a procedure that is delayed when parties petition for rehearing -- panels may amend or withdraw opinions until that happens.

This was apparent in 2008, when the court witnessed such a reassignment, which altered the disposition of a case.

Considering whether a Washington state law providing for sex offenders' early release into community custody established a protected liberty interest, Judges Reinhardt and Warren J. Ferguson concluded it did. Judge Milan D. Smith Jr. dissented.

Ferguson died shortly thereafter and Washington's attorney general petitioned for rehearing. Judge Richard C. Tallman was selected as a replacment.

The change in panel composition allowed Smith and Tallman to amend the opinion, turning Smith's former dissent into the majority. Carver v. Lehman, 558 F.3d 869 (9th Cir. 2008).

Reinhardt objected strongly. "[I]t is indisputable that the law did not change and the Constitution did not change between the time of the original panel's decision and the time of the new majority's opinion," he wrote. "All that changed is the composition of the three-judge panel."

The months following the deaths of Pregerson and Reinhardt and the resignation of Kozinski have been difficult for the 9th Circuit, Dwyer acknowledged.

"It's rare to lose a judge in active service," she said. "It's rarer still to lose three incredible personalities of the court at the same time. It's been a traumatic time."

Arthur Hellman, a professor at the University of Pittsburgh School of Law who studies the 9th Circuit closely, suggested in a phone interview Thursday the court should clarify the judge reassignment rule.

"There are these customs and practices not in the rules," Hellman said about how General Order 3.2(h) operates. "That's what mystifies people, that they replace judges in some cases and don't in others."

Dwyer noted that the court has observed the public reaction to recent publication decisions.

"Clearly [General Order 3.2(h)] is not as clear as we think it is," she said. "I wouldn't be surprised if we take it up in some way to make this more transparent."