When does a federal judge stop being a judge?

When does a federal judge stop being a judge?

That's a question the U.S. Supreme Court may answer if it decides to review one of the 9th U.S. Circuit Court of Appeals' most consequential labor decisions of 2018.

In early April, the San Francisco-based federal appeals court made headlines in the legal community for two reasons.

First, an en banc panel of the court ruled that the Equal Pay Act of 1963 barred companies from justifying unequal pay between men and women working the same job because of prior wage history, further cementing a circuit split on that question. The law prohibits employers from "discriminating between employees on the basis of sex."

Second, the judge who authored the groundbreaking ruling, Stephen Reinhardt, had died a week before it was published.

That decision -- and a subsequent ruling in which the deceased Reinhardt provided a crucial vote that determined the majority in an important tax law appeal -- drew criticism from some lawyers and law professors, who expressed confusion about the 9th Circuit's internal rules for proceeding when a judge dies while a case is under submission.

In its current state, the court's relevant general order says a replacement will be drawn "as needed," but offers nothing in the way of clarification as to what those words mean.

Now, lawyers on opposing sides of the Equal Pay Act dispute are arguing whether the justices should review the case and, in turn, address Reinhardt's role in the decision.

Represented by Jones Day partner Shay Dvoretzky, a Fresno County public school superintendent asked the court in an August certiorari petition to rule on the acceptability of having a deceased judge issue a ruling such as Reinhardt's.

En banc panels are required by federal law to consist of judges in active service, the superintendent noted in his petition.

"When Judge Reinhardt died, he left 'regular active service' as a federal judge," Dvoretzky and his co counsel wrote in the petition. "So when the Ninth Circuit 'determined' this case or controversy, its en banc panel consisted of a judge not 'in regular active service.'"

Not so, contends the plaintiff, a female employee of the Fresno Unified School District who sued her employer after finding out she made less than her male counterparts. Yovino v. Rizo, 18-272.

"Judge Reinhardt's participation in this case occurred entirely during his lifetime," wrote attorney Daniel M. Siegel in an opposition brief. "That the decision was not publicly announced prior to his death does not change its validity."

Each side points to case law seemingly supportive of their respective positions.

In 1960, the Supreme Court said the 2nd U.S. Circuit Court of Appeals was wrong to include the vote of a judge who retired during the pendency of an en banc case in the final vote, Dvoretzky noted in his brief.

But in 1910, the justices published an opinion originally authored by Justice David Josiah Brewer seven days after his death, noting that the court recirculated and signed onto his ruling after his passing.

When the 9th Circuit released its opinion, a footnote attached the ruling said that Reinhardt's opinion and the three concurrences attached to it were final prior to his death.

"The Ninth Circuit here did exactly what this court once did when faced with similar circumstances following the death of a justice," Siegel wrote.

Though an authoring judge's earthly presence at the time of publication is an interesting question, the justices could easily leave it alone and address the underlying circuit split in a review.

They appear to be interested in the case, or at least a few bench members do. The petition was distributed for the December conference during which they meet to vote on which cases to review. It was relisted for January consideration and the justices will meet Friday to look at it again.

To date, the 9th Circuit is the only federal appeals court to rule that prior wage history is never an acceptable justification for disparate pay between sexes. In fact, Reinhardt's majority opinion only drew five fully supportive votes. The five remaining judges on the panel scattered their votes among three separate concurrences. Had Reinhardt been replaced by a judge who viewed the case differently, his opinion might have been reduced to that of a plurality.

Two circuits have interpreted the Equal Pay Act to allow employers to consider past pay. Four other circuits have split the difference, allowing wage discrepancy justification based on salary history in limited circumstances.