U.S. Supreme Court vacates 9th Circuit Judge Reinhardt’s final opinion

The U.S. Supreme Court vacated an appellate decision establishing that prior pay may not be used to justify salary discrepancies between men and women, saying the 9th U.S. Circuit Court of Appeals was wrong to issue a majority opinion written by a deceased judge.

In a per curiam decision released Monday, the high court said the 9th Circuit should not have issued a groundbreaking en banc opinion considering the scope of the federal Equal Pay Act 11 days after Judge Stephen Reinhardt, who authored the precedentially binding majority opinion, died in 2018.

"[F]ederal judges are appointed for life, not for eternity," the high court justices wrote in an unsigned opinion.

The 9th Circuit's decision last April to release Reinhardt's opinion caused a stir among attorneys and legal scholars. Though the court's decision was unanimous, Reinhardt's view that the Equal Pay Act barred employers from ever looking to past salary history in justifying disparate pay between men and women doing the same work only drew support from five of his colleagues.

The other five judges selected for the en banc panel wrote or joined separate concurrences taking decidedly less expansive views of the 1963 legislation, meaning that without Reinhardt's vote, the majority opinion would have been reduced to a plurality.

Prominent legal scholars questioned why the court released the opinion under such circumstances, despite a note at the beginning of the opinion explaining, "The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to [Reinhardt's] death."

Four months later, the 9th Circuit released a second opinion in which Reinhardt's vote established a majority in a divided three-judge panel considering a complicated tax appeal. Public commentary about the practice, which the court said was admissible under its general orders, continued.

The 9th Circuit ultimately withdrew the opinion and issued a new one after a replacement for Reinhardt had been assigned to the case. Altera Corp. v. Commissioner, 898 F. 3d 1266 (CA9 2018).

A source familiar with internal court proceedings but not authorized to speak on the record told the Daily Journal Monday that a number of active 9th Circuit judges raised concerns internally about the Altera case history, which promoted discussions about changing the 9th Circuit general order outlining replacements for deceased and retired judges.

In its current form, the rule gives wide discretion to judges remaining on a panel to ask for a replacement when a colleague departs the court.

"The matter has been under discussion and it will likely be considered at an early court meeting," the source said. "It is anticipated that the current rule will be revised and will fully conform with the [Supreme Court's] ruling."

On Monday, the justices said they were unaware of any rule that established judicial votes "immutable at some point in time prior to their public release." Yovino v. Rizo, 2019 DJDAR 1445 (U.S. Feb. 25, 2019).

"And it is generally understood that a judge may change his or her position up to the very moment when a decision is released," the justices continued.

Justice Sonia Sotomayor concurred in the judgment alone. She did not explain why she did not join the per curiam opinion.

The case involved a Fresno County school district math consultant who allegedly received a lower salary than male counterparts hired after her. County officials said the discrepancy was because of bigger paychecks they'd received before coming to work in Fresno.

Daniel M. Siegel, a partner at Siegel, Yee & Brunner who represents the plaintiff in the underlying case, successfully argued before the 9th Circuit en banc court that the Equal Pay Act forbade such pay differences because past pay history was not a "factor other than sex."

Most of the Supreme Court certiorari briefing addressed this question. But Jones Day lawyers representing the school district questioned Reinhardt's role in the decision.

"When Judge Reinhardt died, he left 'regular active service' as a federal judge," Jones Day partner Shay Dvoretzky said in the school district's petition. "So when the Ninth Circuit 'determined' this case or controversy, its en banc panel consisted of a judge not 'in regular active service' or otherwise eligible to participate."

Siegel said in a response brief it wasn't even a question worth considering, saying the premise "defies reason."

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

During his decades on the federal bench, Reinhardt was a leading liberal voice in judicial analysis, broadly interpreting laws to protect what he saw as disenfranchised groups at a time when the U.S. court system became increasingly more conservative. The Rizo decision was seen by many as his swan song.

Siegel said in a phone interview Monday he was surprised the justices took the route they did.

"It's disappointing to see such a strong ruling overturned," he said. "On another level, it's disappointing that Judge Reinhardt's final decision was reversed."

Dvoretzky did not respond to a request for comment by press time.