3rd not-final Reinhardt opinion reversed after his death

The jurisprudential tapestry left behind by late 9th Circuit liberal stalwart Judge Stephen Reinhardt continues to unravel, as another of his last written opinions was wiped from the court's case law.

An uncommon procedural concatenation led a reconstituted panel on Tuesday to replace Reinhardt's ruling from last February, in which he found constitutional privacy rights protected a plaintiff police officer who claimed she'd been fired based on an extramarital affair with a colleague.

Visiting District of Montana Judge Donald W. Molloy joined that opinion in full, and Judge Wallace Tashima concurred in the result. Perez v. City of Roseville. 882 F.3d 843 (2018). Reinhardt died six weeks later.

On Tuesday, Tashima joined Reinhardt's randomly-drawn panel replacement, Sandra S. Ikuta, in her split majority opinion that reversed the earlier disposition and affirmed a summary judgment in favor of the defendants.

Molloy dissented, arguing any reversal of the late judge's ruling should have been rendered by an en banc cohort.

"While it is true that judge substitution is an acceptable practice and no rule or decision of this court makes a judge's votes and opinions immutable before their public release, once an opinion is published it should stand, absent correction by the entire court acting through the en banc process," Molloy wrote.

The court had ordered briefing on a potential en banc call, but no formal vote was taken before Tuesday's ruling. Ikuta argued the panel was empowered to withdraw Reinhardt's decision on its own.

"Like all three-judge panels, we must resolve the case before us to the best of our abilities, which may include reconsidering and revising an opinion that has not yet mandated," she wrote, referring to the fact that appeals are not finally concluded until a mandate issues enforcing the court's decision. Before that, the court often weighs, and sometimes grants, requests for reconsideration.

Arthur Hellman, a federal courts scholar and professor emeritus at the University of Pittsburgh School of Law, reasoned that potential reconsideration period rightly enables panels, including reconstituted ones, to change their minds.

"Why would you have petition for review by the panel if you didn't assume members of the panel were open to being convinced they got it wrong?" Hellman said.

In an analogous, earlier ruling referenced by both Ikuta and Molloy, Reinhardt wrote that redrawn panels rendering reversals threaten the "stability and legitimacy of the court's decisions."

Hellman agreed Tuesday's ruling demonstrates that outcomes often depend on judges as much as law, but he said that reality is inescapable. "Judges have different perspectives; that's why we have these huge fights" over judicial nominations.

Hellman added that Tashima's switch exemplified a judicial open-mindedness that merits esteem.

"He didn't simply hunker down and say, 'That's my story; I'm sticking to it," Hellman said.

This is the third of the late judge's rulings to be retroactively removed from the appellate reporters. The 9th Circuit pulled a tax ruling last summer, and in February the U.S. Supreme Court reversed an employee-friendly gender discrimination precedent Reinhardt had established in a ruling that rendered after his death. Yovino v. Rizo, 139 S. Ct. 706 (2019).