9th Circuit issues new general orders on replacement of dead or retired judges

Months after the U.S. Supreme Court reversed a federal appeals court for issuing a landmark en banc decision two weeks after the judge who authored the majority opinion died, the 9th U.S. Circuit Court of Appeals has adopted new internal rules aimed at curing confusion about when judges are replaced on a live case.

The development came with no official announcement, but a document on the court's website shows judges made effective a new general order June 19 requiring the 9th Circuit to immediately replace jurists who die or retire while considering an en banc case.

"If a judge becomes unavailable to sit on the en banc court by reason of death, disability, recusal, or retirement from the Court, a replacement judge shall be selected," 9th Circuit General Order 5.1.b.1 now reads.

A lack of clarity on the issue caused confusion last April, when the court issued a divided en banc opinion in which a six-judge majority said employers could not justify salary discrepancies between men and women by pointing to employment history.

The late Judge Stephen Reinhardt authored the far-reaching opinion, but died 14 days before it was published. A footnote attached to the ruling said, "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." Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018).

Legal commentators raised questions about the circumstances of the ruling then, but concern about the 9th Circuit's policies intensified several months later when the court released a three-judge panel opinion in a tax case split 2-1.

Chief Judge Sidney R. Thomas authored the majority ruling, which was bolstered by a concurring vote from Reinhardt. This decision came nearly four months after Reinhardt died, prompting several prominent lawyers and professors to raise concerns about the optics of such decision-making.

9th Circuit leaders withdrew that decision weeks later and replaced Reinhardt with Judge Susan P. Graber. A new opinion, also split 2-1, was released earlier this month. Altera Corp. v. Commissioner of Internal Revenue, 2019 DJDAR 4948 (9th Cir. June 7, 2019).

The Supreme Court reversed the Rizo employment decision in February, critiquing the 9th Circuit's policies for judicial re-assignments.

"Federal judges are appointed for life, not for eternity," the justices said in a unanimous, per curiam opinion.

The new 9th Circuit en banc rule comes in response to that decision. A similarly changed order outlining the operation of three-judge panels has been in effect since March but was not made publicly available until Thursday.

In it, the court clarifies that when a judge retires or dies while a case is under submission, the two remaining jurists may decide the case if they are in complete agreement as to how the appeal should conclude.

Should any disagreement arise, though, "the clerk shall draw a replacement Judge," General Order 3.2(h) now reads. Previously, the relevant order had simply said a new judge would be selected "as needed," leaving much to the discretion of remaining panelists.

A spokesperson for the 9th Circuit did not respond to a request for comment on the changes by press time Friday.

Arthur D. Hellman, a professor at the University of Pittsburgh School of Law who watches the 9th Circuit closely and is considered an expert in judicial administration, praised the new orders as a welcome change, but critiqued the court's decision not to make a public announcement about the changes.

"Think it would be a good idea to let people know," he said, "especially when the Supreme Court has expressed concern about the way the 9th Circuit handled a situation under the prior general orders."

Some uncertainty remains as to whether a replacement would need to come during the period of a case in which a ruling has been issued but the mandate has not issued, he noted.

"The basic question left unanswered by the text of the new rule is: What is the endpoint of this obligation?" Hellman wondered. "I probably think it extends to the issuance of the mandate."

During that period, parties may petition for rehearing or en banc reconsideration and recent developments at the 9th Circuit indicate a replacement in that situation can have serious consequences regarding the outcome.

Just last month, the 9th Circuit withdrew a 2018 decision issued before Reinhardt's death in which he ruled a California police department violated constitutional privacy rights by firing an officer for having an extramarital affair. Judge Sandra S. Ikuta was tapped to replace Reinhardt while reconsideration briefing was filed and was able to rewrite the opinion, finding in favor of the police department instead. Perez v. City of Roseville, 2019 DJDAR 4339 (9th Cir. May 22, 2019).