Ninth Circuit Court of Appeals Mistakenly Releases Opinion Listing Deceased Judge

The U.S. Supreme Court held recently that the Ninth U.S. Circuit Court of Appeals was in error when they released an opinion that listed a deceased judge as the author while also counting his vote. The deceased judge, Judge Stephen Reinhardt had died 11 years earlier.

In an unsigned opinion the nation’s high court vacated the Ninth Circuit’s April 9, 2018 decision in the case that interpreted the federal Equal Pay Act. In the opinion, it was found that…the opinion of the court, without Judge Reinhardt’s vote (the deceased judge that was mistakenly listed as author) that was attributed to him in err, would have been approved by only 5 of the 10 members of the en banc panel who were alive when the decision was filed. The other five judges did concur in the judgment, but they concurred for varying reasons. The issue to be made clear is that Judge Reinhardt’s vote that was mistakenly included made a difference in the outcome.

The question posed to the Supreme Court was whether or not it was lawful. Since Judge Reinhardt was no longer a judge when the en banc decision was filed for the case, the Ninth Circuit decided that the Ninth Circuit did, indeed, err when counting him a member of the majority. In doing so, they effectively allowed the deceased Judge Stephen Reinhardt to exercise the judicial power of the United States post mortem. Since federal judges are appointed for life – not eternity – the Ninth U.S. Circuit Court of Appeals clearly erred.

Prior to his death, Judge Reinhardt did actively participate in the case and author the opinion. The majority opinion and concurrences were final and voting was completed prior to Judge Reinhardt’s death on March 29, 2018. The opinion listing the deceased judge in error was publicly released on April 9th. The Supreme Court found that the justification for counting Reinhardt’s vote was not consistent with well-established judicial practice, federal law, and judicial precedent.

The heavily debated opinion came in a discrimination case that was filed in the District Court for the Eastern District of California by a math consultant for the Fresno County Office of Education named Aileen Rizo. Rizo alleged she was paid less than her male counterparts.

If you need help protecting your legal rights in the workplace or have questions about how to file a California discrimination lawsuit, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.