Can a federal court count the vote of a judge who dies before the decision is issued?

Yovino v. Rizo (US 18–272 Per Curiam 2/25/19)

Yovino v. Rizo addresses the issue of whether a federal judge’s vote counts if the judge dies before the decision is issued. Aileen Rizo, an employee of the Fresno County Office of Education, sued Jim Yovino, the Fresno Superintendent of Schools, claiming that the district had violated the Equal Pay Act of 1963. The county moved for summary judgment, which the district court denied. Then, the Ninth Circuit granted the county’s petition for interlocutory review. The Ninth Circuit vacated the decision of the District Court, based on a prior Ninth Circuit decision in Kouba v. Allstate, Ins. The court then granted en banc review to clarify the law and the effect of the Kouba decision. The purpose of the en banc review was to announce a new binding Ninth Circuit interpretation of the Equal Pay Act that was previously addressed in Kouba.

Judge Reinhardt, listed as an author on the en banc decision, died on March 29, 2018. The opinion was issued 11 days after his death and his vote counted as the majority opinion, which would then become precedent that all future Ninth Circuit panels must follow. The en banc opinion was filed April 9, 2018, and the Ninth Circuit concluded that the opinion had been finalized 12 days prior to the date on which it is was filed, when Reinhardt was still alive, which is why the Ninth Circuit counted his vote.

However, the Supreme Court ruled that the Ninth Circuit erred in counting Reinhardt as a member of the majority. The Supreme Court said that this is inconsistent with well-established judicial practice, federal statutory law, and judicial precedent. For one, there is no time at which an opinion is immutable at some point prior to the release of the opinion. Secondly, only active judges can sit en banc. When the opinion was issued, Reinhardt was not an active or senior judge, so by that reasoning, he was without power to participate in the en banc court’s decision. Based on the reasoning that “federal judges are appointed for life, not for eternity”, the Supreme Court granted the petition for certiorari, vacated the judgment of the United States Court of Appeals for the Ninth Circuit, and remanded the case for further proceedings consistent with this opinion.