The U.S. Supreme Court has reversed a Ninth Circuit court case because the judge who wrote the opinion died before the opinion was issued and, therefore, his vote on the opinion could not be counted. In the now-reversed case, the Ninth Circuit had held that, under the federal Equal Pay Act, prior salary, whether alone or in combination with other factors, cannot justify a wage differential (Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018)).
An en banc panel of the Ninth Circuit decided the case on April 9, 2018. Ten judges were on the panel and five of them joined the opinion written by the Honorable Stephen Reinhardt, creating a majority. However, after writing the majority opinion but before the court issued the decision, Judge Reinhardt passed away.
The question before the U.S. Supreme Court was whether the Ninth Circuit could count Judge Reinhardt’s vote towards the majority opinion when he was not living at the time the opinion was issued.
The court said no, Judge Reinhardt was not an active judge at the time the court issued the opinion and thus he didn’t have the power to participate in the decision. Therefore, the Supreme Court held that the Ninth Circuit erred in counting him as a member of the majority. As the court explained:
That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.
The Supreme Court vacated the Ninth Circuit’s decision and sent the case back to that court for further proceedings.
California employers should note that even though the Ninth Circuit’s decision on the federal Equal Pay Act has been vacated, California’s Fair Pay Act still prohibits employers from using prior salary to justify a wage differential.