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Supreme Court: Deceased Ninth Circuit Judge's Participation in Equal Pay Act Decision Was Improper


Yovino v. Rizo - United States Supreme Court


Facts:  Aileen Rizzo ("Rizzo") was employed by the Fresno County Office of Education.  From 1998 to 2015, new employees' salaries were set using their prior salaries.  Under what became known as "Standard Operating Procedure 1440", 5% was added to each new employee's prior salary and based on that figure, placed the employee on a corresponding "step" of the salary schedule.  The policy did not favor either sex.  However, Rizzo noticed that her pay was lower than her colleagues and subsequently filed a suit against the superintendent of the schools and alleged that the county was violating the Equal Pay Act of 1963.  Yovino argued the disparity arose based entirely on the policy's consideration of prior salary; that prior salary is a "factor other than sex", and that any wage disparity based on that factor was therefore permissible under the Equal Pay Act.

On interlocutory appeal, a three judge Ninth Circuit Court of Appeals panel held that under Kouba v. Allstate Insurance Co., prior salary is a "factor other than sex", and employers therefore may consider it in setting wages provided it is a reasonable means of effectuating some business policy.  Rizzo sought and received an en banc review.  The en banc Ninth Circuit Court of Appeals issued a decision, 6 to 4, and held that an employee's prior salary does not constitute a "factor other than sex" upon which a wage differential may be based.  However, one of the majority votes (and the author of the opinion), Judge Stephen Reinhardt, passed away 11 days before the en banc decision was issued.  Yovino filed a petition with the United States Supreme Court, contesting the Ninth Circuit's ruling.

Holding:  In a short opinion, the United States Supreme Court issued a per curiam decision in which it considered whether the Ninth Circuit's opinion was valid, given Judge Reinhardt's passing.  The Court pointed out that the Ninth Circuit did not expressly explain why it found that it could count Judge Reinhardt's opinion as "[t]he majority opinion" even though it was not endorsed by a majority of the living judges at the time of issuance.

The Supreme Court recognized that it was not aware of any rule or decision of the Ninth Circuit that rendered judges' votes and opinions immutable at some point in time prior to the public issuance of the opinion.  In fact, it is generally understood that a judge may change their position up to the very moment when a decision is released.  When the Ninth Circuit issued its opinion, Judge Reinhardt was neither an active judge nor a senior judge.  Consequently, by statute, he was without power to participate in the en banc decision at the time it was rendered (irrespective of the fact that he had authored the opinion prior to his passing.)  As a result, as "federal judges are appointed for life, not for eternity", the Ninth Circuit's en banc opinion was improper.

Judgment:  The United State's Supreme Court vacated the Ninth Circuit Court of Appeal's opinion on the grounds that allowing a judge, that was no longer alive, to participate in the Court of Appeal's decision, any opinion that included that Judge's "vote" was improper.

The Takeaway:  This case caught my eye, given that the Ninth Circuit was addressing a relatively important matter:  Whether an employer's consideration of an employee's prior salary is a "factor other than sex", such that consideration of this factor did not have an employer run afoul of the Equal Pay Act.  However, the Supreme Court's decision here did not address that topic, but perhaps the Court considered a more important matter:  Whether a deceased judge may participate in a court's ruling.  Now bear in mind, in this case, the deceased Judge had already "voted" and had actually written the decision for the Ninth Circuit.  However, as the Supreme Court pointed out, given that judges can change their mind up to the point a decision is actually published, the fact that the Ninth Circuit Judge passed away 11 days before the opinion was published was ultimately the deciding factor.

Majority Opinion Judge:  Per Curiam

Date:  February 25, 2019

Opinion:  https://www.supremecourt.gov/opinions/18pdf/18-272_4hdj.pdf

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