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The U.S. Supreme Court has remanded an Equal Pay Act case, citing the death of the 9th U.S. Circuit Court of Appeals judge who wrote the majority opinion before the decision was issued.
Justice Stephen Reinhardt died on March 29, 2018, before the April 9, 2018, en banc opinion in Aileen Rizo v. Jim Yovino, Fresno County Superintendent of Schools was issued by the San Francisco-based appeals court.
Ms. Rizo, a math consultant for the Fresno County, California, schools charged she was given a starting salary less than a male math consultant who had been hired.
The 9th Circuit’s strongly worded opinion in the case in Ms. Rizo’s favor replaced an April 2017 ruling by a three-judge 9th Circuit panel and affirmed a ruling by the U.S. District Court in Fresno that denied Fresno County summary judgment in the case.
All 11 judges who heard the case en banc agreed Ms. Rizo should prevail, but five of the judges held it should be on different grounds than those expressed in the majority opinion.
In its unsigned ruling, the Supreme Court said, “By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow.”
“Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed. Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference.”
The ruling said the 9th Circuit did not “expressly explain” why it counted Judge Reinhardt’s opinion, but said a footnote suggests it is because the votes and opinions in the case were “inalterably fixed at least 12 days” before the ruling was issued.
“This justification is inconsistent with well-established judicial practice, federal statutory law, and judicial precedent,” said the ruling.
The 9th Circuit “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,” said the court, in remanding the case for further proceedings.
Daniel M. Siegel, an attorney with Siegel, Yee & Brunner in Oakland, California, who represented Ms. Rizo in the case, said he was disappointed by the ruling.
The court “clarified the law on the issue, but in doing so it eliminated what I thought was an excellent decision by the 9th Circuit Court of Appeals and leaves the law somewhat in limbo.”
Mr. Siegel said the 9th Circuit’s options now include simply issuing a new judgment with the 10 remaining, living, judges, “which would mean the lower court decision is still affirmed, and the 9th Circuit’s previous decision is overturned.”
“That would mean, at least in terms of our case, we would go forward in federal court in Fresno with Ms. Rizo’s case and take it to trial.”
The other option is to appoint a new judge to replace Judge Reinhardt “and bring the panel back up to eleven judges and decide it again. They could do that with or without further oral argument or written argument, for that matter,” said Mr. Siegel.
Mr. Siegel, who said he was unsure which option the court would choose, added, “Ultimately, the result for Ms. Rizo will not change. But what might change is whether there’s a clear 9th Circuit opinion as to why it’s improper for employers to use prior salary as the sole basis for setting an employee’s new salary.”
The school district’s attorney could not immediately be reached for comment.
A tire company failed to pay a female executive the same salary as her male predecessor, the Equal Employment Opportunity Commission alleges in a lawsuit.