Yovino v. Rizo
Headline: Court bars federal courts from counting a deceased judge’s vote, vacates the Ninth Circuit en banc decision, and sends the case back to prevent a dead judge from creating binding precedent for future panels.
Holding: The Court held that federal courts may not count the vote of a judge who died before a decision was issued, so the Ninth Circuit erred, the en banc judgment is vacated, and the case is remanded.
- Prevents dead judges’ votes from creating binding appellate precedent.
- Vacates the Ninth Circuit en banc decision and sends the case back.
- Requires courts to count only living, authorized judges’ votes.
Summary
Background
Aileen Rizo, an employee of the Fresno County Office of Education, sued the county superintendent claiming a violation of the Equal Pay Act. A three-judge Ninth Circuit panel vacated the district court’s decision, and the Ninth Circuit granted en banc review to reexamine prior law, including a case called Kouba. Judge Stephen Reinhardt participated in the en banc process but died on March 29, 2018. The en banc opinion was filed April 9, 2018, listed Judge Reinhardt as its author, and included a footnote saying he had fully participated and that voting was completed before his death.
Reasoning
The Court asked whether a federal court may count the vote of a judge who died before a decision was issued. It relied on statutes in 28 U.S.C. §46(c) and (d), prior practice, and United States v. American-Foreign S. S. Corp., which holds a judge must be in active service when a case is decided. The Court found Judge Reinhardt was no longer a judge when the opinion was filed, so he lacked power to participate. Without his vote the opinion would not have been a majority of the living judges. For those reasons the Ninth Circuit erred in counting his vote, so the Court granted review, vacated the en banc judgment, and remanded for further proceedings.
Real world impact
The ruling prevents courts from treating a deceased judge’s vote as creating binding appeals-court precedent. Lower courts must ensure only living, authorized judges’ votes count when issuing opinions. The Ninth Circuit’s en banc decision in this case is undone and must be reconsidered without relying on the deceased judge’s vote.
Dissents or concurrances
Justice Sotomayor concurred in the judgment.
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