Howard Bashman.Upon Further Review

Upon Further Review

U.S. Court of Appeals for the Ninth Circuit Judge Stephen Reinhardt died suddenly and unexpectedly earlier this year on March 29. Since then, the Ninth Circuit has issued two appellate rulings in which Reinhardt provided the decisive vote in favor of the outcome of those appeals. Reinhardt's life tenure on the Ninth Circuit lasted an impressive 37 and a half years. And his afterlife tenure as a federal appellate judge continued for nearly another four months following his untimely passing.

Reinhardt's first decisive vote from the grave occurred on April 9, when the Ninth Circuit issued an en banc decision in which Reinhardt's vote proved dispositive with regard to the scope of that court's ruling. In Rizo v. Yovino, the en banc Ninth Circuit, in a majority opinion written by Reinhardt on behalf of six judges on an eleven-judge en banc panel, ruled that an employee's prior salary does not constitute a “factor other than sex” on which a wage differential may be based under the federal Equal Pay Act. The remaining five judges on the en banc panel wrote separately to state that they would not have held, as the majority opinion did, that an employee's past pay can never be considered under the Equal Pay Act.

The Ninth Circuit issued its mandate in the Rizo case on May 1, meaning that the case is no longer within that court's jurisdiction. However, the losing parties in the Ninth Circuit obtained an extension until Aug. 23, 2018, for a petition for writ of certiorari to be filed in the U.S. Supreme Court, so further appellate review appears likely to be sought in that case in the very near future.

Reinhardt's second decisive vote from the grave occurred on July 24, nearly four months after his death. On that date, a three-judge Ninth Circuit panel issued its ruling in an important and long-awaited tax appeal captioned Altera v. Commissioner. The appeal had been argued on Oct. 11, 2017. A footnote to the decision issued on July 24 stated that “Judge Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death.” The Ninth Circuit's chief judge, Sidney R. Thomas, wrote the majority opinion, in which Reinhardt was said to have joined. A federal appellate judge visiting from another circuit issued a dissenting opinion.

The fact that Reinhardt had cast the decisive vote for the outcome these decisions, both of which issued after he had died, drew attention from various legal commentators. And the Altera decision drew even more attention than the Rizo case, given that the ruling in Altera issued nearly four months after Reinhardt had passed away. Some commentators questioned whether the third judge's issuance of a dissenting opinion was the reason for that four-month delay, in which event Reinhardt never would have had the opportunity to review the dissent and reconsider his deciding vote in the case in light of the arguments contained therein.

For reasons that have yet to be explained, on Aug. 2, the Ninth Circuit issued an order in the Altera case stating that Judge Susan Graber has been drawn as a replacement for Reinhardt on the three-judge panel. The significance of that replacement became known on Aug. 7, when the newly constituted three-judge panel vacated the majority and dissenting opinions issued on July 24, “to allow time for the reconstituted panel to confer on this appeal.”

The Ninth Circuit's recent actions in the Altera case are encouraging, because they suggest that the Ninth Circuit has finally recognized that a federal appellate judge's life tenure, as that term suggests, does not continue past the point where the judge is no longer among the living. Technical or not, the fact remains that a federal appellate court's judgment does not issue, and is not docketed, until the date on which a federal appellate court's opinion issues. Until judgment is formally entered, a federal appellate judge retains the ability to change his or her mind about the outcome of an appeal.

Reinhardt was not the only Ninth Circuit judge to unexpectedly depart from that court in the recent past. On Dec. 18, 2017, Alex Kozinski unexpectedly announced his immediate retirement from the Ninth Circuit after numerous allegations of sexual harassment against him received news coverage. No doubt Kozinski had cast votes in numerous pending Ninth Circuit cases in which opinions had yet to issue, and in all likelihood Kozinski must have cast the deciding vote in at least some of those cases. Yet there is no disagreement that once someone resigns or retires altogether from service as a federal appellate judge, his or her votes in pending cases can no longer be counted to produce the outcome of those appeals. I have yet to hear anyone persuasively explain why a judge's death should be treated any differently.

Whether a federal appellate court should or should not count the decisive vote of a federal appellate judge who died before a decision has issued is a question that divides the federal courts of appeals. The Third and Sixth Circuits have permitted the decisive vote of a deceased judge to count, while the D.C. and Fourth Circuits do not.

Way back in February 2006, I wrote a column condemning the Third Circuit's decision to allow Senior Circuit Judge Max Rosenn to cast the deciding vote in a decision that issued after his death earlier that month at the age of 96. And the Third Circuit did it again later that year, following the death of Senior Circuit Judge Edward R. Becker, counting Becker's vote as decisive to the outcome in a decision that issued after his death.

In my view, federal appellate courts should refrain from entering judgments where the dispositive vote has been cast by a judge who died before the entry of judgment. An appellate court's entry of judgment represents the court's official disposition of an appeal. That entry of judgment, to be binding, must have the support of a majority of judges authorized to participate in the judgment on the day that the judgment issues.

Some line must be drawn to govern when a federal appellate judge can no longer provide the deciding vote on the outcome of a case, and death is both the most logical choice and the choice that the law seems to compel. Nothing herein is meant to suggest that a federal appellate judge's death decreases the precedential value of those rulings that issued before his or her death, but death should preclude a federal appellate judge from casting the deciding vote in support of judgments that have yet to issue.

Federal appellate courts either should adopt a uniform practice that prevents dead judges from casting the dispositive vote in support of a court's judgment, or Congress should enact legislation providing that it is only the votes of federal judges who are alive when an appellate court's judgment is entered that may be counted.

The Ninth Circuit's recent about-face concerning whether it is permissible to permit a deceased judge to cast the decisive vote on the outcome of the appeal serves as an encouraging sign that the proper outcome on this issue might yet prevail elsewhere, including here in the Third Circuit.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, a suburb of Philadelphia. He can be reached via e-mail at [email protected]. You can access his appellate Web log at http://appellateblog.com/.