Employment Law Daily SCOTUS vacates, remands Ninth Circuit en banc holding that prior salary can’t be EPA ‘factor other than sex’
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Monday, February 25, 2019

SCOTUS vacates, remands Ninth Circuit en banc holding that prior salary can’t be EPA ‘factor other than sex’

By Joy P. Waltemath, J.D.

The High Court’s holding was based on the fact the Ninth Circuit erroneously counted the vote of a judge who died before the decision was filed.

Vacating and remanding a Ninth Circuit en banc opinion that held that an employee’s prior salary does not constitute a “factor other than sex” upon which a wage differential may be based under the Equal Pay Act, the U.S. Supreme Court ruled that because Judge Reinhardt, who died 11 days before the decision was filed, was no longer a judge at the time the en banc decision was filed, the Ninth Circuit erred in counting him as a member of the majority. “That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death,” said the Court, stressing that “federal judges are appointed for life, not for eternity.” In a five-page opinion as part of its order list, the Court granted certiorari, vacated the judgment, and remanded the case (Yovino v. Rizzo, February 25, 2019, per curiam).

In the Ninth Circuit. The en banc opinion authored by Judge Reinhardt before his death asserted that while the EPA has prohibited sex-based wage discrimination for over 50 years, “[s]alaries speak louder than words” and the “gender pay gap continues to be an embarrassing reality of our economy.” Against this backdrop, the Ninth Circuit characterized the issue: “The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex. The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the answer is clear: No.”

As a result, the en banc appeals court held that a county employer that relied on prior salary to set a female employee’s starting salary failed to set forth an affirmative defense, and the denial of its motion for summary judgment against the employee’s EPA claim was affirmed by the court, which had granted en banc review to clarify the law. There were three concurring opinions.

New interpretation of EPA? Like other courts of appeals, the Ninth Circuit takes the position that a panel decision can be overruled only by a decision of the en banc court or the Supreme Court. A clear purpose of the en banc decision issued on April 9 was to announce a new binding Ninth Circuit interpretation of the Equal Pay Act issue previously addressed by Kouba v Allstate Ins. Co. in 1982. Said the Supreme Court, “the opinion authored by Judge Reinhardt and issued 11 days after his death pur­ports to do that, but its status as a majority opinion of the en banc court depends on counting Judge Reinhardt’s vote.”

Majority author no longer living. In the High Court’s view, the Ninth Circuit did not explain why 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. There was a footnote in the en banc opinion suggesting that “the votes and opinions in the en banc case were inalterably fixed at least 12 days prior to the date on which the decision was ‘filed,’ entered on the docket, and released to the public.”

But, said the Court, “this justification is inconsistent with well-established judicial practice, federal statutory law, and judicial precedent. As for judicial practice, we are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very mo­ment when a decision is released.”

Did the judge’s vote still count? Specifically, Judge Reinhardt was listed as the author of the en banc decision issued on April 9, 2018. This was 11 days after he died. By counting his vote, the Ninth Circuit 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,” noted the Supreme Court. Without that vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel (who were then living), and “although the other five living judges concurred in the judgment, they did so for different reasons.”

No. Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority, concluded the court.

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