The petition in this case presents the following question: May a federal court count the vote of a judge who dies before the decision is issued?
A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date.
Aileen Rizo, an employee of the Fresno County Office of Education, brought suit against the superintendent of schools, claiming, among other things, that the county was violating the Equal Pay Act of 1963, 77 Stat. 56-57, 29 U.S.C. § 206(d). The District Court denied the county's motion for summary judgment, and the Ninth Circuit granted the county's petition for interlocutory review. A three-judge panel of the Ninth Circuit vacated the decision of the District Court based on a prior Ninth Circuit decision, Kouba v. Allstate Ins. Co., 691 F.2d 873 (1982), that the panel "believed it was compelled to follow." 887 F.3d 453, 459 (2018) (en banc). The court then granted en banc review "to clarify the law, including the vitality and effect of Kouba." Ibid. Like other courts of appeals, the Ninth Circuit takes the position that a panel decision like that in Kouba can be overruled only by a decision of the en banc court or this Court, see Naruto v. Slater, 888 F.3d 418, 421 (2018), and therefore 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. 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.
The opinions issued by the en banc Ninth Circuit state that they were "Filed April 9, 2018," and they were entered on the court's docket on that date. A footnote at the beginning of the en banc opinion states:
The Ninth Circuit did not expressly explain why it concluded 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, but the justification suggested by the footnote noted above is 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. This justification is inconsistent with well-established judicial practice, federal statutory law, and judicial precedent.
We endorsed this rule in United States v. American-Foreign S. S. Corp., 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960), which interpreted an earlier version of 28 U.S.C. § 46(c), the statutory provision authorizing the courts of appeals to hear cases en banc. The current version of this provision permits a circuit to adopt a rule allowing a senior circuit judge to sit on an en banc case under certain circumstances, but at the time of our decision in American-Foreign S. S. Corp., this was not allowed. Instead, only active judges could sit en banc. See 28 U.S.C. § 46(c) (1958 ed.).
In American-Foreign S. S. Corp., Judge Harold Medina was one of the five active judges on the Second Circuit when the court granted a petition for rehearing en banc. After briefing was complete but before an opinion issued, Judge Medina took senior status. When the en banc court issued its decision, the majority opinion was joined by Judge Medina and two active Circuit Judges; the two other active Circuit Judges dissented. We vacated the judgment and remanded the case, holding that "[a]n `active' judge is a judge who has not retired `from regular active service,'" and "[a] case or controversy is `determined' when it is decided." 363 U.S. at 688, 80 S.Ct. 1336. Because Judge Medina was not in regular active service when the opinion issued, he was "without power to participate" in the en banc decision. Id., at 687, 691, 80 S.Ct. 1336; cf., id., at 691-692, 80 S.Ct. 1336 (Harlan, J., dissenting).
Our holding in American-Foreign S. S. Corp. applies with equal if not greater force here. When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge. For that reason, by statute he was without power to participate in the en banc court's decision at the time it was rendered.
In addition to § 46(c), § 46(d) also shows that what the Ninth Circuit did here was unlawful. That provision states:
Under § 46(c), a court of appeals case may be decided by a panel of three judges, and therefore on such a panel two judges constitute a quorum and are able to decide an appeal—provided, of course, that they agree. Invoking this rule, innumerable court of appeals decisions hold that when one of the judges on a three-judge panel dies, retires, or resigns after an appeal is argued or is submitted for decision without argument, the other two judges on the panel may issue a decision if they agree. See, e.g., United States v. Allied Stevedoring Corp., 241 F.2d 925, 927 (C.A.2 1957); Murray v. National Broadcasting Co., 35 F.3d 45, 47 (C.A.2 1994); Singh v. Ashcroft, 121 Fed.Appx. 471, 472, n. (C.A.3 2005); ASW Allstate Painting & Constr. Co. v. Lexington Ins. Co., 188 F.3d 307, 309, n. (C.A.5 1999); Clark v. Metropolitan Life Ins. Co., 67 F.3d 299, n. ** (C.A.6 1995); Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 683, n. ** (C.A.7 2000). See also Nguyen v. United States, 539 U.S. 69, 82, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003) ("[S]ettled law permits a quorum to proceed to judgment when one member of the panel dies or is disqualified."). With the exception of one recent decision issued by the Ninth Circuit after Judge Reinhardt's death but subsequently withdrawn, see supra, at 707 — 708 n., we
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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. That practice 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.
We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice SOTOMAYOR concurs in the judgment.