Facts of the Case
The facts giving rise to this case are not immediately relevant to the issue on which the Court ruled. Aileen Rizo, an employee of the Fresno County Office of Education, filed a lawsuit against the superintendent of schools, claiming, among other things, that the county was violating the Equal Pay Act of 1963. The district court denied the county's motion for summary judgment, and a panel of the Ninth Circuit vacated the lower court's decision on the basis of binding Ninth Circuit precedent interpreting the statute. The Ninth Circuit granted a rehearing en banc and issued an opinion authored by Judge Stephen Reinhardt with a new, purportedly binding interpretation of the statute.
Judge Reinhardt died after he had finished writing the opinion but 11 days before it was officially filed. Without Judge Reinhardt, the opinion authored by him would have been approved by only 5 of the 10 judges sitting en banc, and those judges concurred on the judgment but not the reasoning.
Question
Does a judge's vote in a case count toward the majority if he dies after the opinion is written but before it is filed?
Conclusion
In a per curiam (unsigned) opinion issued without argument, the Court vacated the decision below and remanded it for further proceedings. The Court found that as a general rule, "a judge may change his or her position up to the very moment when a decision is released." Because at the time the Ninth Circuit issued its opinion in this case, Judge Reinhardt had died (and thus was no longer an active judge), he lacked the authority to participate in the en banc court’s decision at the time it was rendered.
Justice Sonia Sotomayor concurred in the judgment but did not write separately.