On February 25, 2019, the Supreme Court vacated a 9th Circuit Opinion filed on April 9, 2018 in Yovino v. Rizo. The 9th Circuit Opinion rested on Judge Stephen Reinhardt’s vote as the author of the majority opinion to establish binding 9th Circuit precedent. However, Judge Reinhardt died on March 29, 2018. Without his vote, the Opinion would have been approved by only 5 out of 10 members of the en banc panel. Even though the other five members concurred in the judgment, they did so for separate reasons.
The Supreme Court reasoned that even if Judge Reinhardt had fully participated in the case and authored the opinion, the law does not allow for a decision to precede as precedent where the majority of living judges at the time of issuance have not approved of the opinion. Since Judge Reinhardt was neither an active nor a senior judge at the time of issuance, he was without power to participate in the decision. Thus, the 9th Circuit erred in counting his vote. As stated by the Supreme Court, “federal judges are appointed for life, not for eternity.”
The 9th Circuit’s Opinion in Rizo v. Yovino would have barred employers from using evidence of prior salary history to justify pay differentials between men and women under the Equal Pay Act. The 9th Circuit Opinion stated that allowing an employer to do so would “allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum.” However, since the Opinion was vacated, it is unclear where the 9th Circuit will stand in the future.
If you have questions regarding the Equal Pay Act, contact the employment law attorneys at Mesch Clark Rothschild.
