Page:Jim Yovino, Fresno County Superintendent of Schools v. Aileen Rizo.pdf/2

2 Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference. Was that lawful?

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: “Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority