Page:Jim Yovino, Fresno County Superintendent of Schools v. Aileen Rizo.pdf/5

Rh 47 (CA2 1994); Singh v. Ashcroft, 121 Fed. Appx. 471, 472, n. (CA3 2005); ''ASW Allstate Painting & Constr. Co. v. Lexington Ins. Co., 188 F. 3d 307, 309, n. (CA5 1999); Clark v. Metropolitan Life Ins. Co., 67 F. 3d 299, n. ** (CA6 1995); Kulumani v. Blue Cross Blue Shield Assn'', 224 F. 3d 681, 683, n. ** (CA7 2000). See also Nguyen v. United States, 539 U. S. 69, 82 (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 With the exception of one recent decision issued by the Ninth Circuit after Judge Reinhardt’s death but subsequently withdrawn, see supra, at 1 n., we are aware of no cases in which a court of appeals panel has purported to issue a binding decision that was joined at the time of release by less than a quorum of the judges who were alive at that time.

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. concurs in the judgment.