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Supreme Court Vacates Ninth Circuit Court of Appeal’s Salary History Ruling

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Case remanded back to Ninth Circuit due to Judge’s death prior to the court’s decision and not based on the merits of the case

On February 25, 2019 the Supreme Court vacated and remanded the Ninth Circuit Court of Appeals ruling in Yovino v. Rizo that salary history alone can’t justify pay gaps between men and women. The higher court said that the Ninth Circuit erred when it counted the vote of Judge Stephen Reinhardt, who died 11 days before the court’s decision was filed.

The footnote in the court’s opinion notes that, “[p]rior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.” The Supreme Court said that without Reinhardt’s vote, the decision would only have been approved by five out of 10 members of the en banc panel. By counting his vote it “effectively allowed a deceased judge to exercise the judicial power of the United States after his death.” The court thereby remanded the case to the Ninth Circuit “for further proceedings consistent with this opinion.”

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