The Dead Can Vote (At Least on the Ninth Circuit) (Updated)

A judge on the U.S. Court of Appeals for the Ninth Circuit casts a decisive vote four months after his death

|The Volokh Conspiracy |

Yesterday, the U.S. Court of Appeals for the Ninth Circuit decided Altera Corporation v. Commissioner, a challenge to the Internal Revenue Service's treatment of cost-sharing arrangements for employee stock compensation. The panel split 2-1 on whether the IRS rule satisfied the requiremements of the Administrative Procedure Act (APA), reversing a lower court decision concluding the IRS had failed to conduct an adequate rulemaking. One of the two judges, however, has been dead for four months.

Chief Judge Sydney Thomas wrote for the court, joined by the late Judge Stephen Reinhardt. Judge Kathleen O'Malley, of the Federal Circuit (sitting by designation) dissented. Judge Reinhardt died on March 29. Nonetheless, according to a footnote, "Judge Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death." Note that had Reinhardt not particpated, the court would have split 1-1, and would have been unable to overturn the court below uness the case were reargued.

The presumed justification for issuing the decision in Altera Corp is that Judge Reinhardt signed off on the opinion before he died, even though it was not near ready for publication. Perhaps so, but then why did the decision not issue for four months? One possibility is that the dissent had not been completed. Even if so, that hardly excuses the Ninth Circuit's decision to issue the opinion. Barring truly extraordinary circumstances, unless and until judges in the majority have seen and contemplated the other opinions offered by their colleagues, they cannot be said to have fully concurred in an opinion. Among other reasons, this is because sometimes dissents change judges minds. (The year I clerked, I actually saw this happen, when the judge who had authored the draft opinion for the panel changed sides after reading a draft dissent, eventually producing a unanimous opinion for the opposite result to his original draft.)

This is not the only instance in which a judge has died before opinions could issue. This happened on the Supreme Court when Justice Scalia died. Note, however, the Court did not proceed to issue any additional opinions with him participating. Opinions in cases that had not yet been issued were released with only eight judges participating (seven in the case of Fisher), even if that meant that some cases (such as Friedrichs, the precursor to Janus v. AFSMCME) were resolved 4-4. We have no reason to think Justice Scalia mght have been swayed and changed his vote in any of those cases. His vote was not counted, nonetheless.

It strikes me that the Supreme Court's approach is far superior to that adopted by the Ninth Circuit. I am sure Chief Judge Thomas and Judge O'Malley had little interest in rehearing the case, but it seems inappropriate to allow the vote of a long-deceased judge determine the outcome.

For more on this case, see Chris Walker's post on Notice & Comment.

UPDATE: There are other ways to handle the loss of a panel member. One of the easiest things to do is to replace the lost judge with another judge from the court who can review the briefs and oral argument and cast a vote. Indeed, the Ninth Circuit has done precisely that, as in this recent en banc decision.

FURTHER UPDATE: On August 7, the U.S. Court of Appeals for the Ninth Circuit issued an order withdrawing the the July 24 Altera Corp opinion so that the case may be decided by a reconstituted three-judge panel. That is good to hear, and is what the court should have done in the first place.

NEXT: Pipeline Company Hit With $40 Million Retroactive Tax After Applying for Tariff Exemption

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  1. I thought Chicago hosted the *Seventh* Circuit.

    Heck with it, let’s dig up King Solomon and get his rulings on things.

  2. Weekend at Judge Bernie’s.

  3. “I thought Judge Reinhart was my friend, but he came back from the dead to vote and never stopped by to visit me.”

  4. SCOTUS should overturn and put Scalia’s name on the opinion.

  5. On the one hand, this really bothers me that a dead judge can cast a deciding vote 4 months after his death. On the other hand, it is Judge Reinhardt we are talking about, so his death almost certainly did nothing to diminish his mental capacity; he wasn’t too rational when he was alive.

  6. Yes. This is bad call. The linked discussion says it is not a trivial case either.

  7. You’re high if you think Judge Reinhardt would have ever ruled in favor of a corporation against the IRS.

  8. Well, what’s the difference between a live judge and a dead one? (please fill in the punch line).

    1. Less resources expended?

  9. Dead man ruling!

    Of course, the left wing politics of the ninth circuit could not find anything wrong with this.

  10. I’m not concerned about whether a dissent might have changed a judge’s mind, but that the opinion simply isn’t an order of the court when voted on, but when issued, and a dead judge simply isn’t on the court at that time. They should have added a judge and resubmitted, with or without argument, when Reinhardt died.

  11. While I think the 9th Circuit was wrong to file the opinion, my hunch is that the dissent and the majority were already largely written and had been seen by Judge Reinhardt before he died, and the long delay was attributable to a disagreement between Judges Thomas and O’Malley with respect to whether the opinion could be filed in that circumstance. The 9th Circuit may not have any procedures for resolving a 1-1 split on a question like that. If so, I suspect that other 9th Circuit Judges became involved, and that there were memos and counter-memos on the question, thus resulting in the delay. It may also have been complicated by the fact that Judge Thomas is the Chief Judge of the 9th Circuit, and there may have been a dispute about whether he had the administrative power to decide whether the case could be filed.
    If I’m wrong about what happened, and the dissent really hadn’t been written before Judge Reinhardt’s death, then the decision to file the opinion was not just wrong but a grotesque miscarriage of justice. From time to time a well-written dissent persuades one or more Judges in the majority that they were wrong; I saw it more than once at the California Supreme Court, where I worked for many years as a staff attorney. Even when a dissent doesn’t change the outcome, it often leads to revisions in the majority’s reasoning, which in turn affects future cases. I assume the loser will seek rehearing en banc, and it’ll be interesting so see what happens.

    1. I wonder if the loser will go direct to SCOTUS as it is obvious that an en banc decision would be compromised due to the Chief Judge of the 9th Circuit already making this decision to release.

  12. Surely there must have been many precedents in USA history. How were they ruled?

    1. Precedents are created by published opinions addressing contested issues that have been briefed and argued by the parties. Ordinarily administrative matters of this nature are not discussed in published opinions. Here, it appears that the matter was only briefly mentioned in the footnote noted by Adler. If the loser raises the issue in a petition for rehearing en banc, conceivably the issue might be discussed by the en banc panel.

  13. Gives new meaning to “Dead Man Walking”.

  14. Does the same logic apply to changes to SCOTUS opinions after the slip opinion is released and before the final version is published (a few years later) in the U.S. Reports? If something is added to a slip opinion after a justice who voted on the outcome died, will the additions be binding?

    In 2014, the Harvard Law Review published a lengthy paper called “The (Non)Finality of Supreme Court Opinions” that looks at how opinions are changed after the slip opinion is released and before final publication. (URLs are too long (>50 characters) to fit in comment, so I had to add a space that you need to remove) https://harvardlawreview.org/2014/12/ the-nonfinality-of-supreme-court-opinions/ Here’s an article summarizing that paper: https://verdict.justia.com/2014/05/30/ secret-endless-editing- published-supreme-court-opinions

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