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.