One new grant and a 9th Circuit rebuke

This morning the Supreme Court issued orders from last week’s conference. The justices added just one new case to their merits docket for next term and issued an unsigned opinion that sent a ruling that was released after the death of one of the judges who participated in the case back to the U.S. Court of Appeals for the 9th Circuit. The justices once again did not act on several high-profile cases, including a challenge to an Indiana abortion law and a group of cases asking the justices to weigh in on whether LGBTQ employees are protected by federal employment discrimination laws.

The late Judge Stephen Reinhardt, who served for 38 years on the 9th Circuit, once famously said that the Supreme Court “can’t catch ‘em all” – that is, it can’t reverse all of his opinions, because it takes so few cases each year. The liberal lion died on March 29, 2018, but today the Supreme Court sent one of his final opinions, released 11 days after he died, back to the 9th Circuit for reconsideration.

The case involves the Equal Pay Act, a federal law that generally requires that men and women receive the same pay for the same work. The law carves out a few exceptions, including for seniority, merit, and a “catch-all” that includes “any factor other than sex.”

The plaintiff in the case is Aileen Rizo, a California teacher, who complained that her pay as a math consultant in Fresno County was lower than that of her colleagues, especially the male ones. Defending itself, the school district argued that it had set Rizo’s salary based on her salary as a math teacher in Arizona, and that prior salaries qualified as a “factor other than sex” for purposes of the Equal Pay Act.

A federal district court disagreed. It concluded that, even if it isn’t itself discriminatory, allowing employers to consider prior salaries creates a high risk that a new salary will reflect (and perpetuate) previous gender discrimination. A three-judge panel of the 9th Circuit reversed and ruled for the school district, but the full 9th Circuit agreed to rehear the case and ruled for Rizo, in an opinion by Reinhardt that he finished but did not release before he died.

The school district went to the Supreme Court last summer, asking the justices to weigh in on both the Equal Pay Act question and whether Reinhardt’s vote can count in the case.

In a five-page opinion, the justices sent the case back to the 9th Circuit without ruling on the Equal Pay Act question. The court explained that because Reinhardt “was no longer a judge at the time when” the full 9th Circuit’s ruling in this case was filed, the court of appeals should not have counted him as a member of the majority. “That practice,” the court reasoned, “effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But,” the court emphasized, “federal judges are appointed for life, not for eternity.”

The federal Fair Debt Collection Practices Act requires that a lawsuit under the act be brought “within one year from the date on which the violation” of the act occurs. In Rotkiske v. Klemm, the Supreme Court today agreed to decide whether the statute of limitations is paused until the plaintiff discovers the basis for his lawsuit. The case will almost certainly be argued in the fall.

The justices will meet again for another private conference on Friday, March 1.

This post was originally published at Howe on the Court.