SAN FRANCISCO (CBS SF) – The U.S. Supreme Court on Monday ordered a federal appeals court in San Francisco to reconsider an equal-pay ruling because the lead judge in the decision died 11 days before it was issued.

The high court said the 9th U.S. Circuit Court of Appeals could not count the vote of the late Judge Stephen Reinhardt in its ruling last year in a lawsuit filed by a mathematics consultant against the Fresno County Office of Education.

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Reinhardt died at age 87 on last March 29, shortly before an 11-judge panel of the court ruled April 9 in favor of Aileen Rizo in her equal-pay lawsuit.

At the time, the appeals court noted that Reinhardt had already written the majority decision and the other judges had voted and completed several concurring decisions before his death.

But the Supreme Court, acting on the county office’s appeal, said Reinhardt’s vote shouldn’t count because he was no longer a judge when the decision was issued.

“Federal judges are appointed for life, not for eternity,” the high court said in an unsigned “by the court” opinion.

The court noted that judges can change their positions up until the last minute before a decision is handed down.

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Rizo argued that the agency violated the federal Equal Pay Act of 1963 by using her previous salaries to justify giving her lower pay than men with similar job responsibilities and experience.

All 11 judges on the 9th Circuit panel agreed the pay disparity was illegal in Rizo’s case.

But Reinhardt wrote the six-member majority decision holding that a woman’s prior salary can’t justify lower pay even when combined with other factors because the previous pay likely reflected discrimination.

The five other judges on the panel agreed with the outcome of the ruling but had different reasons.

Thus, the Supreme Court said, “The upshot is that Judge Reinhardt’s vote made a difference,” because without him, there was no six-member majority to set a precedent on interpreting the law.

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