This morning, the U.S. Supreme Court punted a key Equal Pay Act (“EPA”) case back to the Ninth Circuit because the decision’s author, Judge Stephen Reinhardt, passed away shortly before the decision was formally issued.

Yovino v. Rizo is a significant EPA case that has been winding its way through the courts for years. In 2017, a Ninth Circuit panel held that a wage differential based on prior salary can qualify as a “factor other than sex” under the EPA. But, in 2018, the Ninth Circuit, sitting en banc, came to the opposite conclusion: “prior salary alone or in combination with other factors cannot justify a wage differential.” The en banc opinion was authored by Judge Reinhardt, who passed away 11 days before the decision was issued. The opinion acknowledged the Judge’s passing with a footnote stating that voting had been completed and the decision was written prior to his death.

The employer’s certiorari petition concentrated mostly on the underlying substantive issue in the case—whether prior salary is a “factor other than sex.” Instead of tackling this question, the Court’s per curium decision held that “[b]ecause Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority.” The Court added: “federal judges are appointed for life, not for eternity.”

Judge Reinhardt’s vote was critical because, while the 11-member en banc ruling to remand was unanimous, only five other judges joined in his opinion. Thus, without Judge Reinhardt’s vote, the Ninth Circuit’s rationale following remand could change significantly.

The impact of the Yovino case remains to be seen. Even if the case receives more favorable treatment on remand, it is unclear if or how the EPA ruling will impact equal pay litigation and defenses under Title VII. And, there is an increasing number of state and local laws that limit an employer’s ability to ask about and/or rely on an applicant’s previous salary. Thus, and particularly until there is clarity on this question under this EPA, employers should be mindful that it is risky to rely on an applicant’s prior salary when making wage decisions.