Metropolitan News-Enterprise


Wednesday, May 22, 2019


Page 1


Ninth Circuit:

Reconstituted Panel May Vacate Initial Decision, Redecide

Reinhardt’s 2018 Opinion for Majority—Finding No Qualified Immunity for Police Chief, Others— Is Scrapped;

Judge Ikuta, Who Replaced Him Following His Death, Writes for Majority in Finding Immunity Does Attach


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday vacated a Feb. 9, 2018 opinion by Judge Stephen Reinhardt denying qualified immunity to municipal employees in an action by a discharged probationary police officer, and, with the panel reconstituted in light of Reinhardt’s death, a majority now found that such immunity exists.

Yesterday’s majority opinion was authored by Circuit Judge Sandra S. Ikuta who was randomly selected to replace Reinhardt—who died March 29, 2018—on the panel. She was joined by Circuit Judge A. Wallace Tashima who last year wrote an opinion, also vacated yesterday, disagreeing with much of what Reinhardt said but concurring in the outcome.

District Court Judge Donald W. Molloy of the District of Montana, sitting by designation, dissented. He had joined in Reinhardt’s opinion.

Privacy Rights

The appellant is Janelle Perez, who was employed by the Roseville Police Department. She claims her privacy rights were infringed by the police chief and two others when actions were taken against her based on an extramarital affair with a male officer (whose wife made a complaint to the department).

Ikuta wrote that “the individual defendants are entitled to qualified immunity” on Perez’s privacy claim “because it is not clearly established that a probationary officer’s constitutional rights to privacy and intimate association are violated if a police department terminates her due to her participation in an ongoing extramarital relationship with a married officer with whom she worked, where an internal affairs investigation found that the probationary officer engaged in inappropriate personal cell phone use in connection with the relationship while she was on duty, resulting in a written reprimand for violating department policy.”

The jurist also rejected Perez’s contention that her right to procedural due process was denied because the department afforded her an inadequate opportunity to clear her name.

Visiting Judge’s Dissent

Molloy protested:

“In this case Perez’s appeal was decided by a quorum of the judges on the original panel, the decision was published, and there was an en banc call by a member of this court. Consequently, the original opinion should stand. It was decided. Now with a different judge assigned, the new majority opinion completely reverses the original opinion without notice to the parties or regard to the en banc call. Judge Reinhardt’s death under the circumstances presented in this case should not be invoked to reverse the outcome of the case legitimately decided by the original majority through a procedural mechanism of substituting a different judge.”

He continued:

“There is no need for a substitution when the majority decided and published the opinion questioned here….A published quorum opinion is not under submission; it is final, except if the entire court corrects it en banc. For these reasons. I respectfully dissent and believe this case should go to an en banc panel if the previously published opinion is in error, which I do not believe it is.”

View Previously Rejected

Ikuta responded that Molloy’s view was previously rejected by the Ninth Circuit in the 2009 case of Carver v. Lehman.

Reinhardt had penned a June 9, 2008 opinion in which Circuit Warren J. Ferguson joined, with Circuit Judge Milan D. Smith writing a concurring opinion; Ferguson died June 25, 2008, while a petition for rehearing was pending; he was replaced by Judge Richard C. Tallman; the 2008 opinions were vacated and supplanted by Dec. 22, 2008 opinions, amended March 3, 2009. Smith wrote for the majority and Reinhardt concurred in the result, only.

Reinhardt wrote in Carver:

“We have a procedure for correcting decisions that a majority of the court believes warrant reconsideration. That process is known as a [sic] en banc rehearing. It can be invoked if any single judge on the court, including either member of the majority, elects to make a call. Relying on this process would, in my view, be in the better interest of the court and the judicial system; increasing the extent to which judicial decisions depend on chance and subjectivity is not a wise alternative.”

Smith’s Response

Smith responded, in Carver, that “[n]o opinion of this circuit becomes final until the mandate issues”—mandate being the federal equivalent of a remittitur in state court—“and the opinion issued by the prior majority was only part way through its finalization process.”

Ikuta commented yesterday:

“Panels likewise routinely withdraw and amend published opinions in response to an en banc call from a member of the court who believes there are errors in the opinion. There is no support for the dissent’s argument that a panel lacks authority to amend its opinion once an en banc call is made.”

She went on to say:

“Like all three-judge panels, we must resolve the case before us to the best of our abilities, which may include reconsidering and revising an opinion that has not yet mandated. As is our practice, the parties (and any off-panel judge of our court) have the opportunity to request rehearing en banc of this opinion.”

The case is Perez v. City of Roseville, 15-16430.


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