Susan Morse and Steve Shay wrote last week about the significant Ninth Circuit opinion reversing the fully reviewed and unanimously decided Tax Court case in Altera. Earlier today the Ninth Circuit withdrew the July 24th opinion to allow time for a newly reconstituted panel to confer about the appeal. The order occurred because Judge Stephen Reinhardt, one of the judges in the majority in the 2-1 decision, passed away five months after oral argument and before the publication of the opinion.
On August 2 the court issued an order selecting Judge Susan P. Graber to replace the late Judge Reinhardt on the three-judge panel in the case citing chapter 3.2(h) of the Ninth Circuit General Orders. This section provides that if a member of a three-judge panel becomes unavailable for certain stated reasons , including death, “the Clerk shall draw a replacement as needed, utilizing a list of active judges randomly drawn by lot.”
These events provide even more excitement for a case that did not need more procedural turns to draw attention to its importance.