Strange development on the US Court of Appeals:
Yesterday, the U.S. Court of Appeals for the Ninth Circuit decided Altera Corporation v. Commissioner, a challenge to the Internal Revenue Service's treatment of cost-sharing arrangements for employee stock compensation. The panel split 2-1 on whether the IRS rule satisfied the requirements of the Administrative Procedure Act (APA), reversing a lower court decision concluding the IRS had failed to conduct an adequate rule-making. One of the two judges, however, has been dead for four months.
The practice certainly is novel and may, in fact, be unique. The US Supreme Court doesn't follow the practice (same source):
This happened on the Supreme Court when Justice Scalia died. Note, however, the Court did not proceed to issue any additional opinions with him participating. Opinions in cases that had not yet been issued were released with only eight judges participating (seven in the case of Fisher), even if that meant that some cases (such as Friedrichs, the precursor to Janus v. AFSMCME) were resolved 4-4.
My question is this in fact unique? Have any other cases in the US federal courts been decided at the appeals or higher level based upon a dead judge's written opinion, and if so, have they then survived appeal?