FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Jay A. García-Gregory, U.S. District
Gregorio Igartúa for appellants.
R. Freeman, Attorney, Appellate Staff, Civil Division, U.S.
Department of Justice, with whom Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Carmen M. Ortiz, United
States Attorney, and Matthew M. Collette, Attorney, Appellate
Staff, Civil Division, U.S. Department of Justice, were on
brief for appellees.
Torruella, Lipez, and Thompson, Circuit Judges.
Gregorio Igartúa, a U.S. citizen-resident of Puerto
Rico, returns to this court for the fifth time in search of a
legal remedy for his claim that he has a constitutional right
to vote in certain federal elections. Here, for the second
time, Igartúa and his fellow plaintiffs specifically
challenge the denial of the right of Puerto Rico citizens to
vote for representatives to the U.S. House of Representatives
and their right to have five Puerto Rico representatives
apportioned to that body. Plaintiffs also assert that the
district court again erred in refusing to convene a
three-judge court to adjudicate their claims.
Igartúa first raised the issue of congressional
representation in 2010, a panel majority disposed of the
three-judge-court issue in a footnote. On the merits, it
concluded that we were bound by past circuit decisions to
find that "the Constitution does not permit granting
such a right to the plaintiffs by means other than those
specified for achieving statehood or by amendment."
Igartúa v. United States
("Igartúa IV"), 626 F.3d 592, 594,
598 n.6 (1st Cir. 2010), en banc review denied, 654
F.3d 99 (1st Cir. 2011), cert. denied, 132 S.Ct.
2376 (2012). As we explain in Section I below, we again find
ourselves bound by circuit precedent, and we thus must affirm
the judgment of the district court refusing to convene a
three-judge court and dismissing the case on the merits.
doing, however, we emphasize that we now doubt the
correctness of the brief, yet controlling, footnote in
Igartúa IV rejecting the call for a
three-judge court. See 626 F.3d at 598
Moreover, if our court were now to conclude, in an en banc
proceeding, that a three-judge panel should have been
convened to hear the constitutional claims addressed in
Igartúa IV, the merits ruling in
Igartúa IV would be void. See infra.
Hence, though we as a panel must follow Igartúa
IV, the three-judge-court issue is one of substantial
importance that should be reconsidered by the full court in
an en banc rehearing of this case.
The Instant Appeal
material respects, this action is a reprise of
Igartúa IV. As the district court noted,
"Plaintiffs' arguments in the Complaint at bar are
nearly identical to the ones raised in Igartúa
IV." Igartúa v. United
States, No. 3:14-cv-01558-JAG, slip op. at 2 (D.P.R.
Jan. 28, 2015). In addition, the parties in the two cases
largely overlap. Four of the six plaintiffs here were
plaintiffs in Igartúa IV. The defendants in
Igartúa IV were the President of the United
States, the U.S. Secretary of Commerce, and the Clerk of the
U.S. House of Representatives -- the same defendants as here.
legal rulings made in Igartúa IV are thus
binding on most of the parties in this action under
principles of res judicata, see Haag v.
United States, 589 F.3d 43, 45 (1st Cir. 2009), and,
in any event, the doctrine of stare decisis bars us, as a
panel, from reaching a different conclusion on the same
questions of law, see United States v.
González-Mercado, 402 F.3d 294, 299 (1st Cir.
2005) ("We have heard and rejected this argument before.
Under the doctrine of stare decisis, then, the issue is
foreclosed." (citations omitted)); see also United
States v. Mouscardy, 722 F.3d 68, 77
(1st Cir. 2013) (noting that an earlier panel decision binds
a later panel under "[t]he law of the circuit
because we are not at liberty to depart from the dispositive
holdings in Igartúa IV, we must affirm the
judgment of the district court granting defendants'
motion to dismiss. However, having closely examined the
pertinent law, we are persuaded that a summary affirmance
should not properly, or fairly, be the end of the case.
The Three-Judge-Court Requirement
28 U.S.C. § 2284(a), "[a] district court of three
judges shall be convened . . . when an action is filed
challenging the constitutionality of the apportionment of
congressional districts." Accordingly, when the district
court judge originally assigned to a case determines that one
or more of the plaintiff's claims warrants a three-judge
court, the judge must take the steps necessary to convene a
three-judge panel. See 28 U.S.C. § 2284(b);
see also Shapiro v. McManus, 136
S.Ct. 450, 454 (2015). The three-judge court's ruling on
the merits of such claims is appealable only to the U.S.
Supreme Court. See 28 U.S.C. §§ 1253,
1291; Idlewild Bon Voyage Liquor Corp. v.
Epstein, 370 U.S. 713, 715-16 (1962). Hence, when a
three-judge court is properly convened to hear claims within
the scope of § 2284(a), the court of appeals does not
play a role in resolving the merits. See Idlewild Bon
Voyage Liquor Corp., 370 U.S. at 715-16 (noting that a
court of appeals is "precluded from reviewing on the
merits a case which should have originally been determined by
a court of three judges").
case is brought improperly to the court of appeals -- because
the district court erroneously refused to convene a
three-judge court -- any subsequent merits ruling by the
appellate panel is void. See Stratton v.
St. Louis Sw. Ry. Co., 282 U.S. 10, 16 (1930)
("Nor does an appeal [on the merits] lie to the Circuit
Court of Appeals from an order or decree thus entered by a
District Judge without authority, for to sustain a review
upon such an appeal would defeat the purpose of the statute
by substituting a decree by a single judge and an appeal to
the Circuit Court of Appeals for a decree by three judges and
a direct appeal to th[e] [Supreme]
if a three-judge district court should have been convened to
address the constitutional claims asserted in
Igartúa IV, our rejection of
Igartúa's claims on the merits in that case would
have no precedential force here. The three-judge-court
question in Igartúa IV was therefore of great
consequence -- affecting our very authority to hear the
case. Yet, the issue was decided with the
We also reject the argument made by Igartúa, but not
made by the government, that this case must be heard by a
three-judge district court under 28 U.S.C. § 2284(a).
That statute provides that a "district court of three
judges shall be convened when . . . an action is filed
challenging the constitutionality of the apportionment of
congressional districts." Id. That is not the
issue in this case.
Igartúa IV, 626 F.3d at 598
unelaborated assertion belies the complexity of
Igartúa's contention that he is entitled to have
his claims heard by a three-judge district court. Moreover,
there is reason to doubt the correctness of the
footnote's rejection of the applicability of §
2284(a). To demonstrate the need to revisit our cursory
holding, we review below the issues that determine whether a
three-judge court must be convened. We first consider whether
§ 2284(a) in fact covers the type of claim raised by
Igartúa and then examine the requirement of a
"substantial federal question." See
Shapiro, 136 S.Ct. at 455.
Scope of the Three-Judge-Court Statute
three-judge-court statute applies to a claim
"challenging the constitutionality of the
apportionment of congressional districts." 28
U.S.C. § 2284(a) (emphasis added). As recounted above,
in footnote 6 in Igartúa IV, we stated
simply: "That is not the issue in this case." We
understand that cryptic comment to mean that the statute does
not cover Igartúa's claims because Igartúa
challenges Congress's failure to include Puerto
Rico within its apportionment of districts instead of
attacking a specific apportionment of districts. Supreme
Court precedent, however, supports a broader view of the
1998, Lois Adams and other residents of the District of
Columbia filed a complaint in federal district court alleging
that "Congress has unconstitutionally excluded them from
apportionment to a congressional district, " in
violation of Article IV's Guarantee Clause and the
Fourteenth Amendment. Adams v.
Clinton, 26 F.Supp.2d 156, 157-58 (D.D.C. 1998).
Adams and her co-plaintiffs requested that the case be heard
by a three-judge district court under § 2284(a).
Id. Over the objections of the defendants --
including the President of the United States and officers of
the U.S. House of Representatives -- the district judge
concluded that Adams' nonapportionment claims were
covered by § 2284(a) and asked the chief judge of the
district to convene a three-judge district court to hear the
case. Id. at 161.
deciding the case, a majority of the three-judge panel noted
that "[t]he parties have not asked us to revisit the
original judge's determination that this case falls
within the confines of the three-judge court statute, and we
will not do so insofar as the complaints allege the failure
to apportion members of the House of Representatives to the
District." Adams v. Clinton,
90 F.Supp.2d 35, 38 (D.D.C. 2000) (three-judge court). The
majority concluded that the plaintiffs had standing, but then
went on to grant the defendants' motions to dismiss on
the merits. Id. at 45, 72.
appealed the decision of the three-judge court directly to
the Supreme Court, see 28 U.S.C. § 1253,
insisting, inter alia, that the case was properly before a
three-judge court under § 2284(a). See
Jurisdictional Statement at *21-30, Adams
v. Clinton, 531 U.S. 941 (2000) (No.
00-97), 2000 WL 33999989. In response, the government filed a
"Motion to Dismiss or Affirm." Motion to Dismiss or
Affirm, Adams, 531 U.S. 941 (No. 00-97). In the
opening paragraph of the Argument section of its motion, the
government asked the Court to dismiss the appeal
either because the "three-judge district court lacked
jurisdiction over appellants' claim" or because
"appellants lack standing to seek the relief that they
have requested from any federal court." Id. at
9. In the alternative, the government asked the Court to
"affirm the judgment of the three-judge court
because appellants' constitutional claim lacks
merit." Id. (emphasis added).
Supreme Court affirmed the judgment of the three-judge
district court without explanation. Adamsv.Clinton, 531 U.S. 941 (2000)
("Judgment affirmed."). The Court also noted that
"Justice STEVENS would dismiss the appeal."
Id. Given the government's arguments
distinguishing between dismissal and affirmance, and Justice
Stevens' position that dismissal -- rather than
affirmance -- was appropriate, the Court's decision to
affirm appears to signify a determination that the
three-judge court was properly convened for Adams'
nonapportionment claim. Indeed, the Court has previously held
that where a "three-judge court was . . . improperly
convened, . . . this Court does not have jurisdiction ...