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Igartua v. Trump

United States Court of Appeals, First Circuit

August 9, 2017

GREGORIO IGARTÚA, et al., Plaintiffs, Appellants,
v.
DONALD J. TRUMP, President of the United States of America; WILBUR L. ROSS, JR., Secretary of Commerce; KAREN L. HAAS, Clerk of the U.S. House of Representatives, Defendants, Appellees. [*]

          Before Howard, Chief Judge, Torruella, Lynch, Lipez, Thompson, Kayatta, and Barron, Circuit Judges.

          ORDER

         Pursuant to First Circuit Internal Operating Procedure X(C), Appellant Gregorio Igartua's petition for rehearing en banc has also been treated as a petition for rehearing before the original panel. The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and petition for rehearing en banc be denied.

          KAYATTA, Circuit Judge, with whom HOWARD, Chief Judge, LYNCH, Circuit Judge, and BARRON, Circuit Judge join, statement on denial of rehearing en banc.

         The prolonged inability of our fellow citizens to vote for certain federal officials is certainly a matter of legitimate concern. The only issue now before us, though, is whether our court should convene an en banc hearing to consider whether the plaintiffs' claims in this action must be heard in the first instance by a three-judge court under 28 U.S.C. § 2284(a). Those urging that we do so premise their argument upon a suggestion that our controlling precedent errs in failing to require the appointment of a three-judge court. For the following reasons, we disagree.

         To warrant the assignment of this lawsuit to a three-judge court, we would need to find that the complaint satisfies two criteria: (1) it commences "an action challenging the constitutionality of the apportionment of congressional districts, " 28 U.S.C. § 2284(a); and (2) it presents "a substantial federal question, " so that the complaint is "justiciable in the federal courts." Shapiro v. McManus, 136 S.Ct. 450, 455 (2015) (quoting Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90, 100 (1974)).

         Plaintiffs' only claim that meets the first criterion is that the United States Constitution makes it unconstitutional to apportion congressional districts as the Constitution itself says to apportion them. Notably, none of our colleagues even tries to explain how the Constitution itself might conceivably prohibit that which it directs "shall be" done. To the contrary, as Judge Torruella observed, "the text of Section 2, Article I does not grant to citizens of Puerto Rico the right to vote for members of the House of Representatives." Igartúa v. United States (Igartúa IV), 626 F.3d 592, 616 (1st Cir. 2010) (Torruella, J., concurring in part and dissenting in part) (emphasis in original). Any argument to the contrary, certainly post-Adams v. Clinton, 90 F.Supp.2d 35 (D.D.C.), aff'd, 531 U.S. 941 (2000), is therefore "wholly insubstantial." Vazza v. Campbell, 520 F.2d 848, 850 (1st Cir. 1975).

         Our colleagues do posit an alternative theory that: (1) the Constitution might permit Congress to make such an apportionment; and (2) the International Covenant on Civil and Political Rights ("ICCPR"), a treaty approved by the Senate, requires the apportionment of congressional representation to Puerto Rico. Such a claim, however, cannot trigger the need to assign the case to a three-judge court under § 2284(a) because it is not a challenge to the constitutionality of the current apportionment. Rather, it is a claim that the current apportionment, implemented through an act of Congress, see 2 U.S.C. §§ 2a-2c, is not in compliance with what is, in effect, another law approved by Congress. See Medellín v. Texas, 552 U.S. 491, 505 (2008) (a treaty is "equivalent to an act of the legislature" (citation omitted)). To say that "plaintiffs' treaty-based claim is a constitutional claim that defendants have violated the Supremacy Clause of the Constitution, " Igartúa v. Obama (Igartúa V), 842 F.3d 149, 156 (1st Cir. 2016), cannot be correct because the Supremacy Clause on its face has nothing whatsoever to do with adjudicating an asserted clash between two actions of the United States.[1] And without the misnomer created by calling a treaty-based claim a "constitutional claim, " the predicate for convening a three-judge court to hear such a claim disappears.

          TORRUELLA, Circuit Judge, dissenting from the denial of rehearing en banc.

         Although I fully join my dissenting colleagues' elegant and on point statements, I write separately because their expressions regarding the majority's denial of en banc review of the panel decision fall substantially short of what I consider to be an unwarranted and unjustifiable action that clearly runs contrary to the law.

         At the heart of this controversy lies the total national disenfranchisement[2] and lack of national political clout of the community of 3.5 million United States citizens who reside in Puerto Rico, a condition which has lasted for the 119 years of U.S. sovereignty over the people who inhabit this territory, and even more significantly, throughout the 100 years since they were granted citizenship in 1917.[3] This situation has, if anything deteriorated in recent times.[4] This regrettable condition calls upon this court to heed the apparently forgotten advice of the Supreme Court in United States v. Carolene Products Co., 304 U.S 144, 152 n.4 (1938), to the effect that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." Beyond the expressions of my dissenting colleagues, I am saddened, not only by this court's negation of the advice of Carolene Products, but, in opposition to that tenet, as is clearly demonstrated in the denial of the present en banc proceeding, by its consistently shallow grounds in doing so.

         In substance, Appellants claim that they are deprived of their constitutional right to vote for representatives in the United States House of Representatives by reason of Congress having failed to apportion congressional districts for Puerto Rico, and demand the convening of a three-judge district court pursuant to 28 U.S.C. § 2284. The Federal Rules of Appellate Procedure provide procedural relief designed to correct serious constitutional injuries of the type claimed by the insular minorities in question in this case.

         Rule 35(a)(2) of the Federal Rules of Appellate Procedure establishes that an en banc court may be convened when "the proceeding involves a question of exceptional importance." Given our record of past en banc votes, it is difficult to discern in this circuit a principled rule as to what is considered a "question of exceptional importance." Judging from the votes in the present case, as well as in past cases, one cannot even accurately describe the existence of a double, triple, or even quadruple standard of what this court considers a "question of exceptional importance." The closest we can come to in predicting the granting or denial of such a procedure in this Circuit is that it appears to depend on the "eye of the beholder, " see Igartúa v. United States, 654 F.3d 99, 105 (1st Cir. 2011) (Torruella, J., dissenting), or stated with equal accuracy, that "we know it when we see it." Just a few examples will suffice to illustrate the nomadic nature of our non-"exceptional importance" rule. In Igartúa-de la Rosa v. United States, 417 F.3d 145, 158 (1st Cir. 2005) (Torruella, J., dissenting), this court motu proprio convened an en banc court and proceeded to suppressed the original panel after the panel had held a rehearing and even before it could issue its opinion.[5] In S.E.C. v. Tambone, we granted en banc to decide what it means "[t]o make any untrue statement of a material fact . . . in connection with the purchase or sale of any security." 597 F.3d 436, 438 (1st Cir. 2010) (en banc) (alterations in original). In United States v. Textron, we granted en banc to figure out "whether the attorney work product doctrine shields from an IRS summons 'tax accrual work papers' prepared by lawyers and others in a [corporation]'s [t]ax [d]epartment to support [the corporation]'s calculation of tax reserves for its audited corporate financial statements." 577 F.3d 21, 22 (1st Cir. 2009) (en banc); see also Kolbe v. BAC Home Loans Servicing, LP, 738 F.3d 432, 474 (1st Cir. 2013) (Torruella, J. dissenting) (compiling cases demonstrating the First Circuit's ambivalence when granting and denying en banc review).

         In contrast, the present request for en banc review raises a question of "exceptional importance" because:

         (1) The panel that decided this case affirmed the denial by the district court of the convening of a three-judge district court because it found itself bound by "the brief, yet controlling, footnote in [Igartúa v. United States, 626 F.3d 592, 598 n.6 (1st Cir. 2010) ("Igartúa IV")] rejecting the call for a three-judge court."[6]Igartúa v. Obama, 842 F.3d 149, 151 (1st Cir. 2016). It nevertheless unequivocally stated "we emphasize that we now doubt the correctness of [that] brief, yet controlling, footnote" and, "[al]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."[7] Thus, an issue which was "not . . . in [that] case" was decided in a summary, passing manner. Igartúa IV, 626 F.3d at 598 n.6. It now clearly deserves consideration by the full court because it fundamentally affects the constitutional rights of several million citizens, a quintessential question of "exceptional importance."

         (2) With respect, both the district court and the members of this court who have voted against en banc review have committed a fundamental error of law in considering the possible ultimate outcome of the underlying question raised by Appellants' petition as a deciding factor in whether a three-judge district court should be convened. The focus in deciding this question should have been whether Appellants' constitutional ...


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