United States Court of Appeals For the First Circuit
No. 15-1336
GREGORIO IGARTÚA, et al.,
Plaintiffs, Appellants,
v.
BARACK OBAMA, President of the United States of America; PENNY PRITZKER, Secretary of Commerce; KAREN L. HAAS, Clerk of the U.S. House of Representatives,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Lipez, and Thompson, Circuit Judges.
Gregorio Igartúa for appellants. Mark 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.
November 23, 2016 LIPEZ, Circuit Judge. Plaintiff 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.
When 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.
- 2 - In so 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
n.6.1 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.
I. The Instant Appeal
In all 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,
1 Although we share our colleague's concern about the brevity of footnote 6, see infra, the fact remains -- as discussed below -- that the Igartúa IV panel could not have addressed the merits of that appeal if the case should have been heard originally by a three-judge court. Hence, the rejection of Igartúa's demand for a three-judge court was essential to the disposition in Igartúa IV, and it is therefore binding on us.
- 3 - and the Clerk of the U.S. House of Representatives -- the same
defendants as here.
The 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
doctrine").
Hence, 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.2
2 The district court seemingly offered two reasons for denying plaintiffs' request for a three-judge court. First, it relied on footnote 6 in Igartúa IV, which summarily rejected the same request in that case. Second, the court appeared to treat the merits decision in Igartúa IV as a separate basis for its ruling, observing that plaintiffs' request for a three-judge panel was "unfounded" because "the controlling authority relevant to this case" rendered their claims "wholly insubstantial." Slip op. at 5 (quoting Vazza v. Campbell, 520 F.2d 848, 850 (1st Cir. 1975)). We explain below why the latter rationale is incorrect. On the merits, the district court concluded that it did not have subject matter jurisdiction over plaintiffs' claims because
- 4 - 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.
II. The Three-Judge-Court Requirement
Under 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
they lacked standing. Again relying on Igartúa IV, the court held that "Plaintiffs have not demonstrated that a legally protected interest was harmed in this case." Slip op. at 8; see also id. at 12. We do not address the validity of the court's standing rationale and instead affirm based on the reasoning described above (i.e., res judicata and stare decisis). See Otero v. P.R. Indus. Comm'n, 441 F.3d 18, 20 (1st Cir. 2006) ("We review the district court's order of dismissal de novo and may affirm on any ground supported by the record.").
- 5 - 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").
If a 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] Court.").3
Thus, 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 --
3 Of course, the single-judge district court's merits ruling in such a case is likewise without force. See 28 U.S.C. § 2284(b), (b)(3) (stating that "[i]n any action required to be heard and determined by a district court of three judges," a "single judge shall not . . . enter judgment on the merits").
- 6 - affecting our very authority to hear the case.4 Yet, the issue
was decided with the following footnote:
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 n.6.5
This 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
4 We find it unnecessary to opine on whether the three-judge- court statute is "jurisdictional," an issue whose complexity was reflected in questions from the justices during oral argument in Shapiro. See Transcript of Oral Argument at 11-19, Shapiro, 136 S. Ct. 450 (No. 14-990). Regardless of how the statute is labeled, the fact remains that Congress has directed that constitutionally based apportionment actions be heard by a three-judge district court in the first instance (when requested as Igartúa did here) and then by the Supreme Court, see 28 U.S.C. §§ 2284(a), 1253, thereby foreclosing the courts of appeals from entertaining such claims. The Court in Shapiro also did not classify § 2284(a). Rather, its discussion focused on whether the plaintiffs' claims presented "a substantial federal question" such that the complaint was "justiciable in the federal courts." 136 S. Ct. at 455 (quoting Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90, 100 (1974)). 5 Two members of this panel also were panel members in Igartúa IV. The author of this opinion wrote a separate opinion concurring in the judgment in that case, and Judge Torruella filed an opinion concurring in part and dissenting in part.
- 7 - 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.
A. Scope of the Three-Judge-Court Statute
The 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 statute.
In 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 Clause6 and the Fourteenth Amendment. Adams
6 The Guarantee Clause provides:
- 8 - 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.
In 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.7 Id. at
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
U.S. Const., art. IV, § 4. 7The panel majority largely considered the claims raised by plaintiff Clifford Alexander, whose case had been consolidated with that of Adams. Adams, 90 F. Supp. 2d at 38, 45–72. The
- 9 - 45, 72.
Adams 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).8
majority held, inter alia, that Article I of the Constitution reserved the right to vote in congressional elections to residents of states, id. at 45-46, 70-71, and that "constitutional text, history, and judicial precedent bar[red] [the court] from accepting plaintiffs' contention that the District of Columbia may be considered a state for purposes of congressional representation under Article I," id. at 55-56. The panel further held that the Guarantee Clause could not have been intended to override the provisions of Article I, id. at 71, and also rejected the plaintiffs' argument that they were entitled to vote "based on a theory of 'residual' citizenship" in Maryland, id. at 56-61. 8 At the conclusion of its argument for dismissal, the government offered yet another possible disposition, asserting that the Court could affirm the dismissal of appellants' claims
- 10 - The Supreme Court affirmed the judgment of the three-
judge district court without explanation. Adams v. 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
to entertain a direct appeal from the judgment in such case."
Mobay Chem. Corp. v. Costle, 439 U.S. 320, 321 (1979) (per curiam)
based on standing. Motion to Dismiss or Affirm, supra, at 16-17. That option necessarily presumed that the Court had jurisdiction (and, hence, could affirm the judgment of the three-judge court, rather than dismiss, the appeal). Yet, even after asserting that affirmance would be warranted based on lack of standing, the government again pressed for dismissal on that basis: However, dismissal of the appeal rather than affirmance of the judgment is warranted because there is at least a substantial question as to the jurisdiction of the district court under Section 2284(a), but appellants' lack of standing clearly forecloses their ability to obtain relief from the federal courts.
Id. at 17.
- 11 - (citation omitted).
Notably, the government itself adopted the view that the
Supreme Court had determined that Adams' claim was properly brought
under § 2284(a). After the Supreme Court decision, Adams returned
to the three-judge court with a motion filed under Federal Rule of
Civil Procedure 60(b) seeking reconsideration of her dismissed
claims. The three-judge court denied the motion,9 and Adams
appealed that denial to the D.C. Circuit. The D.C. Circuit
dismissed the appeal for lack of jurisdiction, stating that the
"appeal from the three-judge district court's denial of
relief . . . is not properly taken to this court." Adams v. Bush,
No. 00-5239, 2001 WL 1488944, at *1 (D.C. Cir. 2001) (per curiam).
Adams petitioned for a writ of certiorari. In its brief in
opposition, the government wrote:
In its motion to dismiss or affirm petitioners' prior direct appeal, the government argued that petitioners' direct appeal should be dismissed because 28 U.S.C. 2284(a) did not give the district court jurisdiction over petitioners' equal protection claim. Instead of dismissing the appeal for lack of jurisdiction, however, this Court affirmed the judgment of the three-judge court on the merits. That determination by this Court that the three-judge district court
9 In a two-page per curiam decision, the three-judge court rejected plaintiffs' argument that it had misunderstood and failed to address their claims, and further observed that the Supreme Court's affirmance of the court's earlier decision leaves "no ground for granting relief under Rule 60(b)(4) or for exercising our discretion under Rule 60(b)(6)." Adams v. Bush, No. 1:98-cv- 01665, slip op. at 2 (D.D.C. Apr. 4, 2001) (three-judge court).
- 12 - was properly convened under Section 2284(a) "settles the issue[] for the parties."
Br. for the President of the United States in Opposition at 6 n.2,
Adams v. Bush, 537 U.S. 812 (2002) (No. 01-1519) (alteration in
original) (citation omitted) (quoting Mandel v. Bradley, 432 U.S.
173, 176 (1977) (per curiam)).
In other words, the government interpreted the Supreme
Court's affirmance in Adams to mean that the nonapportionment claim
was properly before the three-judge court and that the plaintiffs'
appeal of that panel's decision was properly before the Supreme
Court. The proceedings in Adams thus provide strong support for
Igartúa's argument that § 2284(a) covers a challenge to
nonapportionment -- in addition to claims of improper
apportionment.
A ruling by the Supreme Court that Adams'
nonapportionment claim was properly addressed by a three-judge
court cannot be disregarded as a nonprecedential "drive-by
jurisdictional ruling." Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 91 (1998). Such limited judgments occur when the
jurisdictional issue "was neither challenged nor discussed in that
case." Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (cited in
Steel Co., 523 U.S. at 91). As discussed above, the parties'
briefs fully addressed whether Adams' nonapportionment claim was
covered by the three-judge-court statute, and the government
- 13 - explicitly challenged the jurisdiction of the three-judge court
and, in turn, that of the Supreme Court to hear the case. See
Motion to Dismiss or Affirm at 9-12, Adams, 531 U.S. 941 (No. 00-
97).
Moreover, simply as a matter of language, we see no
reason to treat a claim that challenges the failure to apportion
any congressional districts -- entirely excluding a group of United
States citizens from representation in Congress -- differently
from a claim that challenges the allocation of too few
congressional districts. As the single-judge district court in
Adams reasoned, a challenge to nonapportionment is simply one type
of apportionment challenge. See Adams, 26 F. Supp. 2d at 161
("These plaintiffs . . . challenge their existing allocation of
zero representatives." (emphasis omitted)).
An inclusive construction of § 2284(a)'s language is
also supported by the singular importance legislators attributed
to apportionment claims when the Three-Judge Court Act was amended
in 1976. A report by the Senate Judiciary Committee on the
proposed amendment listed multiple reasons for eliminating the
three-judge-court requirement for various types of claims. S. Rep.
No. 94-204, at 3-4.10 Yet despite the goal to limit use of three-
10 The reasons included: "to relieve the burden of three judge court cases, which have increased in number from 129 in 1963 to 320 in 1973, causing a considerable strain on the workload of Federal judges," and "because statutory and rules changes have
- 14 - judge courts, the Report expressly endorsed retaining the
procedure "for cases involving congressional reapportionment or
the reapportionment of a statewide legislative body because . . .
these issues are of such importance that they ought to be heard by
a three-judge court." Id. at 9. A narrow reading of
"apportionment" undermines the objective to retain the three-judge
court procedure for these "importan[t]" claims.
Nor do we find an impediment to applying the three-
judge-court statute to Igartúa's claims in the language that
requires a challenge to "the constitutionality of the
apportionment of congressional districts," 28 U.S.C. § 2284(a)
(emphasis added). Igartúa's claim involves such a challenge.
Members of this court have seen arguable merit, in particular, in
Igartúa's claim that the International Covenant on Civil and
Political Rights ("ICCPR") -- which recognizes the right of
"[e]very citizen" to elect representatives -- is a self-executing
treaty that must be enforced, absent a constitutional prohibition,
as "the supreme Law of the Land," U.S. Const. art. VI, cl. 2. See
Igartúa IV, 626 F.3d at 608-11 (Lipez, J., concurring in the
judgment); id. at 620-628 (Torruella, J., concurring in part and
dissenting in part); see also Dist. Ct. Op. at 12-13 (advising the
First Circuit to "reconsider its decision that Article 25 of the
eliminated the original reasons for the establishment of three- judge courts." S. Rep. No. 94-204, at 3-4.
- 15 - ICCPR is a non-self-executing provision"). In other words,
plaintiffs' treaty-based claim is a constitutional claim that
defendants have violated the Supremacy Clause of the Constitution
by failing to comply with the United States' obligation, under the
ICCPR, to apportion congressional districts so as to provide all
citizens with representation.
In sum, there is substantial merit in plaintiffs'
assertion that their claim to representation in the House of
Representatives is within the scope of § 2284(a).
B. Substantiality
The Supreme Court has observed that, when deciding
whether a three-judge court must be convened, "all the district
judge must 'determin[e]' is whether the 'request for three judges'
is made in a case covered by § 2284(a) -- no more, no less."
Shapiro, 136 S. Ct. at 455 (quoting 28 U.S.C. § 2284(b)(1))
(alteration in original). The Court went on to explain, however,
that this simple statement presumes subject-matter jurisdiction:
"A three-judge court is not required where the district court
itself lacks jurisdiction of the complaint or the complaint is not
justiciable in the federal courts." Id. (alteration omitted)
(quoting Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90,
100 (1974)).
In other words, ordinary subject matter jurisdiction
requirements apply to the request for a three-judge court. An
- 16 - apportionment challenge falling within the terms of § 2284(a) will
not require a three-judge court if the claim is "wholly
insubstantial and frivolous" such that a federal court would lack
subject matter jurisdiction to hear it. Id. (quoting Bell v. Hood,
327 U.S. 678, 682–83 (1946)); see also Vazza v. Campbell, 520 F.2d
848, 849 (1st Cir. 1975) (noting that we could affirm the dismissal
of an action by a single-judge district court who had refused to
request a three-judge court for a claim otherwise calling for one
"only if appellant's constitutional claims are 'wholly
insubstantial'" (quoting Goosby v. Osser, 409 U.S. 512, 512
(1973))). Thus, before convening a three-judge court, the district
court must conclude that a plaintiff's claim presents "a
substantial federal question." Shapiro, 136 U.S. at 455.
The Supreme Court has made clear that this
substantiality threshold is not a test of whether the allegations
in the complaint state a claim for relief on the merits. Indeed,
the Court expressly rejected the notion that, "where the 'pleadings
do not state a claim, then by definition they are insubstantial
and so properly are subject to dismissal by the district court
without convening a three-judge court.'" Shapiro, 136 S. Ct. at
455 (emphasis omitted) (quoting Duckworth v. State Admin. Bd. of
Elec. Laws, 332 F.3d 769, 772-73 (4th Cir. 2003)). The Court
described the failure-to-state-a-claim standard as "both too
demanding and inconsistent with our precedents," and it reiterated
- 17 - that "'constitutional claims will not lightly be found
insubstantial for purposes of' the three-judge-court statute."
Id. (quoting Washington v. Confederated Tribes of Colville
Reservation, 447 U.S. 134, 147-48 (1980)). Hence, it is not enough
for a claim to be without merit; rather, to fall short of the
"substantial federal question" threshold, a claim must be "legally
speaking non-existent" or "essentially fictitious." Id. at 455-
56 (quoting Bailey v. Patterson, 369 U.S. 31, 33 (1962) (per
curiam)).
Although we did not say so expressly, we had to have
concluded in Igartúa IV that Igartúa's claims meet the
substantiality requirement for subject matter jurisdiction.
There, we decided his claims on the merits, see 626 F.3d at 594–
606, a step that we would not, and could not, have taken if those
claims did not involve a substantial federal question. See Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)
("Without jurisdiction the court cannot proceed at all in any
cause." (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868))).
Nor does our decision in Igartúa IV itself render the
claims in this case insubstantial for the purpose of subject-
matter jurisdiction. As explained above, if the district court
and First Circuit panel were wrong about the applicability of
§ 2284(a) -- and the case should have been heard in the first
instance by a three-judge court -- the prior panel's merits
- 18 - decision would not stand and, hence, it could not create binding
law.11
The exclusion of the courts of appeals from the § 2284(a)
scheme also helps to explain why the Supreme Court has indicated
that only its own precedent can undermine a claim that otherwise
would scale the statute's subject-matter threshold. In Goosby,
the Court held that one of its prior decisions did not render
insubstantial an otherwise viable claim brought under the three-
judge court statute, and thus a three-judge court was required.
See 409 U.S. at 518. In so finding, the Court stated that such a
claim is insubstantial only if "its unsoundness so clearly results
from the previous decisions of this court as to foreclose the
subject and leave no room for the inference that the questions
sought to be raised can be the subject of controversy." Id.
(quoting Ex parte Poresky, 290 U.S. 30, 32 (1933)) (emphasis
11 Just such a scenario was contemplated in the Senate Judiciary Committee Report at the time the three-judge court statute was amended in 1976. The Report, in part, outlined the "[c]omplexities of [a]ppellate [r]eview" of "whether a three-judge court is needed." S. Rep. No. 94-204, at *6. Quoting Professor Charles Allen Wright, the Committee stated: If the single judge incorrectly believes that three judges are not required and proceeds to the merits, the remedy . . . [is] an appeal to the court of appeals. If the court of appeals should fail to see that the case was one for three judges, and reviews on the merits, its decision is void.
Id.; see Idlewild Bon Voyage Liquor Corp., 370 U.S. at 715-16.
- 19 - added); cf. Shapiro, 136 S. Ct. at 456 (concluding that a claim
was substantial even though a plurality of the Court had found it
nonjusticiable in a prior case, but a concurring justice supported
the plaintiffs' legal theory (discussing Vieth v. Jubelirer, 541
U.S. 267 (2004))).
Within the context of the three-judge court scheme, the
Court's reference in Goosby to the preclusive effect of its own
prior decisions must be understood as a limiting statement on the
relevance of court of appeals precedent. In ordinary cases first
involving appeals to the intermediate courts of appeals, the
Supreme Court has the last word on issues of federal law when it
chooses to hear a case. Under the three-judge-court framework,
the Supreme Court provides the only level of appellate review. A
fortiori, Goosby instructs, a claim cannot be rejected for lack of
"a substantial federal question" unless "its unsoundness so
clearly results from the previous decisions of [the Supreme
Court]." Goosby, 409 U.S. at 518.12
12 Indeed, some justices have questioned whether even conclusive, adverse Supreme Court precedent can foreclose review by a three-judge court of an issue within the scope of § 2284(a). During oral argument in Shapiro, Chief Justice Roberts hypothesized a claim "clearly foreclosed by the Court's precedents, but maybe there's a very good argument that . . . those precedents . . . haven't withstood the test of time." Transcript of Oral Argument at 6, Shapiro, 136 S. Ct. 450 (No. 14-990). When counsel responded that the single-judge district court would properly dismiss that case under Goosby, Justice Kennedy noted that he had "some problems with that." Justice Kennedy then elaborated on the hypothetical: "Suppose . . . the case has been
- 20 - Also, the Supreme Court's summary affirmance in Adams
does not render Igartúa's claims insubstantial. While the
challenges in both Adams and here concern the nonapportionment of
congressional districts for citizens residing outside the states,
the District of Columbia and the Commonwealth of Puerto Rico are
meaningfully distinct in both history and character.
Moreover, Adams did not address the implications of the
ICCPR or "the view that the Constitution does not necessarily
forbid extensions of the rights it delineates." Igartúa IV, 626
F.3d at 608 (Lipez, J., concurring in the judgment). The
possibility that the Constitution does not prohibit equal voting
rights for Puerto Rico residents through congressional action was
considered by two panel members in Igartúa IV and has had academic
recognition. See Igartúa IV, 626 F.3d at 616 (Torruella, J.,
concurring in part and dissenting in part) ("[W]hile 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, neither
does it prohibit them that right, nor act as a limitation on the
on the books from this Court for 15, 20 years, has all sorts of academic commentary; certain circuits have questioned whether the reasoning is still valid." Id. at 7. Counsel gave the same response. In Shapiro, however, the Court did not need to reach the role of such dispositive precedent as it concluded that its cases did not foreclose the petitioners' claim. See 136 S. Ct. at 456.
- 21 - federal government's authority to extend the franchise to
territorial residents under other constitutional powers."); id. at
608 (Lipez, J., concurring in the judgment) ("If the Constitution
does not prohibit extending the right to vote to citizens who
reside outside 'the several States,' an enforceable treaty could
provide the governing domestic law on that issue."); José R.
Coleman Tió, Six Puerto Rican Congressmen Go to Washington, 116
Yale L.J. 1389, 1394 (2007) ("Absent a clear constitutional intent
to deny Congress the power to treat Puerto Rico as a state for
purposes of representation in the House, the broad language of the
Territorial Clause seems at least to provide a clearer source of
power to enfranchise nonstate citizens than does the Seat of
Government Clause [for D.C. residents]."). Hence, we think it
plain that the Court's view on the merits of a claim to
congressional representation (with voting power) for citizens
residing in Washington, D.C. does not dictate the outcome of the
claim brought here by citizens residing in the Commonwealth.
As noted above, the Supreme Court recently reaffirmed
that we may not lightly reject constitutional claims brought under
§ 2284(a) as insubstantial based on a lack of subject-matter
jurisdiction. See Shapiro, 136 S. Ct. at 455. Having necessarily
concluded in Igartúa IV that at least some of plaintiffs' claims
"clear[] Goosby's low bar" for substantiality, we see no basis for
changing course now. Id. at 456. Accordingly, if § 2284(a)
- 22 - governs, plaintiffs are entitled to a hearing before a three-judge
court irrespective of our view as to the merits of those claims.
See id. ("Perhaps petitioners will ultimately fail on the merits
of their suit, but § 2284 entitles them to make their case before
a three-judge district court.").
III.
Appellant Igartúa has persisted in his pursuit of
federal voting rights for the four million Puerto Rico residents
who are United States citizens in the face of repeated rejection
of his claims by this court. His objective is laudable. As one
member of this panel emphasized in Igartúa IV, "[n]o right is more
precious in a free country than that of having a voice in the
election of those who make the laws under which, as good citizens,
we must live." 626 F.3d at 638 (Torruella, J., concurring in part
and dissenting in part) (quoting Wesberry v. Sanders, 376 U.S. 1,
17 (1964)); see also id. at 606 ("The unequal distribution of the
fundamental privilege of voting among different categories of
citizens is deeply troubling." (Lipez, J., concurring in the
judgment)).
In Igartúa IV, our court failed to appreciate the
strength of plaintiffs' argument that their constitutionally based
apportionment claims should be heard by a three-judge court. As
the Supreme Court has made clear, the ultimate merit of those
claims is not the question. Rather, the need to convene a three-
- 23 - judge court turns on two issues: whether plaintiffs' claims are
within the scope of § 2284(a) and whether they satisfy the minimum
requirements of substantiality for subject-matter jurisdiction.
Our analysis above demonstrates that these issues
deserve considerably more deliberation than we have previously
given them. Thus, with the benefit of hindsight and the Supreme
Court's renewed attention to the three-judge-court framework in
Shapiro, we have come to believe that Igartúa's request for a
three-judge court should be addressed by our court en banc, "with
the best advocacy available in support of all parties." Igartúa
IV, 626 F.3d at 612 (Lipez, J., concurring in the judgment). This
is, inescapably, "a question of exceptional importance," Fed. R.
App. P. 35(a)(2), that "fits squarely within the guidelines for en
banc review," Igartúa IV, 626 F.3d at 612. Any request for such
reconsideration should be granted without delay.
As a panel, however, bound by precedent, we must affirm
the judgment of the district court.
So ordered.
-Opinion Concurring in Part/Dissenting in Part Follows-
- 24 - TORRUELLA, Circuit Judge (Concurring in part, Dissenting
in part). I wholeheartedly agree with the majority that Igartúa's
claim challenging Congress's failure to include Puerto Rico within
its apportionment of districts is an apportionment challenge
covered by § 2284(a). I also agree that it satisfies the minimum
requirements of substantiality for subject matter jurisdiction
and, thus, a three-judge court should have been convened. Despite
the excellent analysis provided by the majority in reaching these
conclusions, I am unable to join their opinion because, unlike my
colleagues, I do not believe this Court is bound by stare decisis
on the three-judge issue.
The panel's treatment of the three-judge issue in
Igartúa IV did not provide any reasoning or explain its conclusion,
and was not among the case's enumerated holdings. Moreover, the
footnote, consisting of just three sentences -- the first
acknowledging only that the Government did not argue for a three-
judge court; the second merely restating a portion of § 2284(a);
and the third offering a vague eight-word rejection -- is the
opinion's sole and complete discussion of that topic. Far from
"considered," the footnote is cursory, a comment made merely in
passing.
The utter lack of discussion and complete absence of
analysis of the three-judge issue renders footnote 6 dicta. This
Court has defined "obiter dictum" as "observations relevant, but
- 25 - not essential, to the determination of the legal questions then
before the court." Dedham Water Co. v. Cumberland Farms Dairy,
Inc., 972 F.2d 453, 459 (1st Cir. 1992). In Arcam Pharm. Corp. v.
Faría, this Court quoted Second Circuit Judge Pierre Leval's
characterization of dictum as "an assertion in a court's opinion
of a proposition of law which does not explain why the court's
judgment goes in favor of the winner." 513 F.3d 1, 3 (1st Cir.
2007) (emphasis added) (quoting Pierre N. Leval, Judging Under the
Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1256
(2006)). "[I]n evaluating dicta, '[m]uch depends on the character
of the dictum. Mere obiter may be entitled to little weight, while
a carefully considered statement . . . , though technically dictum,
must carry great weight, and may even . . . be regarded as
conclusive.'" McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st
Cir. 1991) (quoting Charles A. Wright, The Law of Federal Courts
§ 58, at 374 (4th ed. 1983)).
Considering the cursory treatment given to this issue by
the Igartúa IV panel, our hands are not tied by stare decisis.
See Montejo v. Louisiana, 556 U.S. 778, 793 (2009) (arguing that
a relevant factor in stare decisis is "whether the decision was
well reasoned"); Edelman v. Jordan, 415 U.S. 651, 670-71 (1974)
(stating that the lack of substantive discussion of issues in an
opinion carries the consequence that the opinion not be given "the
same precedential value as would be [given to] an opinion of this
- 26 - Court treating the question on the merits"); see also CBOCS W.,
Inc. v. Humphries, 553 U.S. 442, 468 (2008) (Thomas, J.,
dissenting) ("[T]he Court's one-paragraph discussion of the issue
was, at best, both cursory and ambiguous. This is hardly the stuff
of which stare decisis is made."); Payne v. Tennessee, 501 U.S.
808, 828 (1991) ("Stare decisis is not an inexorable command;
rather, it 'is a principle of policy and not a mechanical formula
of adherence to the latest decision.'" (quoting Helvering v.
Hallock, 309 U.S. 106, 119 (1940))); Carpenters Local Union No. 26
v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000)
("[S]tare decisis is neither a straightjacket nor an immutable
rule; it leaves room for courts to balance their respect for
precedent against insights gleaned from new developments, and to
make informed judgments as to whether earlier decisions retain
preclusive force."); Loveladies Harbor, Inc. v. United States, 27
F.3d 1545, 1549 (Fed. Cir. 1994) (overruled on other grounds)
("[W]e are unwilling to give stare decisis effect to a matter that
we did not fully consider and that was not before us in the prior
case.").
As the footnote is dicta and does not constitute stare
decisis, neither this Court nor the district court can be bound by
it, regardless of the similarities between Igartúa IV and Igartúa
V. "Dicta -- as opposed to a court's holdings -- have no binding
effect in subsequent proceedings in the same (or any other) case."
- 27 - Municipality of San Juan v. Rullán, 318 F.3d 26, 28 n.3 (1st Cir.
2003) (emphasis added). "[D]ictum contained in an appellate
court's opinion has no preclusive effect in subsequent proceedings
in the same, or any other, case." Dedham Water Co. v. Cumberland
Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir. 1992); see also
Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003)
("Dicta, of course, is not binding on future panels."). Rather,
"[w]e are at liberty to correct the misunderstanding" and "[t]hose
statements are not good law." United States v. Pérez-Ruiz, 353
F.3d 1, 10 (1st Cir. 2003). This Court has explicitly cautioned
district courts against following dicta from the appellate court,
even within the same case. See Dedham Water Co., 972 F.2d at 459
("When, as here, the district court . . . proposed to act upon
dicta contained in the appeals court's earlier opinion . . . it is
especially important that we . . . hold the parties to the usual
consequence of invited error."). "To do otherwise," Dedham warns,
"would place a premium on agreeable acquiescence to perceivable
error as a weapon of appellate advocacy." Id. (quoting Merchant
v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984)).
Indeed, Igartúa IV's footnote is the kind of "'drive-by
jurisdictional ruling' that the Supreme Court has instructed has
'no precedential effect.'" CE Design Ltd. v. Amer. Econ. Ins.
Co., 755 F.3d 39, 46 (1st Cir. 2014) ("[T]he brief discussion in
the Massachusetts [v. United States Veterans Admin., 541 F.2d 119
- 28 - (1st Cir. 1976)] footnote is arguably the sort of 'drive-by
jurisdictional ruling' that the Supreme Court has instructed has
'no precedential effect.'" (quoting Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 91 (1998))).
Although the Supreme Court has not yet formally resolved
whether convening a three-judge court under § 2284(a) is a
jurisdictional requirement, it was jurisdictional before the
statute was amended in 1976. As relevant here, those amendments
changed the statute to require parties to request a three-judge
panel rather than requiring judges to identify claims as falling
under § 2284(a) upon their filing, but the amendments left intact
the mandate that "[a] district court of three judges shall be
convened . . . when an action is filed challenging the
constitutionality of the apportionment of congressional
districts." 28 U.S.C. § 2284(a) (emphasis added). Thus, the
three-judge requirement of § 2284 uses jurisdictional language,
and nothing in the legislative history suggests any intention to
change that determination to be otherwise. The Second, Fifth, and
Sixth Circuits have held as much. Lulac of Texas v. Texas, 318 F.
App'x 261, 264 (5th Cir. 2009) ("We agree with our sister circuits
that the term 'shall' in § 2284 is mandatory and jurisdictional.
Although the 1976 amendment to § 2284 reduced the categories of
cases subject to the three-judge requirement, nothing in the
legislative history suggests an intent to alter its jurisdictional
- 29 - nature." (internal citations omitted)); Kalson v. Paterson, 542
F.3d 281, 287 (2d Cir. 2008) ("The text of 28 U.S.C. § 2284 uses
typically jurisdictional language. . . . There is, moreover, no
reason to think that when in 1976 Congress amended the three-judge
statute, it intended to make this imperative nonjurisdictional.
. . . [N]othing in the legislative history that describes the
reasons for retaining the three-judge requirement in apportionment
challenges suggests any change with respect to jurisdiction.");
see also Armour v. Ohio, 925 F.2d 987, 989 (6th Cir. 1991) (en
banc). Accordingly, the Igartúa IV footnote is a "drive-by
jurisdictional ruling" with no precedential effect.13
For these reasons I do not believe Igartúa IV decided
the three-judge issue. Judge Lipez's concurrence, as written,
accepts only the judgment. 626 F.3d 592, 606 (1st Cir. 2010). I
dissented in everything except the conclusion that the U.S.
Constitution does not give Puerto Rico residents the right to vote
13 By contrast, the Supreme Court's implicit jurisdictional decision in Adams v. Clinton, 531 U.S. 941 (2000), carries precedential value with respect to the validity of the three-judge panel because the threshold jurisdictional requirement for direct review by the Supreme Court was explicitly established by 28 U.S.C. § 1253 and spelled out by the Court in Norton v. Mathews, 427 U.S. 524 (1976) and Mobay Chem. Corp. v. Costle, 439 U.S. 320 (1979) (per curiam). Far from being a potential "drive-by jurisdictional ruling," the determination of jurisdiction in such cases, where the nature and importance of the jurisdictional question is clearly established by both stand-alone statute and precedent, is an "ignition" ruling -- the first, prerequisite step without which the Court could not proceed.
- 30 - for members of the House of Representatives because Puerto Rico is
not a state. Id. at 620-28. Accordingly, it seems that only one
member of the panel (Judge Lynch) subscribed to footnote 6, which
would be insufficient to constitute a holding of the Court and,
instead, makes it nothing other than dicta. Because the footnote
lacked the necessary support to become a determination of this
Court, it does not bind this Court or any other court.
A mere footnote, bereft of reasoning or analysis, should
not foreclose the voting rights of close to four million United
States citizens. I would reverse the judgment of the district
court refusing to convene a three-judge court and remand the case
to that court for further proceedings consistent with all other
aspects of the majority opinion.
- 31 -