229 F.3d 80 (1st Cir. 2000), 00-2083, De La Rosa v United States

Docket Nº:00-2083.
Citation:229 F.3d 80
Case Date:October 13, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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229 F.3d 80 (1st Cir. 2000)




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No. 00-2083.

United States Court of Appeals, First Circuit

October 13, 2000

Heard October 5, 2000.


Matthew M. Collette, Attorney, U.S. Department of Justice, with whom Jacob M. Lewis, Attorney, U.S. Department of Justice, David W. Ogden, Assistant Attorney General, and Guillermo Gil, U.S. Attorney, were on brief, for appellant.

Gregorio Igartua for appellee.

Angel E. Rotger Sabat, Attorney General, Commonwealth of Puerto Rico and Gustavo A. Gelpi, Solicitor General, Commonwealth of Puerto Rico, with whom John F. Nevares, Carlos Lugo-Fiol, and Smith and Nevares, were on brief, for intervenor-appellee Commonwealth of Puerto Rico.

Charles J. Cooper, Michael A. Carvin, Jeffrey A. Tomasevich, and Cooper, Carvin & Rosenthal on brief for amicus curiae Popular Democratic Party of Puerto Rico.

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Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.

Per Curiam.

On April 5, 2000 a complaint was filed in the United States District Court for the District of Puerto Rico by eleven individuals alleging that as citizens of the United States residing in Puerto Rico they are being deprived of the right to vote for the candidates to the offices of President and Vice-President of the United States, a condition which they view to be a "violation of their constitutional rights to the same privileges and immunities, treaty rights, due process and equal protection of the laws" enjoyed by United States citizens residing in the States.

Plaintiffs, in effect, comprise two separate groups. The first includes individuals who have always resided in Puerto Rico and whose claim is based on their alleged right to vote for the national offices in question because they consider it a right inherent in United States citizenship. The second group is comprised of former residents of states who were eligible to vote during such residence in the States but became ineligible to do so upon taking residency in Puerto Rico. Both groups claim entitlement to vote pursuant to the Constitution of the United States and pursuant to treaty obligations assumed by the United States under the International Covenant on Civil and Political Rights, U.N.T.S. No. 14668, Vol. 999 (1976) p. 171, ratified, 138 Cong. Rec. S-4781 (April 2, 1992) ("ICCPR"). In addition, the second group also calls into question the constitutionality of the Uniformed and Overseas Citizens Absentee Voting Act (NOCAVA), 42 U.S.C. §§ 1973ff-1973ff-6, which allows United States citizens residing outside the United States to vote in federal elections as absentee voters in their last state of residence. Because Puerto Rico is included within the definition of "United States," 42 U.S.C. § 1973ff-6(8), residents of Puerto Rico who would otherwise qualify to vote pursuant to this statute are disqualified. This is claimed to be a violation of various constitutional provisions.

Plaintiffs sought a declaratory judgment against the United States affirming the invalidity of the denial of their alleged right to vote for the national offices in question. In addition, they sought an order requiring the United States "to take all the necessary steps" to implement their alleged right to vote for President and Vice-President.

On June 5, 2000 the United States moved to dismiss the complaint claiming, in substance, that the allegations contained in the complaint "are virtually identical to those previously brought by eleven individuals, including [Plaintiff] Igartua in the case of Igartua de la Rosa, et al. v. United States, C. 91-2506," in which the District Court (Acosta, J.) dismissed plaintiffs' request for declaratory and injunctive relief for failure to state a claim upon which relief could be granted. See Igartua v. United States, 842 F.Supp. 607 (D. P.R. 1994), aff'd, 32 F.3d 8, 9 (1st Cir. 1994), (Igartua I), cert. denied, 514 U.S. 1049 (1995). The United States alleged that Igartua I required dismissal of the present action under the principles of res judicata and stare decisis.

This motion was denied by the District Court on July 19, 2000 in an extensive opinion, see Igartua v. United States, 107 F.Supp.2d 140 (D. P.R. 2000) (Igartua II), in which it ruled that the provisions of the ICCPR were not self-executing and thus did not give rise to privately enforceable rights under United States law, and further that NOCAVA did not violate Plaintiffs' constitutional rights. It ruled, however, that preventing plaintiffs from voting in presidential and vice-presidential elections was unconstitutional.

Thereafter, on July 27, 2000 the Commonwealth of Puerto Rico and its governor, Pedro Rossello, moved to intervene in this action, in effect supporting the claims of Plaintiffs. This intervention was allowed

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by the district court on July 28, 2000.

On August 1, 2000 the United States filed its Answer, alleging in defense substantially the same grounds as claimed in its Motion to Dismiss, and in addition contending that the issues presented by plaintiffs raised "political questions outside the jurisdiction of the federal courts."

After several intervening procedural events, on August 29, 2000 the district court entered a Final Opinion and Order, essentially confirming its July 29 opinion, and entering a Final Judgment:

(1) Declaring "that the United States Citizens residing in Puerto Rico have the right to vote in Presidential elections and that its electoral votes must be counted in Congress";

(2) Concluding "that the Government of Puerto Rico has the obligation to organize the means by which the United States citizens residing in Puerto Rico will vote in the upcoming and subsequent Presidential elections and to provide for the appointment of Presidential electors," and ordering "the Government of Puerto Rico to act with all possible expediency to create such mechanism;" and

(3) Ordering "the Government of Puerto Rico to inform the Court of all developments related to its implementation of the Presidential vote until the votes are counted pursuant to the Twelfth Amendment to the Constitution."

On September 10, 2000 the Legislature of Puerto Rico enacted Law No. 403 for the purpose of allowing the citizens of the United States of America domiciled in Puerto Rico to vote in the election for the offices of President and Vice-President of the United States, and to establish the procedures and mechanisms to effectuate said vote. This bill was signed into law on September 10, 2000 and became effective immediately. See Law No. 403 of September 10, 2000, § 4.6.

On September 11, 2000 the United States filed its Notice of Appeal from this Final Judgment and from the Final Opinion and Order also entered by the district court on August 29, 2000, which contained provisions substantially the same as those in the Final Judgment. Neither the Plaintiffs nor the Intervenor Government of Puerto Rico and Governor appealed.

For the reasons stated herein, we reverse and vacate the Final Judgment and Final Opinion and Order and remand with instructions to dismiss the action. See Toren v. Toren, 191 F.3d 23 (1st Cir. 1999). This court, of course, expresses no opinion with regard to the validity under Puerto Rican law of Law No. 403.


In Igartua I, a case brought by the same lead plaintiff and lawyer who appears currently before us, this court held with undeniable clarity that the Constitution of the United States does not confer upon United States citizens residing in Puerto Rico a right to participate in the national election for President and Vice-President. Addressing precisely the argument presented to the district court in this case, this court recognized that Article II of the Constitution explicitly provides that the President of the United States shall be elected by electors who are chosen by the States, in such manner as each state's legislature may direct. See id. at 9 (citing U.S. Const. Art. II, § 1, cl. 2). We concluded that Puerto Rico, which is not a State, may not designate electors to the electoral college, and therefore that the residents of Puerto Rico have no constitutional right to participate in the national election of the President and Vice-President. See id. at 9-10.

Since our decision in Igartua I in 1994, Puerto Rico has not become a State, nor has the United States amended the Constitution to allow United States citizens residing in Puerto Rico to vote for President, as it did for United States citizens

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residing in the District of Columbia with the Twenty-Third Amendment to the Constitution. See id. at 10. Absent such a change in the status of Puerto Rico or an amendment to the Constitution of the United States, our decision in Igartua I controls this case, unless there has been intervening controlling or compelling authority. See Gately v. Massachusetts, 2 F.3d 1221, 1226 (1st Cir. 1993) ("The doctrine of stare decisis renders the ruling of law in a case binding in future cases before the same court or other courts owing obedience to the decision.");1 see also Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995) ("In a multi-panel circuit, newly constituted panels are, for the most part, bound by prior panel decisions closely on point.").


The district court attempted to distinguish Igartua I in its July 19 opinion (but not in its Final Opinion and Order) on reasoning that "while Igartua I centered on Plaintiff's inability to vote for the President and Vice President, the instant case revolves around their inability to elect delegates to the electoral college." Igartua II, 107 F. Supp.2d at 145. This effort at distinguishing Igartua I obviously fails. Under...

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