IgartÚa v. U.S.

• Decision Date: 18 February 2011
• Docket Number: No. 09–2186.,09–2186.
• Citation: 636 F.3d 18
• Parties: Gregorio IGARTÚA, et al., Plaintiffs, Appellants,v.UNITED STATES of America, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

636 F.3d 18

Gregorio IGARTÚA, et al., Plaintiffs, Appellants,

v.UNITED STATES of America, et al., Defendants, Appellees.

No. 09–2186.

United States Court of Appeals, First Circuit.

Heard March 2, 2010.Decided Feb. 18, 2011.

OPINION TEXT STARTS HEREGregorio Igartúa, Bufete Igartúa, Aguadilla, PR, pro se.Carlos Mendez–Martinez, pro se.Fred Soltero–Harrington, pro se.Jorge Perez Diaz, pro se.Pedro Mendez–Soto, pro se.Jose Ernesto Garcia–Segarra, pro se.Iris Y. Garcia–Camacho, pro se.Luis R. Soltero–Harrington, pro se.Mark R. Freeman, Daniel Riess, Michael Jay Singer, U.S. Department of Justice, Washington, DC, for Defendants, Appellees.Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

The Commonwealth of Puerto Rico's motion for leave to intervene is allowed, and its petition for rehearing en banc is accepted for filing. We also allow the requests of Seth P. Waxman, Paul R.Q. Wolfson, and Mark C. Fleming for leave to file notices of appearance on behalf of the Commonwealth.

LYNCH, Chief Judge, dissenting from the allowance of intervention by the Commonwealth of Puerto Rico.

Everyone, including this court, has agreed to hear the views of the Commonwealth of Puerto Rico in this matter. The panel allowed the Commonwealth to express its views both in briefing and at oral argument as an amicus curiae. Both parties agree to the Commonwealth's continued participation as an amicus on plaintiff Gregorio Igartúa's petition for rehearing en banc. So the question is not whether the Commonwealth can participate and thereby vindicate its stated intention to ensure a high level of representation. Rather, the question is whether the Commonwealth's motion to intervene should be allowed, which is a very different matter.

Allowing intervention at this late stage in the litigation is mistaken, even if it is within this panel's discretion. The Commonwealth filed its motion to intervene after the panel issued an opinion in this matter and after Igartúa filed a petition for rehearing en banc. The Commonwealth's motion is opposed by the defendant United States and associated officials as well as Igartúa, the party on whose behalf the Commonwealth seeks to intervene. It is entirely unprecedented and contrary to normal legal requirements for intervention to allow the Commonwealth to intervene under these circumstances.

At this stage it is sufficient to outline briefly my reasons for objecting. First, the Commonwealth lacks Article III standing and the Commonwealth's lack of standing should mean that it not be allowed to intervene. Second, allowance of intervention would be improper under normal intervention standards because the Commonwealth's motion is too late and may cause prejudice. Finally, there is absolutely no reason to create an exception to the law to permit this extraordinary and unprecedented measure.

1. Neither Puerto Rico nor any state has standing to represent its citizens as parens patriae in litigation against the United States. See Florida v. Mellon, 273 U.S. 12, 18, 47 S.Ct. 265, 71 L.Ed. 511 (1927); Massachusetts v. Mellon, 262 U.S. 447, 485–86, 43 S.Ct. 597, 67 L.Ed. 1078 (1923).

The Commonwealth seeks to evade these principles of federalism by arguing that this case is analogous to cases like Utah v. Evans, 536 U.S. 452, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002), and Department of Commerce v. Montana, 503 U.S. 442, 112 S.Ct. 1415, 118 L.Ed.2d 87 (1992). It is not. The Commonwealth does not seek to vindicate a recognized state interest like proper apportionment. Rather, it seeks to vindicate its view that the Constitution permits Congress, should Congress so choose, to extend voting rights to U.S. citizen-residents of non-states and that Congress has done so here.

Whether or not intervenors must have Article III standing, see Diamond v. Charles, 476 U.S. 54, 68–69, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Daggett v. Comm'n on Governmental Ethics & Election Practices, 172 F.3d 104, 109 (1st Cir.1999), in cases such as this, in which a court is asked to interpret the very structure of the Constitution, a state or territory that seeks to intervene at the appellate level should be required to meet Article III standing requirements.

2. Under Fed.R.Civ.P. 24(b), the Commonwealth's motion to intervene would be denied because the motion comes too late and may prejudice the adjudication of rights asserted by the parties.

As to delay, the Commonwealth did not seek intervention in the district court or before the panel. Rather, it waited until its view had not prevailed before the panel, then waited until Igartúa had filed for rehearing en banc, and then waited longer before filing its motion.

As to prejudice, the Commonwealth's claim that no prejudice would be caused by its intervention is belied by...