IgartÚa v. U.S.

• Decision Date: 04 August 2011
• Docket Number: No. 09–2186.,09–2186.
• Citation: 654 F.3d 99
• Parties: Gregorio IGARTÚA, et al., Plaintiffs, Appellants,v.UNITED STATES of America, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

654 F.3d 99

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 Aug. 4, 2011.

Gregorio Igartua–De–La–Rosa, 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. Dept. of Justice, Washington, DC, for Defendants, Appellees.Eliezer Alberto Aldarondo–Lopez, Eliezer Aldarondo–Ortiz, Claudio Aliff–Ortiz, Aldarondo & Lopez Bras, Guaynabo, PR, Mark Christopher Fleming, Wilmerhale LLP, Boston, MA, Seth P. Waxman, U.S. Dept. of Justice, Washington, DC, Paul R.Q. Wolfson, Wilmerhale LLP, Washington, DC, for Intervenor.Before LYNCH, Chief Judge, TORRUELLA, BOUDIN, LIPEZ, HOWARD and THOMPSON, Circuit Judges.

ORDER OF COURT

Plaintiffs-appellants Gregorio Igartúa and other individual citizen-residents of Puerto Rico have filed a petition for rehearing and rehearing en banc. Intervenor Commonwealth of Puerto Rico has filed a petition for rehearing en banc. Pursuant to First Circuit Internal Operating Procedure X(C), the Commonwealth's petition for rehearing en banc has also been treated as a petition for rehearing before the original panel. The petitions for rehearing having been denied by the panel of judges who decided the case, and the petitions 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 petitions for rehearing and rehearing en banc be denied.

LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.

The issues at the heart of this case have already received en banc review, and are not entitled to new review. Six years ago, this court did grant en banc review in Igartúa–De La Rosa v. United States, 417 F.3d 145 (1st Cir.2005) (en banc) ( Igartúa III ), because of the importance of the issues, and that en banc decision controls the disposition of this petition for en banc review.

Igartúa III held, after full consideration of the issue, that the International Covenant on Civil and Political Rights (ICCPR) is not a self-executing treaty and thus is not binding as a matter of domestic law. Id. at 150. In light of this holding in Igartúa III, the antecedent question of whether the Constitution permits Congress to utilize the treaty power to extend voting rights to U.S. citizen-residents of Puerto Rico is not properly presented.

Our en banc decision in Igartúa III controls this case, despite the views of our dissenting colleagues, who wish to reopen settled issues which have already been given en banc treatment. Not only has no intervening authority called the ICCPR holding of Igartúa III into doubt, but the Supreme Court has expressly ratified this aspect of the en banc decision. See Medellín v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 1356, 170 L.Ed.2d 190 (2008) (quoting Igartúa III, 417 F.3d at 150).

We believe Igartúa III was correctly decided and no majority of this court can, in consequence, exist for any outcome other than affirmance of dismissal of the case. Fed. R.App. P. 35(a), which disfavors grants of petitions for en banc review, does not allow continual en banc reviews to re-examine already settled issues.

HOWARD, Circuit Judge, concurring in the denial of rehearing en banc.

In the main, I agree with the lead opinion for the panel majority in this case, which concluded that the issues are governed by our en banc decision in Igartua–de la Rosa v. United States, 417 F.3d 145 (1st Cir.2005).

I had dissented in the en banc case. In that case, I would have remanded to allow the plaintiff to further develop his claim that Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) is self-executing. I took that position because I thought that language in the text of Article 25 suggesting the self-executing nature of that provision might well trump the Senate's declaration that the treaty is not self-executing. Since the issuance of the en banc decision, however, the Supreme Court has provided further guidance in treaty interpretation, particularly in Medellín v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) and in Abbott v. Abbott, ––– U.S. ––––, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010).

Medellín reinforced the importance of a treaty's text in its interpretation, 552 U.S. at 506, 128 S.Ct. 1346, which is helpful to an extent but which would not be conclusive on the issue of whether the ICCPR's use of mandatory language in Article 25 (suggesting self-execution) or the treaty's Article 2 precatory language (suggesting that the treaty as a whole is not self-executing) should govern. Abbott, the more recent case, also analyzed a treaty's text, but it ultimately relied extensively on other interpretive sources, including the views of the Executive, the objects and purposes of the treaty as a whole, and the practices of other party states. 130 S.Ct. at 1993. After Medellín and Abbott, we cannot ignore the consistent and strongly held views of the Executive and the Senate that the ICCPR is not self-executing. As a result, it is not appropriate to revisit our en banc opinion.

With respect to the issue of whether the Constitution permits Congress to extend the franchise in Congressional elections to the plaintiff, the panel's lead opinion plainly got this question right. In contrast to the colorable claim that Congress may have the power to extend the vote in Presidential elections to such persons, see Igartua, 417 F.3d at 184–185 (Howard, J., dissenting), no substantial argument supporting the existence of a similar constitutional power with respect to Congressional elections has been advanced in any case, including this one, or in any scholarly literature of which I am aware.

TORRUELLA, Circuit Judge. (Concerning the denial of en banc consideration).¹

Three members of this court have voted to deny en banc rehearing of this appeal. They take this action in blatant disregard of the dictates of Appellate Rule 35(a)(2), which endorses the rehearing en banc of “question [s] of exceptional importance.” ² By their vote, the opponents of en banc review are able to block ³ consideration by the full court of the “exceptional[ly] importan[t]” constitutional questions raised by the petitions, ⁴ which include:

(I) Whether the Constitution prohibits the United States citizens residing in Puerto Rico from voting for representatives in the U.S. House of Representatives?

(II) Whether the International Covenant on Civil and Political Rights, ratified by the United States, Sept. 8, 1992, 999 U.N.T.S. 171 (1966) (ICCPR), is the

Law of the Land pursuant to the Supremacy Clause of Article VI of the Constitution? ⁵

(III) Whether the ICCPR establishes rights that can be judicially enforced in the courts of the United States for the benefit of the U.S. citizens residing in Puerto Rico?

(IV) Whether Petitioners are entitled to a declaratory judgment to the effect that the United States is in violation of the ICCPR by reason of its failure to take any action to comply with the requirements of Articles 25,⁶ 2(1), ⁷ 2(2),⁸ and 2(3) ⁹ of the ICCPR?

Although the Appellate Rules do not provide a definition of what is a “question of exceptional importance,” the issues alleged in this appeal are undoubtedly quintessential “questions of exceptional importance” because they implicate fundamental constitutional, civil and political rights of the millions of United States citizens who reside in Puerto Rico.

I am sorry to say that the vote against en banc consideration is by all appearances the result of a concerted stratagem to disparage these rights, and to prevent their litigation on a level playing field. See supra note 3. The disregard for the dictates of Appellate Rule 35(a)(2) makes this clear and forces me to protest this result in the strongest of terms.

The fundamental constitutional right at stake is the right to vote, a right which has been poignantly described as “preservative of [all] other basic civil and political rights [and whose] alleged infringement ... must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (emphasis added). See also Evans v. Cornman, 398 U.S. 419, 422, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970) (“[T]he right to vote ... is protective of all fundamental rights and privileges.”); Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) ( “No right is more precious in a free country than that of having a voice in the election of those who make the laws....”).

The opponents of en banc review apparently base their opposition on personal views of the merits of this appeal, for I cannot contemplate how they can rationally conclude that the issues raised are not of “exceptional importance.” Yet, at this procedural crossroads, the merits of this controversy are irrelevant to the initial decision that must be made as to the gravity of these issues. See generally Michael E. Solimine, Due Process and En Banc Decisionmaking, 48 Ariz. L.Rev. 325, 337–38 (2006) (“The time to fully address the merits of the case and the correctness of the panel decision's result is when, and if, rehearing en banc is granted, and the case is rebriefed and argued on the merits.”). Apart from disregarding Rule 35, proceeding sub silentio to exercise their vote based on their views of the merits of this appeal undermines the very notion of Rule 35, as embodied in Rule 35(a)(2), that issues of importance be considered and decided by the entire court, acting together after rebriefing, reargument, and engaging in the crucible of joint deliberation.

Because of the negative manner in which Rule 35(a) is framed (“An en banc...