What’s Going On In The First Circuit?

I follow developments in the U.S. Court of Appeals for the First Circuit more closely than I follow any other circuit, because it’s based here in Boston, so in the latest Letters Blogatory frolic and detour post, I ask: what’s going on in the judges’ chambers? This week saw the second of two significant recent public squabbles among the judges.

Squabble No. 1—The Puerto Rico Voting Cases

Puerto Rico and American flagsThe first squabble involved a denial of en banc review in Igartúa v. United States (Igartúa IV). In Igartúa-De La Rosa v. United States (Igartúa III), 417 F.3d 145 (1st Cir. 2005) (en banc), the court had concluded, unsurprisingly, that US citizens living in Puerto Rico did not have a constitutional right to vote for President and Vice President, because under the Constitution, the fifty states choose the electors who, in turn, choose the President and Vice President:

That the franchise for choosing electors is confined to “states” cannot be “unconstitutional” because it is what the Constitution itself provides. Hence it does no good to stress how important is “the right to vote” for President. Although we recognize the loyalty, contributions, and sacrifices of those who are in common citizens of Puerto Rico and the United States, much the same could have been said about the citizens of the District of Columbia, who were voteless over a much longer period. The path to changing the Constitution lies not through the courts but through the constitutional amending process, U.S. Const. art. V; and the road to statehood—if that is what Puerto Rico’s citizens want—runs through Congress. U.S. Const. art. IV, § 3, cl. 1.

The court also rejected claims under the Universal Declaration of Human Rights, the Inter-American Democratic Charter, and the International Covenant on Civil and Political Rights. The first two, according to the court, are merely aspirational and precatory and do not give right to claims for relief, and the third is, as a matter of US law, not self-executing. Judge Torruella wrote a lengthy and passionate dissent that focused on the ICCPR, even though he seemed to agree that the treaty was not self-executing. I have to say I don’t understand the view that the court should enter a declaration in the hopes that the political branches would then carry out their responsibilities under the treaty; such a declaration seems purely advisory and maybe to run afoul of the political question doctrine. (Indeed, on the political question issue, the Puerto Rican people have not expressed a clear choice one way or the other between the three leading alternatives available to them, namely, statehood, independence, or the status quo, and one might wonder why the First Circuit should in effect make the decision for them). But anyway, that was Judge Torruella’s view.

Fast-forward a few years to Iguartúa IV, a case that brings essentially the same claim as Iguartúa III, except that it involved election of voting members of the House of Representatives. Again, the claim focused on the ICCPR. Chief Judge Lynch disposed of the claim easily on the grounds, among others, that the Constitution clearly gave only the people of the states power to elect representatives, that Puerto Rico was not a state, and that to the extent the plaintiffs wanted to argue that the ICCPR overrode these provisions, Iguartúa III controlled on the question of the non-self-executing nature of the treaty. Judge Lipez concurred on the grounds that Iguartúa III controlled, though he did not agree that Iguartúa III was rightly decided. Judge Torruella again dissented, even though he joined his colleagues “in agreeing that the U.S. Constitution does not give Puerto Rico residents the right to vote for members of the House of Representatives because Puerto Rico is not a state.” His basic point was that even if the Constitution does not give Puerto Ricans the right to elect representatives to Congress, it does not forbid the government from extending that right to them, and therefore, the government is in breach of its obligations under the ICCPR. But in addition to the issue about whether the ICCPR is self-executing, Judge Toruella’s position ignores the text of the Constitution, which provides: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”

On the petition for rehearing en banc, Chief Judge Lynch and Judges Boudin and Howard voted to deny rehearing on the grounds that the issues had already had en banc reconsideration in Iguartúa III, and that to the extent the law had changed since then, it had strengthened the rationale of the ealier case insofar as the Supreme Court, in Medellín v. Texas, 128 S. Ct. 1346, 1356 (2008), had cited Iguartúa III with approval on the point in question. Judge Toruella, in a strongly worded dissent, blasted his colleagues for supposedly disregarding Fed. R. App. P. 35, which provides that “an en banc hearing or rehearing is not favored and ordinarily will not be ordered unless the proceeding involves a question of exceptional importance.” In Judge Toruella’s view, the case clearly was one of exceptional importance, because it involved the civil rights of the millions of US citizens in Puerto Rico. This seems unpersuasive, though, since it seems (at least to me) that there is a difference between the importance of the consequences of a court’s decision (which in this case clearly are important) and the importance of the legal question the case presents. A really easy legal question probably is not a question of exceptional importance justifying en banc rehearing, or at least that is how I would reason if I were an appellate judge. Judges Lipez and Thompson also dissented, though more briefly.

Squabble No. 2—The Whitey Bulger Case

After the Iguartúa IV decision, there was evidently a rift on the court: Chief Judge Lynch and Judges Boudin and Howard on one side, and Judges Toruella, Lipez, and Thompson on the other. The same split occurred in last week’s denial of en banc rehearing in Donahue v. United States. As the inimitable Judge Selya put it in the panel decision, the case involve the “tawdry tale of the FBI’s corrupt collaboration with [James J. “Whitey”] Bulger and his sidekick, Stephen “the Rifleman” Flemmi”:

For decades Whitey Bulger, a key figure in organized crime circles in Boston, and the leader of a criminal syndicate known as the Winter Hill Gang, led a double life. Unbeknownst to his counterparts in crime, he served as a confidential informant for the FBI. Bulger’s underworld position made him privy to various and sundry activities of rival gangs, including the Mafia (sometimes known as La Cosa Nostra). The FBI’s ardent desire to bring the Mafia to heel led it to make a Faustian bargain: in exchange for information about Mafia activities, the FBI would protect Bulger and Flemmi and “look the other way” as the duo pursued their own felonious misadventures. This alliance spanned three decades, lasting from the late 1970s well into the 1990s.

I won’t review the case in a much detail as I just reviewed the Puerto Rico cases, but suffice it to say that the families of one of the men killed because of the FBI’s bargain with Bulger were denied relief in their claim against the government on sovereign immunity grounds because they had not timely filed the claim, and the court therefore lacked jurisdiction. On a petition for rehearing en banc, the court split the same way, with the Chief Judge and Judges Boudin and Howard voting against rehearing and Judges Toruella, Lipez, and Thompson voting in favor. This time, the rhetoric was more heated. Judge Toruella:

Some cases are of “exceptional importance” because of the potential they have to affect the lives of millions of people. See, e.g., Igartúa, et al. v. United States, No. 09-2186, __F.3d __, 2011 WL 3340120, *2 (1st Cir. Aug. 4, 2011) (Torruella, J., dissenting). Other cases are of exceptional importance because of the light they cast on our public institutions. The latter, while not always directly affecting as broad a segment of the population, are nevertheless exceptionally important by virtue of what they demonstrate about the trust that we—for better or worse—place in those institutions. This is one of those cases. Yet barely a month since a divided vote in Igartúa denied 4 million United States citizens residing in Puerto Rico review of constitutional issues of exceptional importance, this court continues this noxious pattern and once again prevents consideration by the full court of questions of exceptional importance. By this action it allows the government’s outrageous conduct to remain free of any consequence, and as in Igartúa, perpetrates a monstrous injustice on another, albeit smaller, but no less worthy, group of hapless citizens.

Chief Judge Lynch:

Under the Constitution, federal courts may not make decisions based on sympathy to parties and may not displace the judgments made by Congress in non-constitutional matters. The legal issue presented by these cases is not whether the conduct of the FBI was shameful; it was. It is not whether plaintiffs are victims of that conduct; they are.

However wronged the plaintiffs, the issue is whether these plaintiffs have complied with the stringent limitation period set by Congress for claims under the Federal Tort Claims Act. 28 U.S.C. § 2401(b). Because the money to pay victims comes from the United States, those time limits as a matter of law are required to be strictly construed. United States v. Kubrick, 444 U.S. 111, 117-18 (1979). Whether the federal courts even have jurisdiction over the claim depends upon the timely filing of an administrative notice of claim. 28 U.S.C. §§ 2401(b), 2675(a); Kubrick, 444 U.S. at 117. Our case law requires that the point of view of an objectively reasonable person be used, not the point of view of the particular plaintiffs. Cascone v. United States, 370 F.3d 95, 104 (1st Cir. 2004); McIntyre v. United States, 367 F.3d 38, 52 (1st Cir. 2004).

There were many well-publicized admissions—particularly those of FBI Agent Morris whose dramatic courtroom disclosures specifically about the FBI’s role in the May 11, 1982, double murder of Halloran and Donahue were corroborated by several other witnesses—which put objectively reasonable persons on notice of these claims. Despite this, plaintiffs did not act within the required time limits to file the required claims. It is an easy step to file a claim. A majority of a panel of this court, which took these claims very seriously, concluded that the plaintiffs did not file a timely claim, in light of the arguments made and evidence presented by plaintiffs. The courts cannot assume the role of advocates and create arguments never made. Nor was there any error in the legal standards used in making that decision.

The merits of this case are less clear to me than the merits of the Puerto Rico case. It does seem to me, however, that in deciding which cases are worthy of en banc review, the courts of appeal should focus on the importance of the legal issue rather than the importance of the outcome.

Note: readers interested in the substance of the Puerto Rico cases may also be interested in a new case raising similar issues concerning the US Virgin Islands, brought in the Virgin Islands Superior Court, which is the subject of a recent post at The Trial Warrior.

Photo credit: Joe Shlabotnik (license)

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

13 thoughts on “What’s Going On In The First Circuit?

  1. Letters Blogatory reader Harvey Kaplan of Kaplan, Friedman & Associates, a Boston immigration law firm, called an additional example of First Circuit infighting to my attention: Dehonzai v. Holder (1st Cir. 2011), a panel decision affirming the BIA’s denial of an asylum application by an Ivorian. Judge Thompson, dissenting from the decision by Chief Judge Lynch (joined by Judge Boudin), wrote: “Today my colleagues avert their eyes from such errors and deficiencies in the name of deference, with the result that Dehonzai will be cast into the middle of the very turmoil that led him to seek refuge with our own Mother of Exiles in the first place.”

    Thanks for the cite, Harvey!

  2. You state the following: “Judge Toruella’s position ignores the text of the Constitution, which provides: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”

    It seems that (as the First Circuit has done) your reasoning employs a syllogism: Pursuant to the U.S. Constitution, the “states” (and the District of Columbia by virtue of the Twenty-Third Amendment) participate in the selection of federal officials. Puerto Rico is not a “state”. Ergo, residents of Puerto Rico have no constitutional right to participate in the federal electoral process or to be represented in the federal government.

    But note that in other cases concerning Puerto Rico federal courts have not employed such a narrow reading of the term “state” as used in the Constitution. For example, while the Eleventh Amendment to the U.S. Constitution provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State”, the First Circuit has held that the Puerto Rico is entitled to sovereign immunity under that provision.

    Likewise, in spite of the constitutional provision that declares that the federal judiciary’s diversity jurisdiction refers to cases and controversies “between citizens of different states”, federal courts have not expressed any discomfort with legislation that provides that, for purposes of diversity jurisdiction, the term “States” includes “the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.” If the Constitution’s use of the term “state” is consistently construed in the narrow manner the federal appellate courts have done so in cases presenting legal challenges to the disenfranchisement of Puerto Ricans, the constitutionality of the quoted provision should be called into question. After all, Marbury v. Madison stands for the proposition that Congress cannot statutorily augment the jurisdiction of federal courts beyond what is prescribed by the Constitution.

    The dissimilar reading of the term “state” suggests that something else is afoot in the judiciary’s reluctance to address the disenfranchisement of Puerto Rico’s residents.

    1. Thank you, Albéniz, for the comment!

      You are right that the First Circuit holds that Puerto Rico is entitled to immunity under the Eleventh Amendment. I would turn your point around, though, and suggest that those cases are clearly erroneous. The origin of the First Circuit’s view, Ezratty v. Puerto Rico, 648 F.2d 770, 776 n.7 (1st Cir. 1981), is a footnote with no analysis. There’s no question, at least in my mind, that Puerto Rico has sovereign immunity at common law, though.

      I don’t mean to suggest that Puerto Ricans shouldn’t have the right to full representation in Congress. It seems to me that the people of Puerto Rico will give their views on that question when they vote in this summer’s referendum on their political status, and I think the US should respect the wishes of the people of Puerto Rico, whether they vote for statehood, independence, or continuance of the status quo.

      1. True, the First Circuit’s case law on Puerto Rico’s Eleventh Amendment immunity may be wrong. But I think that does not undermine (and rather reinforces) the point that the Court is very willing to stretch the word “state” as used in the Constitution unless the matter before it has to do with the regime of political apartheid that exists in Puerto Rico (as Judge Torruella labeled it in the U. Penn Journal of International Law). The Court simply picks and chooses when the Constitution’s use of the word “state” includes Puerto Rico (e.g., the Eleventh Amendment and federal court diversity jurisdiction) and when it doesn’t (representation in the federal government). (BTW, the plebiscite will be in the fall. And since many people believe that Congress doesn’t take these events very seriously, the outcome may be the result of local politics unrelated to the status issue.)

        1. I think “regime of political apartheid” is an inappropriate characterization for lots of reasons, with all due respect to Judge Torruella, but strong feelings can lead to strong language.

          You make a good point about the construction of the word “state” for diversity jurisdiction purposes, but I would point out that on that score, Puerto Rico is treated just like the District of Columbia. See 28 USC § 1332(e).

          1. True, 28 USC § 1332(e) states that Puerto Rico is a “state” for diversity jurisdiction purposes. But, since Marbury v. Madison, it has been held that Congress may not broaden federal court jurisdiction beyond what’s provided for in the Constitution. See Erwin Chemerinsky, Constitutional Law: Principles and Policies 44 (2d ed. 2002) (“Marbury helped establish the principle that federal courts are courts of limited jurisdiction, and that Congress may not expand the jurisdiction granted in Article III of the Constitution.”).

            Article III, § 2 provides that the federal judiciary’s diversity jurisdiction refers to “cases” and “controversies” “between citizens of different states”. The Supreme Court, the First Circuit and all other federal courts that I’m aware repeatedly state that they have to examine their own jurisdiction, even sua sponte. So, if the word “state” is so determinative for other purposes and should be consistently limited to “The 50 States”, doesn’t it follow that federal courts should evaluate whether Congress can actually declare Puerto Rico a “state” for purposes of federal court diversity jurisdiction? But this has never been a concern for the First Circuit. I think this inconsistency reflects a “political” judgment by the judiciary.

            1. Well, the Supreme Court authoritatively answered the DC question, right or wrong, in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1948), and though there was no theory that commanded a majority, three of the justices thought that DC diversity jurisdiction could be sustained under Article I (“Congress shall have Power … To exercise exclusive Legislation in all Cases whatsoever, over such District … as may … become the Seat of the Government of the United States”) even though DC is not a “state” under Article III. The same reasoning supports diversity jurisdiction in Puerto Rico under Article IV, Section 3 (“Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory … belonging to the United States …”), not Article III. See Americana of Puerto Rico, Inc. v. Samuel R. Kaplus and J. Kaplus & Sons, Inc., 368 F.2d 431 (3d Cir. 1966). So I think the premise of your comment is too simplistic. I don’t think that the courts have defined either DC or Puerto Rico as a state for Article III purposes. The bigger problem for my view is the First Circuit’s Eleventh Amendment jurisprudence, but as I say, I think the court was clearly wrong on that point.

              This is an interesting discussion—thanks for keeping it going!

              1. On the Article III issue, I just bumped into this: In Nguyen v. United States, 539 U.S. 69 (2003), the Supreme Court held that non-Article III federal judges from the Mariana Islands could not sit by designation in Ninth Circuit. Judges from the District of Puerto Rico (like those from DC) are treated as Article III judges and regularly sit by designation in the First Circuit. I wonder what (if anything) that means for your Article III statement that you “don’t think that the courts have defined either DC or Puerto Rico as a state for Article III purposes.” I’ll have to do some research on the matter.

                1. Albéniz, I don’t see what that gets you. Wasn’t the issue in Nguyen that the court was not a district court in the sense the statutes meant and that the judges did not have life tenure? Neither thing is true in Puerto Rico. There is no necessary connection between the states and the judicial districts of the United States.

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