Case of the Day: Igartúa v. Obama

Reverse of Puerto Rico quarter

The case of the day is Igartúa v. Obama (1st Cir. 2016). Long-time readers know I have been writing about the First Circuit’s (and the Supreme Court’s) Puerto Rico status cases for a while. In the latest case, Gregoria Igartúa, a US citizen residing in Puerto Rico, and the litigant who has been raising issues of Puerto Rico’s status for years, in a series of cases, claims that he was denied a constitutional right to elect representatives from Puerto Rico to the U.S. House of Representatives and that the district court erred by refusing to convene a three-judge court to hear his claim. The First Circuit previously rejected both claims in Igartúa v. United States, 626 F.3d 592 (1st Cir. 2010), and in that case, the full court denied a petition for en banc review and the Supreme Court denied a petition for certiorari.

The court could simply have affirmed the District Court’s rejection of Igartúa’s repetitious claim summarily on grounds of stare decisis. Instead, it issued a pretty long, and pretty persuasive, opinion calling into question its earlier holding that the statute providing for three-judge courts to hear actions “challenging the constitutionality of the apportionment of congressional districts,” 28 U.S.C. § 2284(a), does not apply to cases where the claim is nonapportionment rather than misapportionment. Why do this? What’s going on?

I am not privy to the private discussions or the private thinking of the judges, of course. Here are some thoughts. First, let’s note the judges’ view that if the case should have been heard by a three-judge court, then the earlier case should have been heard by a three-judge court, too, and the holding that the court reached in 2010 would no longer be good law.

Second, let’s look at the recent history of the Puerto Rico status issue in the First Circuit. Here is a summary. When I put the judges in one column or the other, I am looking just at raw preferences based on my reading of the opinions rather than the reasons the judges take the views they do.

Case Holding Judges Receptive to Plaintiff’s View Judges Unreceptive to Plaintiff’s View
Igartúa v. United States, 32 F.3d 8 (1st Cir. 1994) (“Igartúa I”). Puerto Rico residents have no right to vote for president. Torruella (?), Cyr, Boudin
Igartúa v. United States, 229 F.3d 80 (1st Cir. 2000) (“Igartúa II”) Puerto Rico residents have no right to vote for president. Lynch, Lipez Torruella, concurring (although earlier decision was correct, “I can no longer remain silent … because from my perspective, there are larger issues at stake”)
Igartúa v. United States, 386 F.3d 313 (1st Cir. 2004) (“Igartúa III”) Puerto Rico residents have no right to vote for president. Campbell, Howard Torruella, dissenting
Igartúa v. United States, 417 F.3d 145 (1st Cir. 2005) (en banc) Puerto Rico residents have no right to vote for president. Boudin, Campbell, Selya, Lynch, Lipez Torruella, Howard
Igartúa v. United States, 626 F.3d 592 (1st Cir. 2010) (“Igartúa IV”) Puerto Rico residents have no right to representation in the House of Representatives, and the issue should not be referred to a three-judge district court Lynch Lipez (concurring in the judgment) (“while agree … that our panel must adhere to the precedent set five years ago by the en banc court …this is one of those rare occasions when reconsideration of an en banc ruling is warranted”), Torruella (dissenting)
Igartúa v. United States, 654 F.3d 99 (1st Cir. 2011) (denying petition for rehearing en banc) Puerto Rico residents have no right to representation in the House of Representatives, and the issue should not be referred to a three-judge district court Lynch, Boudin, Howard (?) Torruella, Lipez, Thompson
Igartúa v. Obama, (1st Cir. 2016) (“Igartúa V”) Puerto Rico residents have no right to representation in the House of Representatives, and the issue should not be referred to a three-judge district court Torruella, Lipez, Thompson

Now let’s look at the judges in regular active service on the court today. As I have pointed out, the question whether to rehear a case en banc is for the judges in regular active service, not the judges who have taken senior status. The active judges are Chief Judge Howard and Judges Torruella, Lynch, Thompson, Kayatta, and Barron. Judges Selya, Boudin, Stahl, and Lipez are on senior status. Of the judges in regular active service, it seems likely that there would be at least two votes to grant a rehearing in Igartúa V (Judges Torruella and Thompson), and most likely (it seems to me) three votes (Chief Judge Howard). There is at least one vote against (Judge Lynch). We don’t know about Judges Kayatta and Barron, who, as far as I know, have not had a Puerto Rico status case yet. So if just one of the two of the newer judges would agree to take the case on rehearing en banc, the door would be open to a reconsideration of Igartúa IV. And since we know from the denial of rehearing en banc in Igartúa IV that the issue there was really the same as the issue in the earlier cases on presidential voting (namely, whether Puerto Rico is a “state” for constitutional purposes), the door would be open to a broader reconsideration, too. So if I had to guess—and I don’t think it’s a stretch—I would say that the judges who favor a change in the status quo are counting votes and figuring that now is the time. Hence the opinion that was much more detailed than it needed to be.

I’ve given my views on this before and I won’t do so in detail here. Basically, I think the court’s precedents are correct and that the solution to the problem is political, not legal. Puerto Rico should either become independent, or else become a state, or else decide that the status quo, with its pros and cons, is the best option. Congress has a political obligation, and maybe an obligation in international law, but (in my view) certainly no obligation in US law to honor the will of the Puerto Rican people, though I think for a variety of reasons we don’t yet know what their will really is. I think that advocates for change in the First Circuit should be careful what they wish for, because any victory in an en banc decision would be taken up by the Supreme Court, and it seems highly unlikely to me, particularly in light of Puerto Rico v. Franklin California Tax Free Trust and Puerto Rico v. Sánches Valle, that the Supreme Court would have much sympathy for the view that the Constitution requires that Puerto Rico be treated just like a state.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), 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 and 2014 - 2016.

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