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Igartúa v. Trump

United States Court of Appeals for the First Circuit

August 9, 2017, Entered

No. 15-1336



Pursuant to First Circuit Internal Operating Procedure X(C), Appellant Gregorio Igartua's petition for rehearing en banc has also been treated as a petition for rehearing before the original panel. The petition for rehearing having been denied by the panel of judges who decided the case, and the petition 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 petition for [**2]  rehearing and petition for rehearing en banc be denied.

KAYATTA, Circuit Judge, with whom HOWARD, Chief Judge, LYNCH, Circuit Judge, and BARRON, Circuit Judge join, statement on denial of rehearing en banc. The prolonged inability of our fellow citizens to vote for certain federal officials is certainly a matter of legitimate concern. The only issue now before us, though, is whether our court should convene an en banc hearing to consider whether the plaintiffs' claims in this action must be heard in the first instance by a three-judge court under 28 U.S.C. § 2284(a). Those urging that we do so premise their argument upon a suggestion that our controlling precedent errs in failing to require the appointment of a three-judge court. For the following reasons, we disagree.

] To warrant the assignment of this lawsuit to a three-judge court, we would need to find that the complaint satisfies two criteria: (1) it commences "an action challenging the constitutionality of the apportionment of congressional districts," 28 U.S.C. § 2284(a); and (2) it presents "a substantial federal question," so that the complaint is "justiciable in the federal courts." Shapiro v. McManus, 136 S. Ct. 450, 455, 193 L. Ed. 2d 279  [*25]  (2015) (quoting Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90, 100, 95 S. Ct. 289, 42 L. Ed. 2d 249 (1974)).

Plaintiffs' only claim that meets the first criterion is that the United [**3]  States Constitution makes it unconstitutional to apportion congressional districts as the Constitution itself says to apportion them. Notably, none of our colleagues even tries to explain how the Constitution itself might conceivably prohibit that which it directs "shall be" done. To the contrary, as Judge Torruella observed, ] "the text of Section 2, Article I does not grant to citizens of Puerto Rico the right to vote for members of the House of Representatives." Igartúa v. United States (Igartúa IV), 626 F.3d 592, 616 (1st Cir. 2010) (Torruella, J., concurring in part and dissenting in part) (emphasis in original). Any argument to the contrary, certainly post-Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C.), aff'd, 531 U.S. 941, 121 S. Ct. 336, 148 L. Ed. 2d 270 (2000), is therefore "wholly insubstantial." Vazza v. Campbell, 520 F.2d 848, 850 (1st Cir. 1975).

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868 F.3d 24 *; 2017 U.S. App. LEXIS 14677 **; 2017 WL 3404966

GREGORIO IGARTÚA, et al., Plaintiffs, Appellants, v. DONALD J. TRUMP, President of the United States of America; WILBUR L. ROSS, JR., Secretary of Commerce; KAREN L. HAAS, Clerk of the U.S. House of Representatives, Defendants, Appellees.1

Prior History: Igarta v. Obama, 842 F.3d 149, 2016 U.S. App. LEXIS 21105 (1st Cir. P.R., Nov. 23, 2016)


en banc, three-judge, convened, treaty, apportionment, district court, constitutional claim, colleagues, congressional district, petition for rehearing, three-judge-court, plaintiffs', voted, insubstantial

Civil Procedure, Special Proceedings, Three Judge Courts, Constitutional Law, Congressional Duties & Powers, Census, Apportionment & Redistricting, Census