Abril-Rivera v. Johnson , 806 F.3d 598 ( 2015 )

United States Court of Appeals
For the First Circuit
_____________________
No. 14-1316
FRANCISCO ABRIL-RIVERA, ET AL.,
Plaintiffs, Appellants,
and
MADELINE AGUAYO, ET AL.,
Plaintiffs,
v.
JEH JOHNSON, Secretary of the Department of Homeland Security; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; FEDERAL
EMERGENCY MANAGEMENT AGENCY,
Defendants, Appellees.
__________________
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
ORDER OF COURT
Entered: November 17, 2015
Plaintiffs-appellants' petition for panel rehearing is granted to the extent of the
amendments made to the revised opinion, which will issue this day. The petition for panel
rehearing is otherwise denied. The court's opinion issued on July 30, 2015 is withdrawn
and the judgment entered on July 30, 2015 is vacated. The Clerk is directed to issue the
new opinion simultaneously with this order.
TORRUELLA, Circuit Judge, dissenting. I dissent from the withdrawal of the
opinion and effective denial of panel rehearing. The majority here uses withdrawal and
revision as a tactic for avoiding a rehearing en banc. This maneuver is merely the converse
of that to which I objected in Igartúa v. United States, 626 F.3d 592, 612 n.21 (1st Cir.
2010).
The disposition to reach a pre-determined outcome in this case has been self-evident
for some time. It was clearly demonstrated by the majority's ruling in its original panel
opinion, which was principally based on its motu proprio raising of the so-called safe
harbor defense, see 42 U.S.C. § 2000e-2(h), an affirmative defense never raised, or even
mentioned, by Defendants-Appellees before either the district court or this Court. See
Abril-Rivera v. Johnson, 795 F.3d 245 (1st Cir. 2015) (withdrawn). This was, of course,
not only an unusual and unjustified judicial action but a clear violation of longstanding
circuit and judicial precedent. See FDIC v. Ramírez–Rivera, 869 F.2d 624, 626 (1st Cir.
1989); Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st Cir. 1994);
see also Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1012 (11th Cir. 1982).
Faced with a dissenting opinion objecting to this inappropriate procedure and subsequent
petition for rehearing and rehearing en banc drawing upon that dissenting opinion, the
majority withdrew its reliance on this erroneous reasoning.
By the Court:
/s/ Margaret Carter, Clerk
cc: Hon. Daniel R. Dominguez, Ms. Frances de Moran, Clerk, United States District Court for the
District of Puerto Rico, Mr. Arias-Marxuach, Mr. Bruno-Rovira, Mr. Charnes, Mr. Ortiz Garcia,
Ms. Gautier, Mr. Roman-Negron, Mr. Calderon, Mr. Jed, Mr. Perez-Sosa, Mr. Webb, & Ms.
Sanchez-Pares.