In Re: Conde-Vidal v. ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 16-1313
    IN RE: ADA M. CONDE VIDAL; MARITZA LÓPEZ-AVILÉS; IRIS DELIA
    RIVERA-RIVERA; JOSÉ A. TORRUELLAS-IGLESIAS; THOMAS J. ROBINSON;
    ZULMA OLIVERAS-VEGA; YOLANDA ARROYO-PIZARRO; JOHANNE VÉLEZ-
    GARCÍA; FAVIOLA MELÉNDEZ-RODRÍGUEZ; PUERTO RICO PARA TOD@S;
    IVONNE ÁLVAREZ-VÉLEZ,
    Petitioners.
    PETITION FOR A WRIT OF MANDAMUS TO THE
    UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
    [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
    Before
    Torruella, Thompson and Kayatta,
    Circuit Judges.
    Omar González-Pagán, Hayley Gorenberg, Karen Loewy and Lambda
    Legal Defense and Education Fund, Inc., Felicia H. Ellsworth, Mark
    C. Fleming, Steven J. Horn, Alan E. Schoenfeld, Adriel I. Cepeda
    Derieux, Paul R. Q. Wolfson, Robbie Manhas, and Wilmer Cutler
    Pickering Hale and Dorr, LLP, Gary W. Kubek, Harriet M. Antczak,
    Jing Kany, Ryan M. Kusmin, and Debevoise & Plimpton, LLP, Celina
    Romany-Siaca and Celina Romany Law Offices, for Petitioners
    Maritza López-Avilés, Iris D. Rivera-Rivera; José A. Torruellas-
    Iglesias, Thomas J. Robinson; Zulma Oliveras-Vega, Yolanda Arroyo-
    Pizarro; Johanne Vélez-García, Faviola Meléndez-Rodríguez; and
    Puerto Rico Para Tod@s.
    Ada M. Conde-Vidal and Conde Attorney at Law, PSC, for
    Petitioner Ivonne Álvarez-Vélez.
    José L. Nieto and Nieto Law Offices for Petitioner Ada M.
    Conde-Vidal.
    Margarita Mercado-Echegaray, Solicitor General, Department of
    Justice, Commonwealth of Puerto Rico, for Respondents Alejandro J.
    García-Padilla, Dr. Ríus-Armendáriz, Wanda Llovet-Díaz, and Juan
    C. Zaragoza-Gómez.
    April 7, 2016
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    Per Curiam.       A group of individuals and advocacy groups
    ("Petitioners") challenge the constitutionality of Article 68 of
    the Civil Code of Puerto Rico, 
    P.R. Laws Ann. tit. 31, § 221
    , and
    other laws of the Commonwealth that prohibit same-sex couples from
    marrying.    During the pendency of a prior appeal from the dismissal
    of Petitioners' claims, the United States Supreme Court decided
    Obergefell v. Hodges, 
    135 S.Ct. 2584
     (2015).           In the wake of that
    decision, all parties agreed that the Commonwealth's ban on same-
    sex   marriage      was   unconstitutional.      We   agreed,    vacated     the
    judgment,     and     remanded.      On    remand,    the     district      court
    nevertheless denied the parties' joint request that the court enter
    judgment in favor of Petitioners.             Instead, the court issued a
    memorandum    concluding      that   the     Commonwealth's     ban   was    not
    unconstitutional because, the district court claimed, the "right
    to same-sex marriage" has not been determined to apply in Puerto
    Rico.    Petitioners now request the issuance of a writ of mandamus
    requiring the district court to enter judgment in their favor
    striking down the ban as unconstitutional.            Respondents, in turn,
    move for leave to join in Petitioners' request.
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    The district court's ruling errs in so many respects that it
    is hard to know where to begin.        The constitutional rights at
    issue here are the rights to due process and equal protection, as
    protected by both the Fourteenth and Fifth Amendments to the United
    States Constitution.   Obergefell, 
    135 S. Ct. 2584
    ; United States
    v. Windsor, 
    133 S. Ct. 2675
     (2013).       Those rights have already
    been incorporated as to Puerto Rico.       Examining Bd. Of Eng'rs,
    Architects & Surveyors v. Flores de Otero, 
    426 U.S. 572
    , 600
    (1976).   And even if they had not, then the district court would
    have been able to decide whether they should be.      See Flores de
    Otero, 
    426 U.S. at 590
    .1
    In any event, for present purposes we need not gild the lily.
    Our prior mandate was clear:
    Upon consideration of the parties' Joint
    Response Pursuant to Court Order filed June
    26, 2015, we vacate the district court's
    Judgment in this case and remand the matter
    for    further    consider     in  light    of
    Obergefell . . . .     We    agree  with   the
    parties' joint position that the ban is
    unconstitutional.         Mandate  to    issue
    forthwith.
    1 In Flores de Otero, the Court stated that although Congress,
    via the Foraker Act, had "conveyed uncertain[ty] of its own powers
    respecting Puerto Rico and of the extent to which the Constitution
    applied there. . . . it recognized, at least implicitly, that the
    ultimate resolution of these questions was the responsibility of
    this Court." Flores de Otero, 
    426 U.S. at 590
    . The use of the
    word "ultimate" suggests the involvement of lower courts, rather
    than viewing itself as the sole arbiter of such issues.        This
    interpretation aligns with the limited jurisdiction of the Supreme
    Court.
    - 4 -
    Judgment, In re Conde-Vidal, et al., No. 14-2184 (1st Cir. July 8,
    2015).   (Emphasis added.)
    In ruling that the ban is not unconstitutional because the
    applicable constitutional right does not apply in Puerto Rico, the
    district   court    both   misconstrued   that   right   and   directly
    contradicted our mandate.        And it compounded its error (and
    signaled a lack of confidence in its actions), by failing to enter
    a final judgment to enable an appeal in ordinary course.
    Error of this type is not so easily insulated from review.
    This court may employ mandamus jurisdiction when a district court
    has misconstrued or otherwise failed to effectuate a mandate issued
    by this court.     See United States v. U.S. Dist. Court for S. Dist.
    of N.Y., 
    334 U.S. 258
    , 263-64 (1948) ("It was held that mandamus
    was the proper remedy to enforce compliance with the mandate.")
    (citing City Nat. Bank of Ft. Worth v. Hunter, 
    152 U.S. 512
    , 515
    (1894)); see also Baltimore & O.R. Co. v. United States, 
    279 U.S. 781
    , 785 (1929) ("When a lower federal court refuses to give effect
    to or misconstrues our mandate, its action may be controlled by
    this court, either upon a new appeal or by writ of mandamus.");
    Dep't of Navy v. Fed. Labor Relations Auth., 
    835 F.2d 921
    , 923
    (1st Cir. 1987) (explaining that mandamus is an appropriate means
    of compelling effectuation of mandate where failure to take action
    might "[r]equir[e] petitioner to participate in the relitigation
    of issues already decided").
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    Accordingly, Respondents' motion to join in the petition for
    writ of mandamus is granted, the petition itself is also granted,
    and the case is remitted to be assigned randomly by the clerk to
    a different judge to enter judgment in favor of the Petitioners
    promptly, and to conduct any further proceedings necessary in this
    action.
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