Igartúa v. United States

ORDER OF COURT

Plaintiffs-appellants Gregorio Igartúa and other individual citizen-residents of Puerto Rico have filed a petition for rehearing and rehearing en banc. Intervenor Commonwealth of Puerto Rico has filed a petition for rehearing en banc. Pursuant to First Circuit Internal Operating Procedure X(C), the Commonwealth’s petition for rehearing en banc has also been treated as a petition for rehearing before the original panel. The petitions for rehearing having been denied by the panel of judges who decided the case, and the petitions 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 petitions for rehearing and rehearing en banc be denied.

LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.

The issues at the heart of this case have already received en banc review, and are not entitled to new review. Six years ago, this court did grant en banc review in Igartúa-De La Rosa v. United States, 417 F.3d 145 (1st Cir.2005) (en banc) (.Igartúa III), because of the importance of the issues, and that en banc decision controls the disposition of this petition for en banc review.

Igartúa III held, after fall consideration of the issue, that the International Covenant on Civil and Political Rights (ICCPR) is not a self-executing treaty and thus is not binding as a matter of domestic law. Id. at 150. In light of this holding in Igartúa III, the antecedent question of whether the Constitution permits Congress to utilize the treaty power to extend voting rights to U.S. citizen-residents of Puerto Rico is not properly presented.

Our en banc decision in Igartúa III controls this case, despite the views of our dissenting colleagues, who wish to reopen settled issues which have already been given en banc treatment. Not only has no intervening authority called the ICCPR holding of Igartúa III into doubt, but the Supreme Court has expressly ratified this aspect of the en banc decision. See Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 1356, 170 L.Ed.2d 190 (2008) (quoting Igartúa III, 417 F.3d at 150).

We believe Igartúa III was correctly decided and no majority of this court can, in consequence, exist for any outcome other than affirmance of dismissal of the case. Fed. R.App. P. 35(a), which disfavors grants of petitions for en banc review, does not allow continual en banc reviews to reexamine already settled issues.