United States Court of Appeals 

For the First Circuit 

No. 15-1336 

GREGORIO IGARTÚA, et al., 

Plaintiffs, Appellants, 

v. 

BARACK OBAMA, President of the United States of America; 

 PENNY PRITZKER, Secretary of Commerce; KAREN L. HAAS, Clerk of 

the U.S. House of Representatives, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Jay A. García-Gregory, U.S. District Judge] 

Before 

Torruella, Lipez, and Thompson, 

Circuit Judges. 

Gregorio Igartúa for appellants. 

Mark R. Freeman, Attorney, Appellate Staff, Civil Division, 

U.S. Department of Justice, with whom Benjamin C. Mizer, Principal 

Deputy Assistant Attorney General, Carmen M. Ortiz, United States 

Attorney, and Matthew M. Collette, Attorney, Appellate Staff, 

Civil Division, U.S. Department of Justice, were on brief for 

appellees. 

November 23, 2016 
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LIPEZ, Circuit Judge. Plaintiff Gregorio Igartúa, a 

U.S. citizen-resident of Puerto Rico, returns to this court for 

the fifth time in search of a legal remedy for his claim that he 

has a constitutional right to vote in certain federal elections. 

Here, for the second time, Igartúa and his fellow plaintiffs 

specifically challenge the denial of the right of Puerto Rico 

citizens to vote for representatives to the U.S. House of 

Representatives and their right to have five Puerto Rico 

representatives apportioned to that body. Plaintiffs also assert 

that the district court again erred in refusing to convene a threejudge court to adjudicate their claims.

When Igartúa first raised the issue of congressional 

representation in 2010, a panel majority disposed of the threejudge-court issue in a footnote. On the merits, it concluded that 

we were bound by past circuit decisions to find that "the 

Constitution does not permit granting such a right to the 

plaintiffs by means other than those specified for achieving 

statehood or by amendment." Igartúa v. United States ("Igartúa 

IV"), 626 F.3d 592, 594, 598 n.6 (1st Cir. 2010), en banc review 

denied, 654 F.3d 99 (1st Cir. 2011), cert. denied, 132 S. Ct. 2376 

(2012). As we explain in Section I below, we again find ourselves 

bound by circuit precedent, and we thus must affirm the judgment 

of the district court refusing to convene a three-judge court and 

dismissing the case on the merits. 
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In so doing, however, we emphasize that we now doubt the 

correctness of the brief, yet controlling, footnote in Igartúa IV 

rejecting the call for a three-judge court. See 626 F.3d at 598 

n.6.1 Moreover, if our court were now to conclude, in an en banc 

proceeding, that a three-judge panel should have been convened to 

hear the constitutional claims addressed in Igartúa IV, the merits 

ruling in Igartúa IV would be void. See infra. Hence, though we 

as a panel must follow Igartúa IV, the three-judge-court issue is 

one of substantial importance that should be reconsidered by the 

full court in an en banc rehearing of this case.

I. The Instant Appeal

 In all material respects, this action is a reprise of 

Igartúa IV. As the district court noted, "Plaintiffs' arguments 

in the Complaint at bar are nearly identical to the ones raised in 

Igartúa IV." Igartúa v. United States, No. 3:14-cv-01558-JAG, 

slip op. at 2 (D.P.R. Jan. 28, 2015). In addition, the parties in 

the two cases largely overlap. Four of the six plaintiffs here 

were plaintiffs in Igartúa IV. The defendants in Igartúa IV were 

the President of the United States, the U.S. Secretary of Commerce, 

 1 Although we share our colleague's concern about the brevity 

of footnote 6, see infra, the fact remains -- as discussed below 

-- that the Igartúa IV panel could not have addressed the merits 

of that appeal if the case should have been heard originally by a 

three-judge court. Hence, the rejection of Igartúa's demand for 

a three-judge court was essential to the disposition in Igartúa 

IV, and it is therefore binding on us. 
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and the Clerk of the U.S. House of Representatives -- the same 

defendants as here. 

 The legal rulings made in Igartúa IV are thus binding on 

most of the parties in this action under principles of res 

judicata, see Haag v. United States, 589 F.3d 43, 45 (1st Cir. 

2009), and, in any event, the doctrine of stare decisis bars us, 

as a panel, from reaching a different conclusion on the same 

questions of law, see United States v. González-Mercado, 402 F.3d 

294, 299 (1st Cir. 2005) ("We have heard and rejected this argument 

before. Under the doctrine of stare decisis, then, the issue is 

foreclosed." (citations omitted)); see also United States v. 

Mouscardy, 722 F.3d 68, 77 (1st Cir. 2013) (noting that an earlier 

panel decision binds a later panel under "[t]he law of the circuit 

doctrine"). 

 Hence, because we are not at liberty to depart from the 

dispositive holdings in Igartúa IV, we must affirm the judgment of 

the district court granting defendants' motion to dismiss.2 

 2 The district court seemingly offered two reasons for denying 

plaintiffs' request for a three-judge court. First, it relied on 

footnote 6 in Igartúa IV, which summarily rejected the same request 

in that case. Second, the court appeared to treat the merits 

decision in Igartúa IV as a separate basis for its ruling, 

observing that plaintiffs' request for a three-judge panel was

"unfounded" because "the controlling authority relevant to this 

case" rendered their claims "wholly insubstantial." Slip op. at 

5 (quoting Vazza v. Campbell, 520 F.2d 848, 850 (1st Cir. 1975)). 

We explain below why the latter rationale is incorrect. 

On the merits, the district court concluded that it did not 

have subject matter jurisdiction over plaintiffs' claims because 
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However, having closely examined the pertinent law, we are

persuaded that a summary affirmance should not properly, or fairly, 

be the end of the case.

II. The Three-Judge-Court Requirement

 Under 28 U.S.C. § 2284(a), "[a] district court of three 

judges shall be convened . . . when an action is filed challenging 

the constitutionality of the apportionment of congressional 

districts." Accordingly, when the district court judge originally 

assigned to a case determines that one or more of the plaintiff's 

claims warrants a three-judge court, the judge must take the steps 

necessary to convene a three-judge panel. See 28 U.S.C. § 2284(b); 

see also Shapiro v. McManus, 136 S. Ct. 450, 454 (2015). The 

three-judge court's ruling on the merits of such claims is 

appealable only to the U.S. Supreme Court. See 28 U.S.C. §§ 1253, 

1291; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 

715–16 (1962). Hence, when a three-judge court is properly 

convened to hear claims within the scope of § 2284(a), the court 

of appeals does not play a role in resolving the merits. See 

 

they lacked standing. Again relying on Igartúa IV, the court held 

that "Plaintiffs have not demonstrated that a legally protected 

interest was harmed in this case." Slip op. at 8; see also id. at 

12. We do not address the validity of the court's standing 

rationale and instead affirm based on the reasoning described above 

(i.e., res judicata and stare decisis). See Otero v. P.R. Indus. 

Comm'n, 441 F.3d 18, 20 (1st Cir. 2006) ("We review the district 

court's order of dismissal de novo and may affirm on any ground 

supported by the record."). 
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Idlewild Bon Voyage Liquor Corp., 370 U.S. at 715-16 (noting that 

a court of appeals is "precluded from reviewing on the merits a 

case which should have originally been determined by a court of 

three judges"). 

 If a case is brought improperly to the court of appeals 

-- because the district court erroneously refused to convene a 

three-judge court -- any subsequent merits ruling by the appellate 

panel is void. See Stratton v. St. Louis Sw. Ry. Co., 282 U.S. 

10, 16 (1930) ("Nor does an appeal [on the merits] lie to the 

Circuit Court of Appeals from an order or decree thus entered by 

a District Judge without authority, for to sustain a review upon

such an appeal would defeat the purpose of the statute by 

substituting a decree by a single judge and an appeal to the 

Circuit Court of Appeals for a decree by three judges and a direct 

appeal to th[e] [Supreme] Court.").3

 Thus, if a three-judge district court should have been 

convened to address the constitutional claims asserted in Igartúa 

IV, our rejection of Igartúa's claims on the merits in that case 

would have no precedential force here. The three-judge-court 

question in Igartúa IV was therefore of great consequence -- 

 3 Of course, the single-judge district court's merits ruling 

in such a case is likewise without force. See 28 U.S.C. § 2284(b), 

(b)(3) (stating that "[i]n any action required to be heard and 

determined by a district court of three judges," a "single judge 

shall not . . . enter judgment on the merits"). 
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affecting our very authority to hear the case.4 Yet, the issue 

was decided with the following footnote:

We also reject the argument made by Igartúa, 

but not made by the government, that this case 

must be heard by a three-judge district court 

under 28 U.S.C. § 2284(a). That statute 

provides that a "district court of three 

judges shall be convened when . . . an action 

is filed challenging the constitutionality of 

the apportionment of congressional 

districts." Id. That is not the issue in 

this case. 

Igartúa IV, 626 F.3d at 598 n.6.5

This unelaborated assertion belies the complexity of 

Igartúa's contention that he is entitled to have his claims heard 

by a three-judge district court. Moreover, there is reason to 

doubt the correctness of the footnote's rejection of the 

 4 We find it unnecessary to opine on whether the three-judgecourt statute is "jurisdictional," an issue whose complexity was 

reflected in questions from the justices during oral argument in 

Shapiro. See Transcript of Oral Argument at 11-19, Shapiro, 136 

S. Ct. 450 (No. 14-990). Regardless of how the statute is labeled, 

the fact remains that Congress has directed that constitutionally 

based apportionment actions be heard by a three-judge district 

court in the first instance (when requested as Igartúa did here) 

and then by the Supreme Court, see 28 U.S.C. §§ 2284(a), 1253, 

thereby foreclosing the courts of appeals from entertaining such 

claims. The Court in Shapiro also did not classify § 2284(a). 

Rather, its discussion focused on whether the plaintiffs' claims 

presented "a substantial federal question" such that the complaint 

was "justiciable in the federal courts." 136 S. Ct. at 455 

(quoting Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90, 

100 (1974)). 

5 Two members of this panel also were panel members in Igartúa 

IV. The author of this opinion wrote a separate opinion concurring 

in the judgment in that case, and Judge Torruella filed an opinion 

concurring in part and dissenting in part. 
- 8 - 

applicability of § 2284(a). To demonstrate the need to revisit 

our cursory holding, we review below the issues that determine 

whether a three-judge court must be convened. We first consider 

whether § 2284(a) in fact covers the type of claim raised by 

Igartúa and then examine the requirement of a "substantial federal 

question." See Shapiro, 136 S. Ct. at 455. 

A. Scope of the Three-Judge-Court Statute 

The three-judge-court statute applies to a claim 

"challenging the constitutionality of the apportionment of 

congressional districts." 28 U.S.C. § 2284(a) (emphasis added). 

As recounted above, in footnote 6 in Igartúa IV, we stated simply: 

"That is not the issue in this case." We understand that cryptic 

comment to mean that the statute does not cover Igartúa's claims 

because Igartúa challenges Congress's failure to include Puerto 

Rico within its apportionment of districts instead of attacking a 

specific apportionment of districts. Supreme Court precedent, 

however, supports a broader view of the statute. 

In 1998, Lois Adams and other residents of the District 

of Columbia filed a complaint in federal district court alleging 

that "Congress has unconstitutionally excluded them from 

apportionment to a congressional district," in violation of 

Article IV's Guarantee Clause6 and the Fourteenth Amendment. Adams 

 6 The Guarantee Clause provides: 
- 9 - 

v. Clinton, 26 F. Supp. 2d 156, 157–58 (D.D.C. 1998). Adams and 

her co-plaintiffs requested that the case be heard by a threejudge district court under § 2284(a). Id. Over the objections of 

the defendants -- including the President of the United States and 

officers of the U.S. House of Representatives -- the district judge 

concluded that Adams' nonapportionment claims were covered by 

§ 2284(a) and asked the chief judge of the district to convene a 

three-judge district court to hear the case. Id. at 161. 

In deciding the case, a majority of the three-judge panel 

noted that "[t]he parties have not asked us to revisit the original 

judge's determination that this case falls within the confines of 

the three-judge court statute, and we will not do so insofar as 

the complaints allege the failure to apportion members of the House 

of Representatives to the District." Adams v. Clinton, 90 F. Supp. 

2d 35, 38 (D.D.C. 2000) (three-judge court). The majority 

concluded that the plaintiffs had standing, but then went on to 

grant the defendants' motions to dismiss on the merits.7 Id. at 

 

The United States shall guarantee to every 

State in this Union a Republican Form of 

Government, and shall protect each of them 

against Invasion; and on Application of the 

Legislature, or of the Executive (when the 

Legislature cannot be convened) against 

domestic Violence. 

U.S. Const., art. IV, § 4.

7 The panel majority largely considered the claims raised by 

plaintiff Clifford Alexander, whose case had been consolidated 

with that of Adams. Adams, 90 F. Supp. 2d at 38, 45–72. The 
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45, 72. 

Adams appealed the decision of the three-judge court 

directly to the Supreme Court, see 28 U.S.C. § 1253, insisting, 

inter alia, that the case was properly before a three-judge court 

under § 2284(a). See Jurisdictional Statement at *21-30, Adams v. 

Clinton, 531 U.S. 941 (2000) (No. 00-97), 2000 WL 33999989. In 

response, the government filed a "Motion to Dismiss or Affirm." 

Motion to Dismiss or Affirm, Adams, 531 U.S. 941 (No. 00-97). In 

the opening paragraph of the Argument section of its motion, the 

government asked the Court to dismiss the appeal either because 

the "three-judge district court lacked jurisdiction over 

appellants' claim" or because "appellants lack standing to seek 

the relief that they have requested from any federal court." Id. 

at 9. In the alternative, the government asked the Court to 

"affirm the judgment of the three-judge court because appellants' 

constitutional claim lacks merit." Id. (emphasis added).8 

 

majority held, inter alia, that Article I of the Constitution 

reserved the right to vote in congressional elections to residents 

of states, id. at 45-46, 70-71, and that "constitutional text, 

history, and judicial precedent bar[red] [the court] from 

accepting plaintiffs' contention that the District of Columbia may 

be considered a state for purposes of congressional representation 

under Article I," id. at 55-56. The panel further held that the 

Guarantee Clause could not have been intended to override the 

provisions of Article I, id. at 71, and also rejected the 

plaintiffs' argument that they were entitled to vote "based on a 

theory of 'residual' citizenship" in Maryland, id. at 56-61. 

8 At the conclusion of its argument for dismissal, the 

government offered yet another possible disposition, asserting 

that the Court could affirm the dismissal of appellants' claims 
- 11 - 

The Supreme Court affirmed the judgment of the threejudge district court without explanation. Adams v. Clinton, 531 

U.S. 941 (2000) ("Judgment affirmed."). The Court also noted that 

"Justice STEVENS would dismiss the appeal." Id. Given the 

government's arguments distinguishing between dismissal and 

affirmance, and Justice Stevens' position that dismissal -- rather 

than affirmance -- was appropriate, the Court's decision to affirm 

appears to signify a determination that the three-judge court was 

properly convened for Adams' nonapportionment claim. Indeed, the 

Court has previously held that where a "three-judge court was . . . 

improperly convened, . . . this Court does not have jurisdiction 

to entertain a direct appeal from the judgment in such case." 

Mobay Chem. Corp. v. Costle, 439 U.S. 320, 321 (1979) (per curiam) 

 

based on standing. Motion to Dismiss or Affirm, supra, at 16-17. 

That option necessarily presumed that the Court had jurisdiction 

(and, hence, could affirm the judgment of the three-judge court, 

rather than dismiss, the appeal). Yet, even after asserting that 

affirmance would be warranted based on lack of standing, the 

government again pressed for dismissal on that basis: 

However, dismissal of the appeal rather than 

affirmance of the judgment is warranted 

because there is at least a substantial 

question as to the jurisdiction of the 

district court under Section 2284(a), but 

appellants' lack of standing clearly 

forecloses their ability to obtain relief from 

the federal courts. 

Id. at 17.
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(citation omitted). 

Notably, the government itself adopted the view that the 

Supreme Court had determined that Adams' claim was properly brought 

under § 2284(a). After the Supreme Court decision, Adams returned 

to the three-judge court with a motion filed under Federal Rule of 

Civil Procedure 60(b) seeking reconsideration of her dismissed 

claims. The three-judge court denied the motion,9 and Adams 

appealed that denial to the D.C. Circuit. The D.C. Circuit 

dismissed the appeal for lack of jurisdiction, stating that the 

"appeal from the three-judge district court's denial of 

relief . . . is not properly taken to this court." Adams v. Bush, 

No. 00-5239, 2001 WL 1488944, at *1 (D.C. Cir. 2001) (per curiam). 

Adams petitioned for a writ of certiorari. In its brief in 

opposition, the government wrote: 

In its motion to dismiss or affirm 

petitioners' prior direct appeal, the 

government argued that petitioners' direct 

appeal should be dismissed because 28 U.S.C. 

2284(a) did not give the district court 

jurisdiction over petitioners' equal 

protection claim. Instead of dismissing the 

appeal for lack of jurisdiction, however, this 

Court affirmed the judgment of the three-judge 

court on the merits. That determination by 

this Court that the three-judge district court 

 9 In a two-page per curiam decision, the three-judge court 

rejected plaintiffs' argument that it had misunderstood and failed 

to address their claims, and further observed that the Supreme 

Court's affirmance of the court's earlier decision leaves "no 

ground for granting relief under Rule 60(b)(4) or for exercising 

our discretion under Rule 60(b)(6)." Adams v. Bush, No. 1:98-cv01665, slip op. at 2 (D.D.C. Apr. 4, 2001) (three-judge court). 
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was properly convened under Section 2284(a) 

"settles the issue[] for the parties." 

Br. for the President of the United States in Opposition at 6 n.2, 

Adams v. Bush, 537 U.S. 812 (2002) (No. 01-1519) (alteration in 

original) (citation omitted) (quoting Mandel v. Bradley, 432 U.S. 

173, 176 (1977) (per curiam)). 

 In other words, the government interpreted the Supreme 

Court's affirmance in Adams to mean that the nonapportionment claim 

was properly before the three-judge court and that the plaintiffs' 

appeal of that panel's decision was properly before the Supreme 

Court. The proceedings in Adams thus provide strong support for 

Igartúa's argument that § 2284(a) covers a challenge to 

nonapportionment -- in addition to claims of improper 

apportionment. 

 A ruling by the Supreme Court that Adams' 

nonapportionment claim was properly addressed by a three-judge 

court cannot be disregarded as a nonprecedential "drive-by 

jurisdictional ruling." Steel Co. v. Citizens for a Better Env't, 

523 U.S. 83, 91 (1998). Such limited judgments occur when the 

jurisdictional issue "was neither challenged nor discussed in that 

case." Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (cited in 

Steel Co., 523 U.S. at 91). As discussed above, the parties' 

briefs fully addressed whether Adams' nonapportionment claim was 

covered by the three-judge-court statute, and the government 
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explicitly challenged the jurisdiction of the three-judge court 

and, in turn, that of the Supreme Court to hear the case. See 

Motion to Dismiss or Affirm at 9-12, Adams, 531 U.S. 941 (No. 00-

97). 

 Moreover, simply as a matter of language, we see no 

reason to treat a claim that challenges the failure to apportion 

any congressional districts -- entirely excluding a group of United 

States citizens from representation in Congress -- differently 

from a claim that challenges the allocation of too few 

congressional districts. As the single-judge district court in 

Adams reasoned, a challenge to nonapportionment is simply one type 

of apportionment challenge. See Adams, 26 F. Supp. 2d at 161 

("These plaintiffs . . . challenge their existing allocation of 

zero representatives." (emphasis omitted)). 

 An inclusive construction of § 2284(a)'s language is 

also supported by the singular importance legislators attributed 

to apportionment claims when the Three-Judge Court Act was amended 

in 1976. A report by the Senate Judiciary Committee on the 

proposed amendment listed multiple reasons for eliminating the 

three-judge-court requirement for various types of claims. S. Rep. 

No. 94-204, at 3-4.10 Yet despite the goal to limit use of three-

 10 The reasons included: "to relieve the burden of three judge 

court cases, which have increased in number from 129 in 1963 to 

320 in 1973, causing a considerable strain on the workload of 

Federal judges," and "because statutory and rules changes have 
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judge courts, the Report expressly endorsed retaining the 

procedure "for cases involving congressional reapportionment or 

the reapportionment of a statewide legislative body because . . . 

these issues are of such importance that they ought to be heard by 

a three-judge court." Id. at 9. A narrow reading of 

"apportionment" undermines the objective to retain the three-judge 

court procedure for these "importan[t]" claims.

Nor do we find an impediment to applying the threejudge-court statute to Igartúa's claims in the language that 

requires a challenge to "the constitutionality of the

apportionment of congressional districts," 28 U.S.C. § 2284(a) 

(emphasis added). Igartúa's claim involves such a challenge. 

Members of this court have seen arguable merit, in particular, in 

Igartúa's claim that the International Covenant on Civil and 

Political Rights ("ICCPR") -- which recognizes the right of 

"[e]very citizen" to elect representatives -- is a self-executing 

treaty that must be enforced, absent a constitutional prohibition, 

as "the supreme Law of the Land," U.S. Const. art. VI, cl. 2. See 

Igartúa IV, 626 F.3d at 608-11 (Lipez, J., concurring in the 

judgment); id. at 620-628 (Torruella, J., concurring in part and 

dissenting in part); see also Dist. Ct. Op. at 12-13 (advising the 

First Circuit to "reconsider its decision that Article 25 of the 

 

eliminated the original reasons for the establishment of threejudge courts." S. Rep. No. 94-204, at 3-4. 
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ICCPR is a non-self-executing provision"). In other words, 

plaintiffs' treaty-based claim is a constitutional claim that 

defendants have violated the Supremacy Clause of the Constitution 

by failing to comply with the United States' obligation, under the 

ICCPR, to apportion congressional districts so as to provide all 

citizens with representation. 

In sum, there is substantial merit in plaintiffs' 

assertion that their claim to representation in the House of 

Representatives is within the scope of § 2284(a). 

B. Substantiality 

The Supreme Court has observed that, when deciding 

whether a three-judge court must be convened, "all the district 

judge must 'determin[e]' is whether the 'request for three judges' 

is made in a case covered by § 2284(a) -- no more, no less." 

Shapiro, 136 S. Ct. at 455 (quoting 28 U.S.C. § 2284(b)(1)) 

(alteration in original). The Court went on to explain, however, 

that this simple statement presumes subject-matter jurisdiction: 

"A three-judge court is not required where the district court 

itself lacks jurisdiction of the complaint or the complaint is not 

justiciable in the federal courts." Id. (alteration omitted) 

(quoting Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90, 

100 (1974)). 

In other words, ordinary subject matter jurisdiction 

requirements apply to the request for a three-judge court. An 
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apportionment challenge falling within the terms of § 2284(a) will 

not require a three-judge court if the claim is "wholly 

insubstantial and frivolous" such that a federal court would lack 

subject matter jurisdiction to hear it. Id. (quoting Bell v. Hood, 

327 U.S. 678, 682–83 (1946)); see also Vazza v. Campbell, 520 F.2d 

848, 849 (1st Cir. 1975) (noting that we could affirm the dismissal 

of an action by a single-judge district court who had refused to 

request a three-judge court for a claim otherwise calling for one 

"only if appellant's constitutional claims are 'wholly 

insubstantial'" (quoting Goosby v. Osser, 409 U.S. 512, 512 

(1973))). Thus, before convening a three-judge court, the district 

court must conclude that a plaintiff's claim presents "a 

substantial federal question." Shapiro, 136 U.S. at 455. 

The Supreme Court has made clear that this 

substantiality threshold is not a test of whether the allegations 

in the complaint state a claim for relief on the merits. Indeed, 

the Court expressly rejected the notion that, "where the 'pleadings 

do not state a claim, then by definition they are insubstantial 

and so properly are subject to dismissal by the district court 

without convening a three-judge court.'" Shapiro, 136 S. Ct. at 

455 (emphasis omitted) (quoting Duckworth v. State Admin. Bd. of 

Elec. Laws, 332 F.3d 769, 772-73 (4th Cir. 2003)). The Court 

described the failure-to-state-a-claim standard as "both too

demanding and inconsistent with our precedents," and it reiterated 
- 18 - 

that "'constitutional claims will not lightly be found 

insubstantial for purposes of' the three-judge-court statute." 

Id. (quoting Washington v. Confederated Tribes of Colville 

Reservation, 447 U.S. 134, 147-48 (1980)). Hence, it is not enough 

for a claim to be without merit; rather, to fall short of the 

"substantial federal question" threshold, a claim must be "legally 

speaking non-existent" or "essentially fictitious." Id. at 455-

56 (quoting Bailey v. Patterson, 369 U.S. 31, 33 (1962) (per 

curiam)).

Although we did not say so expressly, we had to have 

concluded in Igartúa IV that Igartúa's claims meet the 

substantiality requirement for subject matter jurisdiction. 

There, we decided his claims on the merits, see 626 F.3d at 594–

606, a step that we would not, and could not, have taken if those 

claims did not involve a substantial federal question. See Steel 

Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) 

("Without jurisdiction the court cannot proceed at all in any 

cause." (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868))). 

Nor does our decision in Igartúa IV itself render the 

claims in this case insubstantial for the purpose of subjectmatter jurisdiction. As explained above, if the district court 

and First Circuit panel were wrong about the applicability of 

§ 2284(a) -- and the case should have been heard in the first 

instance by a three-judge court -- the prior panel's merits
- 19 - 

decision would not stand and, hence, it could not create binding 

law.11

The exclusion of the courts of appeals from the § 2284(a) 

scheme also helps to explain why the Supreme Court has indicated 

that only its own precedent can undermine a claim that otherwise 

would scale the statute's subject-matter threshold. In Goosby, 

the Court held that one of its prior decisions did not render 

insubstantial an otherwise viable claim brought under the threejudge court statute, and thus a three-judge court was required. 

See 409 U.S. at 518. In so finding, the Court stated that such a 

claim is insubstantial only if "its unsoundness so clearly results 

from the previous decisions of this court as to foreclose the 

subject and leave no room for the inference that the questions 

sought to be raised can be the subject of controversy." Id. 

(quoting Ex parte Poresky, 290 U.S. 30, 32 (1933)) (emphasis 

 11 Just such a scenario was contemplated in the Senate 

Judiciary Committee Report at the time the three-judge court 

statute was amended in 1976. The Report, in part, outlined the 

"[c]omplexities of [a]ppellate [r]eview" of "whether a three-judge 

court is needed." S. Rep. No. 94-204, at *6. Quoting Professor 

Charles Allen Wright, the Committee stated: 

If the single judge incorrectly believes that 

three judges are not required and proceeds to 

the merits, the remedy . . . [is] an appeal to 

the court of appeals. If the court of appeals 

should fail to see that the case was one for 

three judges, and reviews on the merits, its 

decision is void. 

Id.; see Idlewild Bon Voyage Liquor Corp., 370 U.S. at 715-16. 
- 20 - 

added); cf. Shapiro, 136 S. Ct. at 456 (concluding that a claim 

was substantial even though a plurality of the Court had found it 

nonjusticiable in a prior case, but a concurring justice supported 

the plaintiffs' legal theory (discussing Vieth v. Jubelirer, 541 

U.S. 267 (2004))). 

 Within the context of the three-judge court scheme, the 

Court's reference in Goosby to the preclusive effect of its own 

prior decisions must be understood as a limiting statement on the 

relevance of court of appeals precedent. In ordinary cases first 

involving appeals to the intermediate courts of appeals, the 

Supreme Court has the last word on issues of federal law when it 

chooses to hear a case. Under the three-judge-court framework, 

the Supreme Court provides the only level of appellate review. A 

fortiori, Goosby instructs, a claim cannot be rejected for lack of 

"a substantial federal question" unless "its unsoundness so 

clearly results from the previous decisions of [the Supreme 

Court]." Goosby, 409 U.S. at 518.12

 12 Indeed, some justices have questioned whether even 

conclusive, adverse Supreme Court precedent can foreclose review 

by a three-judge court of an issue within the scope of § 2284(a). 

During oral argument in Shapiro, Chief Justice Roberts 

hypothesized a claim "clearly foreclosed by the Court's 

precedents, but maybe there's a very good argument that . . . those 

precedents . . . haven't withstood the test of time." Transcript 

of Oral Argument at 6, Shapiro, 136 S. Ct. 450 (No. 14-990). When 

counsel responded that the single-judge district court would 

properly dismiss that case under Goosby, Justice Kennedy noted 

that he had "some problems with that." Justice Kennedy then 

elaborated on the hypothetical: "Suppose . . . the case has been 
- 21 - 

 Also, the Supreme Court's summary affirmance in Adams 

does not render Igartúa's claims insubstantial. While the 

challenges in both Adams and here concern the nonapportionment of 

congressional districts for citizens residing outside the states, 

the District of Columbia and the Commonwealth of Puerto Rico are 

meaningfully distinct in both history and character. 

 Moreover, Adams did not address the implications of the 

ICCPR or "the view that the Constitution does not necessarily 

forbid extensions of the rights it delineates." Igartúa IV, 626 

F.3d at 608 (Lipez, J., concurring in the judgment). The 

possibility that the Constitution does not prohibit equal voting 

rights for Puerto Rico residents through congressional action was 

considered by two panel members in Igartúa IV and has had academic 

recognition. See Igartúa IV, 626 F.3d at 616 (Torruella, J., 

concurring in part and dissenting in part) ("[W]hile 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, neither 

does it prohibit them that right, nor act as a limitation on the 

 

on the books from this Court for 15, 20 years, has all sorts of 

academic commentary; certain circuits have questioned whether the 

reasoning is still valid." Id. at 7. Counsel gave the same 

response. In Shapiro, however, the Court did not need to reach 

the role of such dispositive precedent as it concluded that its 

cases did not foreclose the petitioners' claim. See 136 S. Ct. at 

456. 
- 22 - 

federal government's authority to extend the franchise to 

territorial residents under other constitutional powers."); id. at 

608 (Lipez, J., concurring in the judgment) ("If the Constitution 

does not prohibit extending the right to vote to citizens who 

reside outside 'the several States,' an enforceable treaty could 

provide the governing domestic law on that issue."); José R. 

Coleman Tió, Six Puerto Rican Congressmen Go to Washington, 116 

Yale L.J. 1389, 1394 (2007) ("Absent a clear constitutional intent 

to deny Congress the power to treat Puerto Rico as a state for 

purposes of representation in the House, the broad language of the 

Territorial Clause seems at least to provide a clearer source of 

power to enfranchise nonstate citizens than does the Seat of 

Government Clause [for D.C. residents]."). Hence, we think it 

plain that the Court's view on the merits of a claim to 

congressional representation (with voting power) for citizens 

residing in Washington, D.C. does not dictate the outcome of the 

claim brought here by citizens residing in the Commonwealth. 

 As noted above, the Supreme Court recently reaffirmed 

that we may not lightly reject constitutional claims brought under 

§ 2284(a) as insubstantial based on a lack of subject-matter 

jurisdiction. See Shapiro, 136 S. Ct. at 455. Having necessarily

concluded in Igartúa IV that at least some of plaintiffs' claims 

"clear[] Goosby's low bar" for substantiality, we see no basis for 

changing course now. Id. at 456. Accordingly, if § 2284(a) 
- 23 - 

governs, plaintiffs are entitled to a hearing before a three-judge 

court irrespective of our view as to the merits of those claims. 

See id. ("Perhaps petitioners will ultimately fail on the merits 

of their suit, but § 2284 entitles them to make their case before 

a three-judge district court.").

III.

Appellant Igartúa has persisted in his pursuit of 

federal voting rights for the four million Puerto Rico residents 

who are United States citizens in the face of repeated rejection 

of his claims by this court. His objective is laudable. As one 

member of this panel emphasized in Igartúa IV, "[n]o right is more 

precious in a free country than that of having a voice in the 

election of those who make the laws under which, as good citizens, 

we must live." 626 F.3d at 638 (Torruella, J., concurring in part 

and dissenting in part) (quoting Wesberry v. Sanders, 376 U.S. 1, 

17 (1964)); see also id. at 606 ("The unequal distribution of the 

fundamental privilege of voting among different categories of 

citizens is deeply troubling." (Lipez, J., concurring in the 

judgment)).

In Igartúa IV, our court failed to appreciate the 

strength of plaintiffs' argument that their constitutionally based 

apportionment claims should be heard by a three-judge court. As 

the Supreme Court has made clear, the ultimate merit of those 

claims is not the question. Rather, the need to convene a three-
- 24 - 

judge court turns on two issues: whether plaintiffs' claims are 

within the scope of § 2284(a) and whether they satisfy the minimum 

requirements of substantiality for subject-matter jurisdiction. 

Our analysis above demonstrates that these issues

deserve considerably more deliberation than we have previously 

given them. Thus, with the benefit of hindsight and the Supreme 

Court's renewed attention to the three-judge-court framework in

Shapiro, we have come to believe that Igartúa's request for a 

three-judge court should be addressed by our court en banc, "with 

the best advocacy available in support of all parties." Igartúa 

IV, 626 F.3d at 612 (Lipez, J., concurring in the judgment). This 

is, inescapably, "a question of exceptional importance," Fed. R. 

App. P. 35(a)(2), that "fits squarely within the guidelines for en 

banc review," Igartúa IV, 626 F.3d at 612. Any request for such 

reconsideration should be granted without delay. 

As a panel, however, bound by precedent, we must affirm 

the judgment of the district court. 

So ordered. 

-Opinion Concurring in Part/Dissenting in Part Follows-

 
- 25 - 

TORRUELLA, Circuit Judge (Concurring in part, Dissenting 

in part). I wholeheartedly agree with the majority that Igartúa's 

claim challenging Congress's failure to include Puerto Rico within 

its apportionment of districts is an apportionment challenge 

covered by § 2284(a). I also agree that it satisfies the minimum 

requirements of substantiality for subject matter jurisdiction 

and, thus, a three-judge court should have been convened. Despite 

the excellent analysis provided by the majority in reaching these 

conclusions, I am unable to join their opinion because, unlike my 

colleagues, I do not believe this Court is bound by stare decisis 

on the three-judge issue. 

The panel's treatment of the three-judge issue in 

Igartúa IV did not provide any reasoning or explain its conclusion, 

and was not among the case's enumerated holdings. Moreover, the 

footnote, consisting of just three sentences -- the first 

acknowledging only that the Government did not argue for a threejudge court; the second merely restating a portion of § 2284(a); 

and the third offering a vague eight-word rejection -- is the 

opinion's sole and complete discussion of that topic. Far from 

"considered," the footnote is cursory, a comment made merely in 

passing.

The utter lack of discussion and complete absence of 

analysis of the three-judge issue renders footnote 6 dicta. This 

Court has defined "obiter dictum" as "observations relevant, but 
- 26 - 

not essential, to the determination of the legal questions then 

before the court." Dedham Water Co. v. Cumberland Farms Dairy, 

Inc., 972 F.2d 453, 459 (1st Cir. 1992). In Arcam Pharm. Corp. v. 

Faría, this Court quoted Second Circuit Judge Pierre Leval's 

characterization of dictum as "an assertion in a court's opinion 

of a proposition of law which does not explain why the court's 

judgment goes in favor of the winner." 513 F.3d 1, 3 (1st Cir. 

2007) (emphasis added) (quoting Pierre N. Leval, Judging Under the 

Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1256 

(2006)). "[I]n evaluating dicta, '[m]uch depends on the character 

of the dictum. Mere obiter may be entitled to little weight, while 

a carefully considered statement . . . , though technically dictum, 

must carry great weight, and may even . . . be regarded as 

conclusive.'" McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st 

Cir. 1991) (quoting Charles A. Wright, The Law of Federal Courts 

§ 58, at 374 (4th ed. 1983)). 

Considering the cursory treatment given to this issue by 

the Igartúa IV panel, our hands are not tied by stare decisis. 

See Montejo v. Louisiana, 556 U.S. 778, 793 (2009) (arguing that 

a relevant factor in stare decisis is "whether the decision was 

well reasoned"); Edelman v. Jordan, 415 U.S. 651, 670-71 (1974) 

(stating that the lack of substantive discussion of issues in an 

opinion carries the consequence that the opinion not be given "the 

same precedential value as would be [given to] an opinion of this 
- 27 - 

Court treating the question on the merits"); see also CBOCS W., 

Inc. v. Humphries, 553 U.S. 442, 468 (2008) (Thomas, J., 

dissenting) ("[T]he Court's one-paragraph discussion of the issue 

was, at best, both cursory and ambiguous. This is hardly the stuff 

of which stare decisis is made."); Payne v. Tennessee, 501 U.S. 

808, 828 (1991) ("Stare decisis is not an inexorable command; 

rather, it 'is a principle of policy and not a mechanical formula 

of adherence to the latest decision.'" (quoting Helvering v. 

Hallock, 309 U.S. 106, 119 (1940))); Carpenters Local Union No. 26 

v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000) 

("[S]tare decisis is neither a straightjacket nor an immutable 

rule; it leaves room for courts to balance their respect for 

precedent against insights gleaned from new developments, and to 

make informed judgments as to whether earlier decisions retain 

preclusive force."); Loveladies Harbor, Inc. v. United States, 27 

F.3d 1545, 1549 (Fed. Cir. 1994) (overruled on other grounds) 

("[W]e are unwilling to give stare decisis effect to a matter that 

we did not fully consider and that was not before us in the prior 

case.").

As the footnote is dicta and does not constitute stare 

decisis, neither this Court nor the district court can be bound by 

it, regardless of the similarities between Igartúa IV and Igartúa 

V. "Dicta -- as opposed to a court's holdings -- have no binding 

effect in subsequent proceedings in the same (or any other) case." 
- 28 - 

Municipality of San Juan v. Rullán, 318 F.3d 26, 28 n.3 (1st Cir. 

2003) (emphasis added). "[D]ictum contained in an appellate 

court's opinion has no preclusive effect in subsequent proceedings 

in the same, or any other, case." Dedham Water Co. v. Cumberland 

Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir. 1992); see also 

Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003) 

("Dicta, of course, is not binding on future panels."). Rather, 

"[w]e are at liberty to correct the misunderstanding" and "[t]hose 

statements are not good law." United States v. Pérez-Ruiz, 353 

F.3d 1, 10 (1st Cir. 2003). This Court has explicitly cautioned 

district courts against following dicta from the appellate court, 

even within the same case. See Dedham Water Co., 972 F.2d at 459 

("When, as here, the district court . . . proposed to act upon 

dicta contained in the appeals court's earlier opinion . . . it is 

especially important that we . . . hold the parties to the usual 

consequence of invited error."). "To do otherwise," Dedham warns, 

"would place a premium on agreeable acquiescence to perceivable 

error as a weapon of appellate advocacy." Id. (quoting Merchant 

v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984)).

Indeed, Igartúa IV's footnote is the kind of "'drive-by 

jurisdictional ruling' that the Supreme Court has instructed has 

'no precedential effect.'" CE Design Ltd. v. Amer. Econ. Ins. 

Co., 755 F.3d 39, 46 (1st Cir. 2014) ("[T]he brief discussion in 

the Massachusetts [v. United States Veterans Admin., 541 F.2d 119 
- 29 - 

(1st Cir. 1976)] footnote is arguably the sort of 'drive-by 

jurisdictional ruling' that the Supreme Court has instructed has 

'no precedential effect.'" (quoting Steel Co. v. Citizens for a 

Better Env't, 523 U.S. 83, 91 (1998))).

Although the Supreme Court has not yet formally resolved 

whether convening a three-judge court under § 2284(a) is a 

jurisdictional requirement, it was jurisdictional before the 

statute was amended in 1976. As relevant here, those amendments 

changed the statute to require parties to request a three-judge 

panel rather than requiring judges to identify claims as falling 

under § 2284(a) upon their filing, but the amendments left intact 

the mandate that "[a] district court of three judges shall be 

convened . . . when an action is filed challenging the 

constitutionality of the apportionment of congressional 

districts." 28 U.S.C. § 2284(a) (emphasis added). Thus, the 

three-judge requirement of § 2284 uses jurisdictional language, 

and nothing in the legislative history suggests any intention to 

change that determination to be otherwise. The Second, Fifth, and 

Sixth Circuits have held as much. Lulac of Texas v. Texas, 318 F. 

App'x 261, 264 (5th Cir. 2009) ("We agree with our sister circuits 

that the term 'shall' in § 2284 is mandatory and jurisdictional. 

Although the 1976 amendment to § 2284 reduced the categories of 

cases subject to the three-judge requirement, nothing in the 

legislative history suggests an intent to alter its jurisdictional 
- 30 - 

nature." (internal citations omitted)); Kalson v. Paterson, 542 

F.3d 281, 287 (2d Cir. 2008) ("The text of 28 U.S.C. § 2284 uses 

typically jurisdictional language. . . . There is, moreover, no 

reason to think that when in 1976 Congress amended the three-judge 

statute, it intended to make this imperative nonjurisdictional. 

. . . [N]othing in the legislative history that describes the 

reasons for retaining the three-judge requirement in apportionment 

challenges suggests any change with respect to jurisdiction."); 

see also Armour v. Ohio, 925 F.2d 987, 989 (6th Cir. 1991) (en 

banc). Accordingly, the Igartúa IV footnote is a "drive-by 

jurisdictional ruling" with no precedential effect.13

For these reasons I do not believe Igartúa IV decided 

the three-judge issue. Judge Lipez's concurrence, as written, 

accepts only the judgment. 626 F.3d 592, 606 (1st Cir. 2010). I 

dissented in everything except the conclusion that the U.S. 

Constitution does not give Puerto Rico residents the right to vote 

 13 By contrast, the Supreme Court's implicit jurisdictional 

decision in Adams v. Clinton, 531 U.S. 941 (2000), carries 

precedential value with respect to the validity of the three-judge 

panel because the threshold jurisdictional requirement for direct 

review by the Supreme Court was explicitly established by 28 U.S.C. 

§ 1253 and spelled out by the Court in Norton v. Mathews, 427 U.S. 

524 (1976) and Mobay Chem. Corp. v. Costle, 439 U.S. 320 (1979) 

(per curiam). Far from being a potential "drive-by jurisdictional 

ruling," the determination of jurisdiction in such cases, where 

the nature and importance of the jurisdictional question is clearly 

established by both stand-alone statute and precedent, is an 

"ignition" ruling -- the first, prerequisite step without which 

the Court could not proceed. 
- 31 - 

for members of the House of Representatives because Puerto Rico is 

not a state. Id. at 620-28. Accordingly, it seems that only one 

member of the panel (Judge Lynch) subscribed to footnote 6, which 

would be insufficient to constitute a holding of the Court and, 

instead, makes it nothing other than dicta. Because the footnote 

lacked the necessary support to become a determination of this 

Court, it does not bind this Court or any other court. 

A mere footnote, bereft of reasoning or analysis, should 

not foreclose the voting rights of close to four million United 

States citizens. I would reverse the judgment of the district 

court refusing to convene a three-judge court and remand the case 

to that court for further proceedings consistent with all other 

aspects of the majority opinion.