          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
             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 three-

judge court to adjudicate their claims.

             When Igartúa first raised the issue of congressional

representation in 2010, a panel majority disposed of the three-

judge-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.


                                       - 2 -
               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.


                                   - 3 -
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


                                           - 4 -
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.").


                                   - 5 -
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").


                                      - 6 -
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-judge-
court 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.


                                     - 7 -
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:


                                        - 8 -
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 three-

judge 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.
      7The 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


                                    - 9 -
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


                                    - 10 -
          The Supreme Court affirmed the judgment of the three-

judge 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.




                               - 11 -
(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-cv-
01665, slip op. at 2 (D.D.C. Apr. 4, 2001) (three-judge court).


                                 - 12 -
             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



                                           - 13 -
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


                                  - 14 -
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 three-

judge-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 three-
judge courts." S. Rep. No. 94-204, at 3-4.


                                   - 15 -
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


                                       - 16 -
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


                                          - 17 -
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 subject-

matter 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


                                     - 18 -
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 three-

judge 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.


                              - 19 -
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


                                     - 20 -
             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.




                                    - 21 -
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)


                                 - 22 -
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-


                                   - 23 -
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-




                                - 24 -
            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 three-

judge 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


                                   - 25 -
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


                                - 26 -
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."


                                 - 27 -
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


                               - 28 -
(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


                                     - 29 -
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.


                                  - 30 -
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.




                              - 31 -
