          United States Court of Appeals
                     For the First Circuit

No. 16-1313

   IN RE: ADA M. CONDE VIDAL; MARITZA LÓPEZ-AVILÉS; IRIS DELIA
 RIVERA-RIVERA; JOSÉ A. TORRUELLAS-IGLESIAS; THOMAS J. ROBINSON;
   ZULMA OLIVERAS-VEGA; YOLANDA ARROYO-PIZARRO; JOHANNE VÉLEZ-
   GARCÍA; FAVIOLA MELÉNDEZ-RODRÍGUEZ; PUERTO RICO PARA TOD@S;
                      IVONNE ÁLVAREZ-VÉLEZ,

                          Petitioners.


             PETITION FOR A WRIT OF MANDAMUS TO THE
  UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                              Before
                Torruella, Thompson and Kayatta,
                         Circuit Judges.


     Omar González-Pagán, Hayley Gorenberg, Karen Loewy and Lambda
Legal Defense and Education Fund, Inc., Felicia H. Ellsworth, Mark
C. Fleming, Steven J. Horn, Alan E. Schoenfeld, Adriel I. Cepeda
Derieux, Paul R. Q. Wolfson, Robbie Manhas, and Wilmer Cutler
Pickering Hale and Dorr, LLP, Gary W. Kubek, Harriet M. Antczak,
Jing Kany, Ryan M. Kusmin, and Debevoise & Plimpton, LLP, Celina
Romany-Siaca and Celina Romany Law Offices, for Petitioners
Maritza López-Avilés, Iris D. Rivera-Rivera; José A. Torruellas-
Iglesias, Thomas J. Robinson; Zulma Oliveras-Vega, Yolanda Arroyo-
Pizarro; Johanne Vélez-García, Faviola Meléndez-Rodríguez; and
Puerto Rico Para Tod@s.
     Ada M. Conde-Vidal and Conde Attorney at Law, PSC, for
Petitioner Ivonne Álvarez-Vélez.
     José L. Nieto and Nieto Law Offices for Petitioner Ada M.
Conde-Vidal.
     Margarita Mercado-Echegaray, Solicitor General, Department of
Justice, Commonwealth of Puerto Rico, for Respondents Alejandro J.
García-Padilla, Dr. Ríus-Armendáriz, Wanda Llovet-Díaz, and Juan
C. Zaragoza-Gómez.
April 7, 2016




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        Per Curiam.       A group of individuals and advocacy groups

("Petitioners") challenge the constitutionality of Article 68 of

the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, § 221, and

other laws of the Commonwealth that prohibit same-sex couples from

marrying.    During the pendency of a prior appeal from the dismissal

of Petitioners' claims, the United States Supreme Court decided

Obergefell v. Hodges, 135 S.Ct. 2584 (2015).           In the wake of that

decision, all parties agreed that the Commonwealth's ban on same-

sex   marriage      was   unconstitutional.      We   agreed,    vacated     the

judgment,     and     remanded.      On    remand,    the     district      court

nevertheless denied the parties' joint request that the court enter

judgment in favor of Petitioners.             Instead, the court issued a

memorandum    concluding      that   the     Commonwealth's     ban   was    not

unconstitutional because, the district court claimed, the "right

to same-sex marriage" has not been determined to apply in Puerto

Rico.    Petitioners now request the issuance of a writ of mandamus

requiring the district court to enter judgment in their favor

striking down the ban as unconstitutional.            Respondents, in turn,

move for leave to join in Petitioners' request.




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     The district court's ruling errs in so many respects that it

is hard to know where to begin.        The constitutional rights at

issue here are the rights to due process and equal protection, as

protected by both the Fourteenth and Fifth Amendments to the United

States Constitution.   Obergefell, 135 S. Ct. 2584; United States

v. Windsor, 133 S. Ct. 2675 (2013).       Those rights have already

been incorporated as to Puerto Rico.       Examining Bd. Of Eng'rs,

Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 600

(1976).   And even if they had not, then the district court would

have been able to decide whether they should be.      See Flores de

Otero, 426 U.S. at 590.1

     In any event, for present purposes we need not gild the lily.

Our prior mandate was clear:

          Upon consideration of the parties' Joint
          Response Pursuant to Court Order filed June
          26, 2015, we vacate the district court's
          Judgment in this case and remand the matter
          for    further    consider     in  light    of
          Obergefell . . . .     We    agree  with   the
          parties' joint position that the ban is
          unconstitutional.         Mandate  to    issue
          forthwith.


     1 In Flores de Otero, the Court stated that although Congress,
via the Foraker Act, had "conveyed uncertain[ty] of its own powers
respecting Puerto Rico and of the extent to which the Constitution
applied there. . . . it recognized, at least implicitly, that the
ultimate resolution of these questions was the responsibility of
this Court." Flores de Otero, 426 U.S. at 590. The use of the
word "ultimate" suggests the involvement of lower courts, rather
than viewing itself as the sole arbiter of such issues.        This
interpretation aligns with the limited jurisdiction of the Supreme
Court.

                               - 4 -
Judgment, In re Conde-Vidal, et al., No. 14-2184 (1st Cir. July 8,

2015).   (Emphasis added.)

     In ruling that the ban is not unconstitutional because the

applicable constitutional right does not apply in Puerto Rico, the

district   court    both   misconstrued   that   right   and   directly

contradicted our mandate.        And it compounded its error (and

signaled a lack of confidence in its actions), by failing to enter

a final judgment to enable an appeal in ordinary course.

     Error of this type is not so easily insulated from review.

This court may employ mandamus jurisdiction when a district court

has misconstrued or otherwise failed to effectuate a mandate issued

by this court.     See United States v. U.S. Dist. Court for S. Dist.

of N.Y., 334 U.S. 258, 263-64 (1948) ("It was held that mandamus

was the proper remedy to enforce compliance with the mandate.")

(citing City Nat. Bank of Ft. Worth v. Hunter, 152 U.S. 512, 515

(1894)); see also Baltimore & O.R. Co. v. United States, 279 U.S.

781, 785 (1929) ("When a lower federal court refuses to give effect

to or misconstrues our mandate, its action may be controlled by

this court, either upon a new appeal or by writ of mandamus.");

Dep't of Navy v. Fed. Labor Relations Auth., 835 F.2d 921, 923

(1st Cir. 1987) (explaining that mandamus is an appropriate means

of compelling effectuation of mandate where failure to take action

might "[r]equir[e] petitioner to participate in the relitigation

of issues already decided").

                                 - 5 -
     Accordingly, Respondents' motion to join in the petition for

writ of mandamus is granted, the petition itself is also granted,

and the case is remitted to be assigned randomly by the clerk to

a different judge to enter judgment in favor of the Petitioners

promptly, and to conduct any further proceedings necessary in this

action.




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