author: LIPEZ, Circuit Judge. TORRUELLA, Circuit Judge

text:
    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.
    No. 15-1336
    United States Court of Appeals, First Circuit.
    November 23, 2016

      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.
    Before TORRUELLA, LIPEZ, and THOMPSON, Circuit Judges.
   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, Igar-túa 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, — U.S. -, 132 S.Ct. 2376, 182 L.Ed.2d 1017 (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.

In so doing, however, we emphasize that we now doubt the correctness of thé brief, yet controlling, footnote in Igartúa IV rejecting the call for a three-judge court. See 626 F.3d at 598 n.6. 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, 86 F.Supp.3d 50, 52 (D.P.R. 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, 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 judi-cata, 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. 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 plaintiffs 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, — U.S. -, 136 S.Ct. 450, 454, 193 L.Ed.2d 279 (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, 82 S.Ct. 1294, 8 L.Ed.2d 794 (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 Idlewild Bon Voyage Liquor Corp., 370 U.S. at 715-16, 82 S.Ct. 1294 (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, 51 S.Ct. 8, 75 L.Ed. 135 (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.”).

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 prece-dential force here. The three-judge-court question in Igartúa IV was therefore of great consequence—affecting our very authority to hear the case. 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.

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 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 Clause and the Fourteenth Amendment. Adams 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’ no-napportionment 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, bqt then went on to grant the defendants’ motions to dismiss on the merits. Id. at 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).

The Supreme Court affirmed the judgment of the three-judge district court without explanation. Adams v. Clinton, 531 U.S. 941, 121 S.Ct. 336, 148 L.Ed.2d 270 (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’ nonappor-tionment 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, 99 S.Ct. 644, 58 L.Ed.2d 549 (1979) (per curiam) (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 décision, 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, 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 cu-riam). Adams petitioned for a writ of cer-tiorari. 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 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, 97 S.Ct. 2238, 53 L.Ed.2d 199 (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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Such limited judgments occur when the jurisdictional issue “was neither challenged nor discussed in that case.” Lewis v. Carsey, 518 U.S. 343, 352 n.2, 116 S.Ct. 2174, 135 L,Ed.2d 606 (1996) (cited in Steel Co., 523 U.S. at 91, 118 S.Ct. 1003). As discussed above, the parties’- briefs fully addressed whether Adams’ nonapportionment claim was covered by the three-judge-court statute, and the government explicitly challenged the jurisdiction of the three-judge court and, in turn, that of the Supreme Court to hear the ease. See Motion to Dismiss or Affirm at 9-12, Adams, 531 U.S. 941 (No. 00-97).

Moreover, simply as a matter óf 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. Yet despite the goal to limit use of three-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 Igar-túa’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 “[ejvery 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. gee 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 26 -of the 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, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974)).

In other words, ordinary subject matter jurisdiction requirements apply to the request for a three-judge court. An 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, 66 S.Ct. 773, 90 L.Ed. 939 (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, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973))). Thus, before convening a three-judge court, the district court must conclude that a plaintiffs claim presents “a substantial federal question.” Shapiro, 136 S.Ct. 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 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, 100 S.Ct. 2069, 65 L.Ed.2d 10 (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, 82 S.Ct. 549, 7 L.Ed.2d 512 (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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“Without jurisdiction the court cannot proceed at all in any cause.” (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (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 decision would not stand and, hence, it could not create binding law.

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, 93 S.Ct. 854. 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, 54 S.Ct. 3, 78 L.Ed. 152 (1933)) (emphasis 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, 124 S.Ct. 1769, 158 L.Ed.2d 546 (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-eourt 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, 93 S.Ct. 854.

Also, the Supreme Court’s summary af-firmance in Adams does not render Igar-túa’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 Igar-túa IV and has had academic recognition. See Igartúa IV, 626 F.3d at 616 (Torruella, J., concurring in part and dissenting in part) (“[WJhile 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 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) 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 Igar-túa 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, 84 S.Ct. 526, 11 L.Ed.2d 481 (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-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.

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 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, ‘[mjuch 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, 129 S.Ct. 2079, 173 L.Ed.2d 955 (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, 94 S.Ct. 1347, 39 L.Ed.2d 662 (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 Court treating the question on the merits”); see also CBOCS W., Inc. v. Humphries, 553 U.S. 442, 468, 128 S.Ct. 1951, 170 L.Ed.2d 864 (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, 111 S.Ct. 2597, 115 L.Ed.2d 720 (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, 60 S.Ct. 444, 84 L.Ed. 604 (1940))); Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000) (“[S]tare deci-sis 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 TV 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.” 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 TV’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 (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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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 them 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 Fed.Appx. 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 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.... [Nothing 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.

For these reasons I do- not believe Igar-túa -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 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.

      . 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.

      . 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 Igar-túa 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.” Op. at 54 (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 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.” Op. at 55; see also id. at 58. 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.”).

      . 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”).

      . 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, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974)).

      . 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 casé, and Judge Tor-ruella filed an opinion concurring in part and dissenting in part.

      . The Guarantee Clause provides:
      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.

      . 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 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.

      . 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 based on standing. Motion to Dismiss or Affirm, infra, at 156—57. 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 affir-mance 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.

      . 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 ⅛0 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).

      . 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 eliminated the original reasons for the establishment of three-judge courts.” S. Rep. No. 94-204, at 3-4.

      . 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 “[cjomplexities of [ajppellate [rjeview” 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 cáse 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, 82 S.Ct. 1294.

      . 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 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.

      . By contrast, the Supreme Court’s implicit jurisdictional decision in Adams v. Clinton, 531 U.S. 941, 121 S.Ct. 336, 148 L.Ed.2d 270 (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, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976) and Mobay Chem. Corp. v. Costle, 439 U.S. 320, 99 S.Ct. 644, 58 L.Ed.2d 549 (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.


source: Caselaw Access Project

author: LIPEZ, Circuit Judge.

license: Public Domain

text:
    Wilmary SANTOS-SANTOS, Plaintiff, Appellant, v. Reynaldo TORRES-CENTENO, et al., Defendants, Appellees.
    No. 15-1782
    United States Court of Appeals, First Circuit.
    November 23, 2016

      Eric C. Marion, with whom Law Office of Eric Marion was on brief, for appellant.
    Michelle Camacho-Nieves, Assistant Solicitor General of Puerto Rico, with whom Margarita L. Mercado-Echegaray, Solicitor General of Puerto Rico, was on brief, for appellee.
    Before LYNCH, SELYA, and LIPEZ, Circuit Judges.
   LIPEZ, Circuit Judge.

Appellant Wilmary Santos-Santos (“Santos”), an officer with the Puerto Rico Police Department (“PRPD”), filed this employment discrimination case against the Commonwealth of Puerto Rico, the PRPD, and a number of her coworkers under various federal and Puerto Rico statutes. Santos alleges that she was transferred against her wishes to a different department within the PRPD after she co-signed a sexual harassment complaint against a coworker, acted as a witness in a separate investigation of that coworker, and filed an unrelated complaint regarding the misuse of police property by her superiors. Santos sought compensatory and punitive damages, as well as an injunction barring the PRPD from further discrimination.

The district court granted summary judgment for the defendants on all of Santos’s claims in two rulings in August 2012 and November 2014. On appeal, Santos attempts to challenge both entries of summary judgment. Because Santos failed to adhere to procedural requirements relating to the dispositions of a magistrate judge as set forth by Federal Rule of Civil Procedure 72(b) and Puerto Rico Local Rule 72(d), we affirm the district court’s decisions without reaching the merits of Santos’s claims.

I.

We recount in detail the complicated procedural history of this case because it is determinative of the appeal. Santos filed this action in January 2011. While several discovery motions were pending before the district court, the defendants moved for summary judgment. Instead of filing a standard opposition to the defendants’ summary judgment motion, Santos, citing Rule 56(d) of the Federal Rules of Civil Procedure, filed a response asserting that she still required certain documents that were among her discovery requests to effectively counter the defendants’ motion. In August 2012 the district court granted summary judgment in favor of -defendants on nearly all of Santos’s claims, finding that her attempted reliance on pending discovery related only to her First Amendment claim—which the court dismissed for failing to state a claim upon which relief could be granted under Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Only Santos’s retaliation claims under Title VII and Law 115 survived, and the court instructed Santos to file her opposition to the summary judgment motion on these issues.

After Santos filed her opposition memorandum, the district court dismissed her Title VII retaliation claims against individual defendants Gregorio Merced-Vázquez, Reynaldo Torres-Centeno, William Ruiz-Borrás, and Miguel Santiago-Rivera, and her Law 115 claim against William Rtiiz-Borrás. At that point, the surviving claims consisted of Santos’s Title VII claims against the Commonwealth of Puerto Rico and the PRPD and her Law 115 claims against the Commonwealth of Puerto Rico, the PRPD, Merced-Vázquez, Torres-Cen-teno, and Santiago-Rivera.

Defendants next filed a motion for reconsideration, asking the court to dismiss the case in its entirety, which the court denied. While the defendants’ motion for reconsideration was pending, Santos sought interlocutory review in this court of the order dismissing her other claims. We concluded that we did not have jurisdiction to hear her appeal at that time, dismissed the interlocutory appeal without prejudice, and returned the case to the district court.

Discovery thus proceeded as the case moved toward trial. In June 2014, however, defendants filed a second motion for summary judgment on the ■ remaining claims in light of the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, — U.S. —, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). Santos filed her opposition, and the court referred the matter to a magistrate judge, who recommended that the motion be granted. Santos did not file an objection to the magistrate judge’s report and recommendation within the fourteen-day deadline prescribed by Federal Rule of Civil Procedure 72(b) and Puerto Rico Local Rule 72(d). On November 20, 2014, the district judge adopted the magistrate judge’s report and recommendation in full and entered final judgment dismissing Santos’s claims with prejudice. In its dismissal order the court noted that “fejbsent objection ... [a] district court ha[s] a right to assume that [the affected party] agree[s] with the magistrate judge’s recommendation” and that the court “needs only [to] satisfy itself by ascertaining that there is no ‘plain error’ on the face of the record.” Santos-Santos v. P. R. Police Dep’t., 63 F.Supp.3d 181, 184 (D.P.R. 2014) (quoting Lopez-Mulero v. Velez-Colon, 490 F.Supp.2d 214, 217-18 (D.P.R. 2007)).

On the same day that final judgment was entered, Santos responded by filing a “Motion to Reconsider and Set Aside Memorandum and Order as Well as Judgment.” Santos complained that her lawyer was out of the jurisdiction when the magistrate judge posted his report and recommendation and, hence, did not see that it had been issued until final judgment was entered. She also asserted that because there was no docket entry informing parties of the motion’s referral, her lawyer was never aware that it had been assigned to a magistrate judge. Santos asked the court to set aside its judgment dismissing her case and requested that she be given an opportunity to object to the report and recommendation, '

■ The district court chose to view Santos’s motion as a “request for reconsideration,” but it responded by cautioning Santos as follows in an electronic docket order entered the following day:

[T]he fact that a formal referral was not entered in this case is immaterial, since the record confirms that (i) the Report and Recommendation was notified to [Santos’s attorney’s] email address of record; (ii) it included a warning that failure to file specific objections within fourteen days would constitute a waiver of the right to appellate review ... and (iii) as per [Santos’s attorney’s] admission, the lack of referral was not the reason behind his untimely request to “closely review,, analyze and object” [to] the Report and Recommendation.... To the contrary, [Santos’s attorney] admits that, due to numerous professional commitments, yesterday, for the first time, he saw the Report and Recommendation because he “never checked the docket until today when the CM/ EOF e-mails [were] received.” ... This contention cannot serve as [the] basis for reconsideration of the order. See[ ] Santiago-Diaz v. Laboratorio Clinico y de Referencia del Este and Sara L[ó]pez MD, 456 F.3d 272, 276 n.3 (1st Cir. 2006) (A party is “fully chargeable with knowledge of what the docket disclosed.”). The Court, however, will consider the memorandum of law in support of her request for reconsideration it has authorized to be filed before making a final determination in this case.

Santos subsequently filed her memorandum in support of her motion for reconsideration on December 16, 2014, attaching an additional motion asking the district court to extehd the original period for filing objections to the magistrate judge’s report and recommendation. She argued that reconsideration was appropriate due to the excusable neglect of her -attorney—claiming for the. first time that notification of the magistrate judge’s issuance of the report and recommendation had ended up in her attorney’s email “spam folder.”

The court accepted Santos’s memorandum of law and permitted her to file the additional motion on December 17, 2014, but it advised her in an electronic docket order that it would treat the additional motion as part of her original motion for reconsideration. Defendants opposed Santos’s motion, asserting that it was improper because it did not “seek[ ] to correct manifest errors of law, present newly discovered evidence, or [assert] an intervening change in law”—the recognized bases for a motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e). See, e.g., Prescott v. Higgins, 538 F.3d 32, 45 (1st Cir. 2008). In a reply memorandum, Santos argued that her proposed objections to the magistrate judge’s report and recommendation—describing an alleged manifest error of law or fact in the court’s adoption of the. magistrate judge’s report and recommendation—and the excusable neglect of her attorney were sufficient to unwind the judgment. Defendants filed a final .“Informative Motion,” again urging the district court to reject Santos’s argument on the ground that she failed to meet the standard for a motion to reconsider.

On June 10, 2015, the district court entered an electronic order denying Santos’s motion for reconsideration:

The Court has carefully re-examined the arguments raised by plaintiff in support of - her motion for reconsideration at Docket No. 160 and finds no reason to deviate from its prior ruling, after adopting the Report and Recommendation. In her motion, plaintiff does not direct to any newly discovered evidence or an intervening change in the law; and has not shown that the Court’s order .was clearly unjust or based on a manifest error of law. Rather, she insists and elaborates upon her previous arguments and even asks the court to reconsider an order entered more than two (2) years ago. The court declines plaintiffs invitation. As such, and absent a valid ground for reconsidering the previous disposition, plaintiffs motion for reconsideration at Docket No. 160 is DENIED.

Santos then timely filed a notice of appeal, asking this court to review “the Judgment entered November 20, 2014, tolled by her Motion filed December 17, 2014 which was denied on June 10, 2015.”

On appeal, Santos contends that the district court erred when it granted summary-judgment for defendants on her First Amendment claims in its August 2012 order and when it granted summary judgment for defendants on her Title VII and Law 115 claims in November 2014.

II.

Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Conjugal P’ship Acevedo-Principe v. United States, 768 F.3d 51, 54 (1st Cir. 2014). In a typical appeal from a district court’s grant of summary judgment, our review is de novo, and we view the facts in the light most favorable to the non-moving party—in this case Santos. Del Valle-Santana v. Servicios Legales de P.R. Inc., 804 F.3d 127, 129 (1st Cir. 2015).

But this is not a typical appeal. Our review is contingent on a party’s compliance with procedural rules that prescribe how issues may be preserved for appeal. Under Federal Rule of Civil Procedure 72(b) and Puerto Rico Local Rule 72(d), a party who wishes to challenge a magistrate judge’s report and recommendation must file written objections within fourteen days. Likewise, it has long been the rule in this circuit that under the provisions of the Federal Magistrates Act, 28 U.S.C. § 636(b), parties who fail to file objections to a magistrate judge’s report and recommendation lose their right to appellate review. Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980) (“We conclude that a party ‘may’ file objections within [the statutorily prescribed number of] days or he may not, as he chooses, but he ‘shall’ do so if he wishes further consideration.”); see also Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010) (“[0]nly those issues fairly raised by the objections to the magistrate’s report are subject to review in the district court and those not preserved by such objection are precluded on appeal.” (quoting Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988))).

As noted above, Santos failed to object to the magistrate judge’s report and recommendation. The magistrate judge warned her that “[f]ailure to comply with [Puerto Rico Local Rule 72(d)] precludes further appellate review.” Santos’s failure to comply with this rule bars us from examining the merits of her appeal.

After entry of final judgment, Santos filed a motion for reconsideration, asking the district court to reopen the suit and providing the objections that she would have lodged to the magistrate’s report and recommendation if she had not missed the deadline set forth by Federal Rule of Civil Procedure 72(b) and Puerto Rico Local Rule 72(d). Santos’s motion stated that she would not have missed the deadline but for her attorney’s excusable neglect in failing to realize that the report and recommendation had been issued. “Excusable neglect” is listed as one of the specific bases for “grounds for relief from a final judgment, order, or proceeding” under Federal Rule of Civil Procedure 60(b)(1). Although Santos never cited the rule in her motion to reconsider, her motion is properly characterized as a Rule 60(b) motion for relief from the judgment. Cf. United States v. $23,000 in United States Currency, 356 F.3d 157, 165 & n.9 (1st Cir. 2004) (distinguishing a Rule 59(e) motion to modify a judgment from a Rule 60(b) motion to vacate a judgment). Demonstrating excusable neglect is a “demanding standard.” Id at 164. The trial judge “has wide discretion” in this arena, and “we will not meddle unless we are persuaded that some exceptional justification exists.” Id at 164-65. Such an “exceptional justification” must be something more than an attorney’s failure to monitor the court’s electronic docket. “Unfortunately for [Santos,] routine carelessness by counsel leading to a late filing is not enough to constitute excusable neglect.” Negron v. Celebrity Cruises, Inc., 316 F.3d 60, 62 (1st Cir. 2003). The district court acted within its discretion when it denied Santos’s motion for reconsideration.

III.

In her brief Santos urges us to consider her First Amendment claim that was dismissed by the district court in August 2012. Her notice of appeal, however, refers only to the district court’s November 2014 decision to accept the magistrate judge’s report and recommendation on her remaining Title VII and Law 115 claims and its denial of her motion to reconsider the entry of final judgment. “Even though notices of appeal are to be liberally construed, if the appellant ‘chooses to designate specific determinations in [her] notice of appeal—rather than simply appealing from the entire judgment—only the specified issues may be raised on the appeal.’ ” Brooks v. AIG SunAmerica Life Assurance Co., 480 F.3d 579, 585 (1st Cir. 2007) (quoting Constructora Andrade Gutiérrez, S.A. v. Am. Int’l. Ins. Co. of P.R., 467 F.3d 38, 43 (1st Cir. 2006)). By expressly asking us to review specific decisions of the district court to the exclusion of all other district court decisions, Santos gave neither this court nor appellees proper notice that she intended to dispute the earlier ruling on her First Amendment claim, leaving us without jurisdiction to review it. See Constructora Andrade Gutiérrez, 467 F.3d at 44. “[D]esignating a completely separate and independent order loudly proclaims [a] plaintiffs intention not to appeal from the former order.... As an ancient maxim teaches, ‘expressio unius est exclusio alter-áis.’ ” Kotler v. Am. Tobacco Co., 981 F.2d 7, 11 (1st Cir. 1992) (citation omitted).

Affirmed.

      . Santos’s principal claims alleged violations of her free speech rights under the First Amendment, retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and retaliation under Act No. 115 of December 20, 1990, P.R. Laws Ann. tit. 29, §§ 194-194b (“Law 115”). She also alleged a conspiracy among her employer and coworkers to interfere with her civil rights under 42 U.S.C. § 1985, along with a number of other violations of federal and Puerto Rico laws.

      . The court found that Santos failed to demonstrate that any of her comments for which she alleged retaliation in violation of the First Amendment were made while speaking in her capacity as a private citizen, which Garcetti requires. See 547 U.S. at 418, 126 S.Ct. 1951.

      . Nassar held that Title VII retaliation cláims require the more stringent "but-for” causation standard of proof rather than the more lenient "mixed-motive” causation standard permitted in Title VII discrimination claims grounded in race, color, religion, sex, or national origin. See 133 S.Ct. at 2534.

      . Santos also submitted her proposed objections. In her proposed objections she challenged the magistrate judge’s findings on the but-for causation standard of proof required for her Title VII retaliation claims, but she also attempted to relitigate the claims that the court had dismissed two years earlier in its first summary judgment order.

      . Santos’s motion to reconsider did not reference any Federal Rule of Civil Procedure, but it appears that defendants assumed Santos’s motion was a Rule 59(e) motion to amend or alter a judgment. Santos, herself, adopted this framework in her reply to the defendants' response. However, Santos was not asking the court to amend or alter its judgment, but in fact to vacate the judgment based on her attorney's excusable neglect. Hence, as we explain below, the motion is properly characterized as a Rule 60(b) motion for relief from a judgment or order.

      .Federal Rule of ' Appellate Procedure 4(a)(1)(A) typically requires that a notice of appeal be filed in the district court within 30 days after the entry of the judgment which the party wishes to appeal. However, as we note below, Santos’s motion for reconsideration constituted a Rule 60(b) motion for relief from a judgment. When a party flies any Rule 60 motion within 28 days of the entry of judgment—as Santos did in this case—the time to file an appeal runs from the entry of the order disposing of the Rule 60 motion. See Fed. R. App. P. 4(a)(4)(A)(vi). (Because Santos's December 17, 2014 motion was filed within 28 days of entry of final judgment, we need not decide whether the appropriate date to ascribe to her motion for reconsideration for purposes of Appellate Rule 4(a)(4)(A)(vi) was the date of her initial November 20, 2014 motion or her December 17, 2014 follow-up motion.)

      . The Supreme Court has upheld the application of this rule. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("[A] court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate's recommendation, upon the filing of objections with the district court identifying those issues on which further review is desired. Such a rule, at least when it incorporates clear notice to the litigants and an opportunity to seek an extension of time for filing objections is a valid exercise of the supervisory power that does not violate either the Federal Magistrates Act or the Constitution.'').

      . In its denial of Santos’s motion for reconsideration, the district court employed the framework of a Rule 59(e) motion, which was introduced by defendants in their opposition to Santos’s motion and adopted by Santos, herself, in her reply. But as we have noted, vacating a judgment on the ground of excusable neglect by one party’s attorney is governed by Rule 60(b), not Rule 59(e). Hence, we analyze whether the district court’s denial of Santos’s motion for reconsideration was proper under Rule (60)(b).


author: TORRUELLA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Kyle HURLEY, Defendant, Appellant.
    No. 15-2541
    United States Court of Appeals, First Circuit.
    November 23, 2016
    Jeffrey M. Brandt, with whom Robinson & Brandt, P.S.C. was on brief, for appellant.
    Seth R. Aframe, Assistant United States Attorney, with whom Emily Gray Rice, United States Attorney, was on brief, for appellee.
    Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges. .
   TORRUELLA, Circuit Judge.

Kyle Hurley pleaded guilty to conspiracy to distribute, and possess with the intent to distribute, controlled substances. Hurley stipulated to possession of 1,451.7 kilograms of synthetic cannabinoid product, which consisted of the chemicals XLR11 and AB-FUBINACA sprayed onto plant leaves. After a sentencing hearing, the district court sentenced Hurley to 114 months of imprisonment. Hurley appeals his sentence.

I. BACKGROUND

A. Factual Background

1. Hurley’s Arrest

Early in 2014, undercover officers started purchasing synthetic cannabinoid products from convenience stores supplied by Robert Costello. Hurley was Costello’s supplier, and, after undercover officers asked Costello if he could supply them with large quantities of product, Costello agreed to introduce the undercover officers to Hurley. At the meeting, Hurley agreed to provide fifteen kilograms of synthetic cannabinoid product for $7,500. Costello retrieved and delivered the product, and Hurley called one of the undercover officers to confirm that he was happy with the product. Thereafter, Hurley participated in a series of recorded discussions with the undercover officers to arrange a larger transaction, and ultimately he provided the officers with approximately 1,100 kilograms of synthetic cannabinoid product in exchange for approximately $500,000.

Officers arrested Hurley after he picked up the money. Following his arrest, search warrants were executed at Costello’s home in Lawrence, Massachusetts, at a garage on property owned by Hurley’s relative in Seabrook, New Hampshire, and at a location in Epping, New Hampshire where Hurley manufactured the product. At these locations, officers discovered more synthetic cannabinoid product.

2. Hurley’s Product

Synthetic cannabinoid products are created by mixing an organic “carrier” medium, typically an herb-like substance such as damiana leaves, and a synthetic compound. Once manufactured, the final product is intended to resemble marihuana and is typically smoked in pipes or joints and can also bé made into tea. The leaves in the product are inert, so the psychoactive effect on the user derives exclusively from the chemical sprayed onto the leaves. Synthetic cannabinoid products, in general, can have similar psychological and physiological effects to marihuana. Hurley made his product by placing inert, non-narcotic leaves in a cement mixer, spraying the leaves with two chemicals, AB-FUBINA-CA and XLR11, and then applying acetone to the product to dry it out.

B. Procedural History

Hurley pleaded guilty to conspiracy to distribute, and possess with the intent to distribute, controlled substances. The pre-sentence report attributed i,451.7 kilograms of synthetic cannabinoid product to Hurley, and he did not contest the amount. The district court held a sentencing hearing, at which a significant issue was whether Hurley’s product was most similar to tetrahydrocannabinol (“THC”) or marihuana.

The United States Sentencing Guidelines (the “Guidelines”) provide “Drug Equivalency Tables,” which allow a given quantity of a drug to be converted to an “equivalent” weight of marihuana. U.S.S.G. § 2D1.1 cmt. n.8(D). This marihuana equivalent is then used to calculate a defendant’s base offense level. Id. § 2D1.1 cmt. n.8(A).

Because the Guidelines do not provide a marihuana equivalent ratio for AB-FUBI-NACA and XLR11 (or other synthetic cannabinoids), the district court had to determine which listed drug was “most closely related” to those chemicals—marihuana or THC. Id. § 2D1.1, cmt. n.6. The “Schedule I Marihuana” table gives a marihuana equivalent ratio of l.T for marihuana and 1:167 for THC. Id § 2D1.1, cmt. n.8(D), Thus, Hurley would be responsible for the equivalent of 1,451.7 kilograms of marihuana if the proper comparator was marihuana but 242,433.9 (1,451.7 times 167) kilograms of marihuana if the proper comparator was THC.

Hurley contended that marihuana was the proper comparator. He argued, first, that marihuana was the correct comparator because prior publications by the Drug Enforcement Agency (“DEA”) compared synthetic cannabinoids to marihuana, not THC. Second, Hurley argued that the district court should not impose the 1:167 ratio because there was no empirical basis for the Guidelines’ conversion rate. The Government asserted that THC was the correct comparator, and it introduced expert reports from a DEA pharmacologist, Dr. Jordan Trecki, to support its conclusion. Based on animal studies, Dr. Trecki’s reports concluded that AB-FUBINACA and XLR11 have “subjective effects that are substantially similar to the effects of THC” and that they are “at least as potent, if not more potent than THC.”

The district court ruled that THC was the appropriate comparator drug, even though it considered the recommended sentence to be “an anomaly.” It relied on Dr. Trecki’s conclusions, the persuasive precedent from other district courts using this conversion rate, and the fact that a different defendant in the case was previously sentenced using THC as the comparator, so disregarding the rate in this case would create an “inherent sentencing disparity.”

Because 1 kilogram of THC is equivalent to 167 kilograms of marihuana under the Guidelines, the district court found that Hurley was responsible for 242,434 kilograms of marihuana, resulting in a base offense level of 38. The district court also ruled that Hurley was subject to a four-level upward adjustment for being a leader of criminal activity involving five or more people and a three-level downward adjustment for his acceptance of personal responsibility, resulting in a total offense level of 39. This offense level, in combination with Hurley’s criminal history category of II, yielded a Guidelines range of 292-365 months of imprisonment. This was reduced to the statutory maximum of 240 months. For reasons unrelated to the 1:167 ratio, the district court ruled that it would make a downward departure. The Government then sought a sentence of 144 months, but the district court imposed a sentence of 114 months, citing the harshness of the 1:167 conversion ratio as a reason for varying the sentence.

II. ANALYSIS

Relying on the dissent in United States v. Ramos, 814 F.3d 910 (8th Cir. 2016) (Bright, J., dissenting in part), Hurley argues that marihuana, rather than THC, was the proper comparator for the synthetic cannabinoids he possessed because—like marihuana and unlike THC— his product contained large quantities of plant matter. Hurley, however, did not make this argument in the district court. He instead attempted to rebut Dr. Trecki’s testimony using prior publications by the DEA. Hurley maintains that he argued for marihuana rather than THC as the comparator in the district court. That is true, but he did not make the specific argument made here, and “a general objection” is “not sufficient to give the district court notice of the specific issue raised” on appeal. United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st Cir. 2011) (citing United States v. Ahrendt, 560 F.3d 69, 76 (1st Cir. 2009)). We therefore review only for plain error. See United States v. McDonald, 804 F.3d 497, 503 (1st Cir. 2015) (“Because [the defendant] raises the argument ... for the first time on appeal, we review this part of his argument for plain error.”). Under the plain error standard, Hurley must prove that the district court made “(1) an error, (2) that is clear or obvious, (3) which affects his substantial rights (i.e., the error made him worse off), and which (4) seriously impugns the fairness, integrity, or public reputation of the proceeding.” Id. (quoting United States v. Correa-Osorio, 784 F.3d 11, 18 (1st Cir. 2015)).

Here, Hurley cannot show that any error was “clear or obvious.” He cites only to the dissent in Ramos to support his argument that marihuana is the proper comparator because it, like his product, contains plant matter. But the majority in Ramos rejected that argument, reasoning that “while synthetic cannabinoids, such as XLR-11, are listed in Schedule, I,” the product mixture sold by the defendants was “not independently listed on any drug schedule.” Ramos, 814 F.3d at 919. Plain error presents a “high bar,” Ríos-Hernández, 645 F.3d at 463, and it is not obvious that the dissent in Ramos, rather than the majority, has the better argument.

Hurley also asserts that the district court erred in applying the 1:167 ratio “even if synthetic cannabinoid product were somehow the equivalent of pure THC.” In support, he cites United States v. Hossain, No. 15-cr-14034, 2016 WL 70583 (S.D. Fla. Jan. 5, 2016). There, the district court determined that THC was the best comparator for XLR11. Id. at *4. But it found that the 1:167 ratio had “no cognizable basis” and so varied the sentence downward using a 1:7 ratio offered by a defense expert. Id. at *4-6. Following this reasoning, Hurley asserts that “the district court erred in failing to apply a one-to-seven ratio” and in not converting “[t]he stipulated 1,451 kilograms” of synthetic cannabinoid product “to 10,157 kilograms [of] marijuana equivalence, for a base offense level of 34.”

Hurley’s argument is without merit. District courts “must start out by calculating the proper Guidelines range—a step so critical that a calculation error will usually require resentencing.” United States v. Rodriguez, 630 F.3d 39, 41 (1st Cir. 2010). After it determined that THC was the appropriate comparator, the district court correctly applied the 1:167 multiplier listed in the Guidelines, applied other credits and enhancements, and calculated the recommended sentence. The district court could not apply a 1:7 ratio, which has no foundation in the Guidelines, to calculate Hurley’s recommended sentence. Hossain does not support Hurley’s position; that court first calculated a total offense level using the 1:167 ratio and only then used the 1:7 ratio as one factor in calculating a downward variance under 18 U.S.C. § 3553. 2016 WL 70583, at *4-6.

We recognize, as the district court did below—and the Government appeared to accept—that applying the 1:167 ratio to a product that, by weight, consists primarily of inert plant matter creates an “anomaly, [because of] the severity of the way this conversion rate works.” The anomaly is also reflected in the recommended Guidelines sentence of 292-365 months, which exceeds the 240-month maximum sentence allowed under 21 U.S.C. § 841(b)(1)(C).

The “severity of the drug quantity conversion rate” led the district court “to vary [Hurley’s sentence] downward to where the case more closely approximates a marijuana distribution case.” The Government does not challenge that variance, and we see no error in it. We observe, however, that the Sentencing Guidelines are meant to provide “a framework or starting point to guide the exercise of the court’s discretion,” which “promotes uniformity and fairness'in sentencing.” United States v. Marchena-Silvestre, 802 F.3d 196, 200 (1st Cir. 2015) (internal quotation marks and alterations omitted) (quoting United States v. Millán-Isaac, 749 F.3d 57, 66-67 (1st Cir. 2014)). Here, the lack of either a specific conversion rate or a clear comparator may harm both uniformity and fairness. We therefore believe that the Sentencing Commission should address this issue with greater clarity and provide a rationale.

III. CONCLUSION

For the foregoing reasons, the district court’s sentence is affirmed.

Affirmed.

      . The damiana plant grows in subtropical regions of the Americas and Africa and is widely used in traditional medicine and as a food flavoring. Catherine E. Ulbricht, Natural Standard Herb & Supplement Guide 279 (2010).

      . We take no position on the outcome under a different standard of review or where a defendant makes a different argument than Hurley made.


author: DENNIS JACOBS, Circuit Judge:'

text:
    INFRASSURE, LTD., Plaintiff-Counter-Defendant-Appellee, v. FIRST MUTUAL TRANSPORTATION ASSURANCE COMPANY, Defendant-Counter-Claimant-Appellant.
    Docket No. 16-306
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: September 15, 2016
    Decided: November 16, 2016

      ALBERT L. WELLS, JR., Covington & Burling LLP, New York, NY (with Jennifer 0. Farina and David B. Goodwin on the brief), for Appellant.
    WILLIAM B.. ADAMS, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY (with Jane M. ■ Byrne on the brief), for Appellee.
    Before: JACOBS, .LIVINGSTON, Circuit Judges, RAKOFF, District Judge.

      The Honorable Jed S. Rakoff, United States District Court for the Southern District of New York, sitting by designation.

   DENNIS JACOBS, Circuit Judge:'

Parties to a facultative reinsurance cer-tifícate differ as to which of two arbitration provisions govern the resolution of a dispute that has arisen between them. Arbitration under one provision, set out in the body of the form, states that “[a]ll arbitrators will be disinterested active or former officers of insurance or reinsurance companies.” J. App’x at 150. Arbitration under the other provision, introduced by endorsement, does not limit the arbitrators to current or former insurance executives. This difference is evidently of considerable significance to the parties.

First Mutual Transportation Assurance Company (“First' Mutual”), the ceding company, sought to compel its reinsurer, Infrassure, Ltd., to submit to arbitration governed by the endorsement. Infrassure initiated this lawsuit in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the arbitration provision contained in the body of the form is controlling. First Mutual’s counterclaims requested the district court to find that the endorsement governs the dispute, and to compel Infras-sure to submit to arbitration under that provision. The district court held that the form’s procedures governed, granted declaratory relief in favor of Infrassure, dismissed First Mutual’s counterclaims, and denied the request to compel arbitration.

DISCUSSION

Because we construe the district court’s declaratory judgment as a grant of summary judgment, see Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 63-64 (2d Cir. 2012), we review the district court’s interpretation of the reinsurance certificate at issue here de novo, see Dormitory Auth. of N.Y. v. Cont’l Cas. Com, 756 F.3d 166, 169 (2d Cir. 2014); Bank of N.Y. Tr. Co. v. Franklin Advisers, Inc., 726 F.3d 269, 275 (2d Cir. 2013).

The printed body of the certificate, after setting out the declarations and other standard provisions, contains a provision that requires “any dispute arising out of the interpretation, performance or breach of this Certificate” to be submitted to arbitration pursuant to a specified set of rules. J. App’x at 150. Infrassure, the reinsurer, stands upon these terms.

First Mutual, the ceding company, contends that the other provision, contained in Endorsement No. 2, must control. This provision also purports to cover “[a]ny dispute, controversy or claim arising out of or relating to this agreement or the-breach, termination or invalidity thereof,” and prescribes separate rules governing the arbitration. J. App’x at 160. The endorsement is headed “LONDON ARBITRATION AND GOVERNING LAW (UK AND BERMUDA INSURERS ONLY).” J. App’x at 160 (bolding in original). Since Infrassure, a Swiss company, is neither a United Kingdom insurer nor a Bermuda insurer, it argues that the endorsement is inapplicable on its face.

The salient argument of First Mutual is that the tension between the two competing arbitration clauses is resolved by Paragraph AA (the “Titles Clause”), which states: “The several titles of the various paragraphs of this Certificate (and endorsements ... attached hereto) are inserted solely for convenience of reference and will not be deemed in any way to limit or affect the provisions to which they relate.” J. App’x at 153. First Mutual argues that the parenthetical “(UK AND BERMUDA INSURERS ONLY)” is part of the endorsement’s title, and by operation of the Titles Clause, does not limit the endorsement to insurers of those countries.

This is a thin argument, but it requires us to construe wording that apparently has not been construed before, and that is in a contract that may share features with other standard forms and endorsements. Hence, this opinion.

We conclude that the contract is unambiguous. The arbitration clause in the body of the certificate controls: it is not displaced by the endorsement because the endorsement is expressly limited to UK and Bermuda insurers. That limitation is not part of the title itself, though it shares the same line and bolded format. The purpose of the Titles Clause is not to strip away an express indication as to the context in which a particular provision is operative, but to ensure that the text of a provision is not discounted or altered by the words of its heading.

■ Our reading of the facultative certificate is easily confirmed by consulting other provisions. In some instances, critical clauses would have no meaning at all if the Titles Clause were mechanically applied. For example, Paragraph 14 of the Certificate reads in its entirety:

14. Program Policy Limits

Various as per the attached schedule.

J. App’x at 144 (bolding and underlining in original). If we were to apply the Titles Clause to this paragraph in the same way that First Mutual asks us to apply it to Endorsement No. 2, we would be left with the cryptic provision, “Various as per the attached schedule.” The heading “Program Policy Limits” instructs the reader that the phrase “Various as per the attached schedule” refers to program policy limits, as opposed to some other concern of the reinsurance agreement. Other provisions beside Paragraph 14 likewise would be rendered meaningless if the Titles Clause were applied in the way pressed by First Mutual.

Infrassure argues that even if the endorsement is held to control, certain provisions of the arbitration clause in the body of the certificate should nevertheless be enforced, such as the requirement that all arbitrators be former or current insurance executives. We need not reach this argument, which is just as well for Infrassure.

CONCLUSION

For the foregoing reasons, and finding no merit in the appellant’s other arguments, we AFFIRM the judgment of the district court.

      . Given this conclusion, we also find that the district court correctly dismissed First Mutual’s counterclaims and properly declined to compel arbitration under the endorsement’s arbitral provisions.


author: PER CURIAM: POOLER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Heath POWERS, Defendant-Appellant.
    No. 15-3867-cr
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Argued: November 9, 2016
    Decided: November 21, 2016
    Molly CoRBEtt (Lisa A. Peebles,' on the brief), Office of the Federal Public Defender for the Northern District of New York, Albany, NY.
    Stí^veN D. ClymeR (Gwendolyn E. Carroll, on the brief), Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY.
    Before: CABRANES, POOLER, and PARKER, Circuit Judges.
   Judge POOLER concurs in the judgment and opinion of the Court and files a concurring opinion,

PER CURIAM:

Defendant-Appellant Heath Powers pleaded guilty to thirteen counts of child-pornography-related offenses and now appeals his judgment of conviction, challenging (1) the factual basis supporting his plea as to one of the thirteen counts and (2) the reasonableness of his 480-month (forty-year) sentence of imprisonment. The Government concedes that the District Court (Mae A. D’Agostino, Judge) committed “plain error” by accepting Powers’s plea to the count challenged on appeal and that Powers’s conviction as to that count must be vacated, but argues that resentencing is unnecessary. We disagree with the Government with respect to the appropriate remedy. Because the error below was a so-called “conviction error,” de novo resen-tencing is required.

Accordingly, we REMAND the cause to the District Court with instruction to vacate the erroneous count of conviction and for de novo resentencing.

BACKGROUND

While working as a babysitter, Powers took sexually explicit photos of, and engaged in sexual acts involving, a seven-year-old girl (“V-l”). On August 4, 2014, Powers took four pornographic photographs of V-l. That same day, Powers connected with an undercover FBI agent through an online site used to swap pornographic pictures of children, and sent all four images to the agent. On August 5, 2014, Powers took seven more photographs of V-l and, on August 7, 2014, sent four of these seven to the same undercover agent. One of the images in this second batch was unique; unlike the other images of V-l (in either batch), it did not focus on the child’s pubic area and instead “the child’s bare chest [wa]s the focus of .the image.” PSR ¶ 9(a).

On August 10, 2014, Powers was babysitting when law enforcement agents executed a search warrant at the home of V-l. In the course of questioning, Powers admitted to taking sexually explicit photographs of V-l, to distributing them online, and to receiving pornographic images of other children. Powers provided his iPhone 4 (and its passcode) to the agents, which revealed approximately 125 photographs of V-l as well as other pornographic photos of children. In a search of Powers’ residence, agents found other electronic devices that contained more child pornography.

The following month, a federal grand jury returned an indictment charging Powers with eleven counts of production of child pornography (Counts One through Eleven, or “the production counts”), in violation of 18 U.S.C. § 2251(a), (e); one count of distribution of child pornography (Count Twelve), in violation of 18 U.S.C. §§ 2252A(a)(l)(A) [sic] and (b)(1), and 2256(8)(A); and one count of possession of child pornography (Count Thirteen), in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), and 2256(8)(A.). Although it is not necessarily apparent from the record on appeal which image corresponded to which production count, the Government submits in its appellate brief that Count Six had as its factual basis the production of the “bare chest” image-.

On June 2, 2015, Powers pleaded guilty to all counts in the indictment without a plea agreement. On November 19, 2015, the District Court sentenced Powers to a below-Guidelines 480-month (forty-year) term of imprisonment.

DISCUSSION

The Government concedes that the District Court committed “plain error” by allowing Powers to plead guilty to a count for which there was no “factual basis for the plea.” Specifically, the image of V-l that focused on her bare chest was not within the definition of “sexually explicit conduct” prohibited by . 18 U.S.C. § 2251(a), and conduct relating to it cannot serve as a factual basis for a conviction thereunder. We agree that Powers’s count of conviction related to that image, but only that image, must therefore be vacated. The principal issue on appeal is thus the appropriate remedy where only part of a conviction is subsequently overturned.

Our opinion in United States v. Rigas, 583 F.3d 108 (2d Cir. 2009), aimed to settle that very question. Rigas sought to clarify United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002), which had held that the “default rule” to remedy a so-called “conviction error”—as distinct from a so-called “sentencing error”—is de novo resentencing. See Quintieri, 306 F.3d at 1228 & n.6. After considering Quintieri and its progeny, Rigas explained that Quintieri had “created a rule, not a guideline,” and to the extent it or prior cases were ambiguous, Rigas “resolve[d] any ambiguity” in favor of de novo resentencing following conviction errors. Rigas, 583 F.3d at 117-19.

Subsequent characterizations of the rule in non-precedential summary orders and in passing dicta in published opinions have remained somewhat ambiguous, however. One panel read Rigas, albeit only in a summary order, as having established an essentially uniform rule. Other panels, likewise in summary orders or in dicta, have continued to use, at least as a matter of linguistics, the “default rule” formulation of Quintieri when mentioning Rigas, Notably, however, applications of the rule, be-it characterized as “default” or not, are almost entirely consistent. No. case cited in footnote six permitted a district judge, following partial vacatur of a conviction, simply to enter an amended judgment.

Indeed, it appears that only one post-Rigas case has allowed a district judge to do so. See United States v. Moreno-Montenegro, 553 Fed.Appx. 29, 31-32 (2d Cir. 2014). That summary order reasoned as follows:

With respect to the appropriate remedy, Moreno-Montenegro requests a remand for de novo resentencing, contending that vacating one of his convictions “ ‘effectively undoes the entire knot of calculation’ underlying the original sentencing.” United States v. Barresi, 361 F.3d 666, 672 (2d Cir. 2004) (quoting United States v. Quintieri, 306 F.3d 1217, 1228 (2d Cir. 2002)). We disagree. The two offenses here were considered together throughout the proceedings below, and the district court ultimately imposed identical concurrent sentences for both counts. Moreover, as explained below, we find no other error in the defendant’s sentencing. In accordance with our ;practice in such circumstances, we accordingly will remand with instructions for the district court to vacate the conviction on one of the two counts and to enter an amended judgment. See, e.g., United States v. Miller, 116 F.3d 641, 685 (2d Cir. 1997).

Id. at 32 (emphasis added).

The Government relies heavily upon Moreno-Montenegro here—and, it appears, elsewhere—in arguing that resen-tencing is unnecessary. That reliance is misplaced. The “practice” identified in Moreno-Montenegro is appropriate only when the defendant has already received, as his or her sentence on an upheld count of conviction, a mandatory minimum sentence. Those were the circumstances in Miller, to which Moreno-Montenegro attributes “our practice,” and in the other case upon which the Government here relies, Burrell v. United States, 467 F.3d 160 (2d Cir. 2006). Such circumstances—in which a district court’s amending its judgment of conviction is, by force of law, “strictly ministerial”—constitute the only viable exception to the rule set forth in Rigas. And as a non-precedential summary order, Moreno-Montenegro is without force to suggest otherwise.

Here, Powers was not given a mandatory minimum sentence for any of the twelve non-deficient counts of conviction. Accordingly, Rigas controls and de novo resen-tencing is required. In light of that, we do not reach Powers’s challenge to the substantive reasonableness of his current sentence.

CONCLUSION

For the reasons stated above, we REMAND the cause to the District Court with instruction to vacate the erroneous count of conviction and for de novo resen-tencing.

POOLER, Circuit Judge:

While we express no view on the substantive reasonableness of Powers’ sentence, I write separately in order to call the district court’s attention to the need to, as always, give appropriate weight to all of the Section 3553(a) factors on de novo resentencing. See United States v. Dorvee, 616 F.3d 174, 183-84 (2d Cir. 2010) (suggesting the district court gave too much weight to the ‘need to protect the public’ factor in sentencing an individual for distribution of child pornography where the court noted that an individual who repeatedly had sex with a child would have faced a far more lenient sentence).

Accordingly, I respectfully concur.

      . As the parties agree,' the indictment incorrectly cited the statutory provision. It should have cited 18 U.S.C. § 2252A(a)(2)(A), not (a)(1)(A).

      . More specifically, the District Court sentenced Powers to 360 months on each of the production counts, to run concurrently; 120 months on Count 12, to run consecutively to the production counts; and 120 months on Count 13, to run concurrently to Counts 1 through 12.

      . Fed. R, Crim. P, 11(b)(3). (“Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”)

      . 18 U.S.C. § 2251 prohibits “employ[ing], us[ing], persuad[ing], inducting], entic[ing], or coerc[ing] any minor to engage in ,,. with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct...,” 18 U.S.C, § 2256(2)(A) defines "sexually explicit conduct” to be “actual or simuláted[] (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.”

      . See United States v. Yepes-Casas, 473 Fed.Appx. 90, 90-91 (2d Cir. 2012) (“[T]his Circuit’s recent precedent is unequivocal; any 'conviction error’ requires a de novo re-sentencing.”); see also United States v. Draper, 553 F.3d 174, 184 (2d Cir. 2009) (citing Quintieri and stating “because we are reversing the witness retaliation convictions, de novo resentencing is required”),

        ,See United States v. Weingarten, 713 F.3d 704, 711-12 (2d Cir. 2013) (describing Rigas, in part, as having held that “if the vacatur of a count of conviction has altered the ‘factual mosaic related to’ the remaining counts” then resentencing is required (emphasis added)); United States v. Desnoyers, 708 F.3d 378, 386-87 (2d Cir. 2013) ('‘Typically, the defendant is entitled to de novo sentencing when the court of appeals reverses a conviction because a change in the 'constellation of offenses of conviction’ alters the ‘factual mosaic related to those offenses.’ ” (quoting Rigas, 583 F.3d at 115) (emphasis added)); United States v, Mends, 412 Fed.Appx. 370, 375 (2d Cir. 2011) ("This circuit has adopted a 'default rule that resentencing is required where part of a conviction is reversed on appeal,’ ’’ (quoting Rigas, 583 F.3d at 117)); United States v. Capoccia, 354 Fed.Appx. 522, 523-24 (2d Cir. 2009) (summary order) ("Where a count of a conviction is overturned, the ordinary procedure is to remand for de novo resentencing.” (emphasis added)); see also United States v. Malki, 718 F.3d 178, 182 (2d Cir. 2013) (per curiam) (not citing Rigas and using the "default rule” formulation).

      . In other cases, it appears, the government similarly relies on this case. See Brief for United States, United States v. Rosario, 652 Fed.Appx. 38 (2d Cir. 2016) (No. 15-1305), 2015 WL 6777675, at *47-48; Brief for United States, United States v. Santiago, No. 14-2203 (2d Cir. Feb. 22, 2016), 2016 WL 727005, at *38-39; Brief for United States, United States v. Palmer, No. 15-3006 (D.C. Cir. Aug. 5, 2016), 2016 WL 4158243, at *27 n.12.

      . In fact, both cases involved the dismissal of a conspiracy count, under the Double Jeopardy Clause, as a lesser-included offense of engaging in a continuing criminal enterprise (or "CCE”). See Miller, 116 F.3d at 651 (remanding solely for dismissal of a conspiracy count where the defendant "was convicted on one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. §§ 848(a) and 848(b)(1)(A) (1994),” which mandated a life sentence); Burrell, 467 F.3d at 162 ("The record reveals that, at the time Burrell was sentenced, the Sentencing Guidelines required the district court to impose a sentence of life imprisonment for the CCE conviction alone regardless of Burrell’s conspiracy conviction given his adjusted offense level of 44 on the CCE count.”). Perhaps for this reason, Powers attempts to distinguish Moreno-Montenegro as a Double Jeopardy Clause case, but we find no principle of law or logic that would support treating a conviction error that arises under the Double Jeopardy Clause as different from all other conviction errors.

        .Burrell, 467 F.3d at 166 & n.4.

      . That process need not be overly cumbersome. See Desnoyers, 708 F.3d at 386-87; Rigas, 583 F.3d at 119-21.