Case: 12-2328

Document: 00116453024

Page: 1

Date Filed: 11/05/2012

Entry ID: 5688027

Nos. 12-2328

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
______________________________________________________________________________

MYRNA COLÓN MARRERO, Plaintiff-Appellant/Plaintiff-Appellee/Respondent, v. HÉCTOR CONTY PÉREZ, President of the Puerto Rico State Elections Commission; EDWIN MUNDO RÍOS, as Electoral Commissioner of the New Progressive Party; EDER ORTIZ ORTIZ, as Electoral Commissioner of the Popular Democratic Party; ROBERTO I. APONTE BERRIOS, as Electoral Commissioner of the Puerto Rican Independence Party; JULIO FONTANET MALDONADO, as Electoral Commissioner of the Movimiento Unión Soberanista Party; ADRIAN DÍAZ DÍAZ, as Electoral Commissioner of the Puertorriqueños por Puerto Rico Party; and CARLOS QUIROS MENDEZ, as Electoral Commissioner of the Pueblo Trabajador Party, Defendants-Appellees/Defendants-Appellants/Petitioners
______________________________________________________________________________

EDWIN MUNDO-RÍOS’S REPLY TO PLAINTIFF’S RESPONSE IN OPPOSITION TO EMERGENCY MOTION TO STAY, FOR SUMMARY AFFIRMANCE AND REQUEST FOR MANDAMUS RELIEF __________________________________________________________________

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Defendant-Appellant, Edwin Mundo-Ríos respectfully submits this reply in further support of his request for an immediate stay and summary reversal of two orders entered by the United States District Court for the District of Puerto Rico on Sunday, November 4, 2012, relating to the case Colon-Marrero v. Conty-Pérez, 1st Cir. Case No. 12-2145. This case concerns the issuance of injunctive relief that is foreclosed by a decision entered by this Court on October 18, 2012. See Order, Case No. 12-2145 (1st Cir. Oct. 18, 2012). By way of that determination, a panel of this Court held that opening the polls to all I-8 voters, just days before the election, was not feasible for numerous reasons. See Opinion, Case No. 12-2145 (1st Cir. Nov. 2, 2012) (Explaining reasons for Oct. 18, 2012 Order). The Court expressed serious concerns about interfering with Puerto Rico’s upcoming election within such a short timeframe—particularly in a form that required an unprecedented intrusion in a local election for state and municipal officers, and a plebiscite. The Court also expressed serious concerns about the lack of recusal procedures by reason of residency, as issuing the requested relief would have effectively deprived the political parties of their right to recuse individuals on residency grounds— effectively paving the way to multiple variances of electoral fraud—unless a federal court—“ill equipped to do so in the short time remaining before the election,” Opinion, No. 12-2145 (1st Cir. Nov. 2, 2012), p. 11—were to craft,
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implement and monitor recusal procedures. The reason that this Court entered an Order on October 18 without a formal opinion was because the district court— echoing Plaintiff’s own expert witness—had informed this Court that the only way her proposal could be implemented was if “this court ordered such relief by Tuesday, October 23.” Id. p. 5. Before the issuance of the Opinion, Plaintiff made another request for a similar form of such injunctive relief. See Emergency Petition, Case No. 12-2145 (1st Cir. Nov. 2, 2012). It also made an identical request to the district court—the request at issue here. See Order, Dkt. 69 (D. Puerto Rico, Nov. 4, 2012). This Court denied such request, because of the very same concerns that moved the Court to deny preliminary injunctive relief in the first place. See Order, Case No. 12-2145 (1st Cir. Nov. 2, 2012). Indeed, even Judge Torruella, who dissented from the original determination, recognized that “[t]his Court is unable to provide an effective remedy for Plaintiff at this late date.” Id., (Torruella, J., concurring). Inexplicably, however, yesterday, Sunday, November 4, 2012, the district court granted the very same form of relief that this Court had already denied. The district court did so on grounds never before briefed, on a theory that could have been employed since October 11, and throughout an order that ignores the very factors

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that moved this Court to deny injunctive relief as unfeasible in the first place.1 What is more, is that the district court—defying the mandate and decisions of this Court—now intends to take custody of potentially close to 350,000 ballots until, at the very least, December 1, 2012, see Scheduling Order, Dkt. 81 (D. Puerto Rico, Nov. 4, 2012), and makes no mention of an opinion of the Supreme Court of Puerto which, after discussing this Court’s Opinion in Colon-Marrero, explained

The sua sponte ground provided by the district court—to preserve the court’s jurisdiction for purposes of deciding Plaintiff’s claim on the merits—in combination with the extraordinary and broad relief afforded are truly shocking at this stage, not to mention procedurally unreasonable. The district court was well aware since October 11 that the plaintiff had a likelihood of success under federal law. Hence, since at least October 11 the district court was well-aware that it had to ultimately resolve the merits of this case. Yet plaintiffs did not request an injunction “to preserve its jurisdiction” until the eve of the election. Indeed, even after issuing its findings of fact in accordance with this Court’s October 11 order, the district court did not enter an injunction or otherwise modified such findings “to preserve its jurisdiction.” See Contour Design, Inc. v. Chance Mold Steel Co., 649 F.3d 31, 34 (1st Cir. 2011) (“in most respects and absent a stay, further proceedings in the same controversy often may continue in the district court while an appeal in an earlier phase is pending. …’ An appeal from the grant or denial of a preliminary injunction does not divest the trial court of jurisdiction or prevent it from taking other steps in the litigation while the appeal is pending.... The only restriction on the trial court's power occurs if the appellate court enters an order staying the lower court until the appeal has been completed.’” (quoting 11A Wright & Miller, Federal Practice and Procedure § 2962, at 438–39 (2d ed.1995)). However, even assuming that the district court’s substantive determination is correct, it is nevertheless foreclosed by the Panel’s Opinion. But even if this were not so, the district court had other less intrusive and egregious means of “preserving its jurisdiction.” For example, the district court could have ordered that only plaintiff be re-activated on the lists, instead of creating the uncertainty, confusion and chaos that its order affording relief to all 350,000 I-8 voters—a determination foreclosed by the Panel’s Opinion—is causing.
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that I-8 voters could not vote in this election; in accordance with what has been the rule in Puerto Rico for close to forty years. See Opinion, Case No. 12-2149, p. 11 (“the procedures that plaintiff challenges have existed in some form since at least the 1970s.”) Because the detrimental effect of the Court order is the same as recognized by this Court in the Opinion, and which moved this Court to deny Plaintiff’s preliminary injunctive relief in the first place, late last night Defendant-Appellant Mundo filed an emergency motion to stay and for summary reversal—in the alternative, for mandamus relief. Defendant Mundo explained that said order is precluded by the law of the case doctrine, as this court had already denied the very form of relief that the district court ordered. Defendant Mundo also explained why such form of relief in not feasible, for very much the same reasons credited by this Court in its prior decisions, and more—namely the fatal defects in the district court’s order, including its new desire to take custody of potentially close to 350,000 ballots for all positions and the plebiscite, and the uncertainty and confusion that an opinion which pulls in the opposite direction of what both this Court and the Puerto Rico Supreme Court will cause. Earlier today Plaintiff’s opposed Mr. Mundo’s request, to which we reply below.

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ARGUMENT 1. Plaintiff plays ostrich to our argument that the relief afforded was foreclosed

by prior decisions of a panel of this Court. See Negron-Almeda v. Santiago, 579 F.3d 45, 50 (1st Cir. 2009) (“the ‘mandate rule,’ ‘prevents relitigation in the trial court of matters that were explicitly or implicitly decided by an earlier appellate decision in the same case.’” (quoting United States v. Moran, 393 F.3d 1, 7 (1st Cir.2004)); see also, Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934 (1st Cir. 2011) (Posner, J.) (“The ‘ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless’” (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)). Plaintiff, in fact, resorts to the very same arguments that this Court considered, and rejected, in the October 18 Order, the November 2nd Opinion, and the November 2nd Order in Case No. 12-2145 denying the very same relief afforded by the district court.2 Indeed, in many instances plaintiff cites to matters covered in the Opinion of this Court—the Opinion that rejected plaintiff’s plea for injunctive relief precisely discarding the very arguments that Plaintiff now rehashes. See, e.g. Plaintiff’s Response, p. 13 (1st Cir. Case No. 12-2328 Nov. 5, 2012).

For all practical purposes, the district court has seemingly reversed this Court’s November 2nd Order, as it affords the very same relief denied by this Court.
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2.

Plaintiff also rehashes the argument that there are enough ballots. See Id., p.

16. In so doing, however, Plaintiff also plays ostrich to the fact that its own expert testified that to afford plaintiff the relief requested required at least ten to twelve days of preparation, see Opinion, Case No. 12-2145, p. 6 n. 4 (“preparations could be made to accommodate the 330,902 deactivated voters if the orders to do so were given at least ten to twelve days before the election”), and that the district court itself recognized could not realistically be done after October 23, see Id., p. 5. This was also the view of Judge Torruella, the only dissenting member of the Court, when it concurred in the denial of the very same form of relief that the district court subsequently granted, in stark contravention to the mandate and decisions of this Court. 3. In other words, just like before, by ignoring these crucial matters plaintiff

fails to provide answers—much less evidence—to defeat this Court’s (and defendants’) genuine concerns regarding the feasibility of awarding such extraordinary form of relief. Therefore, for the very same reasons that prompted the denial of injunctive relief in the first place, the district court’s determination must be reversed or vacated. See Opinion, Case No. 12-2145 (“The record and the parties’ arguments failed to demonstrate that such extraordinary relied could be granted only weeks before the election without creating uncertainty and confusion

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in the Puerto Rico electoral process.”)3 There is just nothing on this record establishing that affording the extraordinary form of relief requested is feasible. It was not feasible two weeks before the election, and an abuse of discretion a day before. CONCLUSION For the foregoing reasons, and the one’s set forth in our previous motion, the district court’s orders should be vacated. Respectfully submitted.

CLAUDIO ALIFF-ORTIZ 300 Flores de Montehiedra Box 653 San Juan, Puerto Rico 00926 Tel. 787-608-6264 s/Claudio Aliff-Ortiz, Esq. CLAUDIO ALIFF-ORTIZ USCA Bar No. 30369 claudioaliff@hotmail.com November 5, 2012.

For example, by inducing I-8 voters to show up at the Permanent Registration Board to get registered to vote under the idea that the district court has extended that right and by allowing the Popular Democratic Party to call I-8 voters to go to the Permanent Registration Boards to register without being entitled to it.
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Document: 00116453024

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Date Filed: 11/05/2012

Entry ID: 5688027

CERTIFICATE OF SERVICE I hereby certify that on this same date I electronically filed the foregoing document with the United States Court of Appeals for the First Circuit by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: Carlos Antonio Del Valle Cruz, Rafael Enrique Garcia-Rodon, and Carlos Miguel Hernandez Lopez on behalf of Appellant Myrna Colon-Marrero; Jose Nieto Mingo on behalf of Appellee Hector Conty-Perez; Jorge Martinez Luciano, Emil J. Rodriguez Escudero on behalf of Eder Ortiz Ortiz; and Nelson Cordova on behalf of Adrian Diaz Diaz.

s/Claudio Aliff-Ortiz, Esq.

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