The First Circuit Court of Appeals has not seen a new judge appointed since 2014, longer than any other court of appeals.  With the death of Judge Juan Torruella in 2020, the Court now has a vacancy and a nominee, District Judge Gustavo Gelpi.

Background

Gustavo Antonio Gelpi Jr. was born in San Juan, Puerto Rico on December 11, 1965.  Gelpi received a B.A. from Brandeis University in 1987 and his J.D. from Suffolk University Law School in 1991.  After graduating, Gelpi spent two years as a law clerk for Judge Juan Perez-Gimenez on the U.S. District Court for the District of Puerto Rico before joining the Office of the Federal Public Defender in Puerto Rico.

In 1997, Gelpi joined the Puerto Rico Attorney General’s Office, becoming the Territory’s Solicitor General in 1999.  In 2001, he left the position to re-enter private practice, but the same year became a federal magistrate judge at only thirty-five. 

On April 24, 2006, Gelpi was nominated by President George W. Bush to the U.S. District Court for the District of Puerto Rico, replacing Judge Hector Laffitte.  Gelpi was unanimously confirmed by the Senate on July 20, 2006, becoming the 24th Hispanic judge appointed by Bush and breaking the record for the most number of Hispanic federal judges named by any President.^[1]  Gelpi has served on the Court ever since.

History of the Seat

Gelpi has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit.  This seat opened with the death of Judge Juan Torruella, a pioneering judge who was the first from Puerto Rico to sit on the First Circuit, on October 26, 2020.  On November 13, 2020, President Trump nominated U.S. District Judge Raul Arias-Marxuach to fill the vacancy.  While Arias-Marxuach received a hearing before the Senate Judiciary Committee, he was never reported to the floor and the seat was left open at the end of the Trump Administration.

Political Activity

Gelpi has a few donations to his name, giving to members of both parties, including the Vice President Al Gore and Commissioner Luis Fortuno (Fortuno caucused with the GOP as a resident commissioner in Washington).^[2]  

Legal Experience

While Gelpi has been a judge since the age of thirty-five, in his career before that, Gelpi worked in a variety of legal positions.  He started his career, like a number of Biden appointees, as a public defender, representing indigent defendants in federal court between 1993 and 1997.

Notably, as Puerto Rico Solicitor General, Gelpi argued before the First Circuit, arguing that Puerto Rico residents, as U.S. Citizens, had a right to vote in the 2000 Presidential election, even though Puerto Rico is not a state.^[3]  The First Circuit rejected the lawsuit, holding that Puerto Rico residents did not have a constitutional right to vote in presidential elections.^[4]

Judicial Experience

Gelpi has served as a judge for twenty years, including five as a U.S. Magistrate Judge and fifteen as a U.S. District Court Judge.  We summarize some of Gelpi’s more significant cases during this tenure below.

U.S. Magistrate Judge

Gelpi served as a U.S. Magistrate Judge from 2001 to 2006.  In this role, he handled settlement, discovery, and made recommendations on dispositive motions.  He also presided over cases where the parties consent and reviewed bail and detention motions.  Among the noteworthy matters he handled as a U.S. Magistrate, Gelpi ordered the seizure of a polar bear from the Hermanos Brothers Circus, finding that the papers for the bear indicating sale from a zoo were fraudulent.^[5]

Puerto Rico Resident Rights

One theme of many of Gelpi’s rulings has been to push back against the disparate treatments of Puerto Rico residents under the law.  Early in his career as a judge, Gelpi presided over a lawsuit challenging the disparate treatment of health centers in Puerto Rico in Medicaid “wraparound” payments.^[6]  In his ruling, Gelpi outlined the legal and political history of Puerto Rico to rule that it was now an “incorporated” territory of the U.S. and thus was entitled to protection from “discriminatory federal legislation.”^[7]  Similarly, in a ruling upheld by the First Circuit, Gelpi also found that Puerto Rico residents could not be discriminated against in Social Security Supplemental Disability benefits.^[8]

Gay Marriage

In 2016, shortly after the Supreme Court ruled that states cannot ban same-sex marriage in Obergefell v. Hodges, Judge Juan Perez-Gimenez ruled that the Obergefell decision did not apply to Puerto Rico and that the territory’s ban on gay marriage remained in effect.^[9]  The ruling was appealed to the First Circuit, who promptly reversed and reassigned the case to Gelpi, ruling that Perez-Gimenez’s ruling “errs in so many respects that it is hard to know where to begin.”^[10]  On April 11, 2016, Gelpi issued a declaratory judgment invalidating Puerto Rico’s same sex marriage ban under Obergefell.^[11]

Sony Entertainment and Copyright

In 2015, Gelpi ruled that Luis Adrian Cortes-Ramos, a songwriter who entered a music video contest held by Sony, was compelled to arbitrate his intellectual property suit against them.^[12]  His ruling was ultimately upheld by the First Circuit, in an opinion by Judge Juan Torruella.

Writings

Both before and after taking the bench, Gelpi has written extensively on the law, including pieces in Spanish and English.  Among the topics on which Gelpi has written are the Confederate judiciary during the American Civil War,^[13] the Insular Cases,^[14] and maritime law.^[15]  For example, in an article early in his career, Gelpi details the history of Puerto Rico law that permits the U.S. Congress to allow the territory to supersede federal maritime law.^[16]

Overall Assessment

With two decades as a federal judge, Judge Gelpi comes to his First Circuit nomination with more federal judicial experience than any nominee since Judge Julie Carnes was appointed in 2014.  This experience necessarily dictates a large number of rulings, some controversial, that are likely to be closely scrutinized in order to determine confirmation.  In particular, Gelpi may draw questions related to his writings and rulings on the disparate treatment of Puerto Rico under the law, as well as his participation in the suit to have Puerto Ricans vote in the 2000 Presidential election.

Nonetheless, Gelpi certainly has the requisite experience for the bench, and as a mid-50s judge nominated by a Republican President, some Republicans may feel that Gelpi is the best they can get from the Biden Administration. Ultimately, how many Republican votes Gelpi gets may be a good indication of how much bipartisan support the Administration’s nominees can expect. If senators oppose Gelpi, they are unlikely to support any Biden nominee.

[1] Ken Herman, Bush Has Appointed More Hispanic Federal Judges Than Past Presidents, Cox News Service, Sept. 21, 2017.

[2] See Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=gustavo+gelpi&cycle=&state=&zip=&employ=&cand= (last visited May 23, 2021).

[3] Martin Finucane, Federal Appeals Court Hears Arguments in Puerto Rico Vote Case, A.P. State & Local Wire, Oct. 5, 2000.

[4] See Iguarta de la Rosa v. United States, 229 F.3d 80, 83 (2000) (per curiam).

[5] Luis Varela, Federal Authorities Remove Polar Bear From Mexican Circus in Puerto Rico, A.P. Int’l, Mar. 6, 2002.

[6] See Consejo de Salud Playa De Ponce v. Perez-Pordomo, 556 F. Supp. 2d 76 (D.P.R. 2008).

[7] See id. at 105.

[8] See United States v. Vaello-Madero, 956 F.3d 12 (1st Cir. 2020).

[9] Becky Bratu, Judge Upholds Same-Sex Marriage Ban in Puerto Rico, NBC News, Mar. 8, 2016, https://www.nbcnews.com/news/us-news/judge-upholds-same-sex-marriage-ban-puerto-rico-n534556.

[10] See Chris Geidner, Federal Appeals Court: Yes, Puerto Rico’s Same-Sex Marriage Ban is Unconstitutional, BuzzFeed, Apr. 7, 2016, https://www.buzzfeednews.com/article/chrisgeidner/federal-appeals-court-yes-puerto-ricos-same-sex-marriage-ban.

[11] See Conde-Vidal v. Garcia Padilla, No. 3:14-cv-01253 (D.P.R. Apr. 11, 2016).

[12] See Cortes-Ramos v. Sony Corp. of America, No. 14-1578 (D.P.R. 2015).

[13] See Hon. Gustavo A. Gelpi, El Poder Judicial Federal De Los Estados Confederados de America Durante El Periodo de la Guerra Civil (1861-1865), 46 Rev. D.P. 1 (2006).

[14] Gustavo A. Gelpi, Los Casos Insulares: Un Estudio Historio Comparativo de Puerto Rico, Hawaii Y Las Islas Filipinas, 45 Rev. Jur. U.I.P.R. 215 (August-May, 2010-2011).

[15] Gustavo A. Gelpi, Jr., The Maritime Law of Puerto Rico, 28 J. Mar. L. & Com. 647 (October 1997).

[16] Id.