In response to a February 15 ruling the questioned the constitutionality how members of Puerto Rico’s Financial Oversight and Management Board were appointed, the board tweeted on Thursday that it wanted to take the case to the United States Supreme Court.
[Press Release] FOMB Appeals First Circuit Ruling to Supreme Court| PROMESA established a bipartisan process that led to a balanced Oversight Board pic.twitter.com/DpbnceZYFz
— Financial Oversight & Mgmt Board for Puerto Rico (@FOMBPR) February 28, 2019
FOMB announced that it will ask the U.S. Supreme Court to review the decision by the U.S. Court of Appeals for the First Circuit, which held that members of the FOMB are federal officials who have to be appointed pursuant to the Appointments Clause of the U.S. Constitution.
— Financial Oversight & Mgmt Board for Puerto Rico (@FOMBPR) February 28, 2019
The FOMB will also ask for a stay of the First Circuit’s mandate, pending the U.S. Supreme Court consideration of the Oversight Board’s petition for a writ of certiorari.
— Financial Oversight & Mgmt Board for Puerto Rico (@FOMBPR) February 28, 2019
PROMESA established the FOMB as an entity within the government of Puerto Rico and not the Federal Government. Therefore, the Appointments Clause does not apply to the members of the FOMB. The majority of the members of the Board voted in favor of the decision to appeal.
— Financial Oversight & Mgmt Board for Puerto Rico (@FOMBPR) February 28, 2019
PROMESA’s appointment process has established a bipartisan board, ensuring balanced decisions to help Puerto Rico recover and prosper. The Oversight Board continues its work in the interest of the people of Puerto Rico.
— Financial Oversight & Mgmt Board for Puerto Rico (@FOMBPR) February 28, 2019
To be clear, just because the Fiscal Board wants to take the case to the Supreme Court does not mean that SCOTUS will take the case.
As one Puerto Rican lawyer told our founder on Twitter:
Correct. The Justices meet in conference and decide whether or not to take a case before them. They publish a list of cases they take and which ones they deny a few days after the conference.
— Gabriel Enrique Laborde (@pur_gabriel) February 28, 2019
There is a very limited of reasons why the SCOTUS would grant certiorari, more often it is because the decisions of two or more circuit courts are in conflict. I don’ think any Circuit has held something different in regards to the appointments clause.
— Gabriel Enrique Laborde (@pur_gabriel) February 28, 2019
I have to thank the cases on marriage equality for helping me understand all of this ?
— Gabriel Enrique Laborde (@pur_gabriel) February 28, 2019
The initial ruling from the U.S. Court of Appeals for the First Circuit was reported by several outlets, including Caribbean Business, which said the following:
Judge Juan R. Torruella said in his opinion that fiscal board members must be selected in a manner consistent with the clause. The ruling was made in an appeal brought by Aurelius Investment LLC, Assured Guaranty Corp. and the Irrigation & Electrical Workers Union (Utier by its Spanish acronym) against the constitutionality of the board.
The Boston court affirmed the district court’s ruling against Aurelius and Utier, rejecting their motions to dismiss the board’s bankruptcy-like petitions under Title III of the Puerto Rico Oversight, Management and Economic Stability Act (Promesa) and ratified all of the board’s past actions.
