10 December 2019

The Curious Case of Aurelius Capital v Puerto Rico”

An unlikely alliance has formed between Aurelius Capital (a distressed debt hedge fund) and people and political parties from Puerto Rico, both of whom have an interest in striking down the US Federal Government’s law that appointed a board to govern the territory’s finances as part of its restructuring.

The case (properly titled, Financial Oversight and Management Board for Puerto Rico v Aurelius Investment, LLC) has been heard in the US Supreme Court in October 2019. A summary of facts is provided by Oyez as follows (emphasis added):

Since it was ceded to the United States in 1898, Puerto Rico has accumulated substantial debt, in large part due to its ambiguous legal status as a protectorate of the United States and the economically detrimental policies the United States has enacted over the decades. Exacerbated by a series of governmental financial deficits and a recession, Puerto Rico’s debt crisis came to a head in 2015, when its governor announced that the Commonwealth was in a death spiral” and was unable to pay its debt. In June 2016, President Barack Obama signed into law the Puerto Rico Oversight, Management and Economic Stability Act of 2016 (PROMESA), which gave him authority to appoint a seven-member Financial Oversight and Management Board that would have control over Puerto Rico’s budget and would negotiate the restructuring of its $125 billion indebtedness. President Obama appointed the seven-member board in August 2016 based on lists supplied by Republic and Democratic lawmakers.

A number of creditors and elected officials of Puerto Rico have been dissatisfied with the board and its decisions and brought a lawsuit challenging President Obama’s authority to appoint the board members. The challengers alleged that the Appointments Clause of the U.S. Constitution requires that the Senate confirm high-level federal officers and that the board members were within the scope of this Clause. The federal district court in Puerto Rico ruled against the creditors, finding the board is an instrumentality of the Commonwealth government established pursuant to Congress’s plenary powers under the Territorial Clause and that the board members are not Officers of the United States.”

The U.S. Court of Appeals for the First Circuit reversed, concluding that the Territorial Clause does not supersede the application of the Appointments Clause in an unincorporated territory and that the board members are Officers of the United States” because: (1) they occupy continuing positions,” (2) exercise significant authority” that is the same or more than that exercised by other officers the U.S. Supreme Court has found to be Officers of the United States,” and (3) exercise their authority pursuant to the laws of the United States.” Moreover, these officers are principal” officers subject to the Appointments Clause because they are answerable to and removable only by the President and are not directed or supervised by others who were appointed by the President with Senate confirmation.


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