Court rejects review of challenge to Puerto Rico Oversight Board

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The Appeals Court for the First District on Thursday rejected a request for a full judge panel review of a legal challenge to the Puerto Rico Oversight Board.

A union for the Puerto Rico Electric Power Authority had petitioned on March 1 for the review of a court decision made by three judges. The three judges in mid-February had made a split ruling on the union’s challenge and two other related legal challenges to the board.

All three challenges were based on the Appointment’s Clause of the U.S. Constitution. The litigants said that appointment procedures for the board, as dictated by the Puerto Rico Oversight, Management, and Economic Stability Act, were inconsistent with the constitution.

In the mid-February ruling the three judges ruled that the current members were unconstitutionally appointed and gave the U.S. president and Senate 90 days to make new appointments to the panel. The court didn’t invalidate the board’s actions. Instead, they invoked the de facto officer doctrine which they said allowed them to declare the board’s actions legally valid even though the board members hadn’t been properly selected.

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On March 1 the union, Unión de Trabajadores de la Industria Eléctrica y Riego, petitioned for the court’s six active judges to hear the arguments, rather than just the three judges. The union asked for the six judges to find that the board’s actions going back to Aug. 7, 2017 were illegitimate and void.

On Thursday the court announced that a majority of the voting judges had voted to not consider the case again. It said that five of its six judges had participated in the vote. One judge who was not a member of the original panel, David Barron, recused himself from the vote.

The board has said it plans to seek U.S. Supreme Court review. The Supreme Court accepts less than 1% of the cases brought to it for review.

In its mid-February decision, the court said the board members could continue to operate in their current roles for 90 days.

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