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Keeping up with the Appointments Clause: Puerto Rico bankruptcy update

posted by Melissa Jacoby

In January I wrote about Aurelius seeking a do-over. In a carefully reasoned thirty-five page decision, the district court has denied the do-over.  Put more legally, the court held that PROMESA's method of establishing the Puerto Rico Oversight Board did not run afoul of the Constitution's Appointments Clause. The Oversight Board is an instrumentality of Puerto Rico, concluded the court, not officers of the United States.


What are your thoughts on the U.S. Court of Federal Claims staying litigation until final judgment in the Appointments Clause cases (Aurelius and UTIER)? The opinions were released on the same day in what appears to be an uncoordinated manner.

While Judge Swain found that "the Oversight Board is an instrumentality of the territory of Puerto Rico," Judge Braden found that "the Oversight Board is an entity of the Federal Government" and that the related takings claim "is not an action against the Oversight Board; instead, it is an action against the United States."


Uncanny they were released on the same day! But coincidence aside, their decisions arguably address different questions/definitions for different purposes. That being said, the Court of Federal Clams assessment and conclusion surely will be discussed in any appellate briefing on the Appointments Clause issue.

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