United States Supreme Court to consider case for the reinstatement of teachers’ pensions in Puerto Rico that could also overrule the Insular Cases

In August 2022, the Frente Amplio en Defensa de la Educación Pública (“FADEP”), an organization of teachers that broadly defends public education in Puerto Rico, filed a petition for writ of certiorari before the United States Supreme Court. The FADEP is a coalition that includes three bona fide associations: Federación de Maestros de Puerto Rico, Inc. (FMPR), Grupo Magisterial Educadores(as) por la Democracia, Unidad, Cambio, Militancia y Organización Sindical, Inc. (EDUCAMOS), and Unión Nacional de Educadores y Trabajadores de la Educación, Inc. (UNETE).

Through its petition, the FADEP appeals from the Court of Appeals for the First Circuit’s decision, which confirmed the Commonwealth of Puerto Rico’s Plan of Adjustment. The FADEP requests that the Supreme Court overrule the annulment of their retirement laws through the Plan of Adjustment, which dramatically reduced the teachers’ pension rights and changed it from a defined-benefit system to a defined-contribution retirement system. Moreover, to the extent that the displacement and annulment of the retirement laws can only occur in Puerto Rico under PROMESA, the FADEP advocates for the Insular Cases to be overruled. The petition was filed and signed by attorneys Jessica E. Méndez Colberg, Esq., Rolando Emmanuelli Jiménez, Esq., and Zoé C. Negrón Comas, Esq., of Bufete Emmanuelli CSP.

From the beginning, the FADEP opposed the confirmation of the Plan of Adjustment. “The Oversight Board represented that their Plan was not feasible unless we gave up our retirement system. That turned out to be false by the Board’s own admission,” declared Professor Mercedes Martínez Padilla, President of FMPR. “So, we are not asking the Supreme Court to undo the Plan of Adjustment. We are only asking for our retirement system,” added Martínez Padilla.

“Essentially, we want the Supreme Court to rule that the Oversight Board exceeded its powers by implementing changes to the Teachers’ Retirement System through the Plan of Adjustment,” expressed Liza M. Fournier Córdova, President of ÚNETE. “It lengthened our time of service, with all that it implies for our mental and physical health, and reduced our pensions to nothing. We will not equivocate. We want our retirement system back.”

“Moreover, we recognize that our case has repercussions in the pensions of our fellow workers in the Puerto Rico Electric Power Authority and the members of the judiciary. Additionally, the petition to overrule the Insular Cases is important for all of Puerto Rico,” Fournier Córdova added. The Supreme Court has the petition before it and is set to consider whether to see the case in conference on November 18, 2022.

“We hope that the Supreme Court will take the case because it contains many issues of first impression and widespread repercussions. Through the Plan of Adjustment, the Oversight Board decided it had the ability to legislate and, thus far, the Courts have let it with a strange rationalization of preemption,” commented Attorney Emmanuelli-Jimenéz. “Even when PROMESA did not grant the Board this power, this decision allowed the Board to legislate and deprived Puerto Rico’s Government of one its few remaining powers”, he added.

“In addition, this case presents a dangerous precedent that will trickle into other cases. Specifically, the power that the courts gave the Board to displace local legislation through the Plan of Adjustment has the potential to affect the Puerto Rico Electric Power Authority’s (“PREPA”) bankruptcy,” added Attorney Negrón-Comas. “Those laws that the Board could displace keep rates reasonable, promote renewable energy, provide subsidies, protect the environment, etc. All of these and more are at risk of being preempted in PREPA’s case if the First Circuit’s interpretation is not corrected.”

“Our petition for writ of certiorari knocks on the Supreme Court’s door, tomorrow they will decide whether to open it,” explained Emmanuelli-Jiménez. “We believe we are at a very important crossroads to take the FADEP’s arguments to the Court and, particularly, to get the court to address the overruling of the Insular Cases.”

The Insular Cases are a series of cases decided by the Supreme Court in the early 1900s that justify the discriminatory treatment of the in the federal courts,” Attorney Méndez-Colberg pointed out. “These cases are based on a doctrine that refuses to extend the United States Constitution to the territories because they are of different races and customs. Our position is that, in absence of the Insular Cases, the courts would not have been able to decide as they did and that it is time that this racist doctrine that affects the everyday lives of the people that live in the territories is overruled,” added Méndez-Colberg.

Due to the substantial costs of these efforts, the FADEP has ongoing fundraising efforts for this litigation through GoFundMe and asked the People of Puerto Rico and its diaspora to support their fight to protect teachers’ rights, searching for the page: Aporta a la lucha del magisterio puertorriqueño.