FADEP goes to the United States Supreme Court for the reinstatement of teachers’ pensions 

San Juan, Puerto Rico

August 10, 2022

Yesterday, 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 which groups three bona fide associations: Federación de Maestros de Puerto Rico, Inc., Grupo Magisterial Educadores(as) por la Democracia, Unidad, Cambio, Militancia y Organización Sindical, Inc. (EDUCAMOS), y 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.

The FADEP opposed the confirmation of the Plan of Adjustment. “We did this based on the Oversight Board’s representation that the Plan was not feasible without the changes to our retirement system,” declared Professor Mercedes Martínez Padilla, President of FMPR. Nonetheless, in oral arguments before the First Circuit, the Board declared for the record that the Plan would still be feasible if the changes to the retirement system were reverted. “With this in mind, we are not asking the Supreme Court to undo the Plan of Adjustment. We are only asking for that which we are due as working folks who are responsible for the education of Puerto Rico’s youth,” added Martínez Padilla.

Upon the confirmation of the Plan of Adjustment, the FADEP participated in meetings with the government of Puerto Rico to address the issue of teachers’ pensions. However, these conversations stopped as soon as the First Circuit denied staying the effective date of the Plan y it entered effect, on March 15, 2022. “In those conversations, we presented alternatives to save our pensions. The Government even presented its own proposal, which they understood the Oversight Board might approve. Nevertheless, once the Plan entered into effect, they betrayed us and forgot about us,” added Martínez Padilla. The First Circuit finally dismissed the FADEP’s claims on May 13, 2022.

“Essentially, our petition shows 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. “We know the Board has certain positions regarding how retirement systems should be run, but in its insistence to impair those systems, it has lengthened our time of service, with all that it implies for our mental and physical health and reduced our pensions to a nothing.”

“Our petition to the Supreme Court seeks to defend the pensions and dignified retirement of our teachers, but we are aware that the arguments raised transcend those interests. We are talking about a case that hopes to defend our rights, the integrity of our laws and the dignity of a people that has been subjected to blatant colonialism,” stated Professor Migdalia Santiago Negrón, President of EDUCAMOS. “We recognize that our case also 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 represents the interests of all of Puerto Rico.”

Through the Plan of Adjustment, the Oversight Board preempted the Teachers’ Retirement Laws and replaced them with a table of modification attached to the Plan. “From the beginning, we raised that the Board cannot legislate, so it could not use the Plan to repeal, amend or substitute legislation,” commented Attorney Emmanuelli Jimenéz. “However, the Title III Court and the First Circuit ignored these arguments and gave the Board a power that even PROMESA did not grant them, despite how broad and overwhelming those powers are. This decision allowed the Board to legislate through the Plan and deprived Puerto Rico’s Government of one its few remaining powers.”

“There is a danger here that the interpretation that the federal courts are issuing about the scope of the Boards’ powers 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. “Among the laws that could be in danger are, for example, the reasonable rates public policy, the laws that promote the transition to renewable energy, the subsidies, the environmental protections, etc. All of these, plus the pensions and labor rights, are at risk of being preempted in PREPA’s case if the First Circuit’s interpretation is not corrected, because they are laws that the Board thinks would be obstacles for a Plan of Adjustment that prioritizes the payment to bondholders.”

“This petition is our way to knock on the Supreme Court’s door, it is up to them to take on the case or no when they convene again in October,” explained Emmanuelli Jiménez. “We believe we are in 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 in the early twentieth century which establish the distinction between an incorporated and unincorporated territory, under the territories clause of the United States Constitution. “As a result of these cases, over 100 years of discriminatory treatment of the territories has been justified in the federal courts,” Attorney Méndez Colberg pointed out. “The basis of these cases is a racist doctrine that refuses to extend the United States Constitution to the territories because they are of different races, which they call ‘savage’ and whose traditions and way of life, according to the Court, prevent them from adopting the principles of Anglo-Saxon society. However, recently one of the Supreme Court justices issued a concurring opinion declaring that the Insular Cases have no place in law and should be overruled.”

“Our position is that, in absence of the Insular Cases, the courts would not have been able to decide as they did,” added Méndez Colberg. “On the one hand, the courts applied the preemption doctrine incorrectly. On the other hand, if this application is allowed, then we are before a discriminatory application, another instance of the discrimination of the Insular Cases,” she concluded.

Due to the substantial costs of these efforts, the FADEP has initiated 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. The GoFundMe is available in https://www.gofundme.com searching for the page: Aporta a la lucha del magisterio puertorriqueño.

The leaders of the FADEP exhort all teachers to be vigilant, as other strategies will be developing because “this semester the fight for a dignified retirement continues.”