Federal government says it isn’t responsible for COFINA losses

The federal government told a federal judge it isn’t responsible for making Puerto Rico Sales Tax Financing Corp. (COFINA) bondholders whole because of their losses in the bonds’ restructuring, in a case that hypothetically could apply to most of Puerto Rico’s restructured bonds.

Four U.S. Department of Justice attorneys, led by Principal Deputy Assistant Attorney General Brian Boynton, explained the federal view in a filing Wednesday in a case in the United States Court of Appeals for the Federal Circuit.

The COFINA bonds were r Supreme Court archive.

In their brief, the federal attorneys said the lower court where the case was brought, United States Court of Federal Claims, never had jurisdiction over the case because PROMESA said the U.S. District Court for Puerto Rico was to hear all cases arising from the act.

While the plaintiffs argued a takings claim based on the Bill of Rights’ Fifth Amendment takings clause, the federal attorneys argued otherwise. PROMESA “merely establishes a general mechanism for restructuring of territorial debt” and thus the discretionary actions that led to the taking can’t be attributed to the federal government under the Fifth Amendment, they argued.

The plaintiffs cannot “have their takings claim on the actions of the Oversight Board because the board plainly does not constitute the federal government,” the federal attorneys said.

There is no evidence Congress “directed or coerced” the board to restructure the COFINA bonds, the attorneys said.

Even if the bondholders could show Congress was directly responsible for the losses, it wouldn’t be responsible for making the investors whole, because the circumstances don’t meet the conditions the Supreme Court laid out in the Penn Central Transportation case for a federal taking. These examine first, “[t]he economic impact of the regulation on the claimant,” second, “the extent to which the regulation has interfered with distinct investment-backed expectations,” and third, “the character of the government action.”

The federal attorneys asked Appeals Court Senior Judge Eric Bruggink to affirm the lower court’s judgement.

The case is Dinh v. US.