Ambac Assurance Corp. v. Commonwealth (In Re Fin. Oversight & Mgmt. Bd. for Puerto Rico)
Opinion
*600 Ambac is a financial guaranty insurer and individual holder of Puerto Rico Highways and Transportation Authority (HTA) bonds. In this Title III adversary proceeding arising within HTA's debt-adjustment proceedings pursuant to the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), Ambac brings constitutional and statutory challenges to measures the Commonwealth of Puerto Rico has taken to block payments to holders of HTA bonds. Because the Title III court lacks the authority to grant the declaratory and injunctive relief that Ambac seeks, we affirm the dismissal of Ambac's claims.
I.
Because this appeal comes before us from the dismissal of Ambac's constitutional and statutory claims, "we take as true the facts presented in [Ambac's] complaint and draw all reasonable inferences in [its] favor."
Maloy
v.
Ballori-Lage
,
HTA develops, operates, and maintains Puerto Rico's highways and transportation infrastructure. It has the ability to issue bonds to finance its operations pursuant to the Puerto Rico Highways and Transportation Authority Act,
The bond resolutions require HTA to deposit the HTA revenues on a monthly basis with a fiscal agent, the Bank of New York Mellon, which holds the funds in trust for bondholders and then pays bondholders in accordance with the terms of the resolutions. 1998 Resolution at 47; 1968 Resolution at 42. The resolutions further provide that the bondholders' interest in the HTA revenues is paramount, subject to one qualification: Commonwealth law requires that revenues be used to first pay interest and amortization of the public debt ( i.e. , general obligation bonds) in years in which other available resources are insufficient to meet appropriations. See P.R. Const. art. VI, § 8 ; see also 1998 Resolution at 19; 1968 Resolution at 17. 1
*601 A succession of related events upset the parties' contractual arrangement concerning the HTA revenues, giving rise to this lawsuit. In brief, the Commonwealth and Governor of Puerto Rico promulgated a series of laws and executive orders -- known as the "Moratorium Laws and Orders" -- that halted the flow of revenues from the Commonwealth and HTA to the fiscal agent for payment to bondholders and, instead, directed those revenues to the payment of other, ordinary Commonwealth expenses. 2 The Moratorium Laws and Orders also stayed creditor remedies to enforce their contractual rights under the bondholder resolutions.
Thereafter, the Financial Oversight and Management Board for Puerto Rico ("Oversight Board") -- established by PROMESA,
Ambac, which is both a holder and insurer of the defaulted HTA bonds, commenced this adversary action in the so-called "Title III court," bringing Contracts Clause, Takings Clause, Due Process Clause, preemption, and statutory challenges to the Commonwealth's actions. Ambac asked that court to declare as null the Moratorium Laws and Orders and the Fiscal Plan, and it sought a negative injunction preventing the Commonwealth from continuing to impair the flow of HTA revenues to bondholders. The Title III court carefully reviewed and rejected all of Ambac's requested relief, dismissing the complaint with prejudice.
See
Ambac Assurance Corp.
v.
Puerto Rico
(
In re Fin. Oversight & Mgmt. Bd. for P.R.
),
II.
Two sections of PROMESA prevent the Title III court from granting the relief that Ambac requests in this adversary proceeding.
*602 A.
Section 106 of PROMESA provides: "There shall be no jurisdiction in any United States district court to review challenges to the Oversight Board's certification determinations under this chapter."
B.
Section 305 of PROMESA states, in relevant part:
[N]otwithstanding any power of the court, unless the Oversight Board consents or the plan so provides, the court may not, by any stay, order, or decree, in the case or otherwise, interfere with -- (1) any of the political or governmental powers of the debtor; (2) any of the property or revenues of the debtor; or (3) the use or enjoyment by the debtor of any income-producing property.
Ambac seeks declaratory and injunctive relief that would require the Title III court to directly interfere with the "political or governmental powers" and "property or revenues" of the Commonwealth and HTA, at least as to those HTA revenues that have yet to be transferred to the fiscal agent and remain in the possession of the Commonwealth. Specifically, Ambac requests injunctive relief that would compel the Commonwealth's remittance of toll revenues, vehicles fees, and excise taxes to HTA and then to the Bank of New York Mellon for payment to bondholders. Ambac hopes to achieve much the same end by obtaining a declaration that the Commonwealth's continued divergence of these funds pursuant to the Moratorium Laws and Orders and the Fiscal Plan is unconstitutional, preempted under section 303 of PROMESA, and in violation of sections 922(d) and 928(a) of the municipal-bankruptcy code (as incorporated into PROMESA via
In
Financial Oversight and Management Board for Puerto Rico
v.
Ad Hoc Group of Puerto Rico Electric Power Authority Bondholders
, we held that although section 305 prohibits a Title III court from "directly interfering with the listed powers and properties of [a Commonwealth agency]," it does not bar a Title III court from granting a reprieve from the automatic stay under
This conclusion accords with our recent decision in
Aurelius Capital Master, Ltd.
v.
Puerto Rico
, in which we held that section 305 bars the Title III court from preventing the Commonwealth from using certain Commonwealth revenues for the payment of general-obligation debt.
The context in which Congress passed section 904 provides further credence to our reading of section 305. In
Ashton
v.
Cameron County Water Improvement District
, the Supreme Court struck down a predecessor to the modern municipal-bankruptcy statute, reasoning that it allowed a federal bankruptcy court to impermissibly intrude upon the sovereignty of states and their subdivisions.
Notwithstanding the foregoing, Ambac offers four reasons why section 305 should not preclude us from affording it the injunctive and declaratory relief that it seeks in this case.
First, Ambac argues that nothing in section 305 addresses pledged-special-revenue bonds in Title III proceedings. Accordingly, it reasons, sections 922(d) and 928(a) control the treatment and disposition of pledged special revenues in Title III bankruptcy cases, and section 305 therefore poses no bar to the Title III court's ability to grant its requested relief.
Section 922(d) provides that "[n]otwithstanding section 362 of this title and subsection (a) of this section, a petition filed under this chapter does not operate as a stay of application of pledged special revenues ... to payment of indebtedness secured by such revenues."
Of course, if section 305 directly conflicted with sections 922(d) or 928(a) of the municipal bankruptcy code, one might turn to "the ancient canon of interpretation ...
generalia specialibus non derogant
(the 'specific governs the general')."
Aurelius Inv., LLC
v.
Puerto Rico
,
Second, Ambac alleges that our interpretation of section 305 would "effectively wipe out" sections 922(d) and 928(a) of the municipal bankruptcy code. It argues that these provisions mandate the debtor's continued payment of special revenues pursuant to the terms of the bondholder agreements and that section 922(d) excepts from the automatic stay a creditor's action seeking to enforce that mandate. Our recent decision in
Assured Guaranty
rejected both of these contentions.
See
Assured Guar. Corp.
, 919 F.3d at 127-32. Section 928(a) simply does what it says: It orders that "special revenues acquired by the debtor after the commencement of the case shall remain subject to any lien resulting from any security agreement entered into by the debtor before the commencement of the case."
Ambac next alleges that section 305 does not prevent the Title III court from granting its requested injunctive and declaratory relief because the Oversight Board consented to such interference by initiating Title III bankruptcy proceedings. But in
PREPA
we rejected the argument that the mere filing of a Title III petition might constitute such consent, reasoning that to rule otherwise would be to "render section 305 a nullity."
PREPA
,
Finally, Ambac argues that its requested declaratory relief is not actually coercive and, thus, would not impermissibly interfere with the governmental affairs or property of HTA and the Commonwealth. However, we declined to endorse this argument in another recent PROMESA case,
see
Aurelius Capital Master, Ltd.
, 919 F.3d at 648, as did the Sixth Circuit in the municipal-bankruptcy setting,
see
Lyda
,
At oral argument, counsel for Ambac also raised the possibility that our interpretation of section 305 would raise due process concerns because Ambac would be left without a venue in which to bring its constitutional claims. But nothing in our holding today suggests that Ambac cannot seek traditional stay relief pursuant to
Accordingly, we hold that the Title III court lacks the authority to grant the declaratory and injunctive relief that Ambac seeks in this case. 4
*606 III.
For the foregoing reasons, the judgment is affirmed .
Ambac alleges that the HTA revenues fall within the category of "special revenues" as defined in the municipal-bankruptcy code,
see
See, e.g.
, Puerto Rico Emergency Moratorium and Financial Rehabilitation Act,
In April 2018, the Oversight Board certified a new Fiscal Plan that continues the diversion of HTA revenues.
In its First Amended Complaint, Ambac alleges that the Bank of New York Mellon has not applied approximately $69 million in funds that it is holding in trust for HTA bondholders, citing AAFAF's letter directing it to retain these funds. And in one cursory footnote in its brief, Ambac suggests that section 305 might not bar the Title III court from ordering the disbursement of pledged special revenues that are already in the hands of the fiscal agent. Ambac, however, does nothing further to develop this argument, so we treat it as waived and we do not consider it in this appeal.
See
United States
v.
Zannino
,
Reference
- Full Case Name
- In RE: The FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico; The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority, Debtors. Ambac Assurance Corporation, Plaintiff, Appellant, v. Commonwealth of Puerto Rico, Through the Secretary of Justice; Financial Oversight and Management Board; Puerto Rico Fiscal Agency and Financial Advisory Authority, Through the Secretary of Justice; Puerto Rico Highways and Transportation Authority, Through the Secretary of Justice; Ricardo Rossello Nevares, Through the Secretary of Justice; Raul Maldonado Gautier, Through the Secretary of Justice; Jose Ivan Marrero-Rosado; Jose B. Carrion, III; Christian Sobrino Vega; Andrew G. Biggs; Carlos M. Garcia ; Arthur J. Gonzalez; Jose R. Gonzalez ; Ana J. Matosantos; David A. Skeel, Jr.; Elias Sanchez, Defendants, Appellees, Official Committee of Unsecured Creditors, Intervenor, John Does 1-12, Defendants.
- Cited By
- 3 cases
- Status
- Published