1

GOVERNMENT OF PUERTO RICO

COURT OF FIRST INSTANCE

JUDICIAL CENTER OF SAN JUAN

SUPERIOR PART

RETIREMENT SYSTEM OF THE

UNIVERSITY OF PUERTO RICO BY

AND THROUGH THE RETIREMENT

BOARD OF THE UNIVERSITY OF

PUERTO RICO

Plaintiff

vs.

UNIVERSITY OF PUERTO RICO BY

AND THROUGH THE GOVERNING BOARD

OF THE UNIVERSITY OF PUERTO

RICO, CPA RICARDO DALMAU

SANTANA, CHAIRMAN OF THE

GOVERNING BOARD OF THE

UNIVERSITY OF PUERTO RICO,

ENTITY XYZ

Defendant

NO. SJ2023CV04406 (907)

ABOUT:

PRELIMINARY AND PERMANENT

INJUNCTION, DECLARATORY

JUDGMENT

REQUEST FOR DISMISSAL

TO THE HONORABLE COURT:

Come now the co-defendants, the Governing Board of the

University of Puerto Rico (“Governing Board”), its President,

Ricardo Dalmau Santana, and the University of Puerto Rico, by and

through the undersigned legal counsel, who very respectfully

states, alleges, and prays:

I. Introduction

1. The University of Puerto Rico (hereinafter “UPR”) is the

public university system of the Government of Puerto

Rico.1

2. The Governing Board of the University of Puerto Rico is

the governing body of the UPR in accordance with Article

3 of Law No. 1 of January 20, 1966, as amended, known as

the "University of Puerto Rico Act" (hereinafter "UPR

Act").2

118 LPRA, sec. 601, et seq . 218 LPRA, sec. 602.

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3. The CPA, Ricardo Dalmau Santana, is the current President

of the Governing Board, and has been included in the

present case as a co-defendant.

4. The University of Puerto Rico Retirement System

(hereinafter “UPR Retirement System”) was created by the

governing body of the UPR on November 28, 1950.

Subsequently, with the passing of the UPR Act, the

governing body of the UPR has the duty to maintain a

pension system for all university personnel.

5. The plaintiff, the Retirement Board of the University of

Puerto Rico (hereinafter "Retirement Board"), is the

current trustee of the UPR Retirement System Trust.

6. On June 30, 2016, the federal law “Puerto Rico Emergency

Moratorium and Rehabilitation Act” (PROMESA)went into

effect.3

7. PROMESA established an Oversight Board (hereinafter

“Oversight Board”) composed of seven members with the

purpose of establishing methods for Puerto Rico to achieve

fiscal responsibility and access to capital markets.4

8. The Oversight Board operates as an entity within the

Government of Puerto Rico and has broad authority over

the territorial government and those government

instrumentalities it designates as covered

instrumentalities.5

9. The Oversight Board has the authority to develop, review,

and approve fiscal plans and budgets for the territorial

government and its instrumentalities, Id§§ 2141-2142; and

to enforce said fiscal plans and budgets of the

territorial government and its instrumentalities. Id. §§

2143-2144.

348 USC, sec. 2101 et seq. 448 USC, sec. 2194(b)(1), (e)(1)(A), 48 USC, sec. 2121(a). 5 Id.

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10. On May 27, 2021, the Oversight Board certified the

Fiscal Plan for the University of Puerto Rico for Fiscal

Years 2022 to 2026, “Fiscal Plan for the University of

Puerto Rico for Fiscal Years 2022 to 2026” (hereinafter

the “UPR Fiscal Plan”).6

11. The UPR Fiscal Plan establishes the need for the UPR to

recognize its budget limitations and reform its pension

system. For these purposes, it provides in Chapter 4.1:

“PROMESA Section 201(b)(1)(F) requires the 2021 UPR

Fiscal Plan to improve fiscal governance, accountability,

and internal controls. PROMESA Section 201(b)(1)(C) also

requires the 2021 UPR Fiscal Plan to provide for adequate

funding of public pension systems. As part of proper

governance and accountability, the 2020 UPR Fiscal Plan

requires UPR to adequately fund pensions. This requires

UPR to recognize its funding constraints and implement

pension reform, while correcting the failure of

underfunding in the past and alignment of the employer

contributions to the current defined benefit plan, as

required by the Oversight Board’s actuary using a 30-year

amortization.

Since 2017, the various UPR Fiscal Plans certified by the

Oversight Board have consistently reiterate the necessity

of implementing Pension Reform and provided the UPRRS with

the actuarially required contribution (see EXHIBIT 38).

The latest studies suggest that UPR has an accrued pension

liability worth ~$3B, which is $1B above previous

estimates. The sole intent of this Fiscal Plan is to

ensure adequate funding and minimize liability risk to

both UPR and its pension plan.”7 (Emphasis ours)

12. The UPR Fiscal Plan sets out two reform options for the

UPR pension system:

Option 1 – Freezing the defined benefits plan and moving

to a defined contribution plan with no reduction in

accrued benefits; o

Option 2 – Freezing the defined benefits plan and moving

to a defined contribution plan with a reduction in accrued

benefits.8

13. For its part, the UPR Budget for Fiscal Year 2023,

certified by the Oversight Board on June 30, 2022 (“UPR

Budget”), establishes that during the current fiscal

year, the UPR must adopt a reform of its pension system

6 https://drive.google.com/file/d/1vFwFRjmG5rBlUt83vGYUJBF0EPH8odhD/view 7 UPR Fiscal Plan, Chapter 4.1, Pension Reform, Section 4.1, pg. fifty. 8See UPR Fiscal Plan, Chapter 4.1, Pension Reform, Section 4.1, pg. 51-52.

CERTIFIED TRANSLATION

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 I Juan E. Segarra USCCI #06-067/translator certify that the foregoing is a true and accurate

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in which the defined benefits plan is frozen and a defined

contribution plan is implemented for new participants.

Otherwise, the UPR must identify an additional $11.9

million in savings and also will not receive an allocation

of $20 million that is conditional upon completing those

steps. See Exhibit I, UPR Fiscal Year 2023 Certified

Budget, Section 12 and Section 17.1.9

14. In compliance with the provisions of the UPR Fiscal Plan

and the UPR Budget, the UPR has been taking the necessary

steps to reform its pension system, establishing a defined

contribution plan for new participants and freezing the

defined benefits plan so that only the participants on

the date of its freezing remain within it. See Exhibits

II and III, Certifications No. 52 Series 2022-2023 and

142, Series 2022-2023, of the UPR Governing Board.10

15. In the Complaint, the Retirement Board alleges that the

UPR Act only allows for the existence of a retirement plan

for university employees and therefore the reforms to the

pension system cannot be carried out because they entail

the existence of a second retirement plan.

16. Moreover, the Retirement Board alleges that the proposed

reform to the UPR pension system is arbitrary and will

have a negative impact on the UPR Retirement System trust.

17. As is public knowledge, one of the measures implemented

by the Fiscal Oversight Board to deal with the fiscal

crisis of the Government of Puerto Rico was the reduction

in the amount of transfers that the UPR receives from the

General Fund. Therefore, the UPR has had to take measures

to increase revenue from other sources and reduce

expenses, as contemplated in the UPR Fiscal Plan, among

9 https://drive.google.com/file/d/1ufIj7fowC64KCEonCJS3twbI8NDW6K1f/view 10 https://apicertificaciones.upr.edu/file/download/26269 and

https://apicertificaciones.upr.edu/file/download/26355

CERTIFIED TRANSLATION

 translation to the best of my abilities of the document in Spanish which I have seen.

 I Juan E. Segarra USCCI #06-067/translator certify that the foregoing is a true and accurate

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them, reforming the pension system. Curiously, the

Plaintiffs fail to mention that fact.

18. As a result of the foregoing, the above-captioned case

must be dismissed outright. This, since this Honorable

Court lacks jurisdiction over the matter, given that the

plaintiffs’ allegations are nothing more than an

underhanded challenge against the UPR Fiscal Plan, as

certified by the Fiscal Oversight Board in accordance with

the provisions of PROMESA.

19. For the reasons discussed below, that the proper course

of action is for the above-captioned case to be dismissed.

II. Applicable Law

A. Dismissal

Rule 10.2 of Civil Procedure of Puerto Rico provides for the

filing of a motion in which the defense is raised that an

allegation lacks “jurisdiction over the matter ...” or

“...fails[] to state a claim that justifies the granting of a

remedy ... ”.11 Rule 10.2 also provides that a motion to dismiss a

claim that does not seek any remedy must not contain matters not

included in the contested claim.12

For purposes of ruling on a motion to dismiss, all wellformulated allegations in the lawsuit must be considered true.13

In Pressure Vessels of Puerto Rico, Inc. v. Empire Gas de

Puerto Rico, Inc., 137 DPR 497 (1994), the Supreme Court of Puerto

Rico established the standard that must be reached for a motion

of this nature to proceed. The dismissal mechanism does not allow

the presentation of matters unrelated to the lawsuit filed. On

the contrary, when considering a motion to dismiss, the Court

“...is [ ] obligated[] to accept all the factual allegations of

1132 LPRA App. V R. 10.2. 12 go . 13 Corona Brewery , Inc. v. Superior Court , 99 DPR 698, 701 (1971); Rivera

Rivera v. Trinidad , 100 DPR 776, 780 (1972); Clement v. Housing Department ,

114 DPR 763, 771 (1983).

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the lawsuit filed as true and valid.” 14 The movant party of a

motion to dismiss must establish that, even if all of the wellestablished factual allegations in the complaint are true, it

does not state a claim justifying the granting of any relief.15

A motion to dismiss is only granted if it appears “...with

complete certainty that the claimant has no rights whatsoever

under any state of facts that can be proven in support of his

claim.” 16 Our Highest Court went on to explain that the duty of

a court “...is to consider whether, in light of the situation

most favorable to the claimant, and resolving all doubts in favor

of the claimant, the claim sufficiently constitutes a valid

claim. ”17

B. Jurisdiction over the Matter

A judgment handed down without jurisdiction “means nothing

in terms of the facts that were intended to be litigated and

consequently does not operate as res judicata (res judicata ).

Tartak v. District Court, 74 DPR 862, 870 (1953).

Our Supreme Court of Puerto Rico established in the case

Vázquez v. ARPE, 128 DPR 513, 537 ( 1991 ), that the lack of

jurisdiction over the matter “brings about the following

inexorably fatal consequences:

(1)this lack of jurisdiction is not capable of being corrected;

(2)the parties cannot voluntarily grant jurisdiction over the

matter to a court nor can the court abrogate it;

(3)the opinions of a court without jurisdiction on the matter

are null and void (absolute nullity);

(4)the courts have the unavoidable duty to examine their own

jurisdiction;

14 Pressure Vessels, supra, at p . 504-505. 15 Id. 16 Id. 17 Id.

CERTIFIED TRANSLATION

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(5)the appellate courts, in addition, must examine the

jurisdiction of the court from which the appeal originates;

and

(6)the argument of lack of jurisdiction over the matter may be

made at any stage of the proceeding by any of the parties

or by the court motu proprio.

For its part, the Supreme Court of the United States has

ruled that state courts may assume jurisdiction over the subject

matter of a federal cause of action except when there is a statute

of Congress that provides otherwise or when there is a disabling

incompatibility between the federal lawsuit and its adjudication

in state courts. Leyva vs. Police, 132 DPR 489, 499-500 (1993);

Howlett v. Rose, 496 US 356 (1990); Gulf Offshore Co. v. Mobil

Oil Corp. , 453 US 473, 477-478 (1981); Martinez v. California,

444 US 277, 283, no. 7 (1980). Hence, as a general rule, state

courts have jurisdiction to address all matters under state laws

and concurrent jurisdiction with federal courts to address

matters arising under the umbrella of federal laws. Gonzalez

Sotomayor v. Mayaguez Resort & Casino, res. Sept. 10, 2009, DPR

(2009), 2009 TSPR 140, 2009 JTS; Rodriguez v. Overseas Military,

supra; Cintrón v. Díaz, 159 DPR 314, 319 (2003); Acevedo Díaz v.

Sec. of Social Services, 112 DPR 256, 259 (1982); Roberts v. USO

Council for PR, 145 DPR 58, 69 (1998); Yellow Freight Sys., Inc.

v. Donelley, 494 US 820, 823 (1990); Gulf Offshore Co. v. Mobil

Oil Corp. , supra , p. 477. A contrario sensu, state courts lack

jurisdiction over a federal matter only when the United States

Congress expressly provides for such jurisdictional exclusivity,

or when Congress clearly intends to deprive state courts of

jurisdiction over said federal matter. Cintrón v. Díaz, supra.

Semidey Ortiz v. South-Central Consortium (ASIFAL), 177 DPR 657,

679 (2009).

C. PROMESA

CERTIFIED TRANSLATION

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On June 30, 2016, PROMESA was adopted with the purpose of

stabilizing the economy of Puerto Rico by establishing mechanisms

to oversee the fiscal and budgetary policies of the Government

of Puerto Rico and provide tools to restructure government debt.

Nevares vs. Fin. Oversight & Mgmt. (In re Fin. Oversight & Mgmt.

Bd.), 330 F. Supp. 3d 685, 689 (DPR 2018).

PROMESA established the Oversight Board with the purpose of

“providing a method for a covered territory to achieve fiscal

responsibility and access capital markets.” See Section 101. 18The

Oversight Board supervises and certifies the fiscal plans and

budgets of the Government of Puerto Rico and its

instrumentalities. Fin. Oversight & Mgmt. Bd. for PR v. Aurelius

Inv., LLC, 140 S.Ct. 1649, 1662, 590 US _____ (2020). Furthermore,

PROMESA empowers the Board, among other things, to annul

executive or legislative actions inconsistent with certified

fiscal plans and budgets and to initiate bankruptcy proceedings

on behalf of the Government of Puerto Rico and its

instrumentalities. 48 USC, secs. 2141-2152; 2175(a). Nevares, 330

F. Supp. 3d at 689.

The Oversight Board, at its sole discretion and at any time,

may designate any instrumentality as a covered instrumentality

for the purposes of PROMESA. See Section 101(d)(1)(A). Moreover,

the Oversight Board may, at its sole discretion, appoint a covered

territorial instrumentality to be subject to a separate

Instrumentality Fiscal Plan from the applicable Territory Fiscal

Plan and require the Governor to develop such Fiscal Plan for

such instrumentality. Any covered territorial instrumentality

that submits a separate Instrumentality Fiscal Plan shall also

submit a separate Instrumentality Budget. See Section 101(d)(1)(

E ). The UPR is an entity subject to the provisions of PROMESA

18See Section 101.

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as determined by the Oversight Board at its meeting held on

September 30, 2016. See Annex I. Minutes of the 1st Meeting of

the FOB on September 30, 2026.19 

Section 106(a) of PROMESA confers exclusive jurisdiction on

the United States District Court for the District of Puerto Rico

over any action against the Oversight Board, and any action

derived from this Act, in whole or in part. This section

established that, with the exception of Title III cases and

subpoena enforcement orders, any action “derived under this Act,

in whole or in part, shall be brought in a district court of the

United States of the covered territory.”

See v. Univ. of Puerto Rico, 266 F. Supp. 3d 590, 597 (DPR 2017).

The UPR is an instrumentality of the Government of Puerto Rico

covered by PROMESA, wherefore a lawsuit with the potential to

affect its assets can be removed to the federal district court.

Id., p. 599.

Finally, no court has the power to review tax plans certified

by the Oversight Board pursuant to Section 106(e) of PROMESA. In

the words of the Boston Court of Appeals for the First Circuit:

“PROMESA grants the Board exclusive authority to certify the

fiscal plans and budget of Puerto Rico. It then isolates those

certifications from judicial review under Section 106(e)... Section

106(e) is an exception to the general jurisdiction provided by

Section 106(a)...” Méndez-Núñez v. Fin. Oversight & Mgmt. Bd. for

PR (In re Fin. Oversight & Mgmt. Bd. for PR) , 916 F.3d 98, 112.

III. Discussion

As previously mentioned, the Claimants allege that the UPR

Act only allows the existence of a retirement plan for university

employees and therefore the reforms to the pension system cannot

be carried out because they entail the existence of a second

19Minutes of the Board meeting held on September 30, 2016.

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retirement plan. Moreover, the Retirement Board alleges that the

proposed reform to the UPR pension system is arbitrary and will

have a negative impact on the UPR Retirement System trust. These

allegations are aimed at challenging the validity of the reforms

to the pension system that are established in the UPR Fiscal Plan.

For this reason, the plaintiffs have presented their allegations

in a court without jurisdiction. Let us see.

The Claimants avoid mentioning that the reform of the pension

system is a matter required by the UPR Fiscal Plans that the

Board has certified since 2017. This, since the actuarial debt

of the UPR Retirement System exceeds $3 trillion. See second

paragraph of Section 4.1 of the UPR Fiscal Plan, certified by the

Board on May 27, 2021. Additionally, and as is public knowledge,

the UPR has been subject to cuts in the funding it receives by

virtue of transfers from the General Fund. Therefore, since the

2017-2018 fiscal year, the operating budget of the University has

been substantially reduced. See Section 1.2 of the Fiscal Plan

of the UPR, certified by the Board on May 27, 2021. Id.

As a result of the foregoing, the UPR Fiscal Plan, certified

by the Board on June 12, 2020, established two alternatives to

adopt the policy on the pension plan reform:

i. Freezing the defined benefits plan and moving to a defined

contribution plan with no cuts to vested benefits; or

ii. Freezing the defined benefit plan and moving towards a

defined contribution plan with cuts to vested benefits.

See Exhibit IV of the UPR Fiscal Plan, certified by the Board

on June 12, 2020, Section 3.1.

On the other hand, the current UPR Fiscal Plan establishes

two reform options for the UPR pension system:

Option 1 – Freezing the defined benefit plan and moving to a

defined contribution plan with no reduction in accrued

benefits; or

CERTIFIED TRANSLATION

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Option 2 – Freezing the defined benefit plan and moving to a

defined contribution plan with a reduction in accrued

benefits.20

It is clear that the establishment of the defined contribution

plan and the freezing of the defined benefits plan are a mandate

of the UPR Fiscal Plan, reaffirmed in the UPR Budget certified

by the Oversight Board.

Obviously, from the alternatives approved by the Oversight

Board, the UPR Governing Board chose the least onerous for the

participants of the UPR Retirement System, keeping the benefits

intact for all the participants of the defined benefits plan

until May 31, 2023, and establishing a defined contribution plan

for those who become UPR employees as of that date.

The Plaintiffs’ allegations center around the determinations

made by the Governing Board of the UPR to execute the reform of

the pension system required by the UPR Fiscal Plan, for which

reason this appeal constitutes a challenge to the UPR Fiscal

Plan. In other words, what the plaintiffs are challenging are the

provisions of the UPR Fiscal Plan (and the budget certified by

the Fiscal Oversight Board) that require the UPR Governing Board

to reform its pension system by freezing the defined benefits

plan and the establishment of a defined contribution plan. The

purpose of this case being to challenge said mandate, there is

no legal remedy under Section 106(e) of PROMESA and therefore

this Honorable Court (or any other court) lacks jurisdiction.

The Fiscal Plan for the UPR adopted by the Supervisory Board

establishes as a minimum alternative the pension reform adopted

by the Governing Board in its 2021 Fiscal Plan, for which reason

the remedies sought by the plaintiffs are without legal

jurisdiction to question them. However, it is important to

20See UPR Fiscal Plan, Chapter 4.1, Pension Reform, Section 4.1, pg. 51-52.

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highlight the fact that the UPR Governing Board has acted

prudently, within the budgetary restrictions and the guidelines

approved by the Oversight Board, with the intention of protecting

the participants of the UPR Retirement System. Finally, once the

UPR 2021 Fiscal Plan has been approved by the Oversight Board,

which adopts at least the reforms challenged by the plaintiffs,

PROMESA prevents the legal challenge sought by the plaintiffs.

Consequently, there is no jurisdiction over the matter of this

appeal.

In conclusion, the epigraph case is dismissed because this

Honorable Court lacks jurisdiction over its matter.

IV. Appeal

Wherefore, we very respectfully request this Honorable Court

to dismiss the Complaint and order the plaintiffs to pay costs

and attorney's fees, as well as any other pronouncement to the

extent permitted by law.

I CERTIFY: I have submitted this document through the Unified

Case Management System (SUMAC), which provides adequate notice to

all attorneys of record, pursuant to the the provisions of the

current Rules of Civil Procedure.

RESPECTFULLY SUBMITTED.

In San Juan, Puerto Rico, on May 22, 2023.

COUNSEL FOR THE PETITIONER

GOVERNMENT BOARD OF THE UPR

OCASIO LAW FIRM, LLC

P.O. Box 192536

San Juan, PR 00919-2536

Phone: (787) 710-7160

s. FERDINAND OCASIO VELEZ

RUA 15,268

focasio@ocasiolawfirm.com

s. FRANCISCO GONZALEZ MAGAZ

RUA 15,786

fogonzalez@ocasiolawfirm.com

COUNSEL FOR THE PETITIONER

UNIVERSITY OF PUERTO RICO

NOLLA, PALOU & CASELLAS, LLC

P.O. Box 195287

St. John, PR 00919-5287

Phone: (787) 625-6535

Fax (787) 625-6530

s. JOHN M. CASELLAS RODRIGUEZ

RUA. 12,968

jmc@npclawyers.com

s. LUIS E. PALOU BALSA

 RUA. 11,095

lpb@npclawyers.com

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