United States Court of Appeals 

For the First Circuit 

No. 20-1332 

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; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR 

PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC 

POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT 

BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO 

SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL 

OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS 

REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE 

GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; THE FINANCIAL 

OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS 

REPRESENTATIVE OF THE PUERTO RICO PUBLIC BUILDINGS AUTHORITY, 

Debtors. 

UNIÓN DE TRABAJADORES DE LA INDUSTRIA ELÉCTRICA Y RIEGO (UTIER), 

Petitioner, Appellant, 

v. 

JOSÉ F. ORTIZ-VÁZQUEZ; THE FINANCIAL OVERSIGHT AND MANAGEMENT 

BOARD, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC POWER 

AUTHORITY (PREPA), 

Respondents, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Laura Taylor Swain, U.S. District Judge] 
Before 

Lynch, Kayatta, and Barron, 

Circuit Judges. 

 Guillermo Ramos-Luiña on brief for appellant. 

 Timothy W. Mungovan, John E. Roberts, Martin J. Bienenstock, 

Stephen L. Ratner, Jonathan E. Richman, Mark D. Harris, Shiloh 

Rainwater, and Proskauer Rose LLP on brief for appellees. 

January 15, 2021 
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LYNCH, Circuit Judge. In this appeal from the Puerto 

Rico Oversight, Management, and Economic Stability Act ("PROMESA") 

Title III court in Puerto Rico, the sole remaining question is 

whether that court appropriately dismissed the petitioner's 

mandamus petition for failure to state a claim. The petition 

alleges that the Puerto Rico Electric Power Authority ("PREPA") 

violated two provisions of a Puerto Rican statute when PREPA 

announced that it would increase some medical co-pays while 

decreasing others in order to comply with its certified fiscal 

plan. The petitioner, Unión de Trabajadores de la Industria 

Eléctrica y Riego ("UTIER"), which represents the employees of 

PREPA, seeks to compel PREPA to comply with what it says are the 

requirements of Act No. 26-2017, P.R. Laws Ann. tit. 3, §§ 9461 et 

seq. The Title III court concluded that UTIER did not meet its 

burden of showing that there were no adequate alternative remedies, 

which is a precondition for mandamus relief. We agree and affirm.1

I. 

In 2016, Congress enacted PROMESA, 48 U.S.C. §§ 2101 et 

seq., which established the Financial Oversight and Management 

Board ("FOMB") to help address the fiscal emergency in Puerto Rico. 

Id. § 2121; see also id. § 2194(m); Municipality of San Juan v. 

1 Because UTIER did not request oral argument and the 

Financial Oversight and Management Board expressly requested that 

the case not be orally argued, this case was taken as submitted on 

the briefs. 
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Puerto Rico, 919 F.3d 565, 568 (1st Cir. 2019); In re Fin. 

Oversight & Mgmt. Bd. for P.R., 916 F.3d 98, 103-04 (1st Cir. 

2019). The FOMB is authorized to review and certify all budgets 

and long-term fiscal plans for the Commonwealth and its covered 

instrumentalities, such as PREPA, to achieve fiscal responsibility 

and access to capital markets. 48 U.S.C. §§ 2121(a), (d), 2141-

2142; see also In re Fin. Oversight & Mgmt. Bd. for P.R., 916 F.3d 

at 104. The FOMB's decision to certify a budget or fiscal plan is 

not subject to judicial review. 48 U.S.C. § 2126(e); see also In 

re Fin. Oversight & Mgmt. Bd. for P.R., 916 F.3d at 112. 

The FOMB is also authorized to file, and has filed, on 

behalf of the Commonwealth and its covered instrumentalities a 

Title III petition in federal district court for debt 

restructuring. 48 U.S.C. §§ 2146, 2164(a), 2168(a); see also In 

re Fin. Oversight & Mgmt. Bd. for P.R., 954 F.3d 1, 5-6 (1st Cir. 

2020); Municipality of San Juan, 919 F.3d at 571; In re Fin. 

Oversight & Mgmt. Bd. for P.R., 916 F.3d at 104. In such a Title 

III case, creditors are authorized to assert claims against the 

Commonwealth and its covered instrumentalities. See 48 U.S.C. 

§ 2161(a); see also 11 U.S.C. § 101(5) (defining the term "claim" 

for purposes of bankruptcy proceedings); id. § 501(a) (providing 

that a creditor may file a proof of claim); In re Fin. Oversight 

& Mgmt. Bd. for P.R., 954 F.3d at 5-6 (explaining that PROMESA 

incorporates sections of the United States Bankruptcy Code and 
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makes them applicable in Title III cases); Municipality of San 

Juan, 919 F.3d at 571 (same). 

PREPA is a public corporation responsible for providing 

reliable electric power to the citizens of Puerto Rico and managing 

Puerto Rico's energy resources. P.R. Laws Ann. tit. 22, § 196. 

UTIER is a labor organization that represents more than three 

thousand employees of PREPA. 

In April 2017, the Puerto Rico legislature enacted Act 

No. 26-2017, known as the "Fiscal Plan Compliance Act" ("Act 26" 

or "the Act"). H.B. 938, 18th Leg. Assemb. (P.R. 2017), 2017 P.R. 

Leyes 26 (codified as amended at P.R. Leyes An. tit. 3, §§ 9461 et 

seq.).2 The Act was designed to implement the fiscal plan certified 

by the FOMB in March 2017. Among other things, the Act addressed 

health insurance and other benefits provided to employees by 

Commonwealth employers. UTIER attempts to assert mandamus claims 

as to Article 2.07 of Act 26, which is titled "Uniform Employer 

Contribution to Public Corporation Employees Health Plan." See 

P.R. Leyes An. tit. 3, § 9477. 

Article 2.07 of the Act provides that "[t]he Executive 

and Legislative Branches will identify additional savings and 

resources to avoid affecting employee contributions to the payment 

2 There is currently no official English translation of 

the codified statute, and so we rely on the certified English 

translation of the Act provided by the parties in their appendix.
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of health plans" ("the Savings Provision"). It also provides that 

"any employee of a public corporation or dependent who is currently 

enrolled in the health plan and who suffers from a catastrophic, 

chronic, or pre-existing terminal illness will keep unaltered the 

current employer's health insurance contribution for as long as he 

remains linked to public service" ("the Pre-existing Conditions 

Provision").3 Act 26 does not define what constitutes a 

"catastrophic" illness. The FOMB does not challenge UTIER's 

assertion that the definition of "catastrophic" illnesses is 

provided in a later Act, Act No. 28-2018, titled the "Special Leave 

for Employees with Serious Diseases of a Catastrophic Nature Act" 

3 In PREPA's motion before the Title III court to dismiss 

UTIER's petition for a writ of mandamus, PREPA quoted a slightly 

different translation of Article 2.07 than the certified English 

translation provided elsewhere in the record. In that motion, 

PREPA quoted the English translation of the Savings Provision as 

stating "[t]he Executive and Legislative Branches shall identify 

additional savings and resources to prevent adversely affecting 

the employees' contributions to the payment of the healthcare 

plan," and the Pre-existing Conditions Provision as stating 

every employee, or dependent thereof, of a 

public corporation who is currently enrolled 

in the healthcare plan and who suffers from a 

preexisting catastrophic, chronic, or 

terminal illness shall continue to receive the 

employer contribution in effect for his 

healthcare plan, without any change, for the 

term he remains in the public service. 

The Title III court relied on this translation of the Savings and 

Pre-existing Conditions Provisions in its decision dismissing the 

petition for writ of mandamus. See In re Fin. Oversight & Mgmt. 

Bd. for P.R., 435 F. Supp. 3d 377, 382-83 (D.P.R. 2020). For 

purposes of this appeal, there is no material difference between 

the two translations of Article 2.07 of the Act. 
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("Act 28"), which contains a list of conditions defined as "Serious 

Illness[es] of a Catastrophic Nature" for purposes of a "Special 

Leave" provision for employees suffering from such illnesses. S.B. 

461, 18th Leg. Assemb. (P.R. 2018), 2018 P.R. Leyes 28 (codified 

as amended at P.R. Leyes An. tit. 29, §§ 508 et seq.).4

In July 2017, the FOMB filed a Title III debtrestructuring case on behalf of PREPA as a covered instrumentality 

pursuant to 48 U.S.C. § 2164(a). In September 2018, the FOMB 

certified a budget for PREPA for fiscal year 2019, which allocated 

$120,888,000 for PREPA's employee pensions and benefits. In 

December 2018, the FOMB approved a contract between PREPA and 

Triple-S Salud Inc. for Triple-S Salud to act as PREPA's employee 

health-plan administrator for 2019. On December 28, 2018, PREPA's 

then-Chief Executive Officer, José Ortiz-Vázquez ("Ortiz"), 

circulated a memorandum to all PREPA employees announcing changes 

to the employees' health insurance plans effective January 1, 2019. 

The memorandum stated that PREPA would continue its prior policy 

of the employees not being required to contribute a payment to the 

cost of their health insurance and that their coverage would remain 

unaltered. It also stated that "to meet the financial challenges 

of [PREPA's] Certified Fiscal Plan, some changes were required in 

4 There is also currently no official English translation 

of this codified statute, and so we rely on the certified English 

translation provided by the parties in their appendix.
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deductibles and co-pays." A table attached to the memorandum 

showed that co-pays in some instances were increased, while in 

other instances they were decreased.5

On April 24, 2019, UTIER commenced this action in a 

Puerto Rico court. The FOMB, on behalf of PREPA and Ortiz, removed 

it to the federal Title III court on May 8, 2019. UTIER alleged 

that PREPA violated Article 2.07 of Act 26 by (1) failing to 

"identify savings and additional resources to avoid affecting the 

contributions of the employees for the payment of health plans" 

and (2) failing to ensure that employees and their dependents who 

suffer from pre-existing catastrophic, chronic, or terminal 

diseases continue to receive the same employer contribution for 

the entire term of their public employment. UTIER argued that as 

a result of the changes to the employee health insurance plans, 

employees suffering from serious pre-existing conditions would 

"now pay substantially higher sums" than before. UTIER sought a 

writ of mandamus compelling PREPA and Ortiz to comply with the 

Savings and Pre-existing Conditions Provisions of Article 2.07 of 

Act 26. 

5 Although the memorandum also said there were some 

changes in deductibles and UTIER claims that its members' 

deductibles were modified, neither the memorandum nor UTIER's 

petition for writ of mandamus identified specifically any such 

changes. The table attached to the memorandum also showed both 

increasing and decreasing co-insurance percentages, but UTIER 

provides no specific allegations concerning those changes.
- 9 - 

The FOMB filed a motion to dismiss the mandamus petition 

for lack of jurisdiction and failure to state a claim. The Title 

III court took briefing on the issues from both sides. On January 

23, 2020, the Title III court issued its decision granting the 

FOMB's motion and dismissing the petition. In re Fin. Oversight 

& Mgmt. Bd. for P.R., 435 F. Supp. 3d 377, 387-88 (D.P.R. 2020). 

First, the court held that, "to the extent that the Petition 

s[ought] to challenge the [FOMB]'s determination that the [2019 

PREPA] Budget is compliant with a fiscal plan which meets the 

requirements of" PROMESA, the court lacked subject matter 

jurisdiction because of the jurisdictional bar of 48 U.S.C. 

§ 2126(e).6 Id. at 385. Second, "to the extent that the Petition 

ask[ed] that [PREPA] be directed to comply with duties imposed by 

a Commonwealth statute and plausibly allege[d] that such 

compliance is inconsistent with PREPA's certified Budget," the 

court held that UTIER failed to state a plausible claim for 

mandamus relief because it did not allege there was no other 

adequate alternative remedy available. Id. at 385-87. The court 

held, and UTIER does not contest, that the PREPA employees 

represented by UTIER could assert financial claims against PREPA 

6 UTIER has made clear on appeal that it does not intend 

its action to be a challenge to the FOMB's certification of PREPA's 

2019 budget, given that any such challenge would raise the 

jurisdictional bar set forth in 48 U.S.C. § 2126(e). We focus 

only on the Title III court's decision to dismiss the mandamus 

petition for failure to state a claim. 
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as creditors to a Title III debtor under PROMESA. Id. at 386. 

The court also rejected as unsupported UTIER's argument that an 

adequate alternative remedy exists for purposes of denying a writ 

of mandamus only if the alternative remedy is provided by the same 

statute the petitioner seeks to enforce. Id. at 386-87. The court 

did not address the FOMB's alternative arguments for dismissal of 

the mandamus petition. Id. at 385 n.8. 

UTIER timely appealed. We address only the single 

remaining issue. 

II. 

UTIER challenges the Title III court's conclusion that 

it failed to meet its burden of showing there are no adequate 

alternative remedies which would allow its use of mandamus. None 

of the arguments advanced on appeal have merit.7

7 As an initial matter, we reject UTIER's argument that 

the district court engaged in an impermissible "sua sponte" 

dismissal of its mandamus petition. The Title III court dismissed 

the mandamus petition only after the FOMB had filed a motion to 

dismiss for failure to state a claim and the motion had been fully 

briefed, and the fact that the court relied on cases not cited in 

the parties' briefs was not improper and did not make its dismissal 

of the mandamus petition sua sponte. See, e.g., Goya Foods, Inc. 

v. Unanue, 233 F.3d 38, 45 & n.7 (1st Cir. 2000) (citing cases not 

cited by the parties); Bay State HMO Mgmt. v. Tingley Sys., Inc., 

181 F.3d 174, 180-82 (1st Cir. 1999) (relying on a case not cited 

by the parties). 

 Also in its brief, UTIER makes the cursory argument that 

Act 26 is unconstitutional under the Contracts Clause, U.S. Const. 

art. I, § 10. UTIER does not develop this argument and so it is 

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 

1990). 
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We review de novo the district court's analysis of a 

motion to dismiss for failure to state a claim, taking all wellpleaded facts as true and determining whether those facts and the 

inferences reasonably drawn therefrom plausibly state a claim. 

Doe v. Pawtucket Sch. Dep't, 969 F.3d 1, 7 (1st Cir. 2020) (first 

citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); and then citing 

Penate v. Hanchett, 944 F.3d 358, 365 (1st Cir. 2019)). 

A writ of mandamus is an extraordinary remedy that is 

available only when certain conditions are met, and this is true 

under both federal and Puerto Rico law.8 See, e.g., Gulfstream 

Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988); In 

re Cargill, Inc., 66 F.3d 1256, 1259 (1st Cir. 1995); Purcell Ahmed 

v. Pons Núñez, 129 P.R. Dec. 711, 714 (1992). "[T]he party seeking 

mandamus has the 'burden of showing that its right to issuance of 

the writ is "clear and indisputable."'" Gulfstream Aerospace 

Corp., 485 U.S. at 289 (quoting Bankers Life & Cas. Co. v. Holland, 

346 U.S. 379, 384 (1953)). 

Under both federal and Puerto Rico law, the party seeking 

mandamus relief must demonstrate that there are no adequate 

alternative remedies available. See Mallard v. U.S. Dist. Ct. for 

8 UTIER assumes that the question of mandamus relief is 

governed by Puerto Rico law, and both parties cite Puerto Rico law 

with respect to mandamus in their briefs. We do not have to 

address this assumption because the outcome here is the same 

whether Puerto Rico or federal law applies. 
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S. Dist. of Iowa, 490 U.S. 296, 309 (1989) ("To ensure that 

mandamus remains an extraordinary remedy, petitioners must show 

that they lack adequate alternative means to obtain the relief 

they seek . . . ." (collecting cases)); Wilson v. Sec'y of Health 

& Hum. Servs., 671 F.2d 673, 679 (1st Cir. 1982) ("[I]t is apparent 

to us that this 'extraordinary' statutory remedy [of mandamus under 

28 U.S.C. § 1361] is inappropriate, both because appellant has 

failed to meet the showing of exceptional circumstances required 

by [Supreme Court cases and First Circuit cases] and because an 

alternative remedy -- through administrative proceedings and 

[review under a different statutory provision] -- was available." 

(citations omitted)); Matos v. Sec'y of Health, Educ. & Welfare, 

581 F.2d 282, 286 n.6 (1st Cir. 1978) (noting that "the 

extraordinary remedy of mandamus . . . might be available in those 

extreme situations where no other remedy was available"); 

Hernández Agosto v. Romero Barceló, 12 P.R. Offic. Trans. 508, 521 

(1982) (stating that, applying Puerto Rico law, "the writ of 

mandamus is the appropriate remedy for compelling performance of 

a duty allegedly imposed by law . . . when there is no other 

adequate remedy at law"); see also P.R. Laws Ann. tit. 32, § 3423 

("This writ may not be issued in any case where there is plain and 

adequate remedy in the ordinary course of the law."). 

UTIER does not argue that its members cannot assert 

financial claims against PREPA in PREPA's Title III case for 
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alleged overpayments in health insurance, nor does it argue that 

this alternative mechanism for relief under PROMESA is somehow 

inadequate. 

Rather, UTIER's sole argument is that Act 26 does not 

contain a mechanism for compelling PREPA to comply with the Savings 

and Pre-existing Conditions Provisions of Article 2.07 and that 

the Commonwealth statute it seeks to enforce must contain such 

relief in order for the remedy to be adequate for purposes of 

denying mandamus relief. UTIER cites no authority for this 

proposition. The proposition is simply wrong. The case law 

establishes that denial of mandamus relief is appropriate if there 

is some adequate alternative remedy available, even if the source 

of the remedy is distinct from the statute sought to be enforced. 

See, e.g., In re City of Fall River, 470 F.3d 30, 32-33 (1st Cir. 

2006) (denying a writ of mandamus where conventional review of 

agency action under another statute was available pursuant to the 

Administrative Procedure Act); Burgos v. Milton, 709 F.2d 1, 3 

(1st Cir. 1983) (holding that the district court lacked mandamus 

jurisdiction in an action against the IRS for damages because the 

Tucker Act provided the ability to seek adequate relief in the 

Court of Federal Claims); Guadalupe Pérez v. Saldaña, 133 P.R. 

Dec. 42, 54-57 (1993) (denying mandamus relief under Puerto Rico 

law where, among other things, the petitioner, who was asserting 

a right to University information under the Puerto Rico 
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Constitution, could pursue an administrative remedy under the 

policy of the University of Puerto Rico).9

The Title III court correctly dismissed the petition for 

writ of mandamus because UTIER did not demonstrate that there was 

no adequate alternative remedy available for its members to recover 

from PREPA.10

Affirmed. 

9 Because we cannot locate an English translation of 

Guadalupe Pérez, we rely on a translated copy of the case provided 

by the FOMB in the addendum to its appellate brief. 

10 Because we agree with the Title III court's holding on 

this issue, we need not address the FOMB's alternative arguments 

for dismissal, which the Title III court also did not address.