United States Court of Appeals

For the First Circuit

No. 22-1158

CÁMARA DE MERCADEO, INDUSTRIA Y DISTRIBUCIÓN DE ALIMENTOS, INC.,

Plaintiff, Appellant,

v.

DOMINGO EMANUELLI-HERNÁNDEZ, in his official capacity as 

Attorney General for the Commonwealth of Puerto Rico, and JAIME 

A. LAFUENTE GONZÁLEZ, in his official capacity as President of 

the Bureau of Transportation and other Public Services of the 

Commonwealth of Puerto Rico,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

Barron, Chief Judge,

Thompson, Circuit Judge,

and Burroughs, District Judge.

Luís Sánchez Betances, with whom Sánchez Betances, Sifre & 

Muñoz Noya was on brief, for appellant.

Omar Andino-Figueroa, Deputy Solicitor General of Puerto 

Rico, with whom Fernando Figueroa-Santiago, Solicitor General of 

Puerto Rico, and Mariola Abreu-Acevedo, Assistant Solicitor 

General, were on brief, for appellees.

 Of the District of Massachusetts, sitting by designation.
- 2 -

June 29, 2023
- 3 -

Burroughs, District Judge. Plaintiff-Appellant, Cámara 

de Mercadeo, Industria y Distribución de Alimentos, Inc. 

("Appellant") brought this action on behalf of its members, 

businesses in the food distribution and sale industry, seeking 

declaratory and injunctive relief from a series of regulations 

related to freight tariffs and implementing circular letters 

promulgated by the Transportation and other Public Services Bureau 

of the Commonwealth of Puerto Rico ("NTSP," for its Spanish 

acronym). Below, Appellant alleged that the challenged 

regulations are unlawful under and preempted by the Puerto Rico 

Oversight Management Stability Act ("PROMESA"), 48 U.S.C. §§ 2101 

et seq.,1 for two reasons. First, because the regulations did not 

1 "In 2016, Congress passed [PROMESA] to address the 

Commonwealth's fiscal crisis, facilitate restructuring of its 

public debt, ensure its future access to capital markets, and 

provide for its long-term economic stability." In re Fin. 

Oversight & Mgmt. Bd. for P.R., 37 F.4th 746, 750 (1st Cir. 2022)

(citing 48 U.S.C. § 2194(m)-(n)), cert. denied sub nom. Pierluisi

v. Fin. Oversight & Mgmt. Bd. for P.R., 143 S. Ct. 1070 (2023). 

PROMESA, in turn, established the Financial Oversight and 

Management Board for Puerto Rico, "whose members are appointed by 

the President, with wide-ranging authority to oversee and direct 

many aspects of Puerto Rico's financial recovery efforts." Id.

(citing 48 U.S.C. §§ 2141-2147). For one, "PROMESA grants the 

Board exclusive authority to certify Fiscal Plans." In re Fin. 

Oversight & Mgmt. Bd. for P.R., 916 F.3d 98, 112 (1st Cir. 2019).

Additionally, 

[u]nder section 204, the Oversight Board "may 

take such actions as it considers necessary to 

ensure that [Commonwealth laws], contract[s], 

rule[s], executive order[s] or regulation[s] 

will not adversely affect the territorial 
- 4 -

comply with the 2020 or 2021 certified Fiscal Plans and second, 

because the regulations were not approved by the Financial 

Oversight and Management Board for Puerto Rico ("FOMB" or 

"Oversight Board"), as mandated by Section 204(b)(4) of PROMESA 

and the Oversight Board's policy implementing that provision of 

PROMESA (the "Policy").2 Defendants-Appellees, Domingo EmanuelliHernández, Attorney General for Puerto Rico, and Jaime A. Lafuente

González, President of NTSP (collectively, "Appellees"), moved to 

dismiss the complaint on several grounds, including that the 

government's compliance with the Fiscal Plan, 

including by preventing the execution or 

enforcement of [such law], contract, rule, 

executive order or regulation." 

In re Fin. Oversight & Mgmt. Bd. for P.R., 60 F.4th 9, 12 (1st 

Cir. 2023) (alterations in original) (first citing 48 U.S.C. 

§ 2144(a)(5), (b)(5); and then citing In re Fin. Oversight & Mgmt. 

Bd. for P.R., 634 B.R. 187, 200-01 (D.P.R. 2021)). 

Section 204(b)(4) provides that the Board has 

"[a]uthority to review certain rules, regulations, and executive 

orders . . . issued by the Governor (or the head of any department 

or agency of the territorial government) in the same manner as 

such provisions apply to a contract." 48 U.S.C. § 2144(b)(4). 

The provisions as to contracts, in turn, state that "[t]he 

Oversight Board may establish policies to require prior Oversight 

Board approval of certain contracts . . . to ensure such proposed 

contracts promote market competition and are not inconsistent with 

the approved Fiscal Plan." Id. § 2144(b)(2).

Finally, the Oversight Board may "seek judicial 

enforcement of its authority to carry out its responsibilities."

Id. § 2124(k).

2 See Fin. Oversight & Mgmt. Bd. for P.R., FOMB Policy: 

Review of Rules, Regulations, and Orders (revised October 31, 

2019), https://drive.google.com/file/d/1WqEoSQSo7VhXybHbqJK8MTid

kQyjrwIv/view.
- 5 -

Oversight Board is the only entity that can bring an action to 

strike down a tariff as inconsistent with a Fiscal Plan and 

PROMESA. 

The district court granted Appellees' motion to dismiss 

the complaint in its entirety, finding that (1) regardless of 

whether the regulations were inconsistent with the certified

Fiscal Plan, they were not null and remained enforceable, because 

the Oversight Board had not taken action to invalidate them; and 

(2) there is no private right of action to enforce PROMESA.3

Appellant appeals the district court's judgment.

After carefully considering the briefs and record on 

appeal, we affirm.

First, Appellant concedes that it "does not challenge on 

appeal the precise bases and essential holding for the district 

court's dismissal [of] its claim: that PROMESA does not create a 

private cause of action." In failing to raise any argument that 

the district court erred in reaching this conclusion, Appellant 

has waived the issue. See United States v. Mayendía-Blanco, 905 

F.3d 26, 32 (1st Cir. 2018) ("We deem an argument to be waived 

when a party 'intentionally relinquishes or abandons it.'" 

(quoting United States v. Rodríguez, 311 F.3d 435, 437 (1st Cir. 

3 The complaint included a Contracts Clause claim, which 

the district court also dismissed. Appellant does not appeal the 

dismissal of this claim. 
- 6 -

2002))).

Nevertheless, Appellant asks that the Court consider a 

separate argument that it raised in its opening brief: that Section 

204(b)(4) of PROMESA and the Oversight Board's Policy established 

"a new tier" in the "Puerto Rico administrative rulemaking 

process," which, pursuant to the Puerto Rico Administrative Act 

("LPAU," for its Spanish acronym) and/or "'core administrative law 

principles' incorporated into the Administrative Procedure Act

('APA'), 5 U.S.C. § 500 et seq.," requires that any regulation be 

approved by the Oversight Board before it becomes valid and 

enforceable. Appellant argues that because the NTSP's regulations 

were not approved by the Oversight Board, they are invalid and 

unenforceable.

This argument has also been waived. See Iverson v. City 

of Boston, 452 F.3d 94, 102 (1st Cir. 2006) (collecting cases). 

In reply, Appellant asserts that it did make this argument to the 

lower court, citing its opposition to Appellees' motion to dismiss 

and its motion to alter or amend the district court's judgment 

under Federal Rule of Civil Procedure 59(e). In its opposition to 

Appellees' motion to dismiss, Appellant asserted that the 

regulations are "null and unenforceable" and "null and void,"

because Section 204(b)(4) of PROMESA and the Oversight Board's 

Policy require that the Board approve regulations before they are 

promulgated, and the Board has either not approved them or 
- 7 -

expressly rejected them. Yet the brief does not mention the LPAU, 

the APA, administrative law, or any other cause of action 

supporting such a claim, or otherwise develop this argument. This 

is insufficient to preserve the issue for appeal. See McCoy v. 

Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) (declining 

to consider an argument which, below, a party made only "passing 

mention of," and for which the party "failed to provide any 

analysis of the statutory scheme [or] present any legal authority 

directly supporting their thesis"); id. ("Arguments raised in the 

District Court in a perfunctory and underdeveloped . . . manner 

are waived on appeal." (alteration in original) (quoting 

Kensington Rock Island Ltd. P'ship v. American Eagle Hist.

Partners, 921 F.2d 122, 124–25 (7th Cir. 1990))). 

Additionally, in its Rule 59(e) motion, Appellant

advanced an under-developed but also entirely different theory 

than it does here, namely, that promulgation of the regulations 

without the Oversight Board's approval constitutes a due process 

violation. This too is insufficient to preserve an argument based 

on Puerto Rico or federal administrative law. "Overburdened trial 

judges cannot be expected to be mind readers. If claims are merely 

insinuated rather than actually articulated in the trial court, we 

will ordinarily refuse to deem them preserved for appellate 

review." Id. at 22.

Further, Appellant "make[s] no effort to fit [its]
- 8 -

situation within the 'narrowly configured and sparingly dispensed'

exceptions to the raise-or-waive rule (as it is known)." ReyesColón v. United States, 974 F.3d 56, 62 (1st Cir. 2020) (quoting 

Daigle v. Me. Med. Ctr., Inc., 14 F.3d 684, 688 (1st Cir. 1994)). 

Although this Court may "in its discretion, . . . consider theories 

not articulated below," "exceptions of this kind . . . should be 

'few and far between,'" and "[t]he typical case involves an issue 

that is one of paramount importance and holds the potential for a 

miscarriage of justice." B & T Masonry Constr. Co. v. Pub. Serv.

Mut. Ins. Co., 382 F.3d 36, 41 (1st Cir. 2004) (quoting Nat'l Ass'n 

of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995)); see 

also Correa v. Hosp. S.F., 69 F.3d 1184, 1196 (1st Cir. 1995) 

(explaining that such "appellate discretion should not be 

affirmatively exercised unless error is plain and the equities 

heavily preponderate in favor of correcting it"). Appellant has 

not shown, and we do not conclude, that these considerations are 

present here. 

We therefore affirm the district court's dismissal of 

Appellant's complaint. 

Affirmed.