35 F.4th 1
1st Cir.2022Background
- Centro de Periodismo Investigativo (CPI) sought broad internal Board records from the Financial Oversight and Management Board for Puerto Rico (the Board) alleging violation of Puerto Rico Constitution Art. II §4 (public-access right); CPI filed complaints in 2017 and again in 2019 after continued nonproduction.
- The Board resisted, asserting Eleventh Amendment sovereign immunity (as an arm of Puerto Rico), statutory immunity/exemption under PROMESA §105, and that PROMESA preempts P.R. Const. §4; it produced some documents but withheld many and was ordered to prepare a detailed privilege log.
- The district court denied the Board's motions to dismiss the 2017 and 2019 complaints, concluded PROMESA §106 abrogated or waived Eleventh Amendment immunity, and ordered a privilege log; the Board appealed interlocutorily and obtained a stay.
- On interlocutory review the First Circuit accepted review only of the Eleventh Amendment issue (collateral order doctrine), declined pendent appellate jurisdiction over PROMESA §105/statutory-immunity and preemption questions, and held PROMESA §106 abrogates the Board's Eleventh Amendment immunity for actions “arising out of” PROMESA.
- The court also held the district-court order requiring a privilege log was not an immediately appealable injunction under 28 U.S.C. §1292(a); a dissent argued §106 does not clearly abrogate immunity and that the majority contravened Pennhurst and binding precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of interlocutory review of immunity defense (waiver) | Board waived immunity by litigating discovery in the 2017 case and producing documents | Appeal is from denial re 2019 complaint; Eleventh Amendment jurisdictional defense is not waived and may be raised anytime | Collateral-order doctrine permits immediate appeal of denial of Eleventh Amendment immunity; Board did not waive immunity by prior discovery conduct |
| Privilege-log order appealability under §1292(a) | Order is not an injunction; review can wait until after log and specific privilege assertions | The log order is injunctive and disclosure of log would irreparably reveal Board materials | Not an immediately appealable injunction; premature to review privilege-log order now |
| Applicability of Eleventh Amendment to Board (arm-of-state question) | CPI questioned whether Eleventh Amendment applies to Puerto Rico/the Board | Board: Congress created the Board as an entity within Puerto Rico and it is an arm entitled to immunity | Court assumed (without deciding) the Board is an arm of Puerto Rico for purposes of the appeal but proceeded to resolve abrogation issue nonetheless |
| Whether PROMESA §106 abrogates sovereign immunity | CPI: PROMESA §106 (and related text) abrogates immunity and channels suits to federal court | Board: §106 is a jurisdictional/grant-of-venue clause insufficient to abrogate Eleventh Amendment; no clear statement of abrogation | Court held §106, read in context (including §106(c) and exceptions), is an unequivocal statement by Congress (acting under the Territorial Clause) abrogating the Board's Eleventh Amendment immunity for actions arising out of PROMESA; statutory-immunity (§105) and preemption issues were not reached |
Key Cases Cited
- Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (Congress can abrogate sovereign immunity when intent is unmistakably clear)
- Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (federal courts may not order state officials to conform their conduct to state law)
- Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (a general authorization for suit in federal court is not sufficient to abrogate Eleventh Amendment immunity)
- Lapides v. Board of Regents of the Univ. Sys. of Ga., 535 U.S. 613 (sovereign immunity defenses may be waived by litigation conduct, e.g., removal)
- Allen v. Cooper, 140 S. Ct. 994 (clear statutory language required to abrogate state sovereign immunity)
- Ex parte Young, 209 U.S. 123 (permits suits against state officials for prospective relief to enjoin federal-constitutional violations)
- In re Fin. Oversight & Mgmt. Bd. for P.R., 916 F.3d 98 (1st Cir.) (PROMESA background and interpretation in prior First Circuit decisions)
- Leopold v. Central Intelligence Agency, 987 F.3d 163 (D.C. Cir.) (orders requiring agencies to confirm/deny possession of particular documents can be immediately appealable injunctions)
- Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Homeland Sec., 532 F.3d 860 (D.C. Cir.) (processing-only orders are not necessarily immediately appealable because exemptions may later justify nondisclosure)