FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
No. 22-96
Supreme Court of the United States
May 11, 2023
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 22-96. Argued January 11, 2023—Decided May 11, 2023
Held: Nothing in PROMESA—including its jurisdictional provision, Section 2126(a) categorically abrogates any sovereign immunity the Board enjoys from legal claims. This Court assumes without deciding that Puerto Rico is immune from suit in United States district court, and that the Board partakes of that immunity. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7.
This Court has often held that Congress must make its intent to abrogate sovereign immunity “unmistakably clear in the language of the statute.” Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73. The Court has applied that clear-statement rule in cases naming the federal government, States, and Indian tribes as defendants. And it has found that standard met in only two situations: when a statute says, in so many words, that it is stripping immunity from a sovereign entity, e.g.,
CPI claims to identify the required clear statement in PROMESA‘S establishment of a judicial review scheme. Section 2126(a) provides that “any action against the Oversight Board, and any action otherwise arising out of” PROMESA, “shall be brought” in the Federal District Court for Puerto Rico. In CPI‘s view, that provision—especially when combined with Section 2126(c)‘s allusion to “declaratory or injunctive relief against the Oversight Board“—contemplates that the Board would be subject to suit in federal court. But those provisions serve a function even absent a categorical abrogation of immunity,
In short, nothing in PROMESA makes Congress‘s intent to abrogate the Board‘s sovereign immunity unmistakably clear. The statute does not explicitly strip the Board of immunity or expressly authorize the bringing of claims against the Board. And its judicial review provisions and liability protections are compatible with the Board‘s generally retaining sovereign immunity. Pp. 5-11.
35 F. 4th 1, reversed and remanded.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, SOTOMAYOR, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. THOMAS, J., filed a dissenting opinion.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio.supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 22-96
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, PETITIONER v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[May 11, 2023]
JUSTICE KAGAN delivered the opinion of the Court.
A recently enacted federal statute establishes a financial oversight board within the Commonwealth of Puerto Rico‘s government. The question presented is whether the statute categorically abrogates (legalspeak for eliminates) any sovereign immunity the board enjoys from legal claims. We hold it does not. Under long-settled law, Congress must use unmistakable language to abrogate sovereign immunity. Nothing in the statute creating the board meets that high bar.
Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA),
PROMESA creates, as its centerpiece, the Financial Oversight and Management Board for Puerto Rico—the petitioner here. The statute describes the seven-member Board as an “entity within the territorial government” of Puerto Rico.
With one exception, PROMESA says nothing explicit about abrogating sovereign immunity. The exception is for Title III cases, and comes via the Federal Bankruptcy Code. PROMESA incorporates, as part of its mechanism for restructuring debt, the Code‘s express abrogation of sovereign immunity. See
At the same time, several provisions of PROMESA contemplate that, even outside the Title III context, the Board may confront legal claims against it. Most fundamentally, Section 2126(a), entitled “Jurisdiction,” states that “any action against the Oversight Board, and any action otherwise arising out of” PROMESA, “shall be brought” in the Federal District Court sitting in Puerto Rico.1 And Section 2126(c) anticipates that those actions may lead to orders “granting declaratory or injunctive relief against the Oversight Board“; under the provision, such orders cannot take effect until the litigation is over.
On the flipside, PROMESA sets certain limits on litigation targeting the Board. Section 2125 forecloses monetary liability against the Board, its members, and its employees for “actions taken to carry out” the statute. And Section 2126(e) provides that no district court will have jurisdiction over challenges to the Board‘s “certification determinations“—mainly, decisions approving Puerto Rico‘s fiscal plans and
The suit before us demands that the Board release various documents relating to its work. Respondent Centro de Periodismo Investigativo, Inc. (CPI) is a nonprofit media organization that has published many reports on Puerto Rico‘s fiscal crisis and the debt-restructuring process. In 2016, CPI asked the Board to turn over a broad array of materials, including communications between the Board‘s members and Puerto Rican and U. S. officials. When the request went unanswered, CPI sued the Board in the Federal District Court in Puerto Rico. CPI cited a provision of the Puerto Rican Constitution interpreted to guarantee a right of access to public records. And it requested an injunction ordering the records’ release.
The Board moved to dismiss the suit on the ground that, as an arm of the Puerto Rican government, it enjoys sovereign immunity. The District Court denied the motion, reasoning that Congress had abrogated the Board‘s immunity in PROMESA—particularly, in Section 2126(a)‘s jurisdictional provision. See App. to Pet. for Cert. 74a-76a. While the parties fought over unresolved privilege issues, CPI brought a second suit seeking another set of documents. The Board again invoked sovereign immunity, and the court again denied the defense. See id., at 56a-57a. Orders in both suits were consolidated for appeal.
The Court of Appeals for the First Circuit affirmed the denial of immunity, over a dissent. See 35 F. 4th 1 (2022). The court began by citing Circuit precedent that Puerto Rico (like a State or Indian tribe) enjoys sovereign immunity. It then “assume[d] without deciding” that the Board shares in Puerto Rico‘s immunity, noting that CPI had not contested that issue. Id., at 15. That was the Board‘s final piece of good news—for the court next held that PROMESA abrogates the Board‘s (assumed) immunity. Congress may abrogate sovereign immunity, the court noted, “by making its intention unmistakably clear in the language of the statute.” Ibid. (quoting Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73 (2000)). And Congress had done so, the court held, in Section 2126(a): The “grant of jurisdiction” there “unequivocally stated [Congress‘s] intention that the Board could be sued” in federal district court. 35 F. 4th, at 17. The court found additional support for its holding in Sections 2126(c) and (e). The former, the court reasoned, “contemplates” orders of “declaratory and injunctive relief” against the Board. Ibid. And the latter, in making certification challenges unreviewable, “implies” that all other claims against the Board fall within Section 2126(a)‘s scope. Ibid. Judge Lynch disagreed. She would have held that Congress had not adequately “set[] forth an intent to abrogate” the Board‘s immunity, whether in Section 2126(a)‘s jurisdictional grant or in any other provision. Id., at 21.
We granted certiorari, 598 U. S. ___ (2022), and now reverse.
II
The question on which we granted certiorari is whether PROMESA—and particularly its jurisdictional provision—abrogates the Board‘s immunity. See Brief for Oversight Board i. As thus framed, the question asks only about abrogation, while taking the Board‘s underlying immunity as a given. That framing accords with how this case played out in the courts below. Because Circuit precedent had settled Puerto Rico‘s own immunity, the lower courts barely addressed the question. See, e.g., 35 F. 4th, at 13-14. Similarly for the Board‘s immunity. CPI never argued that
The standard for finding a congressional abrogation is stringent. Congress, this Court has often held, must make its intent to abrogate sovereign immunity “unmistakably clear in the language of the statute.” E.g., Kimel, 528 U. S., at 73 (internal quotation marks omitted); see also Sossamon v. Texas, 563 U. S. 277, 287 (2011) (“[W]here a statute is susceptible of multiple plausible interpretations, we will not read it to strip immunity). We have invoked that clear-statement rule, and applied it equivalently, in cases naming the federal government, States, and Indian tribes as defendants. See, e.g., FAA v. Cooper, 566 U. S. 284, 290-291 (2012); Kimel, 528 U. S., at 73; Michigan v. Bay Mills Indian Community, 572 U. S. 782, 790 (2014).3 CPI argues that the rule should not likewise apply to Puerto Rico, citing Congress‘s plenary power over Territories. See Brief for CPI 25-26 (“The concept of plenary power” is “incompatible with forcing Congress to express its intent unequivocally“). But we have similarly described Congress‘s power over the tribes, and still demand that Congress “unequivocally express” an intent to abrogate their immunity. Bay Mills, 572 U. S., at 790 (internal quotation marks omitted); see ibid. (“Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends” to abrogate their immunity). Our precedent thus conveys a consistent message: If a defendant enjoys sovereign immunity (which we are assuming the Board does), abrogation requires an “unequivocal declaration” from Congress. Dellmuth v. Muth, 491 U. S. 223, 232 (1989).
The Court has found that
PROMESA fits neither of those two molds. Except in Title III debt-restructuring proceedings (not at issue here), the statute does not provide that the Board or Puerto Rico is subject to suit. See supra, at 2. And indeed, the exception implies the opposite as a general rule. The immunity provision that PROMESA borrows from the Bankruptcy Code for Title III cases states: “[S]overeign immunity is abrogated as to a governmental unit,” including a “Territory.”
CPI contends we can still find a clear statement in PROMESA, based on the statute‘s establishment of a judicial review scheme. The primary provision in CPI‘s argument (as in the First Circuit‘s, see supra, at 4) is Section 2126(a): “[A]ny
But all those provisions serve a function without our reading an abrogation of immunity into PROMESA. In Sections 2126(a) and (c), Congress indeed contemplated the possibility of suits—and of relief—against the Board. And wisely so—because litigation against the Board can arise even though the Board enjoys sovereign immunity generally. For one thing, statutes other than PROMESA abrogate the Board‘s immunity from particular claims. See generally supra, at 7. Consider Title VII of the Civil Rights Act, prohibiting various kinds of employment discrimination. That law, this Court has held, validly abrogates the immunity of “governments” and “governmental agencies” from all actions it authorizes.
Nor do the litigation protections in PROMESA fill the gap. At the most basic level, it would be peculiar to read shields from lawsuits as unmistakably subjecting the Board to lawsuits (by abrogating immunity). But aside from that, CPI is wrong to think that those shields would be “pointless” or “superfluous” unless PROMESA generally abrogates the Board‘s immunity. Brief for CPI 38. Consider first Section 2125‘s protection of the Board, its employees, and its members from monetary liability for carrying out PROMESA. That provision would do work whenever, as discussed above, some other law abrogated or waived the Board‘s immunity from specific claims. In such a case, the claim could go forward, but Section 2125 would stop the award of money damages. Of particular note, that section would limit the Board‘s liability in Title III cases, in which PROMESA has indeed abrogated immunity. See supra, at 2. And last, Section 2125 protects individuals—the Board‘s members and employees—not covered by the Board‘s sovereign immunity. All in all, that seems like more than enough to explain the provision‘s existence. Similarly for Section 2126(e), which
In short, nothing in PROMESA makes Congress‘s intent to abrogate the Board‘s sovereign immunity “unmistakably clear.” Kimel, 528 U. S., at 73. The statute does not explicitly strip the Board of immunity. It does not expressly authorize the bringing of claims against the Board. And its judicial review provisions and liability protections are compatible with the Board‘s generally retaining sovereign immunity. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 598 U. S. ___ (2023)
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 22-96
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, PETITIONER v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[May 11, 2023]
JUSTICE THOMAS, dissenting.
At every stage of these proceedings, respondent has argued that petitioner lacks state sovereign immunity. Petitioner has consistently replied that it has that immunity and that nothing abrogates it. The courts below, bound by Circuit precedent, held that petitioner does have state sovereign immunity—but they also held that the immunity has been abrogated. The Court today disagrees with only that latter conclusion, holding that nothing abrogates petitioner‘s immunity, but it “assume[s] without deciding” the logically antecedent question whether petitioner enjoys that immunity in the first place. Ante, at 5. In doing so, the majority effectively decides the outcome of this case. Because I would reach the antecedent question and hold that petitioner lacks the only immunity it has ever asserted, I respectfully dissent.
Respondent, Centro de Periodismo Investigativo, Inc. (CPI), sued petitioner, the Financial Oversight and Management Board for Puerto Rico, over a document-disclosure dispute. The Board moved to dismiss the lawsuit by invoking state sovereign immunity, which the Board claimed to possess as an arm of the Puerto Rican territorial government. CPI responded (both in the District Court and on appeal) that Puerto Rico has no such immunity and that, even if it did, that immunity would be abrogated by the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA),
When the Board asked us to review that holding, CPI once again raised its lead argument, pointing out that we logically could not reverse the First Circuit‘s judgment without first addressing whether the Board actually has the immunity that the Board claims has not been abrogated. And, in its merits brief, CPI made Puerto Rico‘s lack of state sovereign immunity its lead argument. There is nothing more that CPI could have done to preserve this antecedent, dispositive argument.
Yet the majority skips it entirely, “assum[ing] without deciding that Puerto Rico is immune from suit in federal district court“—while also deciding that PROMESA does not abrogate that assumed immunity. Ante, at 5.
The majority asserts that it need not address CPI‘s argument because “[t]he proceedings below did not examine these matters, and we agreed to tackle only the abrogation question.” Ibid. But it is unclear why the court below would have examined the matter any further, given its precedent.1
And, “[t]his issue is predicate to an intelligent resolution of the question presented,” as it makes no sense to analyze whether PROMESA abrogates state sovereign immunity without first determining whether that immunity is implicated at all. United States v. Grubbs, 547 U. S. 90, 94, n. 1 (2006) (internal quotation marks omitted).2 Because I think the Court has a duty to pass upon issues that are fairly presented, preserved by the parties, and necessary to support its judgment, I would consider whether the Board has the immunity it asserts.
From the start, the Board has asserted only that it possesses what it has called “Eleventh Amendment immunity.” The First Circuit agreed, explaining that it “has long treated Puerto Rico like a state for Eleventh Amendment purposes.” 35 F. 4th, at 14. However, the plain text of the Eleventh Amendment applies only to lawsuits brought against a State by citizens of another State. And, because CPI is a resident of Puerto Rico, I can only assume that the Board and the First Circuit meant to refer to the sovereign immunity that is inherent in the 50 States. See Allen v. Cooper, 589 U. S. ___, ___ (2020) (slip op., at 4).
As we have explained, inherent state sovereign immunity reflects the original design of the Constitution. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___ (2019) (slip op., at 5-12). At the Founding, the “States considered themselves fully sovereign nations,” and part of that sovereignty “was their immunity from private suits.” Id., at ___ (slip op., at 6) (internal quotation marks omitted). When advocating for the Constitution‘s ratification, leading Federalists then assured their opponents that the Constitution would not allow private citizens to hale States into federal court without their consent. See ibid. Though this Court held otherwise soon thereafter in Chisholm v. Georgia, 2 Dall. 419 (1793), the Eleventh Amendment‘s swift ratification confirmed that Chisholm was wrong. See Hyatt, 587 U.
Here, however, all sides agree that Puerto Rico is a Territory, not a State. See Puerto Rico v. Sánchez Valle, 579 U. S. 59, 75-77 (2016). Accordingly, it is difficult to see how the same inherent sovereign immunity that the States enjoy in federal court would apply to Puerto Rico. To be sure, the United States has urged us to hold that Puerto Rico enjoys a form of common-law immunity that, it claims, territorial governments can invoke in federal court. See Brief for United States as Amicus Curiae 16-19. But the Board has, at every stage, argued only that it possesses the same immunity as States. That argument appears untenable.
And, as the party asserting an immunity, the Board should have the burden of establishing its immunity. Because the Board has failed to do so, I would rule in CPI‘s favor and affirm the judgment below.
I respectfully dissent.