FOMBPR v. CPI

by Supreme Court of the United States

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

In 2016, Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), 48 U. S. C. §2101 et seq., to deal with a fiscal crisis in Puerto Rico brought about by soaring public debt. PROMESA establishes a system for overseeing Puerto Rico’s finances, while also enabling the Commonwealth to gain bankruptcy protections similar to those available under the Federal Bankruptcy Code. See Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC, 590 U. S. ___, ___. The statute creates the Financial Oversight and Management Board for Puerto Rico—petitioner in this case—as an “entity within the territorial government” of Puerto Rico. §2121(c)(1). Under PROMESA, the Board approves the Commonwealth’s fiscal plans and budgets, supervises its borrowing, and represents Puerto Rico in so-called Title III cases—judicial debt-restructuring proceedings modeled on federal bankruptcy proceedings. Beginning in 2016, respondent Centro de Periodismo Investigativo, Inc. (CPI)—a nonprofit media organization that has reported on Puerto Rico’s fiscal crisis—asked the Board to release various documents relating to its work. When CPI’s requests went unfulfilled, it sued the Board in the United States District Court for Puerto Rico, citing a provision of the Puerto Rican Constitution interpreted to guarantee a right of access to public records. The Board moved to dismiss on sovereign immunity grounds, but the District Court rejected that defense. The First Circuit affirmed. The court began by citing Circuit precedent that Puerto Rico enjoys sovereign immunity, and it assumed without deciding that the Board shares in that immunity. But it then held that PROMESA—particularly its jurisdictional provision, Section 2126(a)—clearly abrogates the Board’s immunity.

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., 35 U. S. C. §296(a), and when a statute creates a cause of action and authorizes suit against a government on that claim, see, e.g., Kimel, 528 U. S., at 73–74. PROMESA fits neither of these molds. Except by reference to the Bankruptcy Code in Title III debt-restructuring proceedings, see 11 U. S. C. §106(a); 48 U. S. C. §2161(a), PROMESA does not provide that the Board or Puerto Rico is subject to suit. Nor does PROMESA create any cause of action for use against the Board or Puerto Rico. Thus, Congress has not, through a means this Court has recognized, “ma[de] its intention” to abrogate immunity “unmistakably clear.” Kimel, 528 U. S., at 73.

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 cases where the Board’s immunity has been waived or abrogated by other statutes. For example, Title VII of the Civil Rights Act abrogates the immunity of “governments” and “governmental agencies” from all actions it authorizes. 42 U. S. C. §§2000e(a)–(b). If a Board employee were fired because of race, Section 2126(a) would tell the employee where to bring the suit and Section 2126(c) would govern the timing of injunctive and declaratory relief. Nor do protections that PROMESA provides the Board from litigation fill the gap. Again, CPI is wrong to think those provisions “superfluous” unless PROMESA generally abrogates the Board’s immunity. Section 2125’s protection of Board members from monetary liability would do work whenever 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. And Section 2126(e)’s bar on challenges to the Board’s fiscal and budgetary decisions would do work whenever a plaintiff sought to get around the Board’s sovereign immunity via an Ex parte Young action against an individual Board member. See Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. 247, 254–255.

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.

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