Centro de Periodismo Investigativo, Inc. v. FOMB ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1301
CENTRO DE PERIODISMO INVESTIGATIVO, INC.,
Plaintiff, Appellee,
v.
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Martin J. Bienenstock, with whom Guy Brenner, Adam L. Deming,
Mark D. Harris, Joseph S. Hartunian, Timothy W. Mungovan, John E.
Roberts, Laura E. Stafford, and Proskauer Rose LLP were on brief,
for appellant.
Judith Berkan, with whom Berkan/Méndez, Steven J. Lausell-
Recurt, Legal Clinic Interamerican University School of Law were
on brief, for appellee.
Juan Cartagena, Jose Perez, Lía Fiol-Matta, Rachel B.
Sherman, Tara J. Norris, and Patterson Belknap Webb & Tyler LLP on
brief for LatinoJustice PRLDEF, amicus curiae.
Brendan Benedict and Benedict Law Group PLLC on brief for
Espacios Abiertos, the National Freedom of Information Coalition,
the Iowa Freedom of Information Council, and the Nevada Open
Government Coalition, amici curiae.
Ariadna Michelle Godreau Aubert and Ayuda Legal Puerto Rico
on brief for Asociación de Periodistas de Puerto Rico, amicus
curiae.
Tomás A. Román-Santos, Román Santos LLC, Bruce D. Brown, Katie
Townsend, Sarah Matthews, Adam Marshall, and Madeline Lamo on brief
for the Reporters Committee for Freedom of the Press and twenty-
seven other Media Organizations, amici curiae.
May 17, 2022
THOMPSON, Circuit Judge. The Centro de Periodismo
Investigativo ("CPI"), a non-profit media organization based in
Puerto Rico, is on a quest to obtain documents from the Financial
Oversight and Management Board for Puerto Rico ("the Board") that
the Board has not simply handed over upon request. The Board is
resisting CPI's reliance on Puerto Ricans' general constitutional
right to access public documents as the basis for why CPI is
entitled to the documents it seeks. After CPI turned to the
district court for assistance, the Board asked the district court
to dismiss the litigation, arguing that it is immune from suit
pursuant to both the Eleventh Amendment of the United States
Constitution and the Puerto Rico Oversight, Management, and
Economic Stability Act ("PROMESA"), 48 U.S.C. § 2101 et seq., and
that PROMESA preempts the disclosure obligations within Puerto
Rico Constitution Article II, section 4 ("P.R. Const. § 4"), the
provision upon which CPI relies. The district court disagreed
with the Board, allowing CPI's quest to proceed. The Board is
before us now on interlocutory review of these weighty issues,
asking us to reverse the district court. After careful
consideration of the parties' arguments, we affirm with respect to
constitutional immunity and decline to exercise pendent appellate
jurisdiction over the remaining issues.
- 3 -
HOW WE GOT HERE
Before we delve into the travel of this case through the
district court and start exploring the issues presented in this
appeal, we lay out a brief description of PROMESA, the Board, and
CPI. Congress, pursuant to its Territorial Clause power,1 passed
PROMESA in 2016 to address Puerto Rico's "fiscal emergency" by
creating "mechanisms for restructuring [its] debts . . . and for
overseeing reforms of [its] fiscal and economic policies." In re
Fin. Oversight and Mgmt. Bd. for P.R., 916 F.3d 98, 103-04 (1st
Cir. 2019). Congress created the Board in PROMESA "as an entity
within the territorial government" of Puerto Rico to help the
Commonwealth "achieve fiscal responsibility and access to the
capital markets." 48 U.S.C. § 2121(a), (c)(1); see In re Fin.
Oversight and Mgmt. Bd. for P.R., 872 F.3d 57, 59 (1st Cir. 2017);
Peaje Invs. LLC v. García-Padilla, 845 F.3d 505, 515 (1st Cir.
2017). PROMESA gave the Board the authority to, inter alia,
"develop, approve, and certify Fiscal Plans and Territory Budgets,
. . . §§ 2141-2142, negotiate with the Commonwealth's creditors,
. . . § 2146, and, under Title III, to commence a bankruptcy-type
proceeding on behalf of the Commonwealth, . . . § 2175." In re
1 The U.S. Constitution's Territorial Clause provides
Congress with the "power to dispose of and make all needful Rules
and Regulations respecting the Territory . . . belonging to the
United States," U.S. Const. art. IV, § 3, cl. 2, and Congress
explicitly exercised this power when it enacted PROMESA, 48 U.S.C.
§ 2121(b)(2).
- 4 -
Fin. Oversight and Mgmt. Bd. for P.R., 916 F.3d at 103-04. The
Board has seven members, appointed by the President and supported
by an executive director and staff (the precise number of whom
were not set by the statute). 48 U.S.C. § 2121(e). The sections
of PROMESA at the center of this appeal are:
(1) PROMESA § 103: "The provisions of [PROMESA] shall
prevail over any general or specific provisions of
territory law, State law, or regulation that is
inconsistent with [PROMESA]." Id. § 2103.
(2) PROMESA § 105: "The Oversight Board, its members,
and its employees shall not be liable for any obligation
of or claim against the Oversight Board or its members
or employees or the territorial government resulting
from actions taken to carry out this chapter." Id.
§ 2125.
(3) PROMESA § 106: "[A]ny action against the Oversight
Board, and any action otherwise arising out of
[PROMESA], in whole or in part, shall be brought in a
United States district court for [Puerto Rico]." Id.
§ 2126.
CPI uses investigative journalism to access and
distribute information about Puerto Rico to Puerto Ricans so they
may be better informed about issues affecting them and may be
better prepared to exercise their democratic rights. CPI initiated
this litigation against the Board in June 2017, relying on PROMESA
§ 106 for jurisdiction and asking the district court to issue a
declaratory judgment, injunctive relief, and writ of mandamus2
forcing the Board to release documents about Puerto Rico's fiscal
2 CPI did not request an award of damages.
- 5 -
situation, communications among Board members, contracts, meeting
minutes, and financial disclosure forms for the Board's members
("the 2017 Complaint").3 CPI had requested these documents
directly from the Board to no avail. CPI alleged that the Board,
by ignoring the requests or providing less than complete responses
to CPI's requests, was violating P.R. Const. § 4.4
The Board filed a motion to dismiss for lack of subject-
matter jurisdiction and for failure to state a claim, arguing that
3 Specifically, CPI sought the Board's reports pertaining
to: "cash flow," "compliance" with "approved budget by budgetary
fund and by agency," the Commonwealth's Treasury Department's
"revenues and a narrative about collective efforts," payroll,
"federal funds received and disbursed by area and by agency," "debt
obligations," and "agency[] productivity and performance with
appropriate metrics." CPI also sought "bank account data and
statements," "[q]uarterly report[s] on each agency's productivity
and performance," financial statements and conflict of interest
submissions by the Board members prior to their designations to
the Board, communication records between the Board and the federal
government, contracts between the Board and "private entities,"
Board work product such as "protocols, regulations, manuals or
memorandums," and meeting minutes.
4 Article II, section 4 of Puerto Rico's Constitution
provides, in relevant part, that "[n]o law shall be made abridging
the freedom of speech or of the press, or the right of the people
peaceably to assemble and to petition the government for a redress
of grievances." The Puerto Rico Supreme Court recognizes this
provision to include the public's right to access public
information as "firmly related to the exercise of the rights"
provided within this section. Bhatia Gautier v. Rossello Nevares,
199 P.R. Dec. 59 (P.R. 2017) (certified translation at 17) (citing
Trans Ad. de P.R. v. Junta de Subastas, 174 P.R. Dec. 56 (P.R.
2008); Ortiz v. Dir. Adm. de los Tribunales, 152 P.R. Dec. 161(P.R. 2000); and Soto v. Srio. De Justicia, 112 P.R. Dec. 477 (P.R.
1982)).
- 6 -
the Eleventh Amendment to the United States Constitution5 bars
CPI's quest to force the Board to comply with P.R. Const. § 4, and
that PROMESA preempts the disclosure obligations within P.R.
Const. § 4.6 CPI opposed the motion, arguing that the Eleventh
Amendment did not bar its suit, that PROMESA did not, in any way,
preempt P.R. Const. § 4, and that PROMESA § 106 expressly provided
that the federal district court is the only forum in which actions
can be brought against the Board for matters arising out of
PROMESA.
The district court judge denied the motion, assuming
without deciding that the Board is an arm of the Commonwealth
entitled to Eleventh Amendment immunity, concluding Congress (in
5Much more on the Eleventh Amendment is coming. For now
it's enough to know that this Amendment may provide legal immunity
to States -- and under some conditions, to State entities -- from
lawsuits in federal court when the court is asked to enforce a
state law against the sovereign State or state entity. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-102, 117 (1984);
Grajales v. P.R. Ports Auth., 831 F.3d 11, 15 (1st Cir. 2016);
Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 493–94 (1st Cir.
2003) ("This provision has been authoritatively interpreted to
safeguard States from suits brought in federal court by their own
citizens as well as by citizens of other States.").
6This case was briefly stayed pursuant to an automatic stay
provision within PROMESA, 48 U.S.C. § 2161 (incorporating the
Bankruptcy Code's automatic stay provisions -- 11 U.S.C. §§ 362,
922), after the district court denied the Board's request to
reassign the case to the Title III docket but granted the Board's
request to apply an automatic stay. In August 2017, the bankruptcy
court granted CPI's motion to lift the automatic stay, and the
litigation resumed in district court. None of the procedural
aspects of the stay or lift-stay proceedings are at issue in this
case.
- 7 -
PROMESA) waived or abrogated the Eleventh Amendment immunity, and
also concluding that PROMESA did not preempt P.R. Const. § 4.
We'll get into the judge's reasoning in a little bit -- for now we
stay focused on summarizing the travel of the case through the
district court before the case landed on our bench. After the
denial of the Board's motion to dismiss, the district judge
referred the case to a magistrate judge to set "case management
deadlines for the production of the requested documents" and to
preside over the discovery stage of the litigation.
The magistrate judge held a status conference and the
parties thereafter filed a series of informative motions to keep
the court apprised of the progress they were making towards the
Board producing -- and CPI receiving -- the documents CPI
requested. Over the following months, there was some progress.
The Board produced some documents and continued to withhold some
(the details of which are not relevant to the arguments and issues
on appeal before us). CPI, however, became frustrated with the
pace of the production process, and in October 2018 it started
filing motions asking the court for help to speed up production.
These motions included one requesting the court set a status
conference date to address the Board's purported delays in
producing the requested documents and another motion a few months
later requesting the court compel the Board to produce the
requested documents or assert a reason for withholding each
- 8 -
document withheld as well as to impose a monetary sanction based
on the Board's alleged contempt for its failure to produce the
requested documents. The Board made assurances that the documents
CPI wanted were to be delivered soon, so the court denied CPI's
motions but ordered a status update and promised to schedule a
status conference to resolve whatever production issues remained
at that time.
The magistrate judge held this next status conference in
March 2019; the parties identified categories of documents the
Board was withholding, and the magistrate judge ordered the Board
and CPI to work through the specific areas of dispute. The
magistrate judge noted the parties had agreed that the documents
to be produced were all created before a cut-off date of April 30,
2018 (the reason why this date is relevant will become clear in
the next paragraph). The magistrate judge also ordered that the
parties notify him two weeks later about the categories of
documents still in dispute and each party's reasons why these
categories should or should not be produced. The parties complied,
and the magistrate judge issued a report and recommendation ("R&R")
recommending the court (1) deny CPI's request for several draft
reports and documents the Board had withheld under a claim of law
enforcement privilege and (2) order the Board to produce a
"comprehensive, legally-sufficient" privilege log identifying why
it was invoking several other categories of privilege for the
- 9 -
remaining documents it was withholding. Over the parties'
objections, the district judge adopted the R&R in its entirety in
a short order entered directly onto the docket (known in some
courts as a "text order"), concluding the magistrate judge's
recommendations were "well-grounded in both fact and law," and
setting a deadline for the Board to produce the privilege log.7
After the magistrate judge issued the R&R and the parties
filed their respective objections but before the district judge
entered the order adopting the R&R, CPI started a second case in
district court against the Board, seeking the production of
documents related to communications between the Board and the
federal government as well as between the Board and the Puerto
Rico government created on April 30, 2018 and after ("the 2019
Complaint").8 The Board filed a motion to dismiss the 2019
7 The magistrate judge also issued a separate R&R
recommending the denial of CPI's motion to compel the disclosure
of the Board's members' financial statements dating before each
member's appointment to the Board. The district court adopted the
R&R in its entirety (over the Board's limited objection based on
its contention that the magistrate judge misread PROMESA § 105).
Neither party challenges this order in this appeal.
8 The 2019 Complaint echoed the 2017 Complaint, seeking an
injunction and writ of mandamus ordering the Board to deliver
records related to communications, inquiries or requests
for information, documents, reports or data issued by
any member of the Board and/or its staff to any federal
[or Puerto Rico] government agency or federal [or Puerto
Rico] government official, or by the federal [or Puerto
Rico] government, its agencies or staff, to the Board,
from April 30, 2018 until the delivery date, including,
- 10 -
Complaint, restating its arguments from its first motion to dismiss
(lack of subject matter jurisdiction and failure to state a claim)
and adding a third reason CPI could not prevail in its quest for
the Board's documents: PROMESA § 105 provided the Board with
immunity from the relief CPI seeks. The district court
consolidated this second case with the first case and denied the
Board's motion to dismiss in a short text order "for the reasons
stated in the Court's Opinion and Order" entered in the lead case
about the 2017 Complaint, briefly listing its main conclusions
from the Opinion and Order.
The Board filed a notice of appeal to challenge both the
order denying its motion to dismiss the 2019 Complaint and the
order requiring it to compile and submit the detailed privilege
log. This court granted the Board's motions to expedite the appeal
as well as to stay the district court proceedings.
OUR TAKE9
Out of the gate, CPI contends we should not hear the
Board's appeal because it has waived any appellate rights through
but not limited to, email and text messages through any
digital messaging system.
9 We appreciate the thoughtful submissions from the amici
(their names are listed near the case caption up top) but we give
the reader a heads up that we cannot consider any "arguments
advanced only 'by amici and not by parties.'" Mount Vernon Fire
Ins. Co. v. VisionAid, Inc., 875 F.3d 716, 720 n.1 (1st Cir. 2017)
(quoting In re Sony BMG Music Ent., 564 F.3d 1, 3 (1st Cir. 2009)).
- 11 -
conduct it engaged in before the district court during the 2017
suit, as we'll discuss momentarily. Not so, says the Board and
urges us to conclude on the merits of its appeal that CPI cannot
prevail in its quest for the documents it demands because
constitutional and statutory immunity shield the Board from CPI's
suit and because PROMESA preempts P.R. Const. § 4. Assuming we
will reach the merits, CPI says it fully supports the district
court's conclusions. We'll start with CPI's waiver contention
before moving into the Board's arguments. For those who prefer to
know the end result before reaching the end of the opinion, we
conclude that: The Board properly availed itself of interlocutory
review of the denial of its motion to dismiss only with respect to
its Eleventh Amendment immunity argument and, in PROMESA § 106,
Congress abrogated the Board's assumed Eleventh Amendment
immunity. Read on for the details and the whys of these
conclusions.
Availability of Interlocutory Review
As CPI tells it, we need not address either of the
Board's immunity contentions raised in response to the 2019
Complaint because the Board has waived any right to prosecute an
appeal of those issues. That is so for a couple of reasons: CPI
says the Board missed its opportunity to challenge the district
court's conclusions that the Board is neither immune from CPI's
suit nor saved by preemption when the Board did not immediately
- 12 -
appeal the denial of its motion to dismiss the 2017 Complaint.
CPI also says the Board waived its appellate rights by producing
documents in the first suit and by pretending it would ultimately
comply with the agreed-upon documents production stipulations.
The Board replies that CPI is ignoring important facts:
CPI filed not one but two separate complaints, and the Board's
appeal here is from the district court's denial of its motion to
dismiss the 2019 Complaint, not the 2017 Complaint. Continuing,
CPI, says the Board, fails to explain why its participation in the
first suit or why discovery orders from the first suit preclude it
from appealing the district court's rejection of its second-suit
jurisdictional challenges.
We first note that while CPI raises this waiver issue
before us, arguing the Board's lack of diligence in timely pursuing
its Eleventh-Amendment-subject-matter-jurisdiction assertions
bars this appeal, CPI did not provide any on-point or helpful case
law to help us understand why it believes that is so. For support,
CPI only cites cases dealing with lack of diligence in other
contexts, such as juror disqualification, evidentiary issues
during trial, and qualified immunity. The same holds true for why
the Board's participation in suit one's discovery practices
prevents this appeal -- CPI gives us no helpful case law applicable
to its waiver contention. Regardless, we understand CPI's
essential argument to be that because the Board slept on its rights
- 13 -
in the first suit, it necessarily waived any immunity defense in
the second. So we assess CPI's contention.10
Case law tells us an Eleventh Amendment sovereign
immunity defense, as asserted here, is jurisdictional and
therefore may be raised at any point during litigation, even for
the first time on appeal. R.I. Dep't of Env't Mgmt. v. United
States, 304 F.3d 31, 49 (1st Cir. 2002). However, a defendant can
waive this immunity defense by participating in the litigation,
thereby indicating its consent to suit. Lapides v. Bd. of Regents
of the Univ. Sys. of Ga., 535 U.S. 613, 619, 622 (2002). To
constitute waiver, the sovereign's litigation conduct "must be
unambiguous and must evince a clear choice to submit the state's
rights for adjudication by the federal courts." Ramos-Piñero v.
Puerto Rico, 453 F.3d 48, 52 (1st Cir. 2006) (cleaned up) (internal
citations omitted).
For example, we held a defendant did waive its sovereign
immunity when it argued this defense before the district court,
did not raise it in a first appeal, then tried to resurrect the
issue in a second appeal in the same matter. See Aquinnah/Gay
Head Cmty. Ass'n, Inc. v. Wampanoag Tribe of Gay Head (Aquinnah),
989 F.3d 72, 83 (1st Cir. 2021). Another example of waiver by
10 Rather than deem CPI's contentions waived for failure of
development, we address them because CPI indeed provided some case
law in an effort to support its points, perhaps cited so we could
reason by analogy to the situations presented in those cases.
- 14 -
litigation conduct: When a state entity engaged in litigation by
filing a counterclaim and a third-party complaint before asserting
sovereign immunity. Davidson v. Howe, 749 F.3d 21, 28 (1st Cir.
2014). Or, the slam dunk for waiver identified by the Supreme
Court was when a state defendant -- sued in state court under a
statute in which the state had waived immunity from suit -- removed
a case to federal court then filed a motion to dismiss on the basis
of sovereign immunity. Lapides, 535 U.S. at 619, 622. We have
said there is no waiver, though, when the sovereign defendant "does
nothing more than zealously defend against the [court's
jurisdiction] whenever possible." Consejo de Salud de la Comunidad
de la Playa de Ponce, Inc. v. González-Feliciano, 695 F.3d 83, 105
(1st Cir. 2012).
Our dive into CPI's and the Board's back-and-forth
during the 2017 case's discovery proceedings reveals the Board
indicated in its filings that it was not conceding its immunity
defenses. Soon after the district court judge denied the Board's
motion to dismiss CPI's 2017 Complaint, the parties submitted a
joint initial scheduling memorandum to the magistrate judge to
kick off the discovery process. In a section called "Statement of
Jurisdictional Issues" the Board asserted that the court lacks
jurisdiction on both constitutional and statutory immunity grounds
(as well as that P.R. Const. § 4 preempts CPI's claims). Later
on, when the Board filed a limited objection to the R&R about the
- 15 -
privilege log, the Board included a statement that it was reserving
its right to assert "its position that th[e] [c]ourt is without
jurisdiction over this matter" and was not waiving any of its
arguments about either sovereign or statutory immunity. With these
rights-preservation filings in the record and our prior
discussions of waiver by conduct in mind, we conclude that the
Board did not waive its immunity arguments by engaging in the
discovery process before CPI filed the 2019 Complaint.
That being said, because the district court explicitly
incorporated its legal reasoning from the 2018 order denying
dismissal of the 2017 Complaint into the order denying dismissal
of the 2019 Complaint, our review of the later order will
necessarily have to examine the fully articulated reasoning in the
first order.
Therefore, we move on to consider whether CPI's other
jurisdictional challenges have merit. CPI objects to the Board's
assertion of interlocutory appellate jurisdiction pursuant to the
collateral order doctrine, arguing that the Board's challenge to
the denial of Eleventh Amendment immunity can wait until the
district court enters a final judgment. The same holds for the
district court's order for production of documents.
In general, this court only allows appeals from final
judgments. 28 U.S.C. § 1291. As with any rule, however, there
are exceptions, and the Board says two apply here. First, an
- 16 -
interlocutory appeal of the order denying dismissal of the 2019
Complaint is properly before this court pursuant to the collateral
order doctrine. Second, an interlocutory appeal of the order
directing the Board to create a privilege log is an immediately
appealable injunction pursuant to § 1292(a).
The collateral order doctrine allows an order issued by
a district court to be appealed immediately when the order "finally
determines claims of right separable from, and collateral to,
rights asserted in the action, too important to be denied review
and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated."
Asociación De Subscripción Conjunta Del Seguro De Responsabilidad
Obligatorio v. Flores Galarza, 484 F.3d 1, 13 (1st Cir. 2007)
(alteration adopted) (quoting Espinal-Dominguez v. Puerto Rico,
352 F.3d 490, 495 (1st Cir. 2003)); Nieves-Márquez v. Puerto Rico,
353 F.3d 108, 122 n.11 (1st Cir. 2003). Stated differently, the
collateral order doctrine applies when the trial court's decision
is sufficiently final, urgent, important, and separable. Espinal-
Dominguez, 352 F.3d at 496 (citing In re Rectical Foam Corp., 859
F.2d 1000, 1004 (1st Cir. 1988)). This court has previously held
that a district court's denial of a state or state entity's claim
that the Eleventh Amendment provides full immunity from suit meets
the elements of the collateral order doctrine because: (1) the
decision "conclusively determines that the State [or state entity]
- 17 -
can be subjected to the coercive processes of the federal courts"
(finality), (2) "the principal benefit conferred by the Eleventh
Amendment -- an immunity from suit -- will be 'lost as litigation
proceeds past motion practice'" (urgency), (3) the decision
"involves an important legal question (the existence and extent of
a 'fundamental constitutional protection')" (importance), and (4)
the "question has no bearing on the substantive merits of the case"
(separability). Id. at 496-97 (quoting P.R. Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993)).
CPI says these elements aren't met because "[t]here
would [be] no immediate harm to the Board if this case proceeds to
final judgment" and that there could be "effective review" after
the Board produces the requested documents or identifies the
documents it thinks should be protected from disclosure. But CPI
does not attempt to distinguish our case law applying the
collateral order doctrine to denials of Eleventh Amendment
protection or show, beyond its broad argument, why the collateral
order doctrine elements aren't met here. In any event, we agree
with the Board that the district court's order denying its claim
of Eleventh Amendment immunity may be appealed now pursuant to the
collateral order doctrine. See P.R. Aqueduct & Sewer Auth., 506
U.S. at 141, 147 (holding States and state entities that are (or
claim to be) "arms of the State" may appeal a district court
decision denying Eleventh Amendment immunity pursuant to the
- 18 -
collateral order doctrine) (citing Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541 (1949)); cf. Espinal-Dominquez, 352 F.3d at
499 (dismissing an interlocutory appeal for want of appellate
jurisdiction because the collateral order doctrine could not make
one part of a case reviewable when the Commonwealth of Puerto Rico
had also acknowledged that the other remedies the plaintiff sought
in the same cause of action would not be shielded by Eleventh
Amendment immunity).
The Board claims that its other arguments -- statutory
immunity and preemption -- are also properly before us now because
these are "inextricably intertwined with the Eleventh Amendment
immunity issue," though it does not tell us how. We have indeed
recognized that pendent appellate jurisdiction "exists" "when an
issue is 'inextricably intertwined' with a denial of immunity, and
[when] review of the pendent issue 'was necessary to ensure
meaningful review' of immunity." Lopez v. Massachusetts, 588 F.3d
69, 81-82 (1st Cir. 2009) (quoting Swint v. Chambers Cnty. Comm'n,
514 U.S. 35, 51 (1995), and citing Suboh v. Dist. Attorney's
Office, 298 F.3d 81, 97 (1st Cir. 2002), and Fletcher v. Town of
Clinton, 196 F.3d 41, 55 (1st Cir. 1999)); see also Nieves-Márquez,
353 F.3d at 123. Such intertwinement is not present here, however.
An examination of our prior exercises of pendent appellate
jurisdiction reveals we have done so in situations where the
statutory questions presented were central to answering the
- 19 -
sovereign immunity question. See, e.g., Lopez, 588 F.3d at 82(exercising pendent appellate jurisdiction because whether the
state agency involved was an "employer" within the meaning of Title
VII "was both determinative and factually and legally entwined
with the Eleventh Amendment question") (citing Nieves-Márquez, 353
F.3d at 123-24); see also Nieves-Márquez, 353 F.3d at 123 (stating
the answer to whether any of the causes of action pled allowed for
damages as opposed to equitable remedies only was "inextricably
intertwined with the issue of Eleventh Amendment immunity"). In
contrast here, we can (and do) resolve the Eleventh Amendment
immunity issue without any need to explore or resolve either the
Board's arguments about statutory immunity pursuant to PROMESA
§ 105 or its arguments about how PROMESA preempts the disclosure
obligations in P.R. Const. § 4. And the Board does not suggest
any other viable legal theory that would allow us to review these
issues now. For these reasons stated, we decline to exercise
pendent jurisdiction over the statutory immunity and preemption
issues.
CPI's final objection to the Board seeking interlocutory
appellate review of the two orders now is based on CPI's contention
that neither order can be properly labeled an injunction as the
Board claims. The Board indeed asserts in its brief-in-chief that
the privilege log order (but not the order denying its motion to
dismiss) is an immediately appealable injunction, arguing that if
- 20 -
this court makes it wait to challenge the privilege log order until
after the log is completed, the proverbial cat will be "out of the
bag" and CPI will know what documents the Board has in its
possession. The Board wants us to rely on a case from the District
of Columbia Circuit Court of Appeals where that court held that
the district court's order requiring the defendant CIA to confirm
or deny whether it had the records the plaintiffs requested
pursuant to the Freedom of Information Act ("FOIA") was injunctive
in nature and appealable under 28 U.S.C. § 1292(a)(1). See Leopold
v. Cent. Intel. Agency, 987 F.3d 163, 169 (D.C. Cir. 2021) ("There
is no doubt that orders requiring the disclosure of documents are
appealable injunctions." (internal quotation marks and citation
omitted)). The D.C. Circuit Court recognized that "[t]he absence
of particular evidence may sometimes provide clues as important as
the presence of such evidence." Id. at 167.
The D.C. Circuit Court distinguished the situation in
Leopold from an order examined in a prior case in which the
district court had ordered the Secret Service to process a FOIA
request for visitor logs to the White House and the Vice
President's residence. Id. (citing Citizens for Resp. & Ethics in
Wash. v. U.S. Dep't of Homeland Sec. ("CREW"), 532 F.3d 860, 862-
63 (D.C. Cir. 2008)). The court held that the order in the Secret
Service case had not been immediately reviewable as an injunction
because the agency had not yet been forced to disclose any
- 21 -
documents, instead only to process the FOIA request, during which
the agency would have the opportunity "to withhold some or all of
the documents under one or more of FOIA's nine exemptions," CREW,
532 F.3d at 863, at which point, the district court "may agree
with the agency, allowing it to withhold the requested records, in
which case the government would have no cause to appeal," Leopold,
987 F.3d at 169 (quoting CREW, 532 F.3d at 864).
Not surprisingly, the Board would like us to find the
district court's privilege log order akin to Leopold whereas CPI
emphasizes the reasoning in CREW. True, the production of the
detailed privilege log will tip off CPI to the names of the
documents in the Board's possession, but CPI is demanding specific
categories of reports and other documents (see supra notes 3 and
8) it already knows are in the Board's possession. The kinds of
documents CPI seeks to obtain (such as financial reports and
statements related to the Board and the Commonwealth as well as
communications between the Board and various entities) do not, in
our view, have the same degree of national security sensitivity
upon which the CIA relies to carry out its responsibilities related
to national security, the disclosure of which would "reveal
intelligence sources and methods." Leopold, 987 F.3d at 169. As
such, contrary to what the Board wants us to believe, the content
of the privilege log would not let the cat "out of the bag" in the
same way as the information the CIA would have been forced to
- 22 -
disclose if it had been forced to admit or deny possessing various
documents. Instead, we think the Board's situation is more akin
to that in CREW -- to ask us to review the privilege log order
before the Board has complied and asserted claims of privilege for
each document CPI requested that the Board wants to withhold would
be premature. See 532 F.2d at 864. Effective review of the
district court's ultimate determination about which documents the
Board may withhold based on a specific claim of privilege can occur
after the Board has produced the privilege log and makes these
assertions in the first instance. We conclude, therefore, that
the privilege log order is not reviewable in this interlocutory
appeal as an injunction pursuant to 28 U.S.C. § 1292(a)(1). For
the reasons we have explained throughout this section, the only
merits issue we will proceed to examine is Eleventh Amendment
sovereign immunity.
Sovereign Immunity
The Eleventh Amendment provides that "[t]he Judicial
power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State." U.S. Const. amend. XI. According
to the Supreme Court, "a federal suit against state officials on
the basis of state law contravenes the Eleventh Amendment when
. . . the relief sought and ordered has an impact directly on the
- 23 -
State itself." Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 117 (1984). The Board argues that the Eleventh Amendment
shields it from this litigation full stop because "CPI is asking
a federal court . . . to enforce territorial law . . . against an
entity within the Commonwealth's government . . . ." The Board
contends this court has repeatedly stated this immunity applies to
the Commonwealth of Puerto Rico and that, in PROMESA, Congress
neither waived nor abrogated this immunity. CPI responds that the
Board is not entitled to this constitutional immunity because the
Supreme Court has not yet said this immunity applies to this
territory. But, if this court decides the Eleventh Amendment
applies, says CPI, then PROMESA § 106(a) abrogates the immunity
from suit.11 The district court assumed the Board was entitled to
Eleventh Amendment immunity but concluded Congress, in PROMESA
§ 106, both waived and abrogated the immunity. Our review of this
issue is de novo. Grajales v. P.R. Ports Auth., 831 F.3d 11, 15
(1st Cir. 2016).
As the district court and the Board point out, this court
has long treated Puerto Rico like a state for Eleventh Amendment
purposes, including recently. See Borrás-Borrero v. Corporación
del Fondo del Seguro del Estado, 958 F.3d 26, 33 (1st Cir. 2020)
11 Although CPI argues the Eleventh Amendment does not apply
to Puerto Rico and that Congress neither waived nor abrogated this
immunity as to Puerto Rico, we understand CPI's counterarguments
to be about the Board as an entity of Puerto Rico's government.
- 24 -
(noting "Puerto Rico is treated as a state for Eleventh Amendment
purposes" but avoiding consideration of the constitutional
immunity question because the state entity clearly prevailed on
the merits (quoting Fresenius Med. Care Cardiovascular Res., Inc.
v. P.R. and Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61
(1st Cir. 2003))); see also Grajales, 831 F.3d at 15 (acknowledging
Puerto Rico "enjoys" sovereign immunity in the same way as the
states (citing Jusino Mercado v. Puerto Rico, 214 F.3d 34, 39 (1st
Cir. 2000))); González-Feliciano, 695 F.3d at 103 n.15; Maysonet-
Robles v. Cabrero, 323 F.3d 43, 50 (1st Cir. 2003); De Leon Lopez
v. Corporacion Insular de Seguros, 931 F.2d 116, 121 (1st Cir.
1991). The Supreme Court, for its part, "has expressly reserved
on the question whether Eleventh Amendment immunity principles
apply to Puerto Rico." Grajales, 831 F.3d at 15 n.3 (citing P.R.
Aqueduct & Sewer Auth., 506 U.S. at 141 n.1 (acknowledging this
court's treatment of Puerto Rico as a State for Eleventh Amendment
purposes but not reaching the issue of whether the defendant agency
was entitled to the immunity as a state entity because this court
had not reached the issue)). The Supreme Court has only once
directly addressed whether Puerto Rico is a separate sovereign
from the federal government, in a criminal case. In Puerto Rico
v. Sánchez Valle, 579 U.S. 59 (2016), the Court held that while
each State is a separate sovereign from the federal government for
purposes of the Fifth Amendment's Double Jeopardy Clause, Puerto
- 25 -
Rico is not because the historical source of Puerto Rico's
prosecutorial power was derived from the federal government. Id.
at 68-69, 75. The Court did not, however, address whether Puerto
Rico enjoyed general sovereign immunity.
That this court has a long history of treating Puerto
Rico as a state for Eleventh Amendment purposes doesn't resolve
whether the Board itself is also entitled to immunity, however.
We have said "[a]rms of a state" may be entitled to immunity,
Pastrana-Torres v. Corporación De P.R. Para La Difusión Pública,
460 F.3d 124, 126 (1st Cir. 2006) (citing Metcalf & Eddy, Inc. v.
P.R. Aqueduct & Sewer Auth., 991 F.2d 935, 939 (1st Cir. 1993)),
but this court has not had an opportunity to examine whether the
Board is an "arm" of Puerto Rico and this appeal does not appear
to drop the question squarely on our bench for us to decide: The
Board asserts "[t]here can be no reasonable dispute that the Board
is an 'arm of the state' entitled to immunity" because, the Board
says, "Congress clearly established the Board as an entity within
the Puerto Rico government." For its part, CPI doesn't dispute
this statement. Indeed, throughout the dispositive motion
briefing below, the parties repeatedly referred to the Board as
"an entity within the territorial government" of Puerto Rico, and
PROMESA clearly defines the Board this way.12 48 U.S.C.
The Supreme Court's only comment to date about the Board's
12
status vis-à-vis Puerto Rico has been to acknowledge PROMESA
- 26 -
§ 2121(c)(1). The district court noted that neither party
addressed whether the Board "should be considered an 'arm' of
Puerto Rico for Eleventh Amendment purposes," then proceeded to
assume without deciding the Board is an "arm" because "the
Commonwealth funds it." Because neither the parties nor the
district court thought this point to be worth debating or examining
in detail, we shall also assume without deciding that the Board is
an arm of Puerto Rico, shielded by general Eleventh Amendment
immunity, especially because, as we explain below, Congress
abrogated, in part, the Board's immunity.
As we've already previewed, the Eleventh Amendment
shield is not impenetrable. Sovereign immunity is a privilege
which the holder of the immunity can voluntarily waive. Arecibo
Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 24 (1st Cir.
2001) (citing Clark v. Barnard, 108 U.S. 436, 447 (1883) and Coll.
Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 675 (1999)). In addition to the waiver-by-litigation-
conduct we discussed supra, a sovereign can waive its immunity in
defining the Board as "an entity within" Puerto Rico's government,
§ 2121(c)(1), and saying "Congress did not simply state that the
Board is part of the local Puerto Rican government. Rather,
Congress also gave the Board a structure, a set of duties, and
related powers all of which are consistent with this statement."
Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S.
Ct. 1649, 1661 (2020) (deciding whether the appointment of the
Board's members without Senate confirmation violated the
Appointments Clause, U.S. Const. Art. II, § 2, cl. 2).
- 27 -
one of two other ways: either by a "clear declaration" in a
statute or constitutional provision that the sovereign "intends to
submit itself to the jurisdiction of the federal courts," id.
(quoting Coll. Sav. Bank, 527 U.S. at 676), or by "participat[ing]
in a federal program for which waiver of immunity is a stated
condition," id. (citing Mills v. Maine, 118 F.3d 37, 50 (1st Cir.
1997)). Alternatively, "Congress may abrogate the States'
constitutionally secured immunity from suit in federal court . . .
by making its intention unmistakably clear in the language of the
statute," Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)
(quoting Dellmuth v. Muth, 491 U.S. 223, 228 (1989)), and "act[ing]
pursuant to a valid grant of constitutional authority," Arecibo
Cmty. Health Care, Inc., 270 F.3d at 24 n.9 (citing Laro v. New
Hampshire, 259 F.3d 1, 5 (1st Cir. 2001)); see also Arecibo Cmty.
Health Care, 270 F.3d at 24 n.9 (describing the expression of
intention to abrogate as having to be "unequivocal"); Maysonet-
Robles v. Cabrero, 323 F.3d 43, 49 (1st Cir. 2003) ("Congress may
abrogate . . . [Eleventh Amendment] immunity by expressly
authoriz[ing] such a suit pursuant to a valid exercise of power.")
(citing Coll. Sav. Bank, 527 U.S. at 670).
The district court concluded that Congress, pursuant to
its plenary power to legislate on behalf of Puerto Rico as a United
States territory (see supra note 1), included an express waiver of
sovereign immunity in PROMESA § 106. Our prior definitions of --
- 28 -
and discussions about -- waiver of Eleventh Amendment immunity,
however, indicate that waiver is accomplished by the sovereign
holding the privilege of immunity. See, e.g., Maysonet-Robles,
323 F.3d at 50 (to establish waiver of Eleventh Amendment immunity
the plaintiffs had to show Puerto Rico waived its own immunity);
Arecibo Cmty. Health Care, 270 F.3d at 24 (noting Eleventh
Amendment waiver is a privilege for the sovereign to waive). We
understand the district court's point to be that Congress, using
its power to act on behalf of Puerto Rico, could have elected to
waive immunity on behalf of the Board, but, as we next explain,
under these circumstances, our view is that the district court was
on much surer footing with its conclusion that PROMESA § 106
abrogated (rather than waived) the Board's sovereign immunity. We
therefore focus our attention on this method of thwarting the
Eleventh Amendment shield.
Whether Congress abrogated the Board's sovereign
immunity in PROMESA § 106 is an issue of first impression for this
court. We have not yet closely examined this part of PROMESA, in
which Congress said that "any action against the . . . Board, [or]
. . . otherwise arising out of [PROMESA] . . . shall be brought in
[the district court for the district of Puerto Rico]." 48 U.S.C.
§ 2126(a). While we write on a blank slate with respect to this
part of PROMESA, however, we are guided by long-standing and well-
settled principles of statutory construction. "[T]he critical
- 29 -
first step in any statutory-interpretation inquiry" is to "closely
examine the statutory text." Oliveira v. New Prime, Inc., 857
F.3d 7, 19 (1st Cir. 2017), aff'd, 139 S. Ct. 532 (2019). We give
the phrases or words Congress did not specifically define within
PROMESA their "ordinary meaning."13 Id. (quoting United States v.
Stefanik, 674 F.3d 71, 77 (1st Cir. 2012)). As we have previously
noted when interpreting PROMESA, "[c]ourts interpret statutes to
'give effect, if possible, to every word Congress used,' and . . .
reject 'interpretation[s] of the statute that would render an
entire subparagraph meaningless.'" In re Fin. Oversight & Mgmt.
Bd. for P.R., 7 F.4th 31, 37 (1st Cir. 2021) (quoting Nat'l Ass'n
of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 632 (2018) (second
alteration in original)). This court "indeed prefer[s] 'the most
natural reading' of a statute, one that 'harmonizes the various
provisions in [it] and avoids the oddities that [a contrary]
interpretation would create.'" N.H. Lottery Comm'n v. Rosen, 986
F.3d 38, 58 (1st Cir. 2021) (quoting Republic of Sudan v. Harrison,
139 S. Ct. 1048, 1057, 1060 (2019) (second and third alterations
in original)).
The full text of PROMESA § 106(a) states:
Except as provided in section 2124(f)(2) of this title
(relating to the issuance of an order enforcing a
subpoena), and subchapter III (relating to adjustments
of debts), any action against the Oversight Board, and
13 Neither party contends the PROMESA language at issue or
salient to this issue is ambiguous.
- 30 -
any action otherwise arising out of this chapter, in
whole or in part, shall be brought in a United States
district court for the covered territory or, for any
covered territory that does not have a district court,
in the United States District Court for the District of
Hawaii.
48 U.S.C. § 2126(a). Paragraph (c) clearly contemplates that
declaratory and injunctive relief may be ordered against the Board,
as well as orders related to alleged constitutional violations:
Except with respect to any orders entered to remedy
constitutional violations, no order of any court
granting declaratory or injunctive relief against the
Oversight Board, including relief permitting or
requiring the obligation, borrowing, or expenditure of
funds, shall take effect during the pendency of the
action before such court, during the time appeal may be
taken, or (if appeal is taken) during the period before
the court has entered its final order disposing of such
action.
Id. § 2126(c). And paragraph (e) -- "[t]here shall be no
jurisdiction in any United States district court to review
challenges to the Oversight Board's certification determinations
under this chapter" -- plainly provides a limit on the general
jurisdiction of the federal district court set out in paragraph
(a). Id. § 2126(e); In re Fin. Oversight & Mgmt. Bd. for P.R.,
916 F.3d at 112 (acknowledging "PROMESA's general grant of
jurisdiction at § 106(a)" when it explained paragraph (e) serves
as an exception to it).
The Board says the general grant of jurisdiction in
PROMESA § 106(a) is insufficiently direct to conclude Congress
intended to abrogate the Board's sovereign immunity. We disagree;
- 31 -
instead, we agree with the district court that, by including § 106,
Congress unequivocally stated its intention that the Board could
be sued for "any action . . . arising out of [PROMESA]," but only
in federal court. Congress was unmistakably clear that it had
contemplated remedies for constitutional violations and that
injunctive or declaratory relief against the Board may be granted,
see PROMESA § 106(c). Congress also provided three clear
exceptions to the grant of general jurisdiction -- two in paragraph
(a) and one regarding certification orders in paragraph (e). This
implies the remainder of paragraph (a) serves as establishing
general jurisdiction over all other matters not specifically
excepted elsewhere in the section. See In re Fin. Oversight &
Mgmt. Bd. for P.R., 7 F.4th at 37 (emphasizing the court's
obligation to "give effect . . . to every word Congress used").
"Any action . . . arising out of [PROMESA]" is certainly broad,
but given the limitations included within the same section, we
have every reason to give paragraph (a) its plain meaning. See
Oliveira, 857 F.3d at 19.
True, the language in PROMESA § 106 may not be as precise
as when Congress has written "[a] State shall not be immune under
the eleventh amendment . . . from an action in a Federal or State
court of competent jurisdiction for a violation of this chapter."
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001)
(citing 42 U.S.C. § 12202 -- Equal Opportunity for Individuals
- 32 -
with Disabilities) (holding no dispute that Congress intended to
abrogate immunity). But, as this court recently highlighted, "[t]o
abrogate sovereign immunity 'Congress need not state its intent in
any particular way.' . . . The Supreme Court has 'never required
that Congress use magic words' to make its intent to abrogate
clear." In re Coughlin, No. 21-1153, 2022 WL 1438867, at *2 (1st
Cir. May 6, 2022) (quoting FAA v. Cooper, 566 U.S. 284, 291
(2012)). "To the contrary, it has explained that the requirement
of unequivocal abrogation 'is a tool for interpreting the law and
that it does not displace the other traditional tools of statutory
construction.'" Id. (quoting Richlin Sec. Serv. Co. v. Chertoff,
553 U.S. 571, 589 (2008)) (cleaned up). Indeed, the Supreme Court
has previously deemed broad, "any cause of action arising from"
language as "unmistakably clear," signaling Congress's intent to
abrogate sovereign immunity from suit. See Seminole Tribe of Fla.
v. Florida, 517 U.S. 44, 56-57 (1996) (examining tribal gaming
ordinances "vest[ing] jurisdiction in 'the United States district
courts . . . over any cause of action [initiated by an Indian
tribe] arising from the failure of a State to enter into
negotiations [with the Indian tribe] . . . or to conduct such
negotiations in good faith'" (quoting 25 U.S.C. § 2710)). In
Seminole Tribe, § 2710(d)(7)(A)(ii) and (iii) also granted
jurisdiction to the district courts over "any cause of action"
initiated by either a State or Indian tribe over certain activity
- 33 -
or by the Secretary of the Interior to enforce some of the
statutory procedures. Id. at 57. As the district court in our
case pointed out, the language in PROMESA § 106(a) is similar to
the statutory language at issue in Seminole Tribe, though the
latter specified the plaintiff while PROMESA does not, but PROMESA
provides specific exceptions to jurisdiction whereas the tribal
gaming regulations did not.14
The district court also concluded that to consider
PROMESA § 106 anything but clear language of Congress's intent to
abrogate the Board's sovereign immunity would render § 106
superfluous. Not so, says the Board, because an action could still
14 Our reliance on the Supreme Court's reasoning in Seminole
Tribe is not, as our dissenting colleague claims, misplaced. The
dissent emphasizes the nature of the section of the Indian Gaming
Regulatory Act in question -- 25 U.S.C. § 2710(d)(7)(A) -- as a
"remedial scheme." Indeed, this part of the Act provided
jurisdiction in the federal district courts over a claim that a
state had not negotiated a Tribal-State compact in good faith, as
required by the Act. See 517 U.S. at 49-50. But the designation
of this section as "remedial" did not factor into the Court's
reasoning about Congress's explicit intent to abrogate sovereign
immunity and does not detract from its precedential value to us
here. Seminole Tribe stands as a clear and fairly applicable
principle that Congress need not expressly say that a "state shall
not be immune under the Eleventh Amendment" in order for the Court
to find clear language of its intent to abrogate sovereign
immunity. See 517 U.S. at 56; see also In re Coughlin, 2022 WL
1438867, at *2 (stating there are no "magic words" for the
unequivocal expression of intent to abrogate (quoting FAA, 566
U.S. at 291)). The dissent cannot deny that the Supreme Court
held Congress's intent to abrogate sovereign immunity was
"unmistakably clear" even though Congress did not so explicitly
state in § 2710(d)(7)(A). See Seminole Tribe, 517 U.S. at 56.
- 34 -
be brought under federal law. We note, however, that § 106 doesn't
explicitly limit the federal court's jurisdiction to federal law
claims. Congress could have included such a limitation, as it
included other limitations in § 106(a) and (e), but it did not
and, unlike our dissenting colleague who repeatedly asserts § 106
is intended to provide jurisdiction over federal claims only, we
decline to read it in.15 See In re Fin. Oversight & Mgmt. Bd. for
P.R., 7 F.4th at 37; N.H. Lottery Comm'n, 986 F.3d at 58. We
15 While Congress did not qualify "claims" as state, federal,
or both, it is important to remember that Congress did provide a
couple of other limits within PROMESA on the ways in which the
Board's actions may be challenged in federal court. To wit,
Congress exempted the Board from liability for some types of
claims: PROMESA § 105, titled "Exemption from liability for
claims," provides that "[t]he Oversight Board, its members, and
its employees shall not be liable for any obligation of or claim
against the Oversight Board or its members or employees or the
territorial government resulting from actions taken to carry out
this chapter." 48 U.S.C. § 2125. While we do not reach the merits
of the parties' arguments about the scope of this section, there
is no doubt that it serves as a limit on the kinds of claims that
may be brought against the Board.
Congress also included a supremacy clause: "The provisions
of this chapter shall prevail over any general or specific
provisions of territory law, State law, or regulation that is
inconsistent with this chapter." 48 U.S.C. § 2103. This shield
from compliance with inconsistent territory laws and regulations
assists the Board as it formulates and executes its plans for
Puerto Rico's fiscal recovery, and, though not a limit on the
federal court's jurisdiction over claims against it, provides a
defense to the Board for use against claims that its actions are
in conflict with territorial laws and regulations.
- 35 -
conclude "any action" includes claims based on either federal or
state law.16
As to the second necessary part of abrogation in the
context of sovereign immunity (abrogation through a "valid
exercise of power," Arecibo Cmty. Health Care, 270 F.3d at 24 n.9),
Congress expressly enacted PROMESA using its power pursuant to the
16 We also note that, before PROMESA was enacted, the status
quo ante was that persons in Puerto Rico could sue the Commonwealth
for damages in Commonwealth courts, but not in federal
courts. PROMESA effectively reversed this venue regime by barring
suit in Commonwealth courts while simultaneously allowing suits
against the Commonwealth to be brought in federal court. Nothing
in the language of § 106 suggests or even implies any intent to
affect the merits of such re-routed claims. The Board urges a
different view. It would have us find that PROMESA essentially
wiped out all such suits by deeming them dead on arrival at the
federal forum. But § 106 is not merely a "general authorization
for suit in federal court." Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 246 (1985). Rather, it is a claim-channeling
provision which requires that claims against the Board that are
otherwise cognizable in Commonwealth court must be brought in
federal court. This is no reason to think that Congress intended
this channeling to dictate the dismissal of such claims. Had
Congress intended to bring about such a change in substance rather
than venue we think it would have done so expressly. This is so
especially for claims of violation of the Commonwealth's
constitution because Congress had a direct role in the development
of Puerto Rico's Constitution, authorizing the "constitution-
making process," amending the draft constitution, and ultimately
approving the final Constitution. Sánchez Valle, 579 U.S. at 76;
see In re Fin. Oversight & Mgmt. Bd. for P.R., 916 F.3d at 104
(citing Sánchez Valle for its recognition of Congress's role in
the creation of Puerto Rico's constitution). Therefore, Congress
was certainly familiar with all the provisions within Puerto Rico's
Constitution -- including the right to access public documents
found in P.R. Const. § 4 (recall this is the right at the center
of CPI's suit against the Board) -- and we can expect that Congress
had Puerto Rico's constitutional provisions in mind when it was
designing the legislation to help Puerto Rico navigate its fiscal
crisis.
- 36 -
Territorial Clause (again, see supra note 1), 48 U.S.C.
§ 2121(b)(2); an exercise of power that neither party has
questioned here and that the Board has not challenged in other
litigation, see Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius
Inv., LLC, 140 S. Ct. 1649, 1679 (2020) (Sotomayor, J., concurring)
("[T]he parties here do not dispute Congress' ability to enact
PROMESA under the Territories Clause in the first place; nor does
it seem strictly necessary to call that matter into question to
resolve the Appointments Clause concern presented here.").
The Board puts forth some additional arguments about why
it thinks the district court erred by concluding PROMESA § 106
constituted a waiver or abrogation of immunity, including that the
district court relied on the wrong statute's legislative history,
that the district court should not have been swayed by CPI not
having any forum in which to sue the Board if the Board was immune
from all causes of actions based on territorial law, and that the
district court should not have put any stock in the Board's
appearances in the PROMESA Title III restructuring cases. We do
not address these arguments because none change our conclusion
that, based on our de novo review of PROMESA § 106 and the
application of the strict abrogation elements, Congress abrogated
the Board's sovereign immunity in PROMESA § 106 for the reasons
we've stated, to the extent not excepted within this statutory
section.
- 37 -
FINAL WORDS
For the reasons stated above, the district court's order
denying the Board's motion to dismiss CPI's 2019 Complaint on the
basis of sovereign immunity is affirmed. Costs to CPI.
- DISSENTING OPINION FOLLOWS -
- 38 -
LYNCH, Circuit Judge, dissenting. With respect, I
dissent. The Board is correct that it is entitled to Eleventh
Amendment immunity and the case must be dismissed. The majority's
conclusion to the contrary conflicts with Supreme Court precedent,
First Circuit precedent, and precedent from other circuits, and
will have dire consequences.
I.
We have long recognized that Puerto Rico is entitled to
Eleventh Amendment immunity. See, e.g., Borrás-Borrero v.
Corporación del Fondo del Seguro del Estado, 958 F.3d 26, 33 (1st
Cir. 2020); Grajales v. P.R. Ports Auth., 831 F.3d 11, 15 (1st
Cir. 2016); Fresenius Med. Care Cardiovascular Res., Inc. v. P.R.
& Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir.
2003).17 The Board is part of the Puerto Rico government. 48
U.S.C § 2121(c)(1). The relevant question is whether Congress in
§ 106 of PROMESA, 48 U.S.C. § 2126, has expressly abrogated that
immunity.18
17 The D.C. Circuit has also held that the Eleventh
Amendment applies to Puerto Rico; it found that the Puerto Rican
Federal Relations Act, 48 U.S.C. § 734, granted Puerto Rico the
same sovereign immunity that states possess. See P.R. Ports Auth.
v. Fed'l Maritime Comm'n, 531 F.3d 868, 872 (D.C. Cir. 2008)
(Kavanaugh, J.).
18 We have interlocutory appellate jurisdiction to consider
whether the district court's denial of Eleventh Amendment immunity
was error. See Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 123
(1st Cir. 2003).
- 39 -
In my view it is clear that the Board is protected by
Eleventh Amendment immunity under numerous doctrines and Eleventh
Amendment principles, including that abrogation of Eleventh
Amendment immunity must be clearly and unequivocally stated; that
grants of jurisdiction to Article III courts alone do not abrogate
Eleventh Amendment immunity; that federal courts are prohibited
from ordering state officials to conform their conduct to state
law under Pennhurst State School & Hospital v. Halderman, 465 U.S.
89 (1984); and that courts may not second-guess Congress where the
text of a statute is clear. Further, the provisions of PROMESA on
which the majority relies, which provide remedies and instructions
as to the exercise of jurisdiction over federal claims, do not
support the majority's conclusion that Congress intended to
abrogate the Board's Eleventh Amendment immunity. In fact, the
other provisions of PROMESA reinforce that Congress did not intend
to abrogate immunity.
The majority and the plaintiffs argue that § 106
expressly abrogates Puerto Rico's Eleventh Amendment immunity.
"In order to determine whether Congress has abrogated the States'
sovereign immunity, we ask two questions: first, whether Congress
has unequivocally expressed its intent to abrogate the immunity,
and second, whether Congress has acted pursuant to a valid exercise
of power[.]" Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55
(1996) (cleaned up).
- 40 -
In my view, the majority violates the rule that
abrogation of Eleventh Amendment immunity will only be found where
Congress has unequivocally expressed its intent to abrogate that
immunity. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)
("Congress may abrogate the States' constitutionally secured
immunity from suit in federal court only by making its intention
unmistakably clear in the language of the statute." (quoting
Dellmuth v. Muth, 491 U.S. 223, 228 (1989))); see also Mjosilovic
v. Oklahoma ex rel. Bd. of Regents., 841 F.3d 1129, 1131 (10th
Cir. 2016); Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir. 1999);
Mills v. Maine, 118 F.3d 37, 41 (1st Cir. 1997).
Section 106(a) is not an abrogation of Eleventh
Amendment immunity. It reads:
(a) Jurisdiction
Except as provided in section 2124(f)(2) of
this title (relating to the issuance of an
order enforcing a subpoena), and subchapter
III (relating to adjustments of debts), any
action against the Oversight Board, and any
action otherwise arising out of this chapter,
in whole or in part, shall be brought in a
United States district court for the covered
territory or, for any covered territory that
does not have a district court, in the United
States District Court for the District of
Hawaii.
48 U.S.C. § 2126. From the text of § 106(a) alone, the majority's
conclusion is error. Absolutely nothing in the text of this
section sets forth an intent to abrogate Eleventh Amendment
immunity.
- 41 -
Indeed, the text reveals the choice by Congress not to
include language abrogating Eleventh Amendment immunity. In Allen
v. Cooper, the Supreme Court held that Congress's intent to
abrogate a state's Eleventh Amendment immunity was express where
the statute provided that a state "shall not be immune, under the
Eleventh Amendment [or] any other doctrine of sovereign immunity,
from suit in Federal court." 140 S. Ct. 994, 999, 1001 (2020)
(alteration in original) (quoting 17 U.S.C. § 511(a)). Such
language is conspicuously absent from PROMESA § 106.19 The Allen
Court found that intent to abrogate was furthered by the language
"that in such a suit a State will be liable, and subject to
remedies, 'in the same manner and to the same extent as' a private
party." 140 S. Ct. at 999, 1001 (quoting 17 U.S.C. § 501(a)).
Such language is also absent from PROMESA § 106. Significantly,
as noted in Allen, this language was "essentially verbatim" the
language the Court recognized as expressly abrogating Eleventh
Amendment immunity in Florida Prepaid Postsecondary Education
19 The majority cites to In re Coughlin, No. 21-1153, 2022
WL 1438867 (1st Cir. May 6, 2022) for the correct proposition that
Congress need not invoke any particular "magic words" in order to
abrogate sovereign immunity, but misses the key language of
abrogation Congress used in that case. See id. at *2. In Coughlin,
the provision of the Bankruptcy Code at issue stated "sovereign
immunity is abrogated as to a governmental unit" with respect to
certain provisions of the Code, which we found was a clear
statement that the Code abrogated tribal sovereign immunity. Id.
at *2, *4 (quoting 11 U.S.C. § 106(a)).
- 42 -
Expense Board v. College Savings Bank, 527 U.S. 627 (1999), which
was decided before PROMESA was enacted. 140 S. Ct. at 1001.
The majority goes on to reason that if Congress had
wished to bar the assertion of Puerto Rico state law claims, it
would have explicitly added more language to § 106 to make that
clear. This proposition is wrong. See Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 696 (3rd Cir. 1999) (noting that where
the statutory text does not evince a clear intent to abrogate, the
court may not act as a "super legislature" and find an intent to
abrogate in order to avoid outcomes which seem "unjustifiable on
policy grounds"). An exclusive grant of jurisdiction to federal
courts for claims against the Board does not constitute a clear
statement abrogating Eleventh Amendment immunity. See United
States v. Nordic Vill., Inc., 503 U.S. 30, 37-38 (1992) (rejecting
argument that provision granting district courts exclusive
jurisdiction in bankruptcy proceedings waived sovereign immunity).
In essentially requiring Congress to include a clear statement
that it did not intend to abrogate Eleventh Amendment immunity --
rather than finding abrogation only in the presence of an
unmistakably clear express statement -- the majority turns the
longstanding rule on its head.
- 43 -
Section 106(a) is a limited jurisdiction-granting
provision.20 The Supreme Court has repeatedly held that
jurisdiction-granting clauses like § 106 do not abrogate Eleventh
Amendment immunity. See Atascadero State Hosp. v. Scanlon, 473
U.S. 234, 246 (1985) ("A general authorization for suit in federal
court is not the kind of unequivocal statutory language sufficient
to abrogate the Eleventh Amendment."); Blatchford v. Native Vill.
of Noatak & Circle Vill., 501 U.S. 775, 786 n.4 (1991) ("The fact
that Congress grants jurisdiction to hear a claim does not suffice
to show Congress has abrogated all defenses to that claim. The
issues are wholly distinct."); see also Mojsilovic, 841 F.3d at
1132 ("A general authorization for suit is insufficient to abrogate
the States' sovereign immunity."); BV Eng'g v. UCLA, 858 F.2d 1394,
1397-98, 1397 n.1 (9th Cir. 1988). In each of the cases in which
the Supreme Court and our court have recognized Eleventh Amendment
immunity, there was a federal statute granting federal
jurisdiction. Pennhurst itself involved a grant of jurisdiction
under § 504 of the Rehabilitation Act of 1973. 465 U.S. at 92.
This must be so, as federal courts exercise jurisdiction only
insofar as Congress extends it by statute. See Sheldon v. Sill,
20 The majority argues that § 106(a) is actually a "claim-
channeling" provision. Not only does the text not support this
reading, no authority supports the proposition that a claim-
channeling provision is a clear statement abrogating Eleventh
Amendment immunity.
- 44 -
49 U.S. 441, 449 (1850); see also R. Fallon, et al., Hart &
Wechsler's The Federal Courts and the Federal System 295-97 (7th
ed. 2015). The majority errs in treating the statutory grant of
jurisdiction in § 106 as not only a necessary but also a sufficient
condition to hale Puerto Rico into federal court.
The majority tries to justify its reliance on a
jurisdiction-granting provision to find an intent to abrogate by
citing to a single case, Seminole Tribe. In Seminole Tribe, the
Supreme Court considered the Indian Gaming Regulatory Act's
remedial scheme for ensuring the formation of Tribal-State
compacts, which grants federal courts jurisdiction over "any cause
of action initiated by an Indian tribe arising from the failure of
a State to enter into negotiations with the Indian tribe for the
purpose of entering into a Tribal–State compact," and only after
the tribe has made good-faith efforts to engage in such
negotiations. 517 U.S. at 49-50 (quoting §§ 2710(d)(7)(A)(i) and
(B)(i)). The Court found that this grant of jurisdiction over a
single type of lawsuit between a tribe and a state, after elaborate
statutory criteria had been met, clearly demonstrated Congress's
intent to abrogate states' Eleventh Amendment immunity in such
suits. Id. at 56-57. In contrast, § 106(a) grants federal
district courts jurisdiction over actions against the Board
without reference to any particular type of action. The majority
incorrectly suggests that the Court in Seminole Tribe was
- 45 -
considering a similarly broad provision, when in fact, as the Court
there made clear, the grant of jurisdiction in that case was
circumscribed and accompanied by an "elaborate remedial scheme."
Id. at 50. Seminole Tribe does not, contrary to the majority,
provide justification for a departure from the usual rule that a
general grant of jurisdiction is not sufficient to abrogate
Eleventh Amendment immunity, and is certainly not an adequate
foundation for its argument that § 106(a) does so.
The majority's conclusion also violates the holding of
Pennhurst. In Pennhurst, the Supreme Court considered an action
against state officials brought under the Ex Parte Young doctrine,
which allows suits for constitutional violations to be brought
against state officials that the Eleventh Amendment would normally
bar. 465 U.S. at 102. The Supreme Court found that the Ex Parte
Young exception does not apply in suits brought against state
officials for violations of state law, because Article III courts
ordering state officials to comply with state law "conflicts
directly with the principles of federalism that underlie the
Eleventh Amendment." 465 U.S. at 106; see also Cuesnongle v.
Ramos, 835 F.2d 1486, 1496 (1st Cir. 1987) ("[S]overeign immunity
prohibits federal courts from ordering state officials to conform
their conduct to state law."). Yet that is now precisely what the
majority holds is required in this case. The majority is ordering
the Board to comply with Puerto Rico disclosure laws despite the
- 46 -
Board's Eleventh Amendment immunity. Pennhurst clearly bars this
outcome.
Where the language of a provision has a plain and
unambiguous meaning, "the sole function of the courts is to enforce
it according to its terms." See Stauffer v. IRS, 939 F.3d 1, 7
(1st Cir. 2019) (quoting In re Fin. Oversight & Mgmt. Bd. for P.R.,
919 F.3d 121, 128 (1st Cir. 2019)). "[C]ourts must presume that
a legislature says in a statute what it means and means in a
statute what it says there." Owner-Operator Indep. Drivers Ass'n,
Inc. v. Supervalu, Inc., 651 F.3d 857, 862 (8th Cir. 2011) (quoting
United States v. I.L., 614 F.3d 817, 820 (8th Cir. 2010)). It is
clear from § 106(a) that this section of PROMESA does not abrogate
Eleventh Amendment immunity. The majority's attempts to read
abrogation into this provision by relying on other provisions of
PROMESA are unavailing. The majority argues that the fact that
Congress in § 106(c)21 contemplates remedies for constitutional
21 Section 106(c) reads:
(c) Timing of relief
Except with respect to any orders entered to
remedy constitutional violations, no order of
any court granting declaratory or injunctive
relief against the Oversight Board, including
relief permitting or requiring the obligation,
borrowing, or expenditure of funds, shall take
effect during the pendency of the action
before such court, during the time appeal may
be taken, or (if appeal is taken) during the
period before the court has entered its final
order disposing of such action.
- 47 -
violations somehow supports its abrogation holding. That is not
so. Such remedies are made available as to the federal causes of
action over which § 106 provides jurisdiction. The Rehabilitation
Act of 1973, which the Court found not to abrogate Eleventh
Amendment immunity in Atascadero, provided that "[t]he remedies,
procedures, and rights set forth in title VI of the Civil Rights
Act of 1964 shall be available to any person aggrieved" under the
statute. Atascadero, 473 U.S. at 245 (quoting 29 U.S.C. § 794a).
The provision of remedies for federal claims is not evidence of
abrogation. The majority's argument is also unconvincing because
PROMESA does not provide any remedies.
The majority attempts to justify its abrogation
conclusion with reference to the "except as provided" clause of
§ 106(a) and the limitation on jurisdiction contained in
§ 106(e).22 These provisions cabining the general grant of
jurisdiction in § 106(a) do not support the majority's position on
abrogation. Abrogation must be express and clearly stated, and
may not, as a matter of law, be found by implication.23 See Kimel,
48 U.S.C. § 2126(c).
22 Section 106(e) states, "There shall be no jurisdiction
in any United States district court to review challenges to the
Oversight Board's certification determinations under this
chapter."
23 The majority's argument that Congress's involvement in
the development of Puerto Rico's constitution somehow supports its
- 48 -
528 U.S. at 73. Further, to the extent that the majority purports
to be relying on the canon that all words must be given effect,
the Board's reading gives effect to all of the clauses. The Board
may be sued, in federal court only, for violations of PROMESA and
for violations of the federal constitution.
The majority's reading is not consistent with other
provisions of PROMESA, under which Congress has created federal
law obligations for the Board, to the exclusion of state law
obligations. Read in concert with § 106, these provisions,
contrary to the majority's reading, demonstrate that Congress
indeed intended for the Eleventh Amendment to operate to shield
the Board from the Puerto Rico disclosure obligations here at
issue. Congress, in enacting PROMESA, worked to strike a balance
between transparency, necessary to permit public oversight and
maintain public confidence, and confidentiality, necessary to
permit the Board to work effectively at its difficult and often
unpopular tasks.
For example, PROMESA requires the Board to make public
the findings of certain investigations, see 48 U.S.C. § 2124(p)
and any "gifts, bequests or devises and the identities of the
donors," see 48 U.S.C. § 2124(e), and it requires the Board to
"submit a report to the President, Congress, the Governor and the
abrogation holding is another instance of inferential reasoning in
lieu of finding a clear statement.
- 49 -
Legislature" "[n]ot later than 30 days after the last day of each
fiscal year," 48 U.S.C. § 2148(a). It bars other disclosures,
forbidding the Board to disclose the contents of certain tax
reports. See 48 U.S.C. § 2148(b)(2). PROMESA gives a great degree
of independence to the Board to determine what materials should be
disclosed, allowing the Board to hold executive sessions which are
closed to the public, see 48 U.S.C. § 2121(h)(4); specifying that
"[n]either the Governor nor the Legislature may[] . . . exercise
any control, supervision, oversight, or review over the Oversight
Board or its activities," 48 U.S.C. § 2128(a)(1); and directing
that "[t]he Oversight Board may incorporate in its bylaws, rules,
and procedures . . . such rules and regulations of the territorial
government as it considers appropriate to enable it to carry out
its activities under this Act with the greatest degree of
independence practicable," 48 U.S.C. § 2121(h)(3). Far from
"giv[ing] effect to every word and phrase" of the statute, see
City of Providence v. Barr, 954 F.3d 23, 37 (1st Cir. 2020)
(quoting Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16,
26 (1st Cir. 2006) (en banc)), the majority's interpretation of
§ 106 as abrogating Eleventh Amendment immunity renders these
provisions less meaningful.24
24 We focus our attention on the majority's reasoning, but
the district court opinion reaching the same conclusion is also in
error. The district court found that to grant recognition of the
Board's Eleventh Amendment immunity would render PROMESA § 106
- 50 -
II.
There are enormous adverse consequences which flow from
the majority's reading of § 106 as an abrogation of the Board's
Eleventh Amendment immunity. The majority's holding that the Board
cannot avail itself of Eleventh Amendment immunity will have
implications far into the future, in addition to posing burdens on
the Board in this case and beyond this case.25
"superfluous." Centro de Periodismo Investigativo v. Fin.
Oversight & Mgmt. Bd., No. 17-1743, 2018 WL 2094375, at *6 n.12
(D.P.R. May 4, 2018). That is plainly not so. Section 106 permits
suit against the Board in federal court for federal law claims
against it, including claims that the Board has exceeded its
authority under PROMESA, see, e.g., In re Fin. Oversight & Mgmt.
Bd. for P.R., 945 F.3d 3, 5 (1st Cir. 2019), and claims for
injunctive relief for violations of the federal constitution, see
Ex Parte Young, 209 U.S. 123, 160 (1908). Section 106 ensures
that claims against the Board, which might otherwise be brought in
the commonwealth courts, are the exclusive province of the federal
courts.
The district court's conclusion, that Congress waived
the Board's Eleventh Amendment immunity, which the plaintiffs also
have argued on appeal, is both wrong and misguided. Centro de
Periodismo, 2018 WL 2094375, at *5. It is wrong for the same
reason that the abrogation holding is wrong: the statute does not
clearly evince an intent to waive Eleventh Amendment immunity.
Moreover, the district court mistakenly cited the legislative
history of a bankruptcy provision rather than PROMESA § 106,
describing the provision as a "waiver of sovereign immunity."
Centro de Periodismo, 2018 WL 2094375, at *6 (quoting D. Austin,
Cong. Rsch. Serv., R44532, The Puerto Rico Oversight, Management,
and Economic Stability Act (PROMESA; H.R. 5278, S. 2328) 36
(2016)).
25 Puerto Rico, for example, has successfully claimed
Eleventh Amendment immunity in numerous cases in a variety of
contexts. See, e.g., In re San Juan Dupont Plaza Hotel Fire
Litig., 888 F. 2d 940, 943 (1st Cir. 1989) (affirming dismissal,
on Eleventh Amendment grounds, of claims against the Tourism
Company of Puerto Rico in mass tort action); Llewellyn-Waters v.
- 51 -
In this case, the Board has been ordered to produce
privilege logs demonstrating why tens of thousands of documents
fall under various privileges that it has claimed. The Board's
brief explains why this is an enormous burden and interferes with
the serious tasks Congress has given it. Because this Puerto Rico
cause of action is not limited by a statute of limitations, it is
predictable that litigants will try to seek documents created or
relied on by the Board since its creation in 2016. As this case
demonstrates, the majority's holding has allowed and will continue
to allow the Board to be drawn into lengthy litigation with heavy
discovery burdens.
III.
Eleventh Amendment protection reflects the
Constitution's structural design, and where, as here, Congress has
not expressly abrogated Eleventh Amendment immunity and the
sovereign has not waived it, the federal courts must honor that
Univ. of P.R., 56 F. Supp. 2d 159, 161-62 (D.P.R. 1999) (dismissing
claims against University of Puerto Rico in negligence action on
Eleventh Amendment grounds); Dogson v. Univ. of P.R., 26 F. Supp.
2d 341, 341, 344 (D.P.R. 1998) (dismissing breach of contract,
negligence, and sex discrimination claims brought under Puerto
Rico law against the University of Puerto Rico on Eleventh
Amendment grounds); Trans Am. Recovery Servs. v. Puerto Rico Mar.
Auth., 820 F. Supp. 38, 38-39 (D.P.R. 1993) (dismissing, on
Eleventh Amendment grounds, breach of contract action against
Puerto Rico's Maritime Shipping Authority); Rodriguez Diaz v.
Sierra Martinez, 717 F. Supp. 27, 29, 31 (D.P.R. 1989) (dismissing
medical negligence claims against University of Puerto Rico and
the Puerto Rico Medical Services Administration on Eleventh
Amendment grounds).
- 52 -
protection and dismiss the case. The majority today finds
congressional intent to abrogate absent any express indication of
such intent in the text of the statute, violating the Supreme
Court's mandate not to do so. See, e.g., Seminole Tribe, 517 U.S.
at 55-56. The majority decision finds an intent to abrogate in a
general grant of jurisdiction, contrary to decisions of the Supreme
Court and other circuits. See, e.g., Atascadero, 473 U.S. at 246;
see also Burnette, 192 F.3d at 57; BV Engineering, 858 F.2d at
1397-98; Gary A. v. New Trier High Sch. Dist. No. 203, 796 F.2d
940, 944 (7th Cir. 1986). It violates the well-established
principle of Pennhurst, that federal courts may not order state
officials to comply with state law, a principle which our circuit
and our sister circuits repeatedly have upheld. See, e.g., Vega
v. Semple, 963 F.3d 259, 284 (2d Cir. 2020); Doe v. Regents of the
Univ. of Cal., 891 F.3d 1147, 1152-53 (9th Cir. 2018); O'Brien v.
Mass. Bay Transp. Auth., 162 F.3d 40, 44 (1st Cir. 1998). The
implications, not only for the Board's future liability, but for
Eleventh Amendment doctrine going forward, are significant, and
today's decision should not go uncorrected.
I respectfully dissent.
- 53 -