Puerto Rico v. Franklin California Tax-Free Trust ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 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
COMMONWEALTH OF PUERTO RICO ET AL. v.
FRANKLIN CALIFORNIA TAX-FREE TRUST ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 15–233. Argued March 22, 2016—Decided June 13, 2016*
In response to an ongoing fiscal crisis, petitioner Puerto Rico enacted
the Puerto Rico Public Corporation Debt Enforcement and Recovery
Act. Portions of the Recovery Act mirror Chapters 9 and 11 of the
Federal Bankruptcy Code and enable Puerto Rico’s public utility cor-
porations to restructure their climbing debt. Respondents, a group of
investment funds and utility bondholders, sought to enjoin the Act.
They contended, among other things, that a Bankruptcy Code provi-
sion explicitly pre-empts the Recovery Act, see 11 U.S. C. §903(1).
The District Court enjoined the Act’s enforcement, and the First Cir-
cuit affirmed, concluding that the Bankruptcy Code’s definition of
“State” to include Puerto Rico, except for purposes of defining who
may be a debtor under Chapter 9, §101(52), did not remove Puerto
Rico from the scope of the pre-emption provision.
Held: Section 903(1) of the Bankruptcy Code pre-empts Puerto Rico’s
Recovery Act. Pp. 5–15.
(a) Three federal municipal bankruptcy provisions are relevant
here. First, the “gateway” provision, §109(c), requires a Chapter 9
debtor to be an insolvent municipality that is “specifically author-
ized” by a State “to be a debtor.” Second, the pre-emption provision,
§903(1), expressly bars States from enacting municipal bankruptcy
laws. Third, the definition of “State,” §101(52), as amended in 1984,
“includes . . . Puerto Rico, except for the purpose of defining who may
be a debtor under chapter 9.” Pp. 5–8.
——————
* Together with No. 15–255, Acosta-Febo et al. v. Franklin California
Tax-Free Trust et al., also on certiorari to the same court.
2 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
Syllabus
(b) If petitioners are correct that the amended definition of “State”
excludes Puerto Rico altogether from Chapter 9, then the pre-
emption provision does not apply. But if respondents’ narrower read-
ing is correct and the definition only precludes Puerto Rico from au-
thorizing its municipalities to seek Chapter 9 relief, then Puerto Rico
is barred from implementing its Recovery Act. Pp. 8–14.
(1) The Bankruptcy Code’s plain text supports respondents’ read-
ing. The unambiguous language of the pre-emption provision “con-
tains an express pre-emption clause,” the plain wording of which
“necessarily contains the best evidence of Congress’ pre-emptive in-
tent.” Chamber of Commerce of United States of America v. Whiting,
563 U.S. 582, 594. The definition provision excludes Puerto Rico for
the single purpose of defining who may be a Chapter 9 debtor, an
unmistakable reference to the §109 gateway provision. This conclu-
sion is reinforced by the definition’s use of the phrase “defining who
may be a debtor under chapter 9,” §101(52), which is tantamount to
barring Puerto Rico from “specifically authorizing” which municipali-
ties may file Chapter 9 petitions under the gateway provision,
§903(1). The text of the exclusion thus extends no further. Had Con-
gress intended to exclude Puerto Rico from Chapter 9 altogether, in-
cluding Chapter 9’s pre-emption provision, Congress would have said
so. Pp. 9–11.
(2) The amended definition of “State” does not exclude Puerto Ri-
co from all of Chapter 9’s provisions. First, Puerto Rico’s exclusion as
a “State” for purposes of the gateway provision does not also remove
Puerto Rico from Chapter 9’s separate pre-emption provision. A
State that chooses under the gateway provision not to authorize a
municipality to file is still bound by the pre-emption provision.
Likewise, Puerto Rico is bound by the pre-emption provision, even
though Congress has removed its authority under the gateway provi-
sion to authorize its municipalities to seek Chapter 9 relief. Second,
because Puerto Rico was not “by definition” excluded from Chapter 9,
both §903’s introductory clause and its proviso, the pre-emption pro-
vision, continue to apply in Puerto Rico. Finally, the argument that
the Recovery Act is not a “State law” that can be pre-empted is based
on technical amendments to the terms “creditor” and “debtor” that
are too “subtle” to support such a “[f]undamental chang[e] in the
scope” of Chapter 9’s pre-emption provision. Kellogg Brown & Root
Services, Inc. v. United States ex rel. Carter, 575 U. S. ___, ___.
Pp. 11–14.
805 F.3d 322, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, and KAGAN, JJ., joined. SOTOMAYOR, J.,
Cite as: 579 U. S. ____ (2016) 3
Syllabus
filed a dissenting opinion, in which GINSBURG, J., joined. ALITO, J., took
no part in the consideration or decision of these cases.
Cite as: 579 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 15–233 and 15–255
_________________
COMMONWEALTH OF PUERTO RICO, ET AL.,
PETITIONERS
15–233 v.
FRANKLIN CALIFORNIA TAX-FREE TRUST, ET AL.
MELBA ACOSTA-FEBO, ET AL., PETITIONERS
15–255 v.
FRANKLIN CALIFORNIA TAX-FREE TRUST, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 13, 2016]
JUSTICE THOMAS delivered the opinion of the Court.
The Federal Bankruptcy Code pre-empts state bank-
ruptcy laws that enable insolvent municipalities to re-
structure their debts over the objections of creditors and
instead requires municipalities to restructure such debts
under Chapter 9 of the Code. 11 U.S. C. §903(1). We
must decide whether Puerto Rico is a “State” for purposes
of this pre-emption provision. We hold that it is.
The Bankruptcy Code has long included Puerto Rico as
a “State,” but in 1984 Congress amended the definition of
“State” to exclude Puerto Rico “for the purpose of defining
who may be a debtor under chapter 9.” Bankruptcy
Amendments and Federal Judgeship Act, §421( j)(6), 98
Stat. 368, now codified at 11 U.S. C. §101(52). Puerto
Rico interprets this amended definition to mean that
2 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
Opinion of the Court
Chapter 9 no longer applies to it, so it is no longer a
“State” for purposes of Chapter 9’s pre-emption provision.
We hold that Congress’ exclusion of Puerto Rico from the
definition of a “State” in the amended definition does not
sweep so broadly. By excluding Puerto Rico “for the pur-
pose of defining who may be a debtor under chapter 9,”
§101(52) (emphasis added), the Code prevents Puerto Rico
from authorizing its municipalities to seek Chapter 9
relief. Without that authorization, Puerto Rico’s munici-
palities cannot qualify as Chapter 9 debtors. §109(c)(2).
But Puerto Rico remains a “State” for other purposes
related to Chapter 9, including that chapter’s pre-emption
provision. That provision bars Puerto Rico from enacting
its own municipal bankruptcy scheme to restructure the
debt of its insolvent public utilities companies.
I
A
Puerto Rico and its instrumentalities are in the midst of
a fiscal crisis. More than $20 billion of Puerto Rico’s
climbing debt is shared by three government-owned public
utilities companies: the Puerto Rico Electric Power Au-
thority, the Puerto Rico Aqueduct and Sewer Authority,
and the Puerto Rico Highways and Transportation Au-
thority. For the fiscal year ending in 2013, the three
public utilities operated with a combined deficit of $800
million. The Government Development Bank for Puerto
Rico (Bank)—the Commonwealth’s government-owned
bank and fiscal agent—has previously provided financing
to enable the utilities to continue operating without de-
faulting on their debt obligations. But the Bank now faces
a fiscal crisis of its own. As of fiscal year 2013, it had
loaned nearly half of its assets to Puerto Rico and its
public utilities. Puerto Rico’s access to capital markets
has also been severely compromised since ratings agencies
downgraded Puerto Rican bonds, including the utilities’, to
Cite as: 579 U. S. ____ (2016) 3
Opinion of the Court
noninvestment grade in 2014.
Puerto Rico responded to the fiscal crisis by enacting the
Puerto Rico Corporation Debt Enforcement and Recovery
Act (Recovery Act) in 2014, which enables the Common-
wealth’s public utilities to implement a recovery or re-
structuring plan for their debt. 2014 Laws P. R. p. 371.
See generally McGowen, Puerto Rico Adopts A Debt Re-
covery Act For Its Public Corporations, 10 Pratt’s J. Bkrtcy.
Law 453 (2014). Chapter 2 of the Recovery Act creates
a “consensual” debt modification procedure that permits
the public utilities to propose changes to the terms of the
outstanding debt instruments, for example, changing the
interest rate or the maturity date of the debt. 2014 Laws
P. R., at 428–429. In conjunction with the debt modifica-
tion, the public utility must also propose a Bank-approved
recovery plan to bring it back to financial self-sufficiency.
Ibid. The debt modification binds all creditors so long as
those holding at least 50% of affected debt participate in
(or consent to) a vote regarding the modifications, and the
participating creditors holding at least 75% of affected
debt approve the modifications. Id., at 430. Chapter 3 of
the Recovery Act, on the other hand, mirrors Chapters 9
and 11 of the Federal Bankruptcy Code by creating a
court-supervised restructuring process intended to offer
the best solution for the broadest group of creditors. See
id., at 448–449. Creditors holding two-thirds of an affected
class of debt must participate in the vote to approve the
restructuring plan, and half of those participants must
agree to the plan. Id., at 449.
B
A group of investment funds, including the Franklin
California Tax-Free Trust, and BlueMountain Capital
Management, LLC, brought separate suits against Puerto
Rico and various government officials, including agents of
the Bank, to enjoin the enforcement of the Recovery Act.
4 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
Opinion of the Court
Collectively, the plaintiffs hold nearly $2 billion in bonds
issued by the Electric Power Authority, one of the dis-
tressed utilities. The complaints alleged, among other
claims, that the Federal Bankruptcy Code prohibited
Puerto Rico from implementing its own municipal bank-
ruptcy scheme.
The District Court consolidated the suits and ruled in
the plaintiffs’ favor on their pre-emption claim. 85
F. Supp. 3d 577 (PR 2015). The court concluded that the
pre-emption provision in Chapter 9 of the Federal Bank-
ruptcy Code, 11 U.S. C. §903(1), precluded Puerto Rico
from implementing the Recovery Act and enjoined its
enforcement. 85 F. Supp. 3d, at 601, 614.
The First Circuit affirmed. 805 F.3d 322 (2015). The
court examined the 1984 amendment to the definition of
“State” in the Federal Bankruptcy Code, which includes
Puerto Rico as a “State” for purposes of the Code “ ‘except
for the purpose of defining who may be a debtor under
chapter 9.’ ” Id., at 330–331 (quoting §101(52); emphasis
added). The court concluded that the amendment did not
remove Puerto Rico from the scope of the pre-emption
provision and held that the pre-emption provision barred
the Recovery Act. Id., at 336–337. The court opined that
it was up to Congress, not Puerto Rico, to decide when the
government-owned companies could seek bankruptcy
relief. Id., at 345.
We granted the Commonwealth’s petitions for writs of
certiorari. 577 U. S. ___ (2015).*
——————
* After the parties briefed and argued these cases, Members of Con-
gress introduced a bill in the House of Representatives to establish an
oversight board to assist Puerto Rico and its instrumentalities. See H.
5278, 114th Cong., 2d Sess. (2016). The bill does not amend the Fed-
eral Bankruptcy Code; it instead proposes adding a chapter to Title 48,
governing the Territories. Id., §6.
Cite as: 579 U. S. ____ (2016) 5
Opinion of the Court
II
These cases require us to parse three provisions of the
Bankruptcy Code: the “who may be a debtor” provision
requiring States to authorize municipalities to seek Chap-
ter 9 relief, §109(c), the pre-emption provision barring
States from enacting their own municipal bankruptcy
schemes, §903(1), and the definition of “State,” §101(52).
We first explain the text and history of these provisions.
We then conclude that Puerto Rico is still a “State” for
purposes of the pre-emption provision and hold that this
provision pre-empts the Recovery Act.
A
The Constitution empowers Congress to establish “uni-
form Laws on the subject of Bankruptcies throughout the
United States.” Art. I, §8, cl. 4. Congress first exercised
that power by enacting a series of temporary bankruptcy
Acts beginning in 1800, which gave way to a permanent
federal bankruptcy scheme in 1898. See An Act To Estab-
lish a Uniform System of Bankruptcy Throughout the
United States, 30 Stat. 544; Hanover Nat. Bank v. Moyses,
186 U.S. 181, 184 (1902). But Congress did not enter the
field of municipal bankruptcy until 1933 when it enacted
the precursor to Chapter 9, a chapter of the Code enabling
an insolvent “municipality,” meaning a “political subdivi-
sion or public agency or instrumentality of a State,” 11
U.S. C. §101(40), to restructure municipal debts. See
McConnell & Picker, When Cities Go Broke: A Conceptual
Introduction to Municipal Bankruptcy, 60 U. Chi. L. Rev.
425, 427, 450–451 (1993).
Congress has tailored the federal municipal bankruptcy
laws to preserve the States’ reserved powers over their
municipalities. This Court struck down Congress’ first
attempt to enable the States’ political subdivisions to file
for federal bankruptcy relief after concluding that it in-
fringed the States’ powers “to manage their own affairs.”
6 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
Opinion of the Court
Ashton v. Cameron County Water Improvement Dist. No.
One, 298 U.S. 513, 531 (1936). Congress tried anew in
1937, and the Court upheld the amended statute as an
appropriate balance of federal and state power. See United
States v. Bekins, 304 U.S. 27, 49–53 (1938). Critical to
the Court’s constitutional analysis was that the State had
first authorized its instrumentality to seek relief under
the federal bankruptcy laws. See id., at 47–49, 53–54.
Still today, the provision of the Bankruptcy Code defin-
ing who may be a debtor under Chapter 9, which we refer
to here as the “gateway” provision, requires the States to
authorize their municipalities to seek relief under Chapter
9 before the municipalities may file a Chapter 9 petition:
Ҥ109. Who may be a debtor
. . . . .
“(c) An entity may be a debtor under chapter 9 of
this title if and only if such entity —
“(1) is a municipality;
“(2) is specifically authorized, in its capacity as a
municipality or by name, to be a debtor under such
chapter by State law, or by a governmental officer or
organization empowered by State law to authorize
such entity to be a debtor under such chapter . . . .”
The States’ powers are not unlimited, however. The
federal bankruptcy laws changed again in 1946 to bar the
States from enacting their own municipal bankruptcy
schemes. The amendment overturned this Court’s holding
in Faitoute Iron & Steel Co. v. Asbury Park, 316 U.S. 502,
507–509 (1942) (rejecting contention that Congress occu-
pied the field of municipal bankruptcy law). In Faitoute,
the Court held that federal bankruptcy laws did not pre-
empt New Jersey’s municipal bankruptcy scheme, which
required municipalities to seek relief under state law
before resorting to the federal municipal bankruptcy
scheme. Ibid. To override Faitoute, Congress enacted a
Cite as: 579 U. S. ____ (2016) 7
Opinion of the Court
provision expressly pre-empting state municipal bank-
ruptcy laws. Act of July 1, 1946, 60 Stat. 415.
The express pre-emption provision, central to these
cases, is now codified with some stylistic changes in
§903(1):
Ҥ903. Reservation of State power to control
municipalities
“This chapter does not limit or impair the power of a
State to control, by legislation or otherwise, a munici-
pality of or in such State in the exercise of the political
or governmental powers of such municipality, includ-
ing expenditures for such exercise, but—
“(1) a State law prescribing a method of composition
of indebtedness of such municipality may not bind any
creditor that does not consent to such composition;
and
“(2) a judgment entered under such a law may
not bind a creditor that does not consent to such
composition.”
The third provision of the Bankruptcy Code at issue is
the definition of “State,” which has included Puerto Rico
since it became a Territory of the United States in 1898.
The first Federal Bankruptcy Act, also enacted in 1898,
defined “States” to include “the Territories, the Indian
Territory, Alaska, and the District of Columbia.” 30 Stat.
545. When Congress recodified the bankruptcy laws to
form the Federal Bankruptcy Code in 1978, the definition
of “State” dropped out of the definitional section. See
generally Bankruptcy Reform Act, 92 Stat. 2549–2554.
Congress then amended the Code to reincorporate the
definition of “State” in 1984. §421, 98 Stat. 368–369, now
codified at §101(52). The amended definition includes
Puerto Rico as a State for purposes of the Code with one
exception:
Ҥ101. Definitions
8 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
Opinion of the Court
. . . . .
“(52) The term ‘State’ includes the District of
Columbia and Puerto Rico, except for the purpose of
defining who may be a debtor under chapter 9 of this
title.”
B
It is our task to determine the effect of the amended
definition of “State” on the Code’s other provisions govern-
ing Chapter 9 proceedings. We must decide whether, in
light of the amended definition, Puerto Rico is no longer a
“State” only for purposes of the gateway provision, which
requires States to authorize their municipalities to seek
Chapter 9 relief, or whether Puerto Rico is also no longer a
“State” for purposes of the pre-emption provision.
The parties do not dispute that, before 1984, Puerto Rico
was a “State” for purposes of Chapter 9’s pre-emption
provision. Accordingly, before 1984, federal law would
have pre-empted the Recovery Act because it is a “State
law prescribing a method of composition of indebtedness”
for Puerto Rico’s instrumentalities that would bind non-
consenting creditors, §903(1).
The parties part ways, however, in deciphering how the
1984 amendment to the definition of “State” affected the
pre-emption provision. Petitioners interpret the amended
definition of “State” to exclude Puerto Rico altogether from
Chapter 9. If petitioners are correct, then the pre-emption
provision does not apply to them. Puerto Rico, in other
words, may enact its own municipal bankruptcy scheme
without running afoul of the Code. Respondents, on the
other hand, read the amended definition narrowly. They
contend that the definition precludes Puerto Rico from
“specifically authoriz[ing]” its municipalities to seek relief,
as required by the gateway provision, §109(c)(2), but that
Puerto Rico is no less a “State” for purposes of the pre-
emption provision than the other “State[s],” as that term
Cite as: 579 U. S. ____ (2016) 9
Opinion of the Court
is defined in the Code. If respondents are correct, then the
pre-emption provision applies to Puerto Rico and bars it
from enacting the Recovery Act.
Respondents have the better reading. We hold that
Puerto Rico is still a “State” for purposes of the pre-
emption provision. The 1984 amendment precludes Puerto
Rico from authorizing its municipalities to seek relief
under Chapter 9, but it does not remove Puerto Rico from
the reach of Chapter 9’s pre-emption provision.
1
The plain text of the Bankruptcy Code begins and ends
our analysis. Resolving whether Puerto Rico is a “State”
for purposes of the pre-emption provision begins “with the
language of the statute itself,” and that “is also where the
inquiry should end,” for “the statute’s language is plain.”
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235,
241 (1989). And because the statute “contains an express
pre-emption clause,” we do not invoke any presumption
against pre-emption but instead “focus on the plain word-
ing of the clause, which necessarily contains the best
evidence of Congress’ pre-emptive intent.” Chamber of
Commerce of United States of America v. Whiting, 563
U.S. 582, 594 (2011) (internal quotation marks omitted);
see also Gobeille v. Liberty Mut. Ins. Co., 577 U. S. ___, ___
(2016) (slip op., at 12).
The amended definition of “State” excludes Puerto Rico
for the single “purpose of defining who may be a debtor
under chapter 9 of this title.” §101(52) (emphasis added).
That exception unmistakably refers to the gateway provi-
sion in §109, titled “who may be a debtor.” Section 109(c)
begins, “An entity may be a debtor under chapter 9 of this
title if and only if . . . .” §109(c). We interpret Congress’
use of the “who may be a debtor” language in the amended
definition of “State” to mean that Congress intended to
exclude Puerto Rico from this gateway provision delineat-
10 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
Opinion of the Court
ing who may be a debtor under Chapter 9. See, e.g., Sulli-
van v. Stroop, 496 U.S. 478, 484 (1990) (reading same
term used in different parts of the same Act to have the
same meaning); see also Northcross v. Board of Ed. of
Memphis City Schools, 412 U.S. 427, 428 (1973) ( per
curiam) (“[S]imilarity of language . . . is . . . a strong indi-
cation that the two statutes should be interpreted pari
passu”). Puerto Rico, therefore, is not a “State” for pur-
poses of the gateway provision, so it cannot perform the
single function of the “State[s]” under that provision: to
“specifically authoriz[e]” municipalities to seek Chapter 9
relief. §109(c). As a result, Puerto Rico’s municipalities
cannot satisfy the requirements of Chapter 9’s gateway
provision until Congress intervenes.
The amended definition’s use of the term “defining” also
confirms our conclusion that the amended definition ex-
cludes Puerto Rico as a “State” for purposes of the gateway
provision. The definition specifies that Puerto Rico is not
a “ ‘State . . . for the purpose of defining who may be a
debtor under Chapter 9.” §101(52) (emphasis added). To
“define” is “to decide upon,” 4 Oxford English Dictionary
383 (2d ed. 1989), or “to settle” or “to establish or prescribe
authoritatively,” Black’s Law Dictionary 380 (5th ed.
1979). As discussed, a State’s role under the gateway
provision is to do just that: The State must define (or
“decide upon”) which entities may seek Chapter 9 relief.
Barring Puerto Rico from “defining who may be a debtor
under chapter 9” is tantamount to barring Puerto Rico
from “specifically authorizing” which municipalities may
file Chapter 9 petitions under the gateway provision.
The amended definition of “State” unequivocally ex-
cludes Puerto Rico as a “State” for purposes of the gateway
provision.
The text of the definition extends no further. The excep-
tion excludes Puerto Rico only for purposes of the gateway
provision. Puerto Rico is no less a “State” for purposes of
Cite as: 579 U. S. ____ (2016) 11
Opinion of the Court
the pre-emption provision than it was before Congress
amended the definition. The Code’s pre-emption provision
has prohibited States and Territories defined as “States”
from enacting their own municipal bankruptcy schemes
for 70 years. See 60 Stat. 415 (overturning Faitoute, 316
U.S., at 507–509). Had Congress intended to “alter th[is]
fundamental detai[l]” of municipal bankruptcy, we would
expect the text of the amended definition to say so. Whit-
man v. American Trucking Assns., Inc., 531 U.S. 457, 468
(2001). Congress “does not, one might say, hide elephants
in mouseholes.” Ibid.
2
The dissent, adopting many of petitioners’ arguments,
reads the amended definition to say what it does not—that
“for the purpose of . . . chapter 9,” Puerto Rico is not a
State. The arguments in support of that capacious read-
ing are unavailing.
First, the dissent agrees with petitioners’ view that the
exclusion of Puerto Rico as a “State” for purposes of the
gateway provision effectively removed Puerto Rico from all
of Chapter 9. See post, at 7–8 (opinion of SOTOMAYOR, J.).
To be sure, §109(c) and the surrounding subsections serve
an important gatekeeping role. Those provisions “specify
who qualifies—and who does not qualify—as a debtor
under the various chapters of the Code.” Toibb v. Radloff,
501 U.S. 157, 161 (1991). For instance, a railroad must
file under Chapter 11, not Chapter 7, §§109(b)(1), (d),
whereas only “family farmer[s] or family fisherm[e]n” may
file under Chapter 12. The provision delineating who may
be a debtor under Chapter 9 is no exception. Only munic-
ipalities may file under Chapter 9, and only if the State
has “specifically authorized” the municipality to do so.
§§109(c)(1)–(2); see also McConnell & Picker, 60 Chi.
L. Rev., at 455–461 (discussing the gatekeeping require-
ments for Chapter 9).
12 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
Opinion of the Court
That Puerto Rico is not a “State” for purposes of the
gateway provision, however, says nothing about whether
Puerto Rico is a “State” for the other provisions of Chapter
9 involving the States. The States do not “pass through”
the gateway provision. Post, at 8. The gateway provision
is instead directed at the debtors themselves—the munici-
palities, in the case of Chapter 9 bankruptcy. A munici-
pality that cannot secure state authorization to file a
Chapter 9 petition is excluded from Chapter 9 entirely.
But the same cannot be said about the State in which that
municipality is located. A State’s only role under the
gateway provision is to provide that “authoriz[ation]” to
file. §109(c)(2). The pre-emption provision then imposes
an additional requirement: The States may not enact their
own municipal bankruptcy schemes. A State that chooses
not to authorize its municipalities to seek Chapter 9 relief
under the gateway provision is no less bound by that pre-
emption provision. Here too, Puerto Rico is no less bound
by the pre-emption provision even though Congress has
removed its authority to provide authorization for its
municipalities to file Chapter 9 petitions. Again, if it were
Congress’ intent to also exclude Puerto Rico as a “State”
for purposes of that pre-emption provision, it would have
said so.
Second, both petitioners and the dissent place great
weight on the introductory clause of §903. Post, at 6–7.
The pre-emption provision cannot apply to Puerto Rico, so
goes the argument, because it is a proviso to §903’s intro-
ductory clause, which they posit is inapplicable to Puerto
Rico. The introductory clause affirms that Chapter 9
“does not limit or impair the power of a State to control”
its “municipalit[ies].” §903. The dissent surmises that
this clause “is irrelevant” and “meaningless” in Puerto
Rico. Post, at 7. Because Puerto Rico’s municipalities are
ineligible for Chapter 9 relief, Chapter 9 cannot “affec[t]
Puerto Rico’s control over its municipalities,” according to
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Opinion of the Court
the dissent. Ibid. In other words, “there is no power” for
the introductory clause to “reserve” for Puerto Rico’s use.
Ibid. Petitioners likewise contend that “it would be non-
sensical for Congress to provide Puerto Rico with a shield
against intrusion by a Chapter that, by definition, can
have no effect on Puerto Rico.” Brief for Petitioner Com-
monwealth of Puerto Rico et al. in No. 15–233, p. 25. So
“it follows” that the pre-emption provision, the proviso to
that clause, cannot apply either. Ibid.
This reading rests on the faulty assumption that Puerto
Rico is, “by definition,” excluded from Chapter 9. Ibid.
For all of the reasons already explained, see Part II–B–1,
supra, it is not. The amended definition of “State” pre-
cludes Puerto Rico from authorizing its municipalities to
seek Chapter 9 relief. But Puerto Rico is no less a “State”
for purposes of §903’s introductory clause and its proviso.
Both continue to apply in Puerto Rico. They are neither
“irrelevant” nor “meaningless.” Post, at 7. If, for example,
Congress created a path for the Puerto Rican municipali-
ties to restructure their debts under Chapter 9, then §903
would assure Puerto Rico, no less a “State” for purposes
of this section, of its continued power to “control, by
legislation or otherwise, [its] municipalit[ies] . . . in the
exercise of the political or governmental powers of such
municipalit[ies].”
Third, the Government Development Bank contends
that the Recovery Act does not run afoul of the pre-
emption provision because the Recovery Act does not bind
nonconsenting “creditors,” as the Bankruptcy Code now
defines that term. In 1978, Congress redefined “creditor”
to mean an “entity that has a claim against the debtor
. . . .” 92 Stat. 2550, now codified at §101(10) (emphasis
added). A “debtor,” in turn, is a “person or municipality
concerning which a case under this title has been com-
menced.” Id., at 2551, now codified at §101(13) (emphasis
added). In light of these definitions, the Bank contends
14 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
Opinion of the Court
that the Puerto Rican municipalities are not “debtor[s]” as
the Code defines the term because they cannot “com-
menc[e]” an action under Chapter 9 without authorization
from Puerto Rico. Brief for Petitioner Acosta-Febo et al.
31–33. And because respondents cannot be “creditors” of a
nonexistent “debtor,” the Recovery Act is not a “State law”
that binds “any creditor.” §903(1). Id., at 31–33.
Tellingly, the dissent does not adopt this reading. The
Bank’s interpretation would nullify the pre-emption provi-
sion. Applying the Bank’s logic, a municipality that fails
to meet any one of the requirements of Chapter 9’s gate-
keeping provision is not a “debtor” and would have no
“creditors.” So a State could refuse to “specifically author-
iz[e]” its municipalities to seek relief under Chapter 9,
§109(c)(2), required to commence a case under that chap-
ter. That State would be free to enact its own municipal
bankruptcy scheme because its municipalities would have
no “creditors” under federal law. The technical amend-
ments to the definitions of “creditor” and “debtor” are too
“subtle a move” to support such a “[f ]undamental chang[e]
in the scope” of Chapter 9’s pre-emption provision. Kel-
logg Brown & Root Services, Inc. v. United States ex rel.
Carter, 575 U. S. ___, ___ (2015) (slip op., at 9).
* * *
The dissent concludes that “the government and people
of Puerto Rico should not have to wait for possible con-
gressional action to avert the consequences” of the Com-
monwealth’s fiscal crisis. Post, at 9. But our constitutional
structure does not permit this Court to “rewrite the
statute that Congress has enacted.” Dodd v. United
States, 545 U.S. 353, 359 (2005); see also Electric Storage
Battery Co. v. Shimadzu, 307 U.S. 5, 14 (1939). That
statute precludes Puerto Rico from authorizing its munici-
palities to seek relief under Chapter 9. But it does not
remove Puerto Rico from the scope of Chapter 9’s pre-
Cite as: 579 U. S. ____ (2016) 15
Opinion of the Court
emption provision. Federal law, therefore, pre-empts the
Recovery Act. The judgment of the Court of Appeals for
the First Circuit is affirmed.
It is so ordered.
JUSTICE ALITO took no part in the consideration or
decision of these cases.
Cite as: 579 U. S. ____ (2016) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 15–233 and 15–255
_________________
COMMONWEALTH OF PUERTO RICO, ET AL.,
PETITIONERS
15–233 v.
FRANKLIN CALIFORNIA TAX-FREE TRUST, ET AL.
MELBA ACOSTA-FEBO, ET AL., PETITIONERS
15–255 v.
FRANKLIN CALIFORNIA TAX-FREE TRUST, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 13, 2016]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting.
Chapter 9 of the Federal Bankruptcy Code allows
States’ “municipalities”—cities, utilities, levee boards, and
the like—to file for federal bankruptcy with their State’s
authorization. But the Code excludes Puerto Rican munic-
ipalities from accessing federal bankruptcy. 11 U.S. C.
§§101(52), 109(c)(2). Because of this bar, Puerto Rico
enacted its own law in 2014—the Recovery Act—to allow
its utilities to restructure their significant debts outside
the federal bankruptcy process.
The Court today holds that Puerto Rico’s Recovery Act is
barred by §903(1) of Chapter 9 of the Bankruptcy Code,
which prohibits States from creating their own bankruptcy
processes for their insolvent municipalities. §903(1).
Because Puerto Rican municipalities cannot access Chap-
ter 9’s federal bankruptcy process, however, a nonfederal
bankruptcy solution is not merely a parallel option; it is
2 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
SOTOMAYOR, J., dissenting
the only existing legal option for Puerto Rico to restruc-
ture debts that could cripple its citizens. The structure of
the Code and the language and purpose of §903 demon-
strate that Puerto Rico’s municipal debt restructuring law
should not be read to be prohibited by Chapter 9.
I respectfully dissent.
I
The Commonwealth of Puerto Rico and its municipali-
ties are in the middle of a fiscal crisis. Ante, at 2. The
combined debt of Puerto Rico’s three main public utilities
exceeds $20 billion. These utilities provide power, water,
sewer, and transportation to residents of the island. With
rising interest rates and limited access to capital markets,
their debts are proving unserviceable. Soon, Puerto Rico
and the utilities contend, they will be unable to pay for
things like fuel to generate electricity, which will lead
to rolling blackouts. Other vital public services will be
imperiled, including the utilities’ ability to provide
safe drinking water, maintain roads, and operate public
transportation.
When debtors face untenable debt loads, bankruptcy is
the primary tool the law uses to forge workable long-term
solutions. By requiring a debtor and creditors to negotiate
together and forcing both sides to make concessions within
the limits set by law, bankruptcy gives the debtor a “fresh
start,” discourages creditors from racing each other to sue
the debtor, prohibits a small number of holdout creditors
from blocking a compromise, protects important creditor
rights such as the prioritization of debts, and allows all
parties to find equitable and efficient solutions to fiscal
problems. See Marrama v. Citizens Bank of Mass., 549
U.S. 365, 367 (2007); Young v. Higbee Co., 324 U.S. 204,
210 (1945).
These concerns are starkly presented in the context of
municipal entities like public utilities. While a business
Cite as: 579 U. S. ____ (2016) 3
SOTOMAYOR, J., dissenting
corporation can use bankruptcy to reorganize, and, if that
fails, fold up shop and liquidate all of its assets, govern-
ments cannot shut down power plants, water, hospitals,
sewers, and trains and leave citizens to fend for them-
selves. A “fresh start” can help not only the unfortunate
individual debtor but also—and perhaps especially—the
unfortunate municipality and its people. See United
States v. Bekins, 304 U.S. 27, 53–54 (1938).
Congress has excluded the municipalities of Puerto Rico
and the District of Columbia from the federal municipal
bankruptcy scheme in Chapter 9 of the Bankruptcy Code.
See 11 U.S. C. §§101(52), 109(c). So, in 2014, the Puerto
Rican Government enacted the Puerto Rico Public Corpo-
ration Debt Enforcement and Recovery Act (Recovery Act
or Act). 2014 Laws P. R. p. 371. The Act authorizes Puerto
Rico’s public utilities to restructure their debts while
continuing to provide essential public services like electric-
ity and water. Portions of the Act mirror Chapter 9 of the
Bankruptcy Code and allow Puerto Rico’s utilities to rene-
gotiate their debts with their creditors. See ante, at 3.
Like a restructuring plan filed under Chapter 9, a restruc-
turing plan under the Recovery Act that is approved by at
least a majority of creditors and a court would be binding
on all creditors, including objecting holdouts.
After the Recovery Act was signed into law, mutual
funds and hedge funds holding bonds of the Puerto Rico
Electric Power Authority filed two lawsuits seeking to
enjoin Puerto Rico’s enforcement of the Act. The District
Court held that the Recovery Act could not be enforced
because, inter alia, it was prohibited by §903(1) of the
Bankruptcy Code. The First Circuit agreed that §903(1)
pre-empted the Act, and did not address whether some
provisions of the Act might be unlawful for other reasons.
This Court now affirms.
4 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
SOTOMAYOR, J., dissenting
II
Bankruptcy is not a one-size-fits-all process. The Fed-
eral Bankruptcy Code sets out specific procedures and
governing law for each type of entity that seeks bankruptcy
protection. To see how this approach works, consider
the structure of the Code in more depth.
Chapter 1 is the starting point. It sets out how to read
the Code. See 11 U.S. C. §101 et seq. For example, §101
sets out general definitions, and §102 provides rules of
construction. Now skip ahead to §109, titled, “Who may be
a debtor.” That section tells would-be debtors and the
interested parties in their bankruptcy which specific
bankruptcy laws apply to them. For example, §109 tells
an ordinary person seeking to restructure her debts to do
so using the rules outlined in Chapter 7, §109(b), or those
enumerated in Chapter 13, §109(e). It tells a family farm
or fisherman to use the rules outlined in Chapter 12.
§109(f). Certain corporations can use Chapter 7, §109(b),
or Chapter 11, §109(d). And a municipality’s bankruptcy
is governed by the rules in Chapter 9. §109(c)(1).
Because §109 tells different kinds of debtors which
bodies of bankruptcy law apply to them, the Court has
described that section as a “ ‘gateway’ ” provision. Ante, at
6. Once an entity meets the eligibility requirements for a
specific “gateway” set out in §109 and elects to pass
through that gateway, it becomes subject to the relevant
chapter of the Code—7, 9, 11, 12, or 13. The debtor, its
creditors, and any other interested parties are governed
only by that chapter and the chapters of the Bankruptcy
Code—like Chapter 1—that apply to all cases. See §103; 1
Collier Pamphlet Edition, Bankruptcy Code 2015, p. 59
(“[A]s a general rule, the provisions of the particular chap-
ter apply only in that chapter”).
Interpreting statutory provisions in the context of the
operative chapters in the Bankruptcy Code in which they
appear is not unusual—it is how the Code is designed to
Cite as: 579 U. S. ____ (2016) 5
SOTOMAYOR, J., dissenting
work. For example, both Chapter 9 and Chapter 13 re-
quire the debtor to “file a plan” proposing how the court
should reorganize its debts. Compare §§941–946 (“The
Plan” under Chapter 9) with §§1321–1330 (“The Plan”
under Chapter 13). But no bankruptcy court or practi-
tioner would suggest that a Chapter 9 “plan” also has to
satisfy the requirements of Chapter 13. The Code is read
in context.
These cases concern §109’s “gateway” for municipali-
ties. That provision says that a municipality may file for
bankruptcy under Chapter 9 if and only if it meets five
eligibility criteria. The debtor must (1) be “a municipal-
ity,” §109(c)(1); (2) be “specifically authorized . . . by State
law” to seek bankruptcy restructuring, §109(c)(2); (3) be
“insolvent,” §109(c)(3); (4) have a “desir[e] to effect a plan
to adjust” its debts, §109(c)(4); and (5) have attempted to
negotiate with its creditors, with some exceptions,
§109(c)(5).
The second eligibility requirement is relevant here.
Only a municipality “authorized . . . by State law” may
pass through the “gateway” and file for bankruptcy under
Chapter 9’s provisions. But Chapter 1’s definitional provi-
sion, which applies throughout the Code, provides that the
“term ‘State’ includes the District of Columbia and Puerto
Rico, except for the purpose of defining who may be a
debtor under chapter 9 of this title.” §101(52). It is un-
disputed that the “except for the purpose of defining who
may be a debtor under chapter 9” clause is referring to the
second eligibility prerequisite in §109’s gateway provision.
Ante, at 8. So, in short, Puerto Rico cannot “specifically
authoriz[e]” any of its municipalities to apply for Chapter
9 bankruptcy. No Puerto Rican municipality will thus
satisfy the state authorization requirement of §109’s
gateway for municipalities, and so no Puerto Rican munic-
6 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
SOTOMAYOR, J., dissenting
ipality can access Chapter 9.1
The question in these cases is whether §903(1), a pre-
emption provision in Chapter 9, still applies to Puerto Rico
even though its municipalities are not eligible to pass
through the “gateway” into Chapter 9. It should not.
Section 903 by its terms presupposes that Chapter 9 ap-
plies only to States who have the power to authorize their
municipalities to invoke its protection.
Section 903 delineates the balance of power between the
States that can authorize their municipalities to access
Chapter 9 protection and the bankruptcy court that would
preside over any municipal bankruptcy commenced under
Chapter 9. To understand that interplay, and why §903(1)
does not pre-empt the Recovery Act, it is important to
consider that statutory provision in context.
Section 903, titled “Reservation of State power to control
municipalities,” reads in full:
“This chapter [Chapter 9] does not limit or impair
the power of a State to control, by legislation or oth-
erwise, a municipality of or in such State in the exer-
cise of the political or governmental powers of such
municipality, including expenditures for such exer-
cise, but—
“(1) a State law prescribing a method of composition
of indebtedness of such municipality may not bind any
creditor that does not consent to such composition;
and
“(2) a judgment entered under such a law may
not bind a creditor that does not consent to such
composition.”
——————
1 Puerto Rico was initially included in the scope of Chapter 9. §1(29),
52 Stat. 842. But in 1984, Congress amended the Bankruptcy Code,
without comment, to bar Puerto Rico and the District of Columbia from
authorizing their municipalities to access Chapter 9. §421(j)(6), 98
Stat. 368, codified at 11 U.S. C. §101(52).
Cite as: 579 U. S. ____ (2016) 7
SOTOMAYOR, J., dissenting
This “reservation” of power to the States was added to
the Code in response to this Court’s earlier recognition
that States possess plenary control over their municipali-
ties, particularly in fiscal matters. Faitoute Iron & Steel
Co. v. Asbury Park, 316 U.S. 502, 509 (1942), overruled in
part by Act of July 1, 1946, 60 Stat. 415. Section 903 says
that States continue to possess those powers not implicated
by the bankruptcy itself by noting that “[t]his chapter,”
i.e., Chapter 9, “does not limit or impair the power of a
State to control” its municipalities. §903. For example,
even if a municipality is in Chapter 9 bankruptcy, a State
could still revoke its charter.
Section 903, however, also subjects that broad reserva-
tion to an exception articulated in the pre-emption provi-
sion that the Court now says bars Puerto Rico’s Recovery
Act. States may control their municipalities, but they may
not “prescrib[e] a method of composition of indebtedness of
[a] municipality” that “bind[s] any creditor that does not
consent to such composition.” §903(1).
But this distribution of power between the State and the
bankruptcy court is irrelevant to Puerto Rico. Because
Puerto Rico’s municipalities cannot pass through the
§109(c) gateway to Chapter 9, nothing in the operation of a
Chapter 9 case affects Puerto Rico’s control over its munic-
ipalities. The “reservation” preamble is therefore mean-
ingless to Puerto Rico—there is no power to reserve from
Chapter 9’s operation. And if this preamble does not and
cannot apply to Puerto Rico, it follows that §903(1)’s pro-
viso qualifying that reservation of power to the States does
not apply to Puerto Rico either. See, e.g., United States v.
Morrow, 266 U.S. 531, 534–535 (1925).
This understanding of §903 is fundamentally confirmed
by the careful gateway structure the Code sets out for
understanding how its chapters work together. See Utility
Air Regulatory Group v. EPA, 573 U. S. ___, ___ (2014)
(slip op., at 15) (“ ‘ “[W]ords of a statute must be read in
8 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
SOTOMAYOR, J., dissenting
their context and with a view to their place in the overall
statutory scheme” ’ ” (quoting FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000))). Chapter 1’s
definitions section prevents Puerto Rico from defining
“who may be a debtor under chapter 9” under §109(c)’s
gateway. Because of the structure of the Code, that
change to Chapter 1’s definition has ripple effects. By
amending the definition of State to exclude Puerto Rico,
the District of Columbia, and their municipalities from
§109(c)’s gateway, Congress excluded Puerto Rico from
Chapter 9 for all purposes—it shut the gate and barred it
tight. And because Chapter 9’s process and rules by
their terms can only affect municipalities and States
eligible to pass through the gateway in §109(c), that must
mean that none of Chapter 9’s provisions—including
§903’s pre-emption provision—apply to Puerto Rico and its
municipalities.
III
The Court rejects contextual analysis in favor of a syllo-
gism. According to the Court, §903(1) pre-empts all
“State” composition laws like Puerto Rico’s that bind
nonconsenting municipal creditors. “State” includes Puerto
Rico, “except for the purpose of defining who may be a
debtor under chapter 9 of this title,” §101(52), which is a
reference to §109(c). Thus, according to the Court, while
the definition of “State” prevents Puerto Rico from author-
izing its municipalities to seek Chapter 9 protection under
§109(c), it has no effect on the pre-emption clause in
§903(1).
The majority’s plain meaning syllogism is not without
force. But it ignores this Court’s repeated exhortations to
read statutes in context of the overall statutory scheme.
Utility Air, 573 U. S., at ___ (slip op., at 15). In context,
for the reasons discussed, §903 is directed to States that
can approve their municipalities for Chapter 9 bankruptcy.
Cite as: 579 U. S. ____ (2016) 9
SOTOMAYOR, J., dissenting
Moreover, in an attempt to buttress its syllogism, the
majority’s analysis makes an additional critical misstep.
The majority argues that, in light of the longstanding
nature of the §903(1)’s pre-emption provision to preclude
state municipal bankruptcy laws, “[h]ad Congress in-
tended to ‘alter this fundamental detail’ of municipal bank-
ruptcy” to not apply to Puerto Rico, “we would expect the
text of the amended definition to say so. Congress ‘does
not, one might say, hide elephants in mouseholes.’ ” Ante,
at 10–11 (quoting Whitman v. American Trucking Assns.,
Inc., 531 U.S. 457, 468 (2001); citation and brackets omit-
ted). But the Court ignores that Congress already altered
the fundamental details of municipal bankruptcy when it
amended the definition of “State” to exclude Puerto Rico
from authorizing its municipalities to take advantage of
Chapter 9. Nobody has presented a compelling reason for
why Congress would have done so, and the legislative
history of the amendment is unhelpful.2 Under either
interpretation the scheme has been fundamentally altered
by Congress. And, in context, the proper understanding of
that alteration is that Puerto Rico and its municipalities
have been removed entirely from Chapter 9—both from
the benefits it provides and from the burden of the pre-
emption clause in §903(1).
Pre-emption cases may seem like abstract discussions of
the appropriate balance between state and federal power.
But they have real-world consequences. Finding pre-
emption here means that a government is left powerless
and with no legal process to help its 3.5 million citizens.
——————
2 The only comment on excluding Puerto Rico from Chapter 9 came
from Professor Frank Kennedy, former Executive Director of the
Commission on Bankruptcy Laws, who said: “I do not understand why
the municipal corporations of Puerto Rico are denied by the proposed
definition of ‘State’ of the right to seek relief under Chapter 9.” Bank-
ruptcy Improvements Act, Hearing on S. 333 et al. before the Senate
Committee on the Judiciary, 98th Cong., 1st Sess., 326 (1983).
10 PUERTO RICO v. FRANKLIN CAL. TAX-FREE TRUST
SOTOMAYOR, J., dissenting
Congress could step in to resolve Puerto Rico’s crisis.
But, in the interim, the government and people of Puerto
Rico should not have to wait for possible congressional
action to avert the consequences of unreliable electricity,
transportation, and safe water—consequences that mem-
bers of the Executive and Legislature have described as a
looming “humanitarian crisis.” The White House, Ad-
dressing Puerto Rico’s Economic and Fiscal Crisis and
Creating a Path to Recovery, p. 1 (Oct. 26, 2015) (italics
deleted); Letter from Sen. Richard Blumenthal et al. to
Charles Grassley, Chair, Senate Committee on the Judici-
ary (Sept. 30, 2015). Statutes should not easily be read as
removing the power of a government to protect its citizens.
* * *
For the foregoing reasons, I would hold that §903(1) of
the Bankruptcy Code does not pre-empt Puerto Rico’s
Recovery Act. I respectfully dissent.