Financial Oversight and Management Bd. for P. R. v. Centro De Periodismo Investigativo, Inc.

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD
FOR PUERTO RICO v. CENTRO DE PERIODISMO
INVESTIGATIVO, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 22–96. Argued January 11, 2023—Decided May 11, 2023
In 2016, Congress passed the Puerto Rico Oversight, Management, and
Economic Stability Act (PROMESA), 48 U. S. C. §2101 et seq., to deal
with a fiscal crisis in Puerto Rico brought about by soaring public debt.
PROMESA establishes a system for overseeing Puerto Rico’s finances,
while also enabling the Commonwealth to gain bankruptcy protections
similar to those available under the Federal Bankruptcy Code. See
Financial Oversight and Management Bd. for Puerto Rico v. Aurelius
Investment, LLC, 590 U. S. ___, ___. The statute creates the Financial
Oversight and Management Board for Puerto Rico—petitioner in this
case—as an “entity within the territorial government” of Puerto Rico.
§2121(c)(1). Under PROMESA, the Board approves the Common-
wealth’s fiscal plans and budgets, supervises its borrowing, and repre-
sents Puerto Rico in so-called Title III cases—judicial debt-restructur-
ing proceedings modeled on federal bankruptcy proceedings.
Beginning in 2016, respondent Centro de Periodismo Investigativo,
Inc. (CPI)—a nonprofit media organization that has reported on
Puerto Rico’s fiscal crisis—asked the Board to release various docu-
ments relating to its work. When CPI’s requests went unfulfilled, it
sued the Board in the United States District Court for Puerto Rico,
citing a provision of the Puerto Rican Constitution interpreted to guar-
antee a right of access to public records. The Board moved to dismiss
on sovereign immunity grounds, but the District Court rejected that
defense. The First Circuit affirmed. The court began by citing Circuit
precedent that Puerto Rico enjoys sovereign immunity, and it assumed
without deciding that the Board shares in that immunity. But it then
held that PROMESA—particularly its jurisdictional provision, Section
2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR P. R.
v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Syllabus
2126(a)—clearly abrogates the Board’s immunity.
Held: Nothing in PROMESA—including its jurisdictional provision, Sec-
tion 2126(a)—categorically abrogates any sovereign immunity the
Board enjoys from legal claims. This Court assumes without deciding
that Puerto Rico is immune from suit in United States district court,
and that the Board partakes of that immunity. See Cutter v. Wil-
kinson, 544 U. S. 709, 718, n. 7.
This Court has often held that Congress must make its intent to ab-
rogate sovereign immunity “unmistakably clear in the language of the
statute.” Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73. The Court
has applied that clear-statement rule in cases naming the federal gov-
ernment, States, and Indian tribes as defendants. And it has found
that standard met in only two situations: when a statute says, in so
many words, that it is stripping immunity from a sovereign entity, e.g.,
35 U. S. C. §296(a), and when a statute creates a cause of action and
authorizes suit against a government on that claim, see, e.g., Kimel,
528 U. S., at 73–74. PROMESA fits neither of these molds. Except by
reference to the Bankruptcy Code in Title III debt-restructuring pro-
ceedings, see 11 U. S. C. §106(a); 48 U. S. C. §2161(a), PROMESA does
not provide that the Board or Puerto Rico is subject to suit. Nor does
PROMESA create any cause of action for use against the Board or
Puerto Rico. Thus, Congress has not, through a means this Court has
recognized, “ma[de] its intention” to abrogate immunity “unmistaka-
bly clear.” Kimel, 528 U. S., at 73.
CPI claims to identify the required clear statement in PROMESA’s
establishment of a judicial review scheme. Section 2126(a) provides
that “any action against the Oversight Board, and any action other-
wise arising out of” PROMESA, “shall be brought” in the Federal Dis-
trict Court for Puerto Rico. In CPI’s view, that provision—especially
when combined with Section 2126(c)’s allusion to “declaratory or in-
junctive relief against the Oversight Board”—contemplates that the
Board would be subject to suit in federal court. But those provisions
serve a function even absent a categorical abrogation of immunity, in
cases where the Board’s immunity has been waived or abrogated by
other statutes. For example, Title VII of the Civil Rights Act abrogates
the immunity of “governments” and “governmental agencies” from all
actions it authorizes. 42 U. S. C. §§2000e(a)–(b). If a Board employee
were fired because of race, Section 2126(a) would tell the employee
where to bring the suit and Section 2126(c) would govern the timing of
injunctive and declaratory relief. Nor do protections that PROMESA
provides the Board from litigation fill the gap. Again, CPI is wrong to
think those provisions “superfluous” unless PROMESA generally ab-
rogates the Board’s immunity. Section 2125’s protection of Board
members from monetary liability would do work whenever some other
Cite as: 598 U. S. ____ (2023) 3
Syllabus
law abrogated or waived the Board’s immunity from specific claims.
In such a case, the claim could go forward, but Section 2125 would stop
the award of money damages. And Section 2126(e)’s bar on challenges
to the Board’s fiscal and budgetary decisions would do work whenever
a plaintiff sought to get around the Board’s sovereign immunity via an
Ex parte Young action against an individual Board member. See Vir-
ginia Office for Protection and Advocacy v. Stewart, 563 U. S. 247, 254–
255.
In short, nothing in PROMESA makes Congress’s intent to abrogate
the Board’s sovereign immunity unmistakably clear. The statute does
not explicitly strip the Board of immunity or expressly authorize the
bringing of claims against the Board. And its judicial review provi-
sions and liability protections are compatible with the Board’s gener-
ally retaining sovereign immunity. Pp. 5–11.
35 F. 4th 1, reversed and remanded.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and ALITO, SOTOMAYOR, GORSUCH, KAVANAUGH, BARRETT, and JACKSON,
JJ., joined. THOMAS, J., filed a dissenting opinion.
Cite as: 598 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio.supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–96
_________________
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD
FOR PUERTO RICO, PETITIONER v. CENTRO DE
PERIODISMO INVESTIGATIVO, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[May 11, 2023]
JUSTICE KAGAN delivered the opinion of the Court.
A recently enacted federal statute establishes a financial
oversight board within the Commonwealth of Puerto Rico’s
government. The question presented is whether the statute
categorically abrogates (legalspeak for eliminates) any sov-
ereign immunity the board enjoys from legal claims. We
hold it does not. Under long-settled law, Congress must use
unmistakable language to abrogate sovereign immunity.
Nothing in the statute creating the board meets that high
bar.
I
Congress passed the Puerto Rico Oversight, Manage-
ment, and Economic Stability Act of 2016 (PROMESA), 48
U. S. C. §2101 et seq., to deal with a fiscal emergency.
Puerto Rico’s public debt had soared, to more than the an-
nual output of the island’s economy. The Commonwealth
could not service that level of debt through the bond mar-
kets. And it was not eligible to restructure debt under the
Federal Bankruptcy Code. PROMESA offered a path out of
2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR P. R.
v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
the crisis, helping Puerto Rico “to achieve fiscal responsibil-
ity and access to the capital markets.” §2121(a). The idea
was to set up a system for overseeing Puerto Rico’s finances,
while also enabling the Commonwealth to gain bankruptcy
protections similar to those available under the Code. See
Financial Oversight and Management Bd. for Puerto Rico
v. Aurelius Investment, LLC, 590 U. S. ___, ___–___ (2020)
(slip op., at 3–4).
PROMESA creates, as its centerpiece, the Financial
Oversight and Management Board for Puerto Rico—the pe-
titioner here. The statute describes the seven-member
Board as an “entity within the territorial government” of
Puerto Rico. §2121(c)(1). And this Court has affirmed that
the Board’s structure, duties, and powers make it “part of
the local Puerto Rican government.” Id., at ___ (slip op., at
14). Under PROMESA, the Board approves and enforces
the Commonwealth’s fiscal plans and budgets, and super-
vises the Commonwealth’s borrowing. See §§2141–2144,
2147. The Board also represents Puerto Rico in so-called
Title III cases—judicial proceedings, modeled on federal
bankruptcy proceedings, for restructuring the Common-
wealth’s (and its instrumentalities’) debt. See §§2161–
2177.
With one exception, PROMESA says nothing explicit
about abrogating sovereign immunity. The exception is for
Title III cases, and comes via the Federal Bankruptcy Code.
PROMESA incorporates, as part of its mechanism for re-
structuring debt, the Code’s express abrogation of sovereign
immunity. See §2161(a) (incorporating 11 U. S. C. §106 for
“case[s] under [Title III]”). But as to all other matters
PROMESA addresses, Congress did not mention sovereign
immunity. In particular, no provision states that it is abro-
gating any immunity the Board possesses from legal claims.
At the same time, several provisions of PROMESA con-
template that, even outside the Title III context, the Board
may confront legal claims against it. Most fundamentally,
Cite as: 598 U. S. ____ (2023) 3
Opinion of the Court
Section 2126(a), entitled “Jurisdiction,” states that “any ac-
tion against the Oversight Board, and any action otherwise
arising out of ” PROMESA, “shall be brought” in the Federal
District Court sitting in Puerto Rico.1 And Section 2126(c)
anticipates that those actions may lead to orders “granting
declaratory or injunctive relief against the Oversight
Board”; under the provision, such orders cannot take effect
until the litigation is over.
On the flipside, PROMESA sets certain limits on litiga-
tion targeting the Board. Section 2125 forecloses monetary
liability against the Board, its members, and its employees
for “actions taken to carry out” the statute. And Section
2126(e) provides that no district court will have jurisdiction
over challenges to the Board’s “certification determina-
tions”—mainly, decisions approving Puerto Rico’s fiscal
plans and budgets. See §§2141(e), 2142(e) (describing those
determinations).
The suit before us demands that the Board release vari-
ous documents relating to its work. Respondent Centro de
Periodismo Investigativo, Inc. (CPI) is a nonprofit media or-
ganization that has published many reports on Puerto
Rico’s fiscal crisis and the debt-restructuring process. In
2016, CPI asked the Board to turn over a broad array of
materials, including communications between the Board’s
members and Puerto Rican and U. S. officials. When the
request went unanswered, CPI sued the Board in the Fed-
eral District Court in Puerto Rico. CPI cited a provision of
the Puerto Rican Constitution interpreted to guarantee a
right of access to public records. And it requested an in-
junction ordering the records’ release.
The Board moved to dismiss the suit on the ground that,
——————
1 The section contains two exceptions not relevant here—one for appli-
cations to enforce subpoenas, the other for certain actions related to Title
III cases. See 48 U. S. C. §§2124(f )(2), 2166(a)(2).
4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR P. R.
v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
as an arm of the Puerto Rican government, it enjoys sover-
eign immunity. The District Court denied the motion, rea-
soning that Congress had abrogated the Board’s immunity
in PROMESA—particularly, in Section 2126(a)’s jurisdic-
tional provision. See App. to Pet. for Cert. 74a–76a. While
the parties fought over unresolved privilege issues, CPI
brought a second suit seeking another set of documents.
The Board again invoked sovereign immunity, and the
court again denied the defense. See id., at 56a–57a. Orders
in both suits were consolidated for appeal.
The Court of Appeals for the First Circuit affirmed the
denial of immunity, over a dissent. See 35 F. 4th 1 (2022).
The court began by citing Circuit precedent that Puerto
Rico (like a State or Indian tribe) enjoys sovereign immun-
ity. It then “assume[d] without deciding” that the Board
shares in Puerto Rico’s immunity, noting that CPI had not
contested that issue. Id., at 15. That was the Board’s final
piece of good news—for the court next held that PROMESA
abrogates the Board’s (assumed) immunity. Congress may
abrogate sovereign immunity, the court noted, “by making
its intention unmistakably clear in the language of the stat-
ute.” Ibid. (quoting Kimel v. Florida Bd. of Regents, 528
U. S. 62, 73 (2000)). And Congress had done so, the court
held, in Section 2126(a): The “grant of jurisdiction” there
“unequivocally stated [Congress’s] intention that the Board
could be sued” in federal district court. 35 F. 4th, at 17. The
court found additional support for its holding in Sections
2126(c) and (e). The former, the court reasoned, “contem-
plates” orders of “declaratory and injunctive relief ” against
the Board. Ibid. And the latter, in making certification
challenges unreviewable, “implies” that all other claims
against the Board fall within Section 2126(a)’s scope. Ibid.
Judge Lynch disagreed. She would have held that Congress
had not adequately “set[ ] forth an intent to abrogate” the
Board’s immunity, whether in Section 2126(a)’s jurisdic-
tional grant or in any other provision. Id., at 21.
Cite as: 598 U. S. ____ (2023) 5
Opinion of the Court
We granted certiorari, 598 U. S. ___ (2022), and now re-
verse.
II
The question on which we granted certiorari is whether
PROMESA—and particularly its jurisdictional provision—
abrogates the Board’s immunity. See Brief for Oversight
Board i. As thus framed, the question asks only about ab-
rogation, while taking the Board’s underlying immunity as
a given. That framing accords with how this case played
out in the courts below. Because Circuit precedent had set-
tled Puerto Rico’s own immunity, the lower courts barely
addressed the question. See, e.g., 35 F. 4th, at 13–14. Sim-
ilarly for the Board’s immunity. CPI never argued that the
Commonwealth’s immunity did not extend to the Board;
and for that reason, the courts below simply assumed the
Board’s immunity before turning to the abrogation issue.
See, e.g., id., at 14–15. We took the case on those terms,
and we resolve it on those terms. See, e.g., Cutter v. Wil-
kinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of
review, not of first view”). That means we assume without
deciding that Puerto Rico is immune from suit in federal
district court, and that the Board partakes of that immun-
ity. We address only whether, accepting those premises,
PROMESA effects an abrogation.2
——————
2 CPI now asks us to extend our review to the underlying immunity
issue. CPI still does not contest that the Board shares in whatever im-
munity Puerto Rico possesses. But it argues here that Puerto Rico’s im-
munity applies only in its own courts—not in federal courts. See Brief
for CPI 29–32. The Government also urges us to address Puerto Rico’s
immunity, though to come out the other way: It reads our precedents as
supporting immunity in both territorial and federal courts. See Brief for
United States as Amicus Curiae 16–19 (citing, e.g., Porto Rico v. Rosaly
y Castillo, 227 U. S. 270, 273–277 (1913)). We decline the two invitations
for the reasons just stated: The proceedings below did not examine those
matters, and we agreed to tackle only the abrogation question. Cf. Puerto
Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S.
139, 141, n. 1 (1993) (similarly declining to address whether Puerto Rico
6 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR P. R.
v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
The standard for finding a congressional abrogation is
stringent. Congress, this Court has often held, must make
its intent to abrogate sovereign immunity “unmistakably
clear in the language of the statute.” E.g., Kimel, 528 U. S.,
at 73 (internal quotation marks omitted); see also Sossa-
mon v. Texas, 563 U. S. 277, 287 (2011) (“[W]here a statute
is susceptible of multiple plausible interpretations,” we will
not read it to strip immunity). We have invoked that clear-
statement rule, and applied it equivalently, in cases nam-
ing the federal government, States, and Indian tribes as de-
fendants. See, e.g., FAA v. Cooper, 566 U. S. 284, 290–291
(2012); Kimel, 528 U. S., at 73; Michigan v. Bay Mills In-
dian Community, 572 U. S. 782, 790 (2014).3 CPI argues
that the rule should not likewise apply to Puerto Rico, citing
Congress’s plenary power over Territories. See Brief for
CPI 25–26 (“The concept of plenary power” is “incompatible
with forcing Congress to express its intent unequivocally”).
But we have similarly described Congress’s power over the
tribes, and still demand that Congress “unequivocally ex-
press” an intent to abrogate their immunity. Bay Mills, 572
U. S., at 790 (internal quotation marks omitted); see ibid.(“Although Congress has plenary authority over tribes,
courts will not lightly assume that Congress in fact intends”
to abrogate their immunity). Our precedent thus conveys a
consistent message: If a defendant enjoys sovereign im-
munity (which we are assuming the Board does), abroga-
tion requires an “unequivocal declaration” from Congress.
Dellmuth v. Muth, 491 U. S. 223, 232 (1989).
——————
has sovereign immunity when holding that an order denying immunity
for one of its instrumentalities is immediately appealable). We also note
that this suit—in which Puerto Rico itself plays no role—would be a sin-
gularly inapt vehicle to resolve Puerto Rico’s immunity.
3 Of course, when the federal government is the defendant, the clear-
statement rule operates to identify a waiver of its own immunity, rather
than an abrogation of another government’s.
Cite as: 598 U. S. ____ (2023) 7
Opinion of the Court
The Court has found that standard met in only two situ-
ations. The first is when a statute says in so many words
that it is stripping immunity from a sovereign entity. Con-
gress, for example, has provided that States “shall not be
immune,” under any “doctrine of sovereign immunity, from
suit in Federal court” for patent or copyright infringement.
35 U. S. C. §296(a); 17 U. S. C. §511(a). Those provisions,
we have noted, “could not have made any clearer Congress’s
intent” to abrogate immunity. Allen v. Cooper, 589 U. S.
___, ___ (2020) (slip op., at 5) (internal quotation marks and
alterations omitted). The second is when a statute creates
a cause of action and authorizes suit against a government
on that claim. Take the Age Discrimination in Employment
Act (ADEA) or the Family and Medical Leave Act (FMLA).
We held that each abrogated sovereign immunity by au-
thorizing suits against employers—specifically including
governments—for violating the statute’s provisions (i.e., for
discriminating or denying leave). See Kimel, 528 U. S., at73–74; Nevada Dept. of Human Resources v. Hibbs, 538
U. S. 721, 726 (2003). Or consider the Indian Gaming Reg-
ulatory Act (IGRA). We likewise saw an abrogation in its
authorization of tribal suits against States for violating
their statutory duty to negotiate about gaming compacts.
See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 56–57
(1996). True enough, none of those Acts expressly declared
sovereigns non-immune (as the patent and copyright laws
did). But all expressly authorized suits against sovereigns
in service of enforcing statutory requirements. And recog-
nizing immunity would have negated those authorizations:
The very suits allowed against governments would auto-
matically have been dismissed.
PROMESA fits neither of those two molds. Except in Ti-
tle III debt-restructuring proceedings (not at issue here),
the statute does not provide that the Board or Puerto Rico
is subject to suit. See supra, at 2. And indeed, the exception
8 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR P. R.
v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
implies the opposite as a general rule. The immunity pro-
vision that PROMESA borrows from the Bankruptcy Code
for Title III cases states: “[S]overeign immunity is abro-
gated as to a governmental unit,” including a “Territory.”
11 U. S. C. §106(a), incorporated by 48 U. S. C. §2161(a); 11
U. S. C. §101(27). Congress chose not to adopt similar lan-
guage to govern other kinds of litigation involving the
Board. See, e.g., Badgerow v. Walters, 596 U. S. ___, ___
(2022) (slip op., at 8) (“When Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, we generally take the choice to be
deliberate”). Too, PROMESA does not create any cause of
action (or otherwise approve any claim) for use against the
Board or Puerto Rico. So recognizing immunity under
PROMESA would not—as in the ADEA, FMLA, and IGRA
cases—authorize a suit against a sovereign with one hand,
only to bar it with the other. Instead, immunity would op-
erate in the ordinary way—to protect a sovereign from a
host of claims Congress has not otherwise said may proceed.
The upshot is evident: Congress has not, through a means
we have recognized, “ma[de] its intention” to abrogate im-
munity “unmistakably clear.” Kimel, 528 U. S., at 73 (in-
ternal quotation marks omitted).
CPI contends we can still find a clear statement in
PROMESA, based on the statute’s establishment of a judi-
cial review scheme. The primary provision in CPI’s argu-
ment (as in the First Circuit’s, see supra, at 4) is Section
2126(a): “[A]ny action against the Oversight Board, and any
action otherwise arising out of ” PROMESA, “shall be
brought” in the Federal District Court for Puerto Rico. In
CPI’s view, that provision—especially when combined with
Section 2126(c)’s allusion to “declaratory or injunctive relief
against the Oversight Board”—expresses Congress’s “clear
intent to subject the Board to suit in federal court.” Brief
for CPI 16. CPI backs up that argument by pointing to pro-
Cite as: 598 U. S. ____ (2023) 9
Opinion of the Court
visions insulating the Board (and its members and employ-
ees) from monetary liability and barring suits challenging
the Board’s budgetary decisions. See id., at 15–16, 38–40;
see supra, at 3. Those protections, CPI maintains, would
have no point “if the Board were immune generally.” Brief
for CPI 16. So taken together (says CPI), PROMESA’s ju-
dicial review provisions are “incompatible with sovereign
immunity.” Id., at 35.
But all those provisions serve a function without our
reading an abrogation of immunity into PROMESA. In Sec-
tions 2126(a) and (c), Congress indeed contemplated the
possibility of suits—and of relief—against the Board. And
wisely so—because litigation against the Board can arise
even though the Board enjoys sovereign immunity gener-
ally. For one thing, statutes other than PROMESA abro-
gate the Board’s immunity from particular claims. See gen-
erally supra, at 7. Consider Title VII of the Civil Rights Act,
prohibiting various kinds of employment discrimination.
That law, this Court has held, validly abrogates the immun-
ity of “governments” and “governmental agencies” from all
actions it authorizes. 42 U. S. C. §§2000e(a)–(b); see Fitz-
patrick v. Bitzer, 427 U. S. 445, 447–448 (1976). So if a
Board employee were fired because of race, Section 2126(a)
would tell him where to bring his suit and Section 2126(c)
would govern the timing of injunctive and declaratory re-
lief. And for another thing, the Board could decide to waive
its immunity from particular suits or claims. Were it to do
so, Sections 2126(a) and (c) would again kick in. So
PROMESA’s judicial review scheme—absent a categorical
abrogation of immunity—still has plenty of work to do. For
similar reasons, this Court has held that other jurisdic-
tional and judicial review provisions were insufficient to es-
tablish an abrogation. See Blatchford v. Native Village of
Noatak, 501 U. S. 775, 786, and n. 4 (1991); Dellmuth, 491
U. S., at 231. Here, as there, providing for a judicial forum
does not make the requisite clear statement.
10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR P. R.
v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
Nor do the litigation protections in PROMESA fill the
gap. At the most basic level, it would be peculiar to read
shields from lawsuits as unmistakably subjecting the Board
to lawsuits (by abrogating immunity). But aside from that,
CPI is wrong to think that those shields would be “point-
less” or “superfluous” unless PROMESA generally abro-
gates the Board’s immunity. Brief for CPI 38. Consider
first Section 2125’s protection of the Board, its employees,
and its members from monetary liability for carrying out
PROMESA. That provision would do work whenever, as
discussed above, some other law abrogated or waived the
Board’s immunity from specific claims. In such a case, the
claim could go forward, but Section 2125 would stop the
award of money damages. Of particular note, that section
would limit the Board’s liability in Title III cases, in which
PROMESA has indeed abrogated immunity. See supra, at
2. And last, Section 2125 protects individuals—the Board’s
members and employees—not covered by the Board’s sover-
eign immunity. All in all, that seems like more than enough
to explain the provision’s existence. Similarly for Section
2126(e), which prevents challenges to the Board’s fiscal and
budgetary decisions. Yes, sovereign immunity insulates
the Board itself from those attacks. But without Section
2126(e), a plaintiff might get around that immunity via an
Ex parte Young action—a suit against an individual Board
member for injunctive relief. See Virginia Office for Protec-
tion and Advocacy v. Stewart, 563 U. S. 247, 254–255 (2011)
(describing the Ex parte Young “limit on the sovereign-
immunity principle”). Section 2126(e) precludes that possi-
bility. So it too has a role to play in a scheme with sovereign
immunity.
In short, nothing in PROMESA makes Congress’s intent
to abrogate the Board’s sovereign immunity “unmistakably
clear.” Kimel, 528 U. S., at 73. The statute does not explic-
itly strip the Board of immunity. It does not expressly au-
thorize the bringing of claims against the Board. And its
Cite as: 598 U. S. ____ (2023) 11
Opinion of the Court
judicial review provisions and liability protections are com-
patible with the Board’s generally retaining sovereign im-
munity. We therefore reverse the judgment of the Court of
Appeals and remand the case for further proceedings con-
sistent with this opinion.
It is so ordered.
Cite as: 598 U. S. ____ (2023) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–96
_________________
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD
FOR PUERTO RICO, PETITIONER v. CENTRO DE
PERIODISMO INVESTIGATIVO, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[May 11, 2023]
JUSTICE THOMAS, dissenting.
At every stage of these proceedings, respondent has ar-
gued that petitioner lacks state sovereign immunity. Peti-
tioner has consistently replied that it has that immunity
and that nothing abrogates it. The courts below, bound by
Circuit precedent, held that petitioner does have state sov-
ereign immunity—but they also held that the immunity has
been abrogated. The Court today disagrees with only that
latter conclusion, holding that nothing abrogates peti-
tioner’s immunity, but it “assume[s] without deciding” the
logically antecedent question whether petitioner enjoys
that immunity in the first place. Ante, at 5. In doing so,
the majority effectively decides the outcome of this case.
Because I would reach the antecedent question and hold
that petitioner lacks the only immunity it has ever as-
serted, I respectfully dissent.
Respondent, Centro de Periodismo Investigativo, Inc.
(CPI), sued petitioner, the Financial Oversight and Man-
agement Board for Puerto Rico, over a document-disclosure
dispute. The Board moved to dismiss the lawsuit by invok-
ing state sovereign immunity, which the Board claimed to
possess as an arm of the Puerto Rican territorial govern-
ment. CPI responded (both in the District Court and on ap-
peal) that Puerto Rico has no such immunity and that, even
2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR P. R.
v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
THOMAS, J., dissenting
if it did, that immunity would be abrogated by the Puerto
Rico Oversight, Management, and Economic Stability Act
(PROMESA), 48 U. S. C. §2101 et seq. Bound by Circuit
precedent holding that Puerto Rico enjoys state sovereign
immunity, each court below rejected CPI’s first argument.
See 35 F. 4th 1, 14 (CA1 2022). But the courts below also
agreed with CPI’s second argument that the Board’s im-
munity was abrogated.
When the Board asked us to review that holding, CPI
once again raised its lead argument, pointing out that we
logically could not reverse the First Circuit’s judgment
without first addressing whether the Board actually has the
immunity that the Board claims has not been abrogated.
And, in its merits brief, CPI made Puerto Rico’s lack of state
sovereign immunity its lead argument. There is nothing
more that CPI could have done to preserve this antecedent,
dispositive argument.
Yet the majority skips it entirely, “assum[ing] without de-
ciding that Puerto Rico is immune from suit in federal dis-
trict court”—while also deciding that PROMESA does not
abrogate that assumed immunity. Ante, at 5. In doing so,
it effectively consigns CPI’s case to the dustbin, remanding
back to a Circuit where Circuit precedent will dictate the
outcome. CPI might be forgiven for wondering whether we
granted certiorari only insofar as our review would favor
the Board.
The majority asserts that it need not address CPI’s argu-
ment because “[t]he proceedings below did not examine
these matters, and we agreed to tackle only the abrogation
question.” Ibid. But it is unclear why the court below would
have examined the matter any further, given its precedent.1
——————
1 The fact that the First Circuit barely addressed the issue below,
simply noting Circuit precedent, is surely irrelevant; we have often
granted certiorari on questions that were resolved below with drive-by
citations to binding precedent, sometimes in footnotes. See, e.g., App. to
Pet. for Cert. in Lora v. United States, O. T. 2022, No. 22–49, p. 11a, n. 3;
Cite as: 598 U. S. ____ (2023) 3
THOMAS, J., dissenting
And, “[t]his issue is predicate to an intelligent resolution of
the question presented,” as it makes no sense to analyze
whether PROMESA abrogates state sovereign immunity
without first determining whether that immunity is impli-
cated at all. United States v. Grubbs, 547 U. S. 90, 94, n. 1
(2006) (internal quotation marks omitted).2 Because I
think the Court has a duty to pass upon issues that are
fairly presented, preserved by the parties, and necessary to
support its judgment, I would consider whether the Board
has the immunity it asserts.
From the start, the Board has asserted only that it pos-
sesses what it has called “Eleventh Amendment immunity.”
The First Circuit agreed, explaining that it “has long
treated Puerto Rico like a state for Eleventh Amendment
purposes.” 35 F. 4th, at 14. However, the plain text of the
Eleventh Amendment applies only to lawsuits brought
against a State by citizens of another State. And, because
CPI is a resident of Puerto Rico, I can only assume that the
Board and the First Circuit meant to refer to the sovereign
immunity that is inherent in the 50 States. See Allen v.
Cooper, 589 U. S. ___, ___ (2020) (slip op., at 4).
As we have explained, inherent state sovereign immunity
reflects the original design of the Constitution. See Fran-
chise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___–___ (2019)
(slip op., at 5–12). At the Founding, the “States considered
——————
App. to Pet. for Cert. in Smith v. United States, O. T. 2022, No. 21–1576,
p. 15a.
2 We have often recognized the need to address such logically anteced-
ent questions. See, e.g., Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13
(1996); see also Vance v. Terrazas, 444 U. S. 252, 258–259, n. 5 (1980)
(collecting cases). For example, we explained in Grubbs that it would
“mak[e] little sense to address what the Fourth Amendment requires of
anticipatory search warrants if it does not allow them at all.” 547 U. S.,
at 94, n. 1. And, in Rumsfeld v. Forum for Academic and Institutional
Rights, Inc., 547 U. S. 47 (2006), we explained that “granting certiorari
to determine whether a statute is constitutional fairly includes the ques-
tion of what that statute says.” Id., at 56.
4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR P. R.
v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
THOMAS, J., dissenting
themselves fully sovereign nations,” and part of that sover-
eignty “was their immunity from private suits.” Id., at ___
(slip op., at 6) (internal quotation marks omitted). When
advocating for the Constitution’s ratification, leading Fed-
eralists then assured their opponents that the Constitution
would not allow private citizens to hale States into federal
court without their consent. See ibid. Though this Court
held otherwise soon thereafter in Chisholm v. Georgia, 2
Dall. 419 (1793), the Eleventh Amendment’s swift ratifica-
tion confirmed that Chisholm was wrong. See Hyatt, 587
U. S., at ___–___ (slip op., at 11–12). Thus, in general, the
Constitution does not allow federal or state courts to hear
cases against States without their consent. See id., at ___–
___ (slip op., at 13–16); Alden v. Maine, 527 U. S. 706, 730–
731 (1999). This deeply rooted rule “inheres in the system
of federalism” that the Constitution establishes. See id., at
730.3
Here, however, all sides agree that Puerto Rico is a Ter-
ritory, not a State. See Puerto Rico v. Sánchez Valle, 579
U. S. 59, 75–77 (2016). Accordingly, it is difficult to see how
the same inherent sovereign immunity that the States en-
joy in federal court would apply to Puerto Rico. To be sure,
the United States has urged us to hold that Puerto Rico en-
joys a form of common-law immunity that, it claims, terri-
torial governments can invoke in federal court. See Brief
for United States as Amicus Curiae 16–19. But the Board
has, at every stage, argued only that it possesses the same
immunity as States. That argument appears untenable.
——————
3 The Court has described this unique form of sovereign immunity as
belonging to the 13 original States by dint of their post-Independence
and pre-Ratification independent sovereignty and to the subsequently
admitted States as a result of their admission to the Union on an equal
footing with the original States. Alden, 527 U. S., at 713; see also Mich-
igan v. Bay Mills Indian Community, 572 U. S. 782, 816, n. 1 (2014)
(THOMAS, J., dissenting); accord, Hyatt, 587 U. S., at ___–___ (slip op., at
11–14) (noting unique nature of state sovereign immunity).
Cite as: 598 U. S. ____ (2023) 5
THOMAS, J., dissenting
And, as the party asserting an immunity, the Board should
have the burden of establishing its immunity. Because the
Board has failed to do so, I would rule in CPI’s favor and
affirm the judgment below.
I respectfully dissent.