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

PRELIMINARY PRINT
Volume 598 U. S. Part 2
Pages 339–355
OFFICIAL REPORTS
OF
THE SUPREME COURT
May 11, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users 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.
OCTOBER TERM, 2022 339
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 rst 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 fscal crisis in Puerto Rico brought about by soaring public debt.
PROMESA establishes a system for overseeing Puerto Rico's fnances,
while also enabling the Commonwealth to gain bankruptcy protections
similar to those available under the Federal Bankruptcy Code. See Fi-
nancial 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-
Page Proof Pending Publication
wealth's fscal plans and budgets, supervises its borrowing, and rep-
resents Puerto Rico in so-called Title III cases—judicial debt-
restructuring proceedings modeled on federal bankruptcy proceedings.
Beginning in 2016, respondent Centro de Periodismo Investigativo, Inc.
(CPI)—a nonproft media organization that has reported on Puerto
Rico's fscal crisis—asked the Board to release various documents relat-
ing to its work. When CPI's requests went unfulflled, it sued the
Board in the United States District Court for Puerto Rico, citing a pro-
vision of the Puerto Rican Constitution interpreted to guarantee a right
of access to public records. The Board moved to dismiss on sovereign
immunity grounds, but the District Court rejected that defense. The
First Circuit affrmed. The court began by citing Circuit precedent
that Puerto Rico enjoys sovereign immunity, and it assumed without
deciding that the Board shares in that immunity. But it then held that
PROMESA—particularly its jurisdictional provision, Section 2126(a)—
clearly abrogates the Board's immunity.
Held: Nothing in PROMESA—including its jurisdictional provision, 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. Wilkinson,
544 U. S. 709, 718, n. 7.
340 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
P. R. v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Syllabus
This Court has often held that Congress must make its intent to abro-
gate 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 fts neither of these molds. Except
by reference to the Bankruptcy Code in Title III debt-restructuring
proceedings, see 11 U. S. C. § 106(a); 48 U. S. C. § 2161(a), PROMESA
does not provide that the Board or Puerto Rico is subject to suit. Nor
does PROMESA create any cause of action for use against the Board or
Puerto Rico. Thus, Congress has not, through a means this Court has
recognized, “ma[de] its intention” to abrogate immunity “unmistakably
clear.” Kimel, 528 U. S., at 73.
CPI claims to identify the required clear statement in PROMESA's
establishment of a judicial review scheme. Section 2126(a) provides
that “any action against the Oversight Board, and any action otherwise
arising out of ” PROMESA, “shall be brought” in the Federal District
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Court for Puerto Rico. In CPI's view, that provision—especially when
combined with Section 2126(c)'s allusion to “declaratory or injunctive
relief against the Oversight Board”—contemplates that the Board would
be subject to suit in federal court. But those provisions serve a func-
tion 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 au-
thorizes. 42 U. S. C. §§ 2000e(a)–(b). If a Board employee were fred
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 fll the gap. Again, CPI is wrong to think those
provisions “superfuous” unless PROMESA generally abrogates the
Board's immunity. Section 2125's protection of Board members from
monetary liability would do work whenever some other law abrogated
or waived the Board's immunity from specifc 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 fscal and budgetary decisions would do work whenever a plain-
tiff sought to get around the Board's sovereign immunity via an
Ex parte Young action against an individual Board member. See Vir-
Cite as: 598 U. S. 339 (2023) 341
Syllabus
ginia Offce 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 generally
retaining sovereign immunity. Pp. 345–351.
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., fled a dissenting opinion, post, p. 351.
Mark D. Harris argued the cause for petitioner. With
him on the briefs were Martin J. Bienenstock, Shiloh A.
Rainwater, Timothy W. Mungovan, John E. Roberts, Wil-
liam D. Dalsen, and Lucas Kowalczyk.
Aimee W. Brown argued the cause for the United States
as amicus curiae urging vacatur. With her on the brief
were Solicitor General Prelogar, Deputy Solicitor General
Page Proof Pending Publication
Kneedler, and Michael S. Raab.
Sarah M. Harris argued the cause for respondent. With
her on the brief were Lisa S. Blatt, Judith Berkan, Rafael
E. Rodríguez Rivera, Steven P. Lausell Recurt, Luis J. Tor-
res Asencio, and Carlos F. Ramos-Hernández.*
*Briefs of amici curiae urging affrmance were fled for Asociación de
Periodistas de Puerto Rico by Ariadna Michelle Godreau Aubert and Ve-
rónica González Rodríguez; for Clemente Properties, Inc., et al. by Ta-
naira Padilla-Rodríguez; for Espacios Abiertos by Brendan Benedict; for
GFR Media, LLC, by Rafael Cox Alomar and Pedro Busó-García; for
LatinoJustice PRLDEF et al. by Steven A. Zalesin; for Public Citizen by
Scott L. Nelson and Allison M. Zieve; for Puerto Rican Legal Scholars by
Hiram Meléndez-Juarbe; for the Reporters Committee for Freedom of the
Press et al. by Theodore J. Boutrous, Jr., Matthew D. McGill, Amir C.
Tayrani, Katherine Moran Meeks, David W. Casazza, and Bruce D.
Brown; and for the Speaker of the Puerto Rico House of Representatives
by Emil Rodríguez-Escudero and Jorge Martínez-Luciano.
A brief of amici curiae was fled for the Institute for Energy Economics
and Financial Analysis et al. by Jessica E. Méndez-Colberg and Rolando
Emmanuelli-Jiménez.
342 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
P. R. v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
Justice Kagan delivered the opinion of the Court.
A recently enacted federal statute establishes a fnancial
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, Management,
and Economic Stability Act of 2016 (PROMESA), 48 U. S. C.
§ 2101 et seq., to deal with a fscal emergency. Puerto Rico's
public debt had soared, to more than the annual output of
the island's economy. The Commonwealth could not service
that level of debt through the bond markets. And it was
Page Proof Pending Publication
not eligible to restructure debt under the Federal Bank-
ruptcy Code. PROMESA offered a path out of the crisis,
helping Puerto Rico “to achieve fscal responsibility and ac-
cess to the capital markets.” § 2121(a). The idea was to set
up a system for overseeing Puerto Rico's fnances, 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).
PROMESA creates, as its centerpiece, the Financial Over-
sight and Management Board for Puerto Rico—the peti-
tioner 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 affrmed that the
Board's structure, duties, and powers make it “part of the
local Puerto Rican government. ” Id., at –––. Under
PROMESA, the Board approves and enforces the Common-
wealth's fscal plans and budgets, and supervises the Com-
Cite as: 598 U. S. 339 (2023) 343
Opinion of the Court
monwealth'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 Commonwealth'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
abrogating 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
Page Proof Pending Publication
may confront legal claims against it. Most fundamentally,
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 fipside, PROMESA sets certain limits on litigation
targeting the Board. Section 2125 forecloses monetary lia-
bility 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 jurisdic-
1
The section contains two exceptions not relevant here—one for applica-
tions to enforce subpoenas, the other for certain actions related to Title
III cases. See 48 U. S. C. §§ 2124(f)(2), 2166(a)(2).
344 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
P. R. v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
tion over challenges to the Board's “certifcation determina-
tions”—mainly, decisions approving Puerto Rico's fscal plans
and budgets. See §§ 2141(e), 2142(e) (describing those
determinations).
The suit before us demands that the Board release various
documents relating to its work. Respondent Centro de Pe-
riodismo Investigativo, Inc. (CPI) is a nonproft media orga-
nization that has published many reports on Puerto Rico's
fscal 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. offcials. When the request went
unanswered, CPI sued the Board in the Federal District
Court in Puerto Rico. CPI cited a provision of the Puerto
Rican Constitution interpreted to guarantee a right of access
to public records. And it requested an injunction ordering
the records' release.
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The Board moved to dismiss the suit on the ground that, as
an arm of the Puerto Rican government, it enjoys sovereign
immunity. The District Court denied the motion, reason-
ing that Congress had abrogated the Board's immunity in
PROMESA—particularly, in Section 2126(a)'s jurisdictional
provision. See App. to Pet. for Cert. 74a–76a. While the
parties fought over unresolved privilege issues, CPI brought
a second suit seeking another set of documents. The Board
again invoked sovereign immunity, and the court again de-
nied the defense. See id., at 56a–57a. Orders in both suits
were consolidated for appeal.
The Court of Appeals for the First Circuit affrmed the
denial of immunity, over a dissent. See 35 F. 4th 1 (2022).
The court began by citing Circuit precedent that Puerto Rico
(like a State or Indian tribe) enjoys sovereign immunity. It
then “assume[d] without deciding” that the Board shares in
Puerto Rico's immunity, noting that CPI had not contested
that issue. Id., at 15. That was the Board's fnal piece of
Cite as: 598 U. S. 339 (2023) 345
Opinion of the Court
good news—for the court next held that PROMESA abro-
gates the Board's (assumed) immunity. Congress may abro-
gate sovereign immunity, the court noted, “by making its
intention unmistakably clear in the language of the statute.”
Ibid. (quoting Kimel v. Florida Bd. of Regents, 528 U. S. 62,
73 (2000)). And Congress had done so, the court held, in
Section 2126(a): The “grant of jurisdiction” there “unequivo-
cally stated [Congress's] intention that the Board could be
sued” in federal district court. 35 F. 4th, at 17. The court
found additional support for its holding in Sections 2126(c)
and (e). The former, the court reasoned, “contemplates” or-
ders of “declaratory and injunctive relief ” against the Board.
Ibid. And the latter, in making certifcation challenges un-
reviewable, “implies” that all other claims against the Board
fall within Section 2126(a)'s scope. Ibid. Judge Lynch dis-
agreed. She would have held that Congress had not ade-
quately “set[ ] forth an intent to abrogate” the Board's immu-
nity, whether in Section 2126(a)'s jurisdictional grant or in
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any other provision. Id., at 21.
We granted certiorari, 598 U. S. ––– (2022), and now
reverse.
II
The question on which we granted certiorari is whether
PROMESA—and particularly its jurisdictional provision—
abrogates the Board's immunity. See Brief for Oversight
Board i. As thus framed, the question asks only about abro-
gation, while taking the Board's underlying immunity as a
given. That framing accords with how this case played out
in the courts below. Because Circuit precedent had settled
Puerto Rico's own immunity, the lower courts barely ad-
dressed the question. See, e. g., 35 F. 4th, at 13–14. Simi-
larly 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.,
346 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
P. R. v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
id., at 14–15. We took the case on those terms, and we re-
solve it on those terms. See, e. g., Cutter v. Wilkinson, 544
U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of
frst 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 immunity. We address
only whether, accepting those premises, PROMESA effects
an abrogation.2
The standard for fnding a congressional abrogation is
stringent. Congress, this Court has often held, must make
its intent to abrogate sovereign immunity “unmistakably
clear in the language of the statute.” E. g., Kimel, 528 U. S.,
at 73 (internal quotation marks omitted); see also Sossamon
v. Texas, 563 U. S. 277, 287 (2011) (“[W]here a statute is sus-
ceptible of multiple plausible interpretations,” we will not
read it to strip immunity). We have invoked that clear-
statement rule, and applied it equivalently, in cases naming
the federal government, States, and Indian tribes as defend-
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ants. See, e. g., FAA v. Cooper, 566 U. S. 284, 290–291
(2012); Kimel, 528 U. S., at 73; Michigan v. Bay Mills Indian
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 immu-
nity Puerto Rico possesses. But it argues here that Puerto Rico's immu-
nity 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 im-
munity, 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 has sovereign immunity when holding that an order denying immu-
nity 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
singularly inapt vehicle to resolve Puerto Rico's immunity.
Cite as: 598 U. S. 339 (2023) 347
Opinion of the Court
Community, 572 U. S. 782, 790 (2014).3 CPI argues that the
rule should not likewise apply to Puerto Rico, citing Con-
gress'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 immu-
nity (which we are assuming the Board does), abrogation
requires an “unequivocal declaration” from Congress. Dell-
muth v. Muth, 491 U. S. 223, 232 (1989).
The Court has found that standard met in only two situa-
tions. The frst is when a statute says in so many words
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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 in-
tent” to abrogate immunity. Allen v. Cooper, 589 U. S.
–––, ––– (2020) (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 authoriz-
ing suits against employers—specifcally including govern-
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.
348 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
P. R. v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
ments—for violating the statute's provisions (i. e., for dis-
criminating or denying leave). See Kimel, 528 U. S., at 73–
74; Nevada Dept. of Human Resources v. Hibbs, 538 U. S.
721, 726 (2003). Or consider the Indian Gaming Regulatory
Act (IGRA). We likewise saw an abrogation in its authori-
zation of tribal suits against States for violating their statu-
tory duty to negotiate about gaming compacts. See Semi-
nole Tribe of Fla. v. Florida, 517 U. S. 44, 56–57 (1996).
True enough, none of those Acts expressly declared sover-
eigns non-immune (as the patent and copyright laws did).
But all expressly authorized suits against sovereigns in serv-
ice of enforcing statutory requirements. And recognizing
immunity would have negated those authorizations: The very
suits allowed against governments would automatically have
been dismissed.
PROMESA fts neither of those two molds. Except in
Title III debt-restructuring proceedings (not at issue here),
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the statute does not provide that the Board or Puerto Rico
is subject to suit. See supra, at 343. And indeed, the excep-
tion implies the opposite as a general rule. The immunity
provision that PROMESA borrows from the Bankruptcy
Code for Title III cases states: “[S]overeign immunity is ab-
rogated 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) (“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 oth-
erwise 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—au-
thorize a suit against a sovereign with one hand, only to bar
it with the other. Instead, immunity would operate in the
Cite as: 598 U. S. 339 (2023) 349
Opinion of the Court
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 recog-
nized, “ma[de] its intention” to abrogate immunity “unmis-
takably clear.” Kimel, 528 U. S., at 73 (internal quotation
marks omitted).
CPI contends we can still find a clear statement in
PROMESA, based on the statute's establishment of a judicial
review scheme. The primary provision in CPI's argument
(as in the First Circuit's, see supra, at 345) 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
Page Proof Pending Publication
16. CPI backs up that argument by pointing to provisions
insulating the Board (and its members and employees) from
monetary liability and barring suits challenging the Board's
budgetary decisions. See id., at 15–16, 38–40; see supra,
at 343–344. 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 judicial
review provisions are “incompatible with sovereign immu-
nity.” Id., at 35.
But all those provisions serve a function without our read-
ing an abrogation of immunity into PROMESA. In Sections
2126(a) and (c), Congress indeed contemplated the possibility
of suits—and of relief—against the Board. And wisely so—
because litigation against the Board can arise even though
the Board enjoys sovereign immunity generally. For one
thing, statutes other than PROMESA abrogate the Board's
immunity from particular claims. See generally supra, at
347–348. Consider Title VII of the Civil Rights Act, prohib-
iting various kinds of employment discrimination. That law,
350 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
P. R. v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Opinion of the Court
this Court has held, validly abrogates the immunity of “gov-
ernments” and “governmental agencies” from all actions it
authorizes. 42 U. S. C. §§ 2000e(a)–(b); see Fitzpatrick v.
Bitzer, 427 U. S. 445, 447–448 (1976). So if a Board employee
were fred 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 relief. 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 jurisdictional and judicial review pro-
visions were insuffcient to establish 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
Page Proof Pending Publication
clear statement.
Nor do the litigation protections in PROMESA fll the gap.
At the most basic level, it would be peculiar to read shields
from lawsuits as unmistakably subjecting the Board to law-
suits (by abrogating immunity). But aside from that, CPI
is wrong to think that those shields would be “pointless” or
“superfuous” unless PROMESA generally abrogates the
Board's immunity. Brief for CPI 38. Consider frst Section
2125's protection of the Board, its employees, and its mem-
bers 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 specifc claims. In such a case, the claim could go for-
ward, but Section 2125 would stop the award of money dam-
ages. 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 343. And last,
Section 2125 protects individuals—the Board's members
and employees—not covered by the Board's sovereign immu-
Cite as: 598 U. S. 339 (2023) 351
Thomas, J., dissenting
nity. 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 fscal and budget-
ary 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 Offce for Protection and
Advocacy v. Stewart, 563 U. S. 247, 254–255 (2011) (describ-
ing the Ex parte Young “limit on the sovereign-immunity
principle”). Section 2126(e) precludes that possibility. 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
judicial review provisions and liability protections are com-
Page Proof Pending Publication
patible with the Board's generally retaining sovereign immu-
nity. 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.
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 Cir-
cuit precedent, held that petitioner does have state sovereign
immunity—but they also held that the immunity has been
abrogated. The Court today disagrees with only that latter
conclusion, holding that nothing abrogates petitioner's immu-
nity, but it “assume[s] without deciding” the logically ante-
cedent question whether petitioner enjoys that immunity in
the frst place. Ante, at 346. In doing so, the majority ef-
352 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
P. R. v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Thomas, J., dissenting
fectively decides the outcome of this case. Because I would
reach the antecedent question and hold that petitioner lacks
the only immunity it has ever asserted, I respectfully dissent.
Respondent, Centro de Periodismo Investigativo, Inc.
(CPI), sued petitioner, the Financial Oversight and Manage-
ment Board for Puerto Rico, over a document-disclosure dis-
pute. The Board moved to dismiss the lawsuit by invoking
state sovereign immunity, which the Board claimed to pos-
sess as an arm of the Puerto Rican territorial government.
CPI responded (both in the District Court and on appeal)
that Puerto Rico has no such immunity and that, even if
it did, that immunity would be abrogated by the Puerto
Rico Oversight, Management, and Economic Stability Act
(PROMESA), 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 frst argument.
See 35 F. 4th 1, 14 (CA1 2022). But the courts below also
agreed with CPI's second argument that the Board's immu-
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nity 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 frst
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, disposi-
tive 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 346. In doing
so, it effectively consigns CPI's case to the dustbin, remand-
ing 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.
Cite as: 598 U. S. 339 (2023) 353
Thomas, J., dissenting
The majority asserts that it need not address CPI's argu-
ment because “[t]he proceedings below did not examine those
matters, and we agreed to tackle only the abrogation ques-
tion.” Ibid., n. 2. But it is unclear why the court below
would have examined the matter any further, given its prec-
edent.1 And, “[t]his issue is predicate to an intelligent reso-
lution of the question presented,” as it makes no sense to
analyze whether PROMESA abrogates state sovereign im-
munity without frst determining whether that immunity is
implicated at all. United States v. Grubbs, 547 U. S. 90, 94,
n. 1 (2006) (internal quotation marks omitted).2 Because I
think the Court has a duty to pass upon issues that are fairly
presented, preserved by the parties, and necessary to sup-
port 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
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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
1
The fact that the First Circuit barely addressed the issue below, simply
noting Circuit precedent, is surely irrelevant; we have often granted cer-
tiorari 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; 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 antecedent
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 question
of what that statute says.” Id., at 56.
354 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
P. R. v. CENTRO DE PERIODISMO INVESTIGATIVO, INC.
Thomas, J., dissenting
First Circuit meant to refer to the sovereign immunity that
is inherent in the 50 States. See Allen v. Cooper, 589 U. S.
–––, ––– (2020).
As we have explained, inherent state sovereign immunity
refects the original design of the Constitution. See Fran-
chise Tax Bd. of Cal. v. Hyatt, 587 U. S. –––, ––– – ––– (2019).
At the Founding, the “States considered themselves fully
sovereign nations,” and part of that sovereignty “was their
immunity from private suits.” Id., at ––– (internal quota-
tion marks omitted). When advocating for the Constitu-
tion's ratifcation, leading Federalists then assured their op-
ponents that the Constitution would not allow private
citizens to hale States into federal court without their con-
sent. See ibid. Though this Court held otherwise soon
thereafter in Chisholm v. Georgia, 2 Dall. 419 (1793), the
Eleventh Amendment's swift ratifcation confrmed that
Chisholm was wrong. See Hyatt, 587 U. S., at ––– – –––.
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Thus, in general, the Constitution does not allow federal or
state courts to hear cases against States without their con-
sent. See id., at ––– – –––; Alden v. Maine, 527 U. S. 706,
730–731 (1999). This deeply rooted rule “inheres in the sys-
tem of federalism” that the Constitution establishes. See
id., at 730.3
Here, however, all sides agree that Puerto Rico is a Terri-
tory, not a State. See Puerto Rico v. Sánchez Valle, 579
U. S. 59, 75–77 (2016). Accordingly, it is diffcult to see how
the same inherent sovereign immunity that the States enjoy
in federal court would apply to Puerto Rico. To be sure, the
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-Ratifcation independent sovereignty and to the subsequently ad-
mitted 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 Michi-
gan v. Bay Mills Indian Community, 572 U. S. 782, 816, n. 1 (2014)
(Thomas, J., dissenting); accord, Hyatt, 587 U. S., at ––– – ––– (noting
unique nature of state sovereign immunity).
Cite as: 598 U. S. 339 (2023) 355
Thomas, J., dissenting
United States has urged us to hold that Puerto Rico enjoys
a form of common-law immunity that, it claims, territorial
governments can invoke in federal court. See Brief for
United States as Amicus Curiae 16–19. But the Board has,
at every stage, argued only that it possesses the same immu-
nity as States. That argument appears untenable. And, as
the party asserting an immunity, the Board should have the
burden of establishing its immunity. Because the Board has
failed to do so, I would rule in CPI's favor and affrm the
judgment below.
I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
Page Proof Pending Publication
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 353, line 2, “these” is replaced with “those”