Court Says Congress Did Not Abrogate Puerto Rico Immunity

The Supreme Court ruled today that Congress did not abrogate sovereign immunity of the Financial Oversight and Management Board for Puerto Rico (as an arm of Puerto Rico) under the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA). The ruling means that a non-profit can't sue the Board for its records.

The case, Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc., arose when CPI sued the Board in federal court to obtain its records. The Board argued that it was immune; CPI responded that Congress abrogated immunity under PROMESA.

The Court rejected CPI's claim. Justice Kagan wrote for all but Justice Thomas that PROMESA did not contain a sufficiently "clear statement" abrogating sovereign immunity. In particular, she said that PROMESA doesn't provide that the Board or Puerto Rico is subject to suit, and it doesn't create a cause of action against them. She acknowledged that PROMESA says that "any action against the Oversight Board, and any action otherwise arising out of" PROMESA "shall be brought" in the Federal District Court sitting in Puerto Rico. But she wrote that this provision and others in PROMESA serve other functions, not abrogation. For example, she wrote that this provision accounts for other statutes' abrogation of sovereign immunity (like Title VII), and doesn't constitute an independent abrogation. In other words, PROMESA's references to lawsuits against the Board apply to suits based on other causes of action, where Congress has abrogated immunity; they do not categorically abrogate immunity for all claims against the Board.

Justice Thomas argued in dissent that the Board lacked immunity in the first place. (The Court assumed, but didn't decide, that the Board had immunity.)