SCOTUS: PROMESA does not wipe out the Board’s immunity against CPI at a stroke

On May 11, 2023, the Supreme Court of the United States decides Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. (No. 22-96). CPI had asked the Oversight Board for documents and, after receiving none, sued in the District Court of Puerto Rico invoking a right of access to public records under the Puerto Rico Constitution. The Board asserted sovereign immunity. The First Circuit held that PROMESA — especially section 2126(a) — abrogated that immunity. The Supreme Court reverses.

Justice Kagan’s opinion, for eight justices, assumes without deciding that Puerto Rico has immunity in federal court and that the Board shares in it. Under the clear-statement rule, Congress abrogates immunity only with unequivocal language: either it says expressly that the entity “shall not be immune,” or it creates a cause of action and authorizes suit against the government. Outside Title III cases (where it incorporates §106 of the Bankruptcy Code), PROMESA does neither.

CPI pointed to the jurisdiction of section 2126(a) and to mentions of declaratory or injunctive remedies. The Court answers that those clauses serve when another statute abrogates immunity or the Board waives it — for example a Title VII case — and do not equal a categorical abrogation. The monetary-liability protections (2125) and the bar on challenges to budget certifications (2126(e)) also do not suffice. A ruling is not access to documents. Remand to the First Circuit.

This note sticks to the slip opinion. It does not invent the inventory of documents requested or a verdict on the merits of access. A transparency lawsuit is not an order to produce. What remains is the May 11 decision and a no to declaring that PROMESA opens the Board to every suit. A reader who wants the Court’s PDF has the URL at the foot. This is not original reporting.

Fuente: Supreme Court of the United States. https://www.supremecourt.gov/opinions/22pdf/22-96_6j7a.pdf