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

Background

A federal law called PROMESA created a Financial Oversight and Management Board to supervise Puerto Rico’s finances and to represent the Commonwealth in Title III debt-restructuring cases. A nonprofit news organization, Centro de Periodismo Investigativo (CPI), asked the Board for various documents. When the Board did not turn them over, CPI sued in federal court under a Puerto Rican constitutional right of access to public records. The Board said it could not be sued because it shares Puerto Rico’s sovereign immunity. Lower courts disagreed about whether PROMESA had eliminated that immunity.

Reasoning

The Court addressed only whether PROMESA unmistakably removed the Board’s immunity from suit. The Justices explained that Congress must make such an intention “unmistakably clear.” PROMESA does not say so in plain terms. PROMESA does incorporate the Bankruptcy Code’s explicit waiver of immunity for Title III cases, but it does not otherwise create causes of action or plainly authorize suits against the Board. Provisions that name a federal forum, limit money damages, or bar certain challenges are consistent with the Board keeping immunity, and they can serve useful purposes if a different law or a waiver allows a particular suit.

Real world impact

Because the Court found no clear congressional statement stripping immunity, PROMESA does not categorically allow federal lawsuits against the Board outside Title III bankruptcy proceedings. The case is sent back to the lower courts for further proceedings consistent with that holding. As the Court emphasized, it assumed (but did not decide) that Puerto Rico and the Board enjoy immunity.

Dissents or concurrances

A dissenting Justice would have gone further and held the Board lacks the asserted immunity, so that dissent disagreed about whether the underlying immunity question should be decided now.