Supreme Court Finds Journalists Cannot Sue Puerto Rican Control Board

Supreme Court Finds Journalists Cannot Sue Puerto Rican Control Board
Supreme Court Justice Elena Kagan stands during a group photograph of the Justices at the Supreme Court in Washington on April 23, 2021. (Erin Schaff/Pool/AFP via Getty Images)
Matthew Vadum

The Supreme Court ruled 8–1 against journalists seeking documents from a financial control board in Puerto Rico created to deal with the U.S. commonwealth’s fiscal troubles.

The majority opinion in the case, Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo Inc., court file 22-96, was released May 11 and written by Justice Elena Kagan (pdf). Justice Clarence Thomas filed the sole dissenting opinion.

When Puerto Rico experienced serious financial difficulties in 2016, Congress approved the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) to restructure the U.S. territory’s debt. The law created the Financial Oversight and Management Board to “develop, approve, and certify Fiscal Plans and Territory Budgets, … negotiate with [Puerto Rico’s] creditors, … and … commence a bankruptcy-type proceeding on behalf of [Puerto Rico],” according to a Legal Information Institute (LII) summary.

After the board was formed, a not-for-profit media group, Centro de Periodismo Investigativo Inc. (CPI), filed a legal complaint against the board in federal district court under the provisions of PROMESA. CPI sought board documents including those about Puerto Rico’s fiscal status, internal communications, and financial disclosure forms for board members that the board had withheld. The group claimed the board abridged freedom of the press and contravened the Puerto Rico constitution.

The board said the disclosures sought were blocked by the Eleventh Amendment and that PROMESA overrides the disclosure obligations of the territorial constitution.

The Eleventh Amendment forbids lawsuits “against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The amendment prevents a state from being sued without its consent but Congress can waive this immunity for states, though the Supreme Court has said the legislative branch must make its intention abundantly clear when doing so. Although Puerto Rico is a territory and not a state, the Supreme Court has previously held it should be treated as a state in some situations.

A federal district court ruled against the board, finding that PROMESA did not preempt the territorial constitution.

Meanwhile, CPI filed another complaint against the board in hopes of obtaining communications between the board, the U.S. government, and the Puerto Rican government. The district court consolidated the two pending cases and denied the board’s motion to dismiss. The board appealed to the Boston-based U.S. Court of Appeals for the 1st Circuit, which upheld the lower court. The circuit court found that previous precedents and PROMESA and its legislative history abrogated the purported sovereign immunity of the board.

In her opinion, Kagan wrote that the question here “is whether the statute [i.e. PROMESA] categorically abrogates (legalspeak for eliminates) any sovereign immunity the board enjoys from legal claims.”

“We hold it does not,” the justice added.

“Under long-settled law, Congress must use unmistakable language to abrogate sovereign immunity. Nothing in the statute creating the board meets that high bar,” she wrote.

“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,’” Kagan wrote, citing an earlier precedent.

Nothing in PROMESA makes it clear that Congress intended to abrogate the board’s sovereign immunity. The statute does not specifically remove the board’s immunity or authorize the bringing of claims against it, Kagan wrote.

The Supreme Court reversed the 1st Circuit and remanded the case “for further proceedings consistent with this opinion.”

In his dissent, Thomas wrote that he would have ruled in favor of the Puerto Rican media group.

The board failed to show that it enjoyed the immunity it claimed, he wrote.

It is “difficult to see how the same inherent sovereign immunity that the States enjoy in federal court would apply to Puerto Rico,” the justice wrote.

The Epoch Times reached out for comment to counsel for the board and the media organization, Centro de Periodismo Investigativo Inc., but had not received a reply from either as of press time.

But Centro executive director Carla Minet told Bloomberg Law that the majority opinion “tramples” Puerto Ricans’ right to know.

“It is a weak judicial opinion, because its main and crucial argument is to assume that the Board has immunity, without deciding or going into the merits of whether it really has that protection,” Minet said.

“The consequences of this Supreme Court decision are perverse for the people of Puerto Rico.”