# Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc./Opinion of Justice Thomas

SUPREME COURT OF THE UNITED STATES
No. 22–96
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, PETITIONER v. CENTRO DE PERIODISMO INVESTIGATIVO, INC. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [May 11, 2023]
Justice Thomas, dissenting.
At every stage of these proceedings, respondent has argued that petitioner lacks state sovereign immunity. Petitioner has consistently replied that it has that immunity and that nothing abrogates it. The courts below, bound by Circuit 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 immunity, but it “assume[s] without deciding” the logically antecedent question whether petitioner enjoys that immunity in the first place. Ante, at 5. In doing so, the majority effectively 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 Management Board for Puerto Rico, over a document-disclosure dispute. The Board moved to dismiss the lawsuit by invoking state sovereign immunity, which the Board claimed to possess 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 first argument. See 35 F. 4th 1, 14 (CA1 2022). But the courts below also agreed with CPI’s second argument that the Board’s immunity 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 first 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, dispositive argument.
Yet the majority skips it entirely, “assum[ing] without deciding that Puerto Rico is immune from suit in federal district court”—while also deciding that PROMESA does not abrogate that assumed immunity. Ante, at 5. In doing so, it effectively consigns CPI’s case to the dustbin, remanding 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.
The majority asserts that it need not address CPI’s argument because “[t]he proceedings below did not examine these matters, and we agreed to tackle only the abrogation question.” Ibid. But it is unclear why the court below would have examined the matter any further, given its precedent. ​And, “[t]his issue is predicate to an intelligent resolution of the question presented,” as it makes no sense to analyze whether PROMESA abrogates state sovereign immunity without first determining whether that immunity is implicated at all. United States v. Grubbs, 547 U. S. 90, 94, n. 1 (2006) (internal quotation marks omitted). Because I think the Court has a duty to pass upon issues that are fairly presented, preserved by the parties, and necessary to support its judgment, I would consider whether the Board has the immunity it asserts.
From the start, the Board has asserted only that it possesses what it has called “Eleventh Amendment immunity.” The First Circuit agreed, explaining that it “has long treated 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 First Circuit meant to refer to the sovereign immunity that is inherent in the 50 States. See Allen v. Cooper, 589 U. S. ___, ___ (2020) (slip op., at 4).
As we have explained, inherent state sovereign immunity reflects the original design of the Constitution. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___–___ (2019) (slip op., at 5–12). At the Founding, the “States considered ​themselves fully sovereign nations,” and part of that sovereignty “was their immunity from private suits.” Id., at ___ (slip op., at 6) (internal quotation marks omitted). When advocating for the Constitution’s ratification, leading Federalists then assured their opponents that the Constitution would not allow private citizens to hale States into federal court without their consent. See ibid. Though this Court held otherwise soon thereafter in Chisholm v. Georgia, 2 Dall. 419 (1793), the Eleventh Amendment’s swift ratification confirmed that Chisholm was wrong. See Hyatt, 587 U. S., at ___–___ (slip op., at 11–12). Thus, in general, the Constitution does not allow federal or state courts to hear cases against States without their consent. See id., at ___–___ (slip op., at 13–16); Alden v. Maine, 527 U. S. 706, 730–731 (1999). This deeply rooted rule “inheres in the system of federalism” that the Constitution establishes. See id., at 730.
Here, however, all sides agree that Puerto Rico is a Territory, not a State. See Puerto Rico v. Sánchez Valle, 579 U. S. 59, 75–77 (2016). Accordingly, it is difficult to see how the same inherent sovereign immunity that the States enjoy in federal court would apply to Puerto Rico. To be sure, the 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 immunity 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 affirm the judgment below.
I respectfully dissent.
* ↑ The fact that the First Circuit barely addressed the issue below, simply noting Circuit precedent, is surely irrelevant; we have often granted certiorari 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.
* ↑ 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.
* ↑ 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-Ratification independent sovereignty and to the subsequently admitted 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 Michigan v. Bay Mills Indian Community, 572 U. S. 782, 816, n. 1 (2014) (Thomas, J., dissenting); accord, Hyatt, 587 U. S., at ___–___ (slip op., at 11–14) (noting unique nature of state sovereign immunity).