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  • Writer's pictureThe San Juan Daily Star

US Supreme Court hears arguments on whether fiscal board can be sued to obtain documents

U.S. Supreme Court Associate Justice Neil Gorsuch


The U.S. Supreme Court heard arguments Wednesday on whether the Financial Oversight and Management Board can be sued in U.S. District Court to obtain documents considered public records under Puerto Rican law.

Much of the discussion in the case, “Financial Oversight and Management Board v. Centro de Periodismo Investigativo,” focused on whether Puerto Rico and the oversight board have sovereign immunity, the doctrine that a government generally cannot be sued without its consent.

The Center for Investigative Reporting (CPI by its Spanish initials) sued the oversight board in federal district court to obtain certain Puerto Rico debt restructuring records that the board had declined to release.

The CPI argued that the oversight board’s actions violated Puerto Rico’s laws. The center was forced to sue in federal court because the law established that the federal court evaluates disputes with the oversight board.

The oversight board claimed that sovereign immunity barred such a suit. After the court of appeals rejected the board’s immunity claim, the Supreme Court granted a review.

The justices agreed that they must resolve whether Congress’ actions were sufficiently clear to waive sovereign immunity and allow private parties to sue the oversight board, which was established in 2016 to oversee Puerto Rico’s bankruptcy and recovery from a crippling financial crisis.

Though Congress can waive sovereign immunity for states, the Supreme Court has said that it must be unmistakably clear in the language of statutes when doing so.

Several justices noted that it would be odd to answer the central question without determining first if Puerto Rico and the oversight board were entitled to sovereign immunity.

“It just seems quite weird to me,” Justice Elena Kagan said.

The U.S. Court of Appeals for the First Circuit assumed Puerto Rico was entitled to sovereign immunity when it decided that Congress had been sufficiently clear to allow a media organization to sue for public records.

The U.S. constitutional provision behind sovereign immunity says “states,” not “things like states,” Chief Justice John Roberts said.

“I’m just wondering how far you can stretch the analogy to state sovereign immunity,” he said.

Some justices were reluctant to decide the sovereign immunity issue without a full briefing from Puerto Rico and other U.S. territories.

Justice Neil Gorsuch suggested deferring the question for another day.

Justice Department attorney Aimee Brown, who took a middle position in the case, said the court has treated Puerto Rico like a state “for more than a century.”

The idea that territories shouldn’t be hauled into courts by private parties “is just kind of the necessary corollary to the existence of self-government,” Brown said.

Gorsuch noted that a ruling deciding Puerto Rico’s sovereign immunity would apply beyond its borders to all U.S. territories.

“It’s a rather large and important constitutional question” to decide without all the interested parties, Gorsuch said.

Justice Amy Coney Barrett suggested vacating the question and remanding the issue to the First Circuit, which may result in the oversight board having another chance to avoid releasing public documents.

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