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  • Writer's pictureThe San Juan Daily Star

US Supreme Court rules against Center for Investigative Journalism

U.S. Supreme Court Associate Justice Elena Kagan

By The Star Staff

The U.S. Supreme Court ruled Thursday against the Center for Investigative Reporting (CPI by its Spanish initials) in its lawsuit to obtain documents from the Financial Oversight and Management Board, arguing that Congress did not explicitly deprive the oversight board of its shield against lawsuits.

In an 8-1 vote, the justices reversed an appeals court ruling in favor of the CPI.

“Our precedent thus conveys a consistent message: If a defendant enjoys sovereign immunity (which we are assuming the Board does), abrogation requires an ‘unequivocal declaration’ from Congress,” the Supreme Court ruled.

In 2016, Congress passed the Puerto Rico Oversight, Management and Economic Stability Act (PROMESA), creating the board to oversee Puerto Rico’s finances and represent it in bankruptcy processes.

The CPI had sought numerous documents, including emails and communications between the board’s members and federal and government officials.

When the request went unanswered, CPI sued the oversight board in the U.S. District Court in Puerto Rico. CPI cited a provision of the Puerto Rico Constitution interpreted to guarantee a right of access to public records. And it requested an injunction ordering the records’ release.

The oversight board moved to dismiss the suit on the grounds that, as an arm of the Puerto Rico government, it enjoys the same shield from federal lawsuits as the government. The lower courts had ruled that PROMESA eliminated immunity from lawsuits, allowing the CPI’s lawsuit to proceed.

The Supreme Court reversed those rulings. The top court said the question presented is whether the statute categorically eliminates any sovereign immunity the board enjoys from legal claims. Writing for the court, Justice Elena Kagan said Congress has to speak clearly on this subject and nothing in PROMESA makes clear “that Congress deprived the board of sovereign immunity.”

“We hold it does not,” the high court said. “Under long-settled law, Congress must use unmistakable language to abrogate (eliminate) sovereign immunity. Nothing in the statute creating the board meets that high bar.”

The Supreme Court said the CPI never argued that the commonwealth’s immunity did not extend to the oversight board, and for that reason, the lower courts below simply assumed the board’s immunity before turning to the abrogation issue.

“[W]e are a court of review, not of first view,” the top court said. “That means we assume without deciding that Puerto Rico is immune from suit in federal district court, and that the Board partakes of that immunity. We address only whether, accepting those premises, PROMESA effects an abrogation.”

In the lone dissenting vote, Justice Clarence Thomas sided with the CPI, breaking with the majority on the issue of Puerto Rico’s sovereign immunity.

According to a Bloomberg Law report, Thomas said the oversight board had the burden to prove that immunity and did not do so.

The CPI said the top court had just “trampled over” Puerto Ricans’ right to access documents and to free speech. It noted that in the case of access to documents, Puerto Rico has renounced its right to protect itself against lawsuits, allowing citizens to sue to obtain documents.

“We reject in the most energetic manner the federal Supreme Court having trampled over the rights of Puerto Ricans,” CPI Executive Director Carla Minet said. “We are once again in another chapter of the colonial relationship between Puerto Rico and the United States, this time with the intention of blocking government transparency.”

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