Episode description

Welcome to Supreme Court Opinions. In this episode, you’ll hear the Court’s opinion in Financial Oversight and Management Board for Puerto Rico v Centro De Periodismo Investigativo, Inc.

In this case, the court considered this issue: Does the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA)’s general grant of jurisdiction to the federal courts over claims against the Financial Oversight and Management Board for Puerto Rico and claims otherwise arising under PROMESA abrogate the Board’s sovereign immunity with respect to all federal and territorial claims?

The case was decided on May 11, 2023.

The Supreme Court held that Nothing in the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) categorically abrogates any sovereign immunity the Financial Oversight and Management Board for Puerto Rico enjoys from legal claims. Justice Elena Kagan authored the 8-1 majority opinion of the Court.

If Congress wishes to abrogate sovereign immunity, it must do so using “unmistakably clear” language in the statute. The Supreme Court has found such language only in two types of situations: when a statute expressly states that it is stripping immunity from a sovereign entity, and when a statute creates a cause of action and authorizes a lawsuit against a government based on that cause of action. There is no such language in PROMESA, nor does it create a cause of action for use against the Board or Puerto Rico. Even § 2126(a)—which provides that “any action against the Oversight Board, and any action otherwise arising out of PROMESA . . . shall be brought” in the Federal District Court for Puerto Rico—does not amount to a clear intent to abrogate sovereign immunity.

Justice Clarence Thomas authored a dissenting opinion, arguing that Puerto Rico lacks state sovereign immunity, which would make the question of abrogation superfluous.

The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.