Espacios Abiertos, the National Freedom of Information Coalition, the Iowa Freedom of Information Council and the Nevada Open Government Coalition file Amici Curiae in support of CPI (appellee) and affirmance.
SUMMARY OF THE BRIEF’S ARGUMENT
FOMB’s sovereign immunity defense rests on a fundamental conflation of the “two independent aspects” of sovereign immunity: “immunity from suit in a federal forum . . . and substantive immunity from liability.” New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004). FOMB concedes that if the claim is one for which it lacks substantive immunity from liability, there is no immunity from suit in federal court for those claims because PROMESA “creates federal jurisdiction over claims to which the Board is not immune.” (FOMB Br. 26.) By contrast, FOMB argues, PROMESA’s grant of exclusive jurisdiction in the federal forum does not waive or abrogate immunity “from claims under territory law” (id. 30)—in other words, waiving forum immunity does not waive substantive immunity under territory law. True enough. But the problem for FOMB is that Puerto Rico already waived substantive immunity from access to records claims in its own courts, and FOMB agrees it is part of Puerto Rico’s government. And
(Note 7. Amici take no position on whether Puerto Rico enjoys Eleventh Amendment immunity following Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863 (2016). The Court need not reach that issue because FOMB lost any immunity it might have had. Amici assume, like the parties have, that FOMB is the real party in interest, rather than Board members.)
because PROMESA abrogates, and FOMB waived, forum immunity, there is no Eleventh Amendment bar to these claims in federal court on either basis.
FOMB lacks both forms of sovereign immunity here. First, it waived substantive immunity. Puerto Rico, by creating a private cause of action against itself by statute and under its constitution for access to public records, waived substantive immunity from those claims in its own courts.
Second, FOMB argues (in a footnote) that PROMESA makes FOMB an arm of the Commonwealth for sovereign immunity purposes. But if FOMB steps into Puerto Rico’s shoes, it must take that immunity as it finds it. Because Puerto Rico waived substantive immunity for these claims, FOMB would, too.
Third, Congress abrogated, and FOMB waived, its immunity from suit in a federal forum. (See CPI Br. 34, 44-45.) PROMESA provides that the court below has exclusive jurisdiction in “any action against” FOMB, 48 U.S.C. § 2126(a), which is unmistakably clear in abrogating immunity from federal suit. And FOMB waived forum immunity for the added reason that it moved for the
Bankruptcy Court hear the case and bar the claims under the automatic stay, only raising the Eleventh Amendment defense after losing. (See CPI Br. 5-6, 11, 15- 17.) Having entreated a federal court to resolve these claims, FOMB cannot now claim immunity here.
A contrary holding would allow a state or territory to “selectively invoke its Eleventh Amendment immunity to gain litigation advantage.” Ramsey, 366 F.3d at 17; see also Lapides v. Bd. of Regents, 535 U.S. 613, 621 (2002). Worse, it would extinguish liability for sovereigns that chose to subject themselves to it: any exclusive federal jurisdictional grant would foreclose the state law claim in state court, and forum immunity would bar the same claim in federal court. The Court should instead hold FOMB to its concessions: if it is part of Puerto Rico’s government and PROMESA authorizes federal suit against it, it has neither substantive nor forum immunity for these claims, and the Court should affirm.
Access the full brief here.