Amicus Brief – EAs brief to the US Supreme Court (FOMB v. CPI)

This is a mandamus action for access to public  records. (Pet. App. 173a.) The Board claims, as a  defendant in a litigation in federal court, sovereign  immunity from suit in the exclusive federal forum. CPI  and the courts below concluded that PROMESA  abrogated that immunity. But there’s a fundamental  issue that makes resolving that disagreement  unnecessary: a mandamus action to compel  performance of ministerial duties is not an action against a sovereign at all.

I. That was the original understanding of the  Constitution, as informed by English common law, and the practice of this Court and state supreme  courts just after the Founding. Writs evolved out of the  overlapping jurisdiction of royal, feudal, and  communal courts that co-existed in the first centuries  following the Norman Conquest. They began as letters  from the King, with his seal affixed, sometimes  bearing the Latin phrase, vobis mandamus—“we  command you.” In time, the Court of King’s Bench  heard petitions for writs, but the legal fiction persisted  that the King himself presided. In petitions for  mandamus, the complainant sues in the sovereign’s  name.

This tradition was well-known to the American  colonists, and early state supreme court decisions  duplicated it, often explicitly citing the King’s Bench  or English treatises to support mandamus power. In some of its earliest and most important decisions, this  Court did likewise. After Marbury, the scope of  mandamus was clear: it would lie to compel a purely  ministerial duty, like the delivery of a public record,  but federal courts were powerless to order officials to  reach a particular decision within their discretion to  make.

After the Civil War, the Court held, and in other  cases discussed, that mandamus could issue in federal  court against a state official to comply with a  ministerial duty created by state law. Pennhurst cast  doubt on, but stopped short of, overruling those cases.

See Pennhurst State Sch. & Hosp. v. Halderman, 465  U.S. 89 (1984). Puerto Rico, for its part, followed  Marbury in holding, for more than a century, that  mandamus could compel a government official to make  available a public record. Today, that ministerial duty  applies to records requests from anyone, not just a  party with a beneficial interest.

II. The traditional understanding of mandamus  supplies the most straightforward resolution here. The  Court does not have to decide whether Puerto Rico  enjoys sovereign immunity like a State does or  whether Congress abrogated that immunity. Because  the real parties in interest are Board members in their  official capacities, not the Commonwealth, this is not  an action against a sovereign barred by sovereign  immunity.

Mandamus is particularly appropriate here  because, if the Board were immune from suit, there  would be no remedy against it for the right to access  public records enshrined in Puerto Rico’s constitution  and statutes. It offends the dignity of sovereigns just as much to impose immunity the sovereign chose to  waive as it does to take away immunity the sovereign chose to keep. Depriving the sovereign of the power to  grant a remedy in the sovereign’s name contravenes  the principles of Pennhurst.

If sovereign immunity bars mandamus to compel  performance of ministerial duties under Puerto Rico  law, that will inject uncertainty into mandamus  proceedings in Commonwealth courts and in States  that use mandamus as a FOIA remedy in the absence  of an express statutory waiver of immunity. The Court should hold instead that there is no immunity defense  to mandamus for public records here and affirm.

Espacios Abiertos brief goes on to argue:

I. There Is No Sovereign Immunity from Mandamus Actions to Compel Performance of Ministerial Duties.

A. English Common Law Did Not Recognize Sovereign Immunity from Mandamus, Which Issued in the Sovereign’s Name.

B. The Court’s Opinions from Marbury to Pennhurst Find No Sovereign Immunity from Mandamus to Perform Ministerial Duties.

1. 1. Antebellum Decisions of This Court and State Supreme Courts
   2. The Postwar Era and Federal Mandamus Against State Officials
   3. Larson and Pennhurst Preserve the Ministerial Duty Basis for Mandamus

C. Puerto Rico Courts Issue Mandamus to Compel the Ministerial Function to Make Public Records Available

II.  Affirming on Mandamus Grounds Avoids Injecting Uncertainty into Access to Information Suits.

Access Espacios Abiertos full Amicus Brief to the United States Supreme Court here.