Centro de Periodismo Investigativo, Inc. v. FOMB

35 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: May 17, 2022
• Docket: 21-1301P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1301

CENTRO DE PERIODISMO INVESTIGATIVO, INC.,

Plaintiff, Appellee,

v.

FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge] [Hon. Bruce J. McGiverin, U.S. Magistrate Judge]

Before

Lynch, Thompson, and Kayatta, Circuit Judges.

Martin J. Bienenstock, with whom Guy Brenner, Adam L. Deming, Mark D. Harris, Joseph S. Hartunian, Timothy W. Mungovan, John E. Roberts, Laura E. Stafford, and Proskauer Rose LLP were on brief, for appellant.

Judith Berkan, with whom Berkan/Méndez, Steven J. Lausell- Recurt, Legal Clinic Interamerican University School of Law were on brief, for appellee.

Juan Cartagena, Jose Perez, Lía Fiol-Matta, Rachel B. Sherman, Tara J. Norris, and Patterson Belknap Webb & Tyler LLP on brief for LatinoJustice PRLDEF, amicus curiae.

Brendan Benedict and Benedict Law Group PLLC on brief for Espacios Abiertos, the National Freedom of Information Coalition, the Iowa Freedom of Information Council, and the Nevada Open Government Coalition, amici curiae.

Ariadna Michelle Godreau Aubert and Ayuda Legal Puerto Rico on brief for Asociación de Periodistas de Puerto Rico, amicus curiae.

Tomás A. Román-Santos, Román Santos LLC, Bruce D. Brown, Katie Townsend, Sarah Matthews, Adam Marshall, and Madeline Lamo on brief for the Reporters Committee for Freedom of the Press and twenty- seven other Media Organizations, amici curiae.

May 17, 2022 THOMPSON, Circuit Judge. The Centro de Periodismo

Investigativo ("CPI"), a non-profit media organization based in

Puerto Rico, is on a quest to obtain documents from the Financial

Oversight and Management Board for Puerto Rico ("the Board") that

the Board has not simply handed over upon request. The Board is

resisting CPI's reliance on Puerto Ricans' general constitutional

right to access public documents as the basis for why CPI is

entitled to the documents it seeks. After CPI turned to the

district court for assistance, the Board asked the district court

to dismiss the litigation, arguing that it is immune from suit

pursuant to both the Eleventh Amendment of the United States

Constitution and the Puerto Rico Oversight, Management, and

Economic Stability Act ("PROMESA"), 48 U.S.C. § 2101 et seq., and

that PROMESA preempts the disclosure obligations within Puerto

Rico Constitution Article II, section 4 ("P.R. Const. § 4"), the

provision upon which CPI relies. The district court disagreed

with the Board, allowing CPI's quest to proceed. The Board is

before us now on interlocutory review of these weighty issues,

asking us to reverse the district court. After careful

consideration of the parties' arguments, we affirm with respect to

constitutional immunity and decline to exercise pendent appellate

jurisdiction over the remaining issues.

- 3 - HOW WE GOT HERE

Before we delve into the travel of this case through the

district court and start exploring the issues presented in this

appeal, we lay out a brief description of PROMESA, the Board, and

CPI. Congress, pursuant to its Territorial Clause power,1 passed

PROMESA in 2016 to address Puerto Rico's "fiscal emergency" by

creating "mechanisms for restructuring [its] debts . . . and for

overseeing reforms of [its] fiscal and economic policies." In re

Fin. Oversight and Mgmt. Bd. for P.R., 916 F.3d 98, 103-04 (1st

Cir. 2019). Congress created the Board in PROMESA "as an entity

within the territorial government" of Puerto Rico to help the

Commonwealth "achieve fiscal responsibility and access to the

capital markets." 48 U.S.C. § 2121(a), (c)(1); see In re Fin.

Oversight and Mgmt. Bd. for P.R., 872 F.3d 57, 59 (1st Cir. 2017);

Peaje Invs. LLC v. García-Padilla, 845 F.3d 505, 515 (1st Cir.

2017). PROMESA gave the Board the authority to, inter alia,

"develop, approve, and certify Fiscal Plans and Territory Budgets,

. . . §§ 2141-2142, negotiate with the Commonwealth's creditors,

. . . § 2146, and, under Title III, to commence a bankruptcy-type

proceeding on behalf of the Commonwealth, . . . § 2175." In re

1 The U.S. Constitution's Territorial Clause provides Congress with the "power to dispose of and make all needful Rules and Regulations respecting the Territory . . . belonging to the United States," U.S. Const. art. IV, § 3, cl. 2, and Congress explicitly exercised this power when it enacted PROMESA, 48 U.S.C. § 2121(b)(2).

- 4 - Fin. Oversight and Mgmt. Bd. for P.R., 916 F.3d at 103-04. The

Board has seven members, appointed by the President and supported

by an executive director and staff (the precise number of whom

were not set by the statute). 48 U.S.C. § 2121(e). The sections

of PROMESA at the center of this appeal are:

(1) PROMESA § 103: "The provisions of [PROMESA] shall prevail over any general or specific provisions of territory law, State law, or regulation that is inconsistent with [PROMESA]." Id. § 2103.

(2) PROMESA § 105: "The Oversight Board, its members, and its employees shall not be liable for any obligation of or claim against the Oversight Board or its members or employees or the territorial government resulting from actions taken to carry out this chapter." Id. § 2125.

(3) PROMESA § 106: "[A]ny action against the Oversight Board, and any action otherwise arising out of [PROMESA], in whole or in part, shall be brought in a United States district court for [Puerto Rico]." Id. § 2126.

CPI uses investigative journalism to access and

distribute information about Puerto Rico to Puerto Ricans so they

may be better informed about issues affecting them and may be

better prepared to exercise their democratic rights. CPI initiated

this litigation against the Board in June 2017, relying on PROMESA

§ 106 for jurisdiction and asking the district court to issue a

declaratory judgment, injunctive relief, and writ of mandamus2

forcing the Board to release documents about Puerto Rico's fiscal

2 CPI did not request an award of damages.

- 5 - situation, communications among Board members, contracts, meeting

minutes, and financial disclosure forms for the Board's members

("the 2017 Complaint").3 CPI had requested these documents

directly from the Board to no avail. CPI alleged that the Board,

by ignoring the requests or providing less than complete responses

to CPI's requests, was violating P.R. Const. § 4.4

The Board filed a motion to dismiss for lack of subject-

matter jurisdiction and for failure to state a claim, arguing that

3 Specifically, CPI sought the Board's reports pertaining to: "cash flow," "compliance" with "approved budget by budgetary fund and by agency," the Commonwealth's Treasury Department's "revenues and a narrative about collective efforts," payroll, "federal funds received and disbursed by area and by agency," "debt obligations," and "agency[] productivity and performance with appropriate metrics." CPI also sought "bank account data and statements," "[q]uarterly report[s] on each agency's productivity and performance," financial statements and conflict of interest submissions by the Board members prior to their designations to the Board, communication records between the Board and the federal government, contracts between the Board and "private entities," Board work product such as "protocols, regulations, manuals or memorandums," and meeting minutes.

4 Article II, section 4 of Puerto Rico's Constitution provides, in relevant part, that "[n]o law shall be made abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances." The Puerto Rico Supreme Court recognizes this provision to include the public's right to access public information as "firmly related to the exercise of the rights" provided within this section. Bhatia Gautier v. Rossello Nevares, 199 P.R. Dec. 59 (P.R. 2017) (certified translation at 17) (citing Trans Ad. de P.R. v. Junta de Subastas, 174 P.R. Dec. 56 (P.R. 2008); Ortiz v. Dir. Adm. de los Tribunales, 152 P.R. Dec. 161 (P.R. 2000); and Soto v. Srio. De Justicia, 112 P.R. Dec. 477 (P.R. 1982)).

- 6 - the Eleventh Amendment to the United States Constitution5 bars

CPI's quest to force the Board to comply with P.R. Const. § 4, and

that PROMESA preempts the disclosure obligations within P.R.

Const. § 4.6 CPI opposed the motion, arguing that the Eleventh

Amendment did not bar its suit, that PROMESA did not, in any way,

preempt P.R. Const. § 4, and that PROMESA § 106 expressly provided

that the federal district court is the only forum in which actions

can be brought against the Board for matters arising out of

PROMESA.

The district court judge denied the motion, assuming

without deciding that the Board is an arm of the Commonwealth

entitled to Eleventh Amendment immunity, concluding Congress (in

5Much more on the Eleventh Amendment is coming. For now it's enough to know that this Amendment may provide legal immunity to States -- and under some conditions, to State entities -- from lawsuits in federal court when the court is asked to enforce a state law against the sovereign State or state entity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-102, 117 (1984); Grajales v. P.R. Ports Auth., 831 F.3d 11, 15 (1st Cir. 2016); Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 493–94 (1st Cir. 2003) ("This provision has been authoritatively interpreted to safeguard States from suits brought in federal court by their own citizens as well as by citizens of other States.").

6This case was briefly stayed pursuant to an automatic stay provision within PROMESA, 48 U.S.C. § 2161 (incorporating the Bankruptcy Code's automatic stay provisions -- 11 U.S.C. §§ 362, 922), after the district court denied the Board's request to reassign the case to the Title III docket but granted the Board's request to apply an automatic stay. In August 2017, the bankruptcy court granted CPI's motion to lift the automatic stay, and the litigation resumed in district court. None of the procedural aspects of the stay or lift-stay proceedings are at issue in this case.

- 7 - PROMESA) waived or abrogated the Eleventh Amendment immunity, and

also concluding that PROMESA did not preempt P.R. Const. § 4.

We'll get into the judge's reasoning in a little bit -- for now we

stay focused on summarizing the travel of the case through the

district court before the case landed on our bench. After the

denial of the Board's motion to dismiss, the district judge

referred the case to a magistrate judge to set "case management

deadlines for the production of the requested documents" and to

preside over the discovery stage of the litigation.

The magistrate judge held a status conference and the

parties thereafter filed a series of informative motions to keep

the court apprised of the progress they were making towards the

Board producing -- and CPI receiving -- the documents CPI

requested. Over the following months, there was some progress.

The Board produced some documents and continued to withhold some

(the details of which are not relevant to the arguments and issues

on appeal before us). CPI, however, became frustrated with the

pace of the production process, and in October 2018 it started

filing motions asking the court for help to speed up production.

These motions included one requesting the court set a status

conference date to address the Board's purported delays in

producing the requested documents and another motion a few months

later requesting the court compel the Board to produce the

requested documents or assert a reason for withholding each

- 8 - document withheld as well as to impose a monetary sanction based

on the Board's alleged contempt for its failure to produce the

requested documents. The Board made assurances that the documents

CPI wanted were to be delivered soon, so the court denied CPI's

motions but ordered a status update and promised to schedule a

status conference to resolve whatever production issues remained

at that time.

The magistrate judge held this next status conference in

March 2019; the parties identified categories of documents the

Board was withholding, and the magistrate judge ordered the Board

and CPI to work through the specific areas of dispute. The

magistrate judge noted the parties had agreed that the documents

to be produced were all created before a cut-off date of April 30,

2018 (the reason why this date is relevant will become clear in

the next paragraph). The magistrate judge also ordered that the

parties notify him two weeks later about the categories of

documents still in dispute and each party's reasons why these

categories should or should not be produced. The parties complied,

and the magistrate judge issued a report and recommendation ("R&R")

recommending the court (1) deny CPI's request for several draft

reports and documents the Board had withheld under a claim of law

enforcement privilege and (2) order the Board to produce a

"comprehensive, legally-sufficient" privilege log identifying why

it was invoking several other categories of privilege for the

- 9 - remaining documents it was withholding. Over the parties'

objections, the district judge adopted the R&R in its entirety in

a short order entered directly onto the docket (known in some

courts as a "text order"), concluding the magistrate judge's

recommendations were "well-grounded in both fact and law," and

setting a deadline for the Board to produce the privilege log.7

After the magistrate judge issued the R&R and the parties

filed their respective objections but before the district judge

entered the order adopting the R&R, CPI started a second case in

district court against the Board, seeking the production of

documents related to communications between the Board and the

federal government as well as between the Board and the Puerto

Rico government created on April 30, 2018 and after ("the 2019

Complaint").8 The Board filed a motion to dismiss the 2019

7 The magistrate judge also issued a separate R&R recommending the denial of CPI's motion to compel the disclosure of the Board's members' financial statements dating before each member's appointment to the Board. The district court adopted the R&R in its entirety (over the Board's limited objection based on its contention that the magistrate judge misread PROMESA § 105). Neither party challenges this order in this appeal. 8 The 2019 Complaint echoed the 2017 Complaint, seeking an injunction and writ of mandamus ordering the Board to deliver

records related to communications, inquiries or requests for information, documents, reports or data issued by any member of the Board and/or its staff to any federal [or Puerto Rico] government agency or federal [or Puerto Rico] government official, or by the federal [or Puerto Rico] government, its agencies or staff, to the Board, from April 30, 2018 until the delivery date, including,

- 10 - Complaint, restating its arguments from its first motion to dismiss

(lack of subject matter jurisdiction and failure to state a claim)

and adding a third reason CPI could not prevail in its quest for

the Board's documents: PROMESA § 105 provided the Board with

immunity from the relief CPI seeks. The district court

consolidated this second case with the first case and denied the

Board's motion to dismiss in a short text order "for the reasons

stated in the Court's Opinion and Order" entered in the lead case

about the 2017 Complaint, briefly listing its main conclusions

from the Opinion and Order.

The Board filed a notice of appeal to challenge both the

order denying its motion to dismiss the 2019 Complaint and the

order requiring it to compile and submit the detailed privilege

log. This court granted the Board's motions to expedite the appeal

as well as to stay the district court proceedings.

OUR TAKE9

Out of the gate, CPI contends we should not hear the

Board's appeal because it has waived any appellate rights through

but not limited to, email and text messages through any digital messaging system.

9 We appreciate the thoughtful submissions from the amici (their names are listed near the case caption up top) but we give the reader a heads up that we cannot consider any "arguments advanced only 'by amici and not by parties.'" Mount Vernon Fire Ins. Co. v. VisionAid, Inc., 875 F.3d 716, 720 n.1 (1st Cir. 2017) (quoting In re Sony BMG Music Ent., 564 F.3d 1, 3 (1st Cir. 2009)).

- 11 - conduct it engaged in before the district court during the 2017

suit, as we'll discuss momentarily. Not so, says the Board and

urges us to conclude on the merits of its appeal that CPI cannot

prevail in its quest for the documents it demands because

constitutional and statutory immunity shield the Board from CPI's

suit and because PROMESA preempts P.R. Const. § 4. Assuming we

will reach the merits, CPI says it fully supports the district

court's conclusions. We'll start with CPI's waiver contention

before moving into the Board's arguments. For those who prefer to

know the end result before reaching the end of the opinion, we

conclude that: The Board properly availed itself of interlocutory

review of the denial of its motion to dismiss only with respect to

its Eleventh Amendment immunity argument and, in PROMESA § 106,

Congress abrogated the Board's assumed Eleventh Amendment

immunity. Read on for the details and the whys of these

conclusions.

Availability of Interlocutory Review

As CPI tells it, we need not address either of the

Board's immunity contentions raised in response to the 2019

Complaint because the Board has waived any right to prosecute an

appeal of those issues. That is so for a couple of reasons: CPI

says the Board missed its opportunity to challenge the district

court's conclusions that the Board is neither immune from CPI's

suit nor saved by preemption when the Board did not immediately

- 12 - appeal the denial of its motion to dismiss the 2017 Complaint.

CPI also says the Board waived its appellate rights by producing

documents in the first suit and by pretending it would ultimately

comply with the agreed-upon documents production stipulations.

The Board replies that CPI is ignoring important facts:

CPI filed not one but two separate complaints, and the Board's

appeal here is from the district court's denial of its motion to

dismiss the 2019 Complaint, not the 2017 Complaint. Continuing,

CPI, says the Board, fails to explain why its participation in the

first suit or why discovery orders from the first suit preclude it

from appealing the district court's rejection of its second-suit

jurisdictional challenges.

We first note that while CPI raises this waiver issue

before us, arguing the Board's lack of diligence in timely pursuing

its Eleventh-Amendment-subject-matter-jurisdiction assertions

bars this appeal, CPI did not provide any on-point or helpful case

law to help us understand why it believes that is so. For support,

CPI only cites cases dealing with lack of diligence in other

contexts, such as juror disqualification, evidentiary issues

during trial, and qualified immunity. The same holds true for why

the Board's participation in suit one's discovery practices

prevents this appeal -- CPI gives us no helpful case law applicable

to its waiver contention. Regardless, we understand CPI's

essential argument to be that because the Board slept on its rights

- 13 - in the first suit, it necessarily waived any immunity defense in

the second. So we assess CPI's contention.10

Case law tells us an Eleventh Amendment sovereign

immunity defense, as asserted here, is jurisdictional and

therefore may be raised at any point during litigation, even for

the first time on appeal. R.I. Dep't of Env't Mgmt. v. United

States, 304 F.3d 31, 49 (1st Cir. 2002). However, a defendant can

waive this immunity defense by participating in the litigation,

thereby indicating its consent to suit. Lapides v. Bd. of Regents

of the Univ. Sys. of Ga., 535 U.S. 613, 619, 622 (2002). To

constitute waiver, the sovereign's litigation conduct "must be

unambiguous and must evince a clear choice to submit the state's

rights for adjudication by the federal courts." Ramos-Piñero v.

Puerto Rico, 453 F.3d 48, 52 (1st Cir. 2006) (cleaned up) (internal

citations omitted).

For example, we held a defendant did waive its sovereign

immunity when it argued this defense before the district court,

did not raise it in a first appeal, then tried to resurrect the

issue in a second appeal in the same matter. See Aquinnah/Gay

Head Cmty. Ass'n, Inc. v. Wampanoag Tribe of Gay Head (Aquinnah),

989 F.3d 72, 83 (1st Cir. 2021). Another example of waiver by

10 Rather than deem CPI's contentions waived for failure of development, we address them because CPI indeed provided some case law in an effort to support its points, perhaps cited so we could reason by analogy to the situations presented in those cases.

- 14 - litigation conduct: When a state entity engaged in litigation by

filing a counterclaim and a third-party complaint before asserting

sovereign immunity. Davidson v. Howe, 749 F.3d 21, 28 (1st Cir.

2014). Or, the slam dunk for waiver identified by the Supreme

Court was when a state defendant -- sued in state court under a

statute in which the state had waived immunity from suit -- removed

a case to federal court then filed a motion to dismiss on the basis

of sovereign immunity. Lapides, 535 U.S. at 619, 622. We have

said there is no waiver, though, when the sovereign defendant "does

nothing more than zealously defend against the [court's

jurisdiction] whenever possible." Consejo de Salud de la Comunidad

de la Playa de Ponce, Inc. v. González-Feliciano, 695 F.3d 83, 105

(1st Cir. 2012).

Our dive into CPI's and the Board's back-and-forth

during the 2017 case's discovery proceedings reveals the Board

indicated in its filings that it was not conceding its immunity

defenses. Soon after the district court judge denied the Board's

motion to dismiss CPI's 2017 Complaint, the parties submitted a

joint initial scheduling memorandum to the magistrate judge to

kick off the discovery process. In a section called "Statement of

Jurisdictional Issues" the Board asserted that the court lacks

jurisdiction on both constitutional and statutory immunity grounds

(as well as that P.R. Const. § 4 preempts CPI's claims). Later

on, when the Board filed a limited objection to the R&R about the

- 15 - privilege log, the Board included a statement that it was reserving

its right to assert "its position that th[e] [c]ourt is without

jurisdiction over this matter" and was not waiving any of its

arguments about either sovereign or statutory immunity. With these

rights-preservation filings in the record and our prior

discussions of waiver by conduct in mind, we conclude that the

Board did not waive its immunity arguments by engaging in the

discovery process before CPI filed the 2019 Complaint.

That being said, because the district court explicitly

incorporated its legal reasoning from the 2018 order denying

dismissal of the 2017 Complaint into the order denying dismissal

of the 2019 Complaint, our review of the later order will

necessarily have to examine the fully articulated reasoning in the

first order.

Therefore, we move on to consider whether CPI's other

jurisdictional challenges have merit. CPI objects to the Board's

assertion of interlocutory appellate jurisdiction pursuant to the

collateral order doctrine, arguing that the Board's challenge to

the denial of Eleventh Amendment immunity can wait until the

district court enters a final judgment. The same holds for the

district court's order for production of documents.

In general, this court only allows appeals from final

judgments. 28 U.S.C. § 1291. As with any rule, however, there

are exceptions, and the Board says two apply here. First, an

- 16 - interlocutory appeal of the order denying dismissal of the 2019

Complaint is properly before this court pursuant to the collateral

order doctrine. Second, an interlocutory appeal of the order

directing the Board to create a privilege log is an immediately

appealable injunction pursuant to § 1292(a).

The collateral order doctrine allows an order issued by

a district court to be appealed immediately when the order "finally

determines claims of right separable from, and collateral to,

rights asserted in the action, too important to be denied review

and too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated."

Asociación De Subscripción Conjunta Del Seguro De Responsabilidad

Obligatorio v. Flores Galarza, 484 F.3d 1, 13 (1st Cir. 2007)

(alteration adopted) (quoting Espinal-Dominguez v. Puerto Rico,

352 F.3d 490, 495 (1st Cir. 2003)); Nieves-Márquez v. Puerto Rico,

353 F.3d 108, 122 n.11 (1st Cir. 2003). Stated differently, the

collateral order doctrine applies when the trial court's decision

is sufficiently final, urgent, important, and separable. Espinal-

Dominguez, 352 F.3d at 496 (citing In re Rectical Foam Corp., 859

F.2d 1000, 1004 (1st Cir. 1988)). This court has previously held

that a district court's denial of a state or state entity's claim

that the Eleventh Amendment provides full immunity from suit meets

the elements of the collateral order doctrine because: (1) the

decision "conclusively determines that the State [or state entity]

- 17 - can be subjected to the coercive processes of the federal courts"

(finality), (2) "the principal benefit conferred by the Eleventh

Amendment -- an immunity from suit -- will be 'lost as litigation

proceeds past motion practice'" (urgency), (3) the decision

"involves an important legal question (the existence and extent of

a 'fundamental constitutional protection')" (importance), and (4)

the "question has no bearing on the substantive merits of the case"

(separability). Id. at 496-97 (quoting P.R. Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993)).

CPI says these elements aren't met because "[t]here

would [be] no immediate harm to the Board if this case proceeds to

final judgment" and that there could be "effective review" after

the Board produces the requested documents or identifies the

documents it thinks should be protected from disclosure. But CPI

does not attempt to distinguish our case law applying the

collateral order doctrine to denials of Eleventh Amendment

protection or show, beyond its broad argument, why the collateral

order doctrine elements aren't met here. In any event, we agree

with the Board that the district court's order denying its claim

of Eleventh Amendment immunity may be appealed now pursuant to the

collateral order doctrine. See P.R. Aqueduct & Sewer Auth., 506

U.S. at 141, 147 (holding States and state entities that are (or

claim to be) "arms of the State" may appeal a district court

decision denying Eleventh Amendment immunity pursuant to the

- 18 - collateral order doctrine) (citing Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541 (1949)); cf. Espinal-Dominquez, 352 F.3d at

499 (dismissing an interlocutory appeal for want of appellate

jurisdiction because the collateral order doctrine could not make

one part of a case reviewable when the Commonwealth of Puerto Rico

had also acknowledged that the other remedies the plaintiff sought

in the same cause of action would not be shielded by Eleventh

Amendment immunity).

The Board claims that its other arguments -- statutory

immunity and preemption -- are also properly before us now because

these are "inextricably intertwined with the Eleventh Amendment

immunity issue," though it does not tell us how. We have indeed

recognized that pendent appellate jurisdiction "exists" "when an

issue is 'inextricably intertwined' with a denial of immunity, and

[when] review of the pendent issue 'was necessary to ensure

meaningful review' of immunity." Lopez v. Massachusetts, 588 F.3d

69, 81-82 (1st Cir. 2009) (quoting Swint v. Chambers Cnty. Comm'n,

514 U.S. 35, 51 (1995), and citing Suboh v. Dist. Attorney's

Office, 298 F.3d 81, 97 (1st Cir. 2002), and Fletcher v. Town of

Clinton, 196 F.3d 41, 55 (1st Cir. 1999)); see also Nieves-Márquez,

353 F.3d at 123. Such intertwinement is not present here, however.

An examination of our prior exercises of pendent appellate

jurisdiction reveals we have done so in situations where the

statutory questions presented were central to answering the

- 19 - sovereign immunity question. See, e.g., Lopez, 588 F.3d at 82

(exercising pendent appellate jurisdiction because whether the

state agency involved was an "employer" within the meaning of Title

VII "was both determinative and factually and legally entwined

with the Eleventh Amendment question") (citing Nieves-Márquez, 353

F.3d at 123-24); see also Nieves-Márquez, 353 F.3d at 123 (stating

the answer to whether any of the causes of action pled allowed for

damages as opposed to equitable remedies only was "inextricably

intertwined with the issue of Eleventh Amendment immunity"). In

contrast here, we can (and do) resolve the Eleventh Amendment

immunity issue without any need to explore or resolve either the

Board's arguments about statutory immunity pursuant to PROMESA

§ 105 or its arguments about how PROMESA preempts the disclosure

obligations in P.R. Const. § 4. And the Board does not suggest

any other viable legal theory that would allow us to review these

issues now. For these reasons stated, we decline to exercise

pendent jurisdiction over the statutory immunity and preemption

issues.

CPI's final objection to the Board seeking interlocutory

appellate review of the two orders now is based on CPI's contention

that neither order can be properly labeled an injunction as the

Board claims. The Board indeed asserts in its brief-in-chief that

the privilege log order (but not the order denying its motion to

dismiss) is an immediately appealable injunction, arguing that if

- 20 - this court makes it wait to challenge the privilege log order until

after the log is completed, the proverbial cat will be "out of the

bag" and CPI will know what documents the Board has in its

possession. The Board wants us to rely on a case from the District

of Columbia Circuit Court of Appeals where that court held that

the district court's order requiring the defendant CIA to confirm

or deny whether it had the records the plaintiffs requested

pursuant to the Freedom of Information Act ("FOIA") was injunctive

in nature and appealable under 28 U.S.C. § 1292(a)(1). See Leopold

v. Cent. Intel. Agency, 987 F.3d 163, 169 (D.C. Cir. 2021) ("There

is no doubt that orders requiring the disclosure of documents are

appealable injunctions." (internal quotation marks and citation

omitted)). The D.C. Circuit Court recognized that "[t]he absence

of particular evidence may sometimes provide clues as important as

the presence of such evidence." Id. at 167.

The D.C. Circuit Court distinguished the situation in

Leopold from an order examined in a prior case in which the

district court had ordered the Secret Service to process a FOIA

request for visitor logs to the White House and the Vice

President's residence. Id. (citing Citizens for Resp. & Ethics in

Wash. v. U.S. Dep't of Homeland Sec. ("CREW"), 532 F.3d 860, 862-

63 (D.C. Cir. 2008)). The court held that the order in the Secret

Service case had not been immediately reviewable as an injunction

because the agency had not yet been forced to disclose any

- 21 - documents, instead only to process the FOIA request, during which

the agency would have the opportunity "to withhold some or all of

the documents under one or more of FOIA's nine exemptions," CREW,

532 F.3d at 863, at which point, the district court "may agree

with the agency, allowing it to withhold the requested records, in

which case the government would have no cause to appeal," Leopold,

987 F.3d at 169 (quoting CREW, 532 F.3d at 864).

Not surprisingly, the Board would like us to find the

district court's privilege log order akin to Leopold whereas CPI

emphasizes the reasoning in CREW. True, the production of the

detailed privilege log will tip off CPI to the names of the

documents in the Board's possession, but CPI is demanding specific

categories of reports and other documents (see supra notes 3 and

8) it already knows are in the Board's possession. The kinds of

documents CPI seeks to obtain (such as financial reports and

statements related to the Board and the Commonwealth as well as

communications between the Board and various entities) do not, in

our view, have the same degree of national security sensitivity

upon which the CIA relies to carry out its responsibilities related

to national security, the disclosure of which would "reveal

intelligence sources and methods." Leopold, 987 F.3d at 169. As

such, contrary to what the Board wants us to believe, the content

of the privilege log would not let the cat "out of the bag" in the

same way as the information the CIA would have been forced to

- 22 - disclose if it had been forced to admit or deny possessing various

documents. Instead, we think the Board's situation is more akin

to that in CREW -- to ask us to review the privilege log order

before the Board has complied and asserted claims of privilege for

each document CPI requested that the Board wants to withhold would

be premature. See 532 F.2d at 864. Effective review of the

district court's ultimate determination about which documents the

Board may withhold based on a specific claim of privilege can occur

after the Board has produced the privilege log and makes these

assertions in the first instance. We conclude, therefore, that

the privilege log order is not reviewable in this interlocutory

appeal as an injunction pursuant to 28 U.S.C. § 1292(a)(1). For

the reasons we have explained throughout this section, the only

merits issue we will proceed to examine is Eleventh Amendment

sovereign immunity.

Sovereign Immunity

The Eleventh Amendment provides that "[t]he Judicial

power of the United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State." U.S. Const. amend. XI. According

to the Supreme Court, "a federal suit against state officials on

the basis of state law contravenes the Eleventh Amendment when

. . . the relief sought and ordered has an impact directly on the

- 23 - State itself." Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 117 (1984). The Board argues that the Eleventh Amendment

shields it from this litigation full stop because "CPI is asking

a federal court . . . to enforce territorial law . . . against an

entity within the Commonwealth's government . . . ." The Board

contends this court has repeatedly stated this immunity applies to

the Commonwealth of Puerto Rico and that, in PROMESA, Congress

neither waived nor abrogated this immunity. CPI responds that the

Board is not entitled to this constitutional immunity because the

Supreme Court has not yet said this immunity applies to this

territory. But, if this court decides the Eleventh Amendment

applies, says CPI, then PROMESA § 106(a) abrogates the immunity

from suit.11 The district court assumed the Board was entitled to

Eleventh Amendment immunity but concluded Congress, in PROMESA

§ 106, both waived and abrogated the immunity. Our review of this

issue is de novo. Grajales v. P.R. Ports Auth., 831 F.3d 11, 15

(1st Cir. 2016).

As the district court and the Board point out, this court

has long treated Puerto Rico like a state for Eleventh Amendment

purposes, including recently. See Borrás-Borrero v. Corporación

del Fondo del Seguro del Estado, 958 F.3d 26, 33 (1st Cir. 2020)

11 Although CPI argues the Eleventh Amendment does not apply to Puerto Rico and that Congress neither waived nor abrogated this immunity as to Puerto Rico, we understand CPI's counterarguments to be about the Board as an entity of Puerto Rico's government.

- 24 - (noting "Puerto Rico is treated as a state for Eleventh Amendment

purposes" but avoiding consideration of the constitutional

immunity question because the state entity clearly prevailed on

the merits (quoting Fresenius Med. Care Cardiovascular Res., Inc.

v. P.R. and Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61

(1st Cir. 2003))); see also Grajales, 831 F.3d at 15 (acknowledging

Puerto Rico "enjoys" sovereign immunity in the same way as the

states (citing Jusino Mercado v. Puerto Rico, 214 F.3d 34, 39 (1st

Cir. 2000))); González-Feliciano, 695 F.3d at 103 n.15; Maysonet-

Robles v. Cabrero, 323 F.3d 43, 50 (1st Cir. 2003); De Leon Lopez

v. Corporacion Insular de Seguros, 931 F.2d 116, 121 (1st Cir.

1991). The Supreme Court, for its part, "has expressly reserved

on the question whether Eleventh Amendment immunity principles

apply to Puerto Rico." Grajales, 831 F.3d at 15 n.3 (citing P.R.

Aqueduct & Sewer Auth., 506 U.S. at 141 n.1 (acknowledging this

court's treatment of Puerto Rico as a State for Eleventh Amendment

purposes but not reaching the issue of whether the defendant agency

was entitled to the immunity as a state entity because this court

had not reached the issue)). The Supreme Court has only once

directly addressed whether Puerto Rico is a separate sovereign

from the federal government, in a criminal case. In Puerto Rico

v. Sánchez Valle, 579 U.S. 59 (2016), the Court held that while

each State is a separate sovereign from the federal government for

purposes of the Fifth Amendment's Double Jeopardy Clause, Puerto

- 25 - Rico is not because the historical source of Puerto Rico's

prosecutorial power was derived from the federal government. Id.

at 68-69, 75. The Court did not, however, address whether Puerto

Rico enjoyed general sovereign immunity.

That this court has a long history of treating Puerto

Rico as a state for Eleventh Amendment purposes doesn't resolve

whether the Board itself is also entitled to immunity, however.

We have said "[a]rms of a state" may be entitled to immunity,

Pastrana-Torres v. Corporación De P.R. Para La Difusión Pública,

460 F.3d 124, 126 (1st Cir. 2006) (citing Metcalf & Eddy, Inc. v.

P.R. Aqueduct & Sewer Auth., 991 F.2d 935, 939 (1st Cir. 1993)),

but this court has not had an opportunity to examine whether the

Board is an "arm" of Puerto Rico and this appeal does not appear

to drop the question squarely on our bench for us to decide: The

Board asserts "[t]here can be no reasonable dispute that the Board

is an 'arm of the state' entitled to immunity" because, the Board

says, "Congress clearly established the Board as an entity within

the Puerto Rico government." For its part, CPI doesn't dispute

this statement. Indeed, throughout the dispositive motion

briefing below, the parties repeatedly referred to the Board as

"an entity within the territorial government" of Puerto Rico, and

PROMESA clearly defines the Board this way.12 48 U.S.C.

The Supreme Court's only comment to date about the Board's 12

status vis-à-vis Puerto Rico has been to acknowledge PROMESA

- 26 - § 2121(c)(1). The district court noted that neither party

addressed whether the Board "should be considered an 'arm' of

Puerto Rico for Eleventh Amendment purposes," then proceeded to

assume without deciding the Board is an "arm" because "the

Commonwealth funds it." Because neither the parties nor the

district court thought this point to be worth debating or examining

in detail, we shall also assume without deciding that the Board is

an arm of Puerto Rico, shielded by general Eleventh Amendment

immunity, especially because, as we explain below, Congress

abrogated, in part, the Board's immunity.

As we've already previewed, the Eleventh Amendment

shield is not impenetrable. Sovereign immunity is a privilege

which the holder of the immunity can voluntarily waive. Arecibo

Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 24 (1st Cir.

2001) (citing Clark v. Barnard, 108 U.S. 436, 447 (1883) and Coll.

Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527

U.S. 666, 675 (1999)). In addition to the waiver-by-litigation-

conduct we discussed supra, a sovereign can waive its immunity in

defining the Board as "an entity within" Puerto Rico's government, § 2121(c)(1), and saying "Congress did not simply state that the Board is part of the local Puerto Rican government. Rather, Congress also gave the Board a structure, a set of duties, and related powers all of which are consistent with this statement." Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1661 (2020) (deciding whether the appointment of the Board's members without Senate confirmation violated the Appointments Clause, U.S. Const. Art. II, § 2, cl. 2).

- 27 - one of two other ways: either by a "clear declaration" in a

statute or constitutional provision that the sovereign "intends to

submit itself to the jurisdiction of the federal courts," id.

(quoting Coll. Sav. Bank, 527 U.S. at 676), or by "participat[ing]

in a federal program for which waiver of immunity is a stated

condition," id. (citing Mills v. Maine, 118 F.3d 37, 50 (1st Cir.

1997)). Alternatively, "Congress may abrogate the States'

constitutionally secured immunity from suit in federal court . . .

by making its intention unmistakably clear in the language of the

statute," Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)

(quoting Dellmuth v. Muth, 491 U.S. 223, 228 (1989)), and "act[ing]

pursuant to a valid grant of constitutional authority," Arecibo

Cmty. Health Care, Inc., 270 F.3d at 24 n.9 (citing Laro v. New

Hampshire, 259 F.3d 1, 5 (1st Cir. 2001)); see also Arecibo Cmty.

Health Care, 270 F.3d at 24 n.9 (describing the expression of

intention to abrogate as having to be "unequivocal"); Maysonet-

Robles v. Cabrero, 323 F.3d 43, 49 (1st Cir. 2003) ("Congress may

abrogate . . . [Eleventh Amendment] immunity by expressly

authoriz[ing] such a suit pursuant to a valid exercise of power.")

(citing Coll. Sav. Bank, 527 U.S. at 670).

The district court concluded that Congress, pursuant to

its plenary power to legislate on behalf of Puerto Rico as a United

States territory (see supra note 1), included an express waiver of

sovereign immunity in PROMESA § 106. Our prior definitions of --

- 28 - and discussions about -- waiver of Eleventh Amendment immunity,

however, indicate that waiver is accomplished by the sovereign

holding the privilege of immunity. See, e.g., Maysonet-Robles,

323 F.3d at 50 (to establish waiver of Eleventh Amendment immunity

the plaintiffs had to show Puerto Rico waived its own immunity);

Arecibo Cmty. Health Care, 270 F.3d at 24 (noting Eleventh

Amendment waiver is a privilege for the sovereign to waive). We

understand the district court's point to be that Congress, using

its power to act on behalf of Puerto Rico, could have elected to

waive immunity on behalf of the Board, but, as we next explain,

under these circumstances, our view is that the district court was

on much surer footing with its conclusion that PROMESA § 106

abrogated (rather than waived) the Board's sovereign immunity. We

therefore focus our attention on this method of thwarting the

Eleventh Amendment shield.

Whether Congress abrogated the Board's sovereign

immunity in PROMESA § 106 is an issue of first impression for this

court. We have not yet closely examined this part of PROMESA, in

which Congress said that "any action against the . . . Board, [or]

. . . otherwise arising out of [PROMESA] . . . shall be brought in

[the district court for the district of Puerto Rico]." 48 U.S.C.

§ 2126(a). While we write on a blank slate with respect to this

part of PROMESA, however, we are guided by long-standing and well-

settled principles of statutory construction. "[T]he critical

- 29 - first step in any statutory-interpretation inquiry" is to "closely

examine the statutory text." Oliveira v. New Prime, Inc., 857

F.3d 7, 19 (1st Cir. 2017), aff'd, 139 S. Ct. 532 (2019). We give

the phrases or words Congress did not specifically define within

PROMESA their "ordinary meaning."13 Id. (quoting United States v.

Stefanik, 674 F.3d 71, 77 (1st Cir. 2012)). As we have previously

noted when interpreting PROMESA, "[c]ourts interpret statutes to

'give effect, if possible, to every word Congress used,' and . . .

reject 'interpretation[s] of the statute that would render an

entire subparagraph meaningless.'" In re Fin. Oversight & Mgmt.

Bd. for P.R., 7 F.4th 31, 37 (1st Cir. 2021) (quoting Nat'l Ass'n

of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 632 (2018) (second

alteration in original)). This court "indeed prefer[s] 'the most

natural reading' of a statute, one that 'harmonizes the various

provisions in [it] and avoids the oddities that [a contrary]

interpretation would create.'" N.H. Lottery Comm'n v. Rosen, 986

F.3d 38, 58 (1st Cir. 2021) (quoting Republic of Sudan v. Harrison,

139 S. Ct. 1048, 1057, 1060 (2019) (second and third alterations

in original)).

The full text of PROMESA § 106(a) states:

Except as provided in section 2124(f)(2) of this title (relating to the issuance of an order enforcing a subpoena), and subchapter III (relating to adjustments of debts), any action against the Oversight Board, and

13 Neither party contends the PROMESA language at issue or salient to this issue is ambiguous.

- 30 - any action otherwise arising out of this chapter, in whole or in part, shall be brought in a United States district court for the covered territory or, for any covered territory that does not have a district court, in the United States District Court for the District of Hawaii.

48 U.S.C. § 2126(a). Paragraph (c) clearly contemplates that

declaratory and injunctive relief may be ordered against the Board,

as well as orders related to alleged constitutional violations:

Except with respect to any orders entered to remedy constitutional violations, no order of any court granting declaratory or injunctive relief against the Oversight Board, including relief permitting or requiring the obligation, borrowing, or expenditure of funds, shall take effect during the pendency of the action before such court, during the time appeal may be taken, or (if appeal is taken) during the period before the court has entered its final order disposing of such action.

Id. § 2126(c). And paragraph (e) -- "[t]here shall be no

jurisdiction in any United States district court to review

challenges to the Oversight Board's certification determinations

under this chapter" -- plainly provides a limit on the general

jurisdiction of the federal district court set out in paragraph

(a). Id. § 2126(e); In re Fin. Oversight & Mgmt. Bd. for P.R.,

916 F.3d at 112 (acknowledging "PROMESA's general grant of

jurisdiction at § 106(a)" when it explained paragraph (e) serves

as an exception to it).

The Board says the general grant of jurisdiction in

PROMESA § 106(a) is insufficiently direct to conclude Congress

intended to abrogate the Board's sovereign immunity. We disagree;

- 31 - instead, we agree with the district court that, by including § 106,

Congress unequivocally stated its intention that the Board could

be sued for "any action . . . arising out of [PROMESA]," but only

in federal court. Congress was unmistakably clear that it had

contemplated remedies for constitutional violations and that

injunctive or declaratory relief against the Board may be granted,

see PROMESA § 106(c). Congress also provided three clear

exceptions to the grant of general jurisdiction -- two in paragraph

(a) and one regarding certification orders in paragraph (e). This

implies the remainder of paragraph (a) serves as establishing

general jurisdiction over all other matters not specifically

excepted elsewhere in the section. See In re Fin. Oversight &

Mgmt. Bd. for P.R., 7 F.4th at 37 (emphasizing the court's

obligation to "give effect . . . to every word Congress used").

"Any action . . . arising out of [PROMESA]" is certainly broad,

but given the limitations included within the same section, we

have every reason to give paragraph (a) its plain meaning. See

Oliveira, 857 F.3d at 19.

True, the language in PROMESA § 106 may not be as precise

as when Congress has written "[a] State shall not be immune under

the eleventh amendment . . . from an action in a Federal or State

court of competent jurisdiction for a violation of this chapter."

Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001)

(citing 42 U.S.C. § 12202 -- Equal Opportunity for Individuals

- 32 - with Disabilities) (holding no dispute that Congress intended to

abrogate immunity). But, as this court recently highlighted, "[t]o

abrogate sovereign immunity 'Congress need not state its intent in

any particular way.' . . . The Supreme Court has 'never required

that Congress use magic words' to make its intent to abrogate

clear." In re Coughlin, No. 21-1153, 2022 WL 1438867, at *2 (1st

Cir. May 6, 2022) (quoting FAA v. Cooper, 566 U.S. 284, 291

(2012)). "To the contrary, it has explained that the requirement

of unequivocal abrogation 'is a tool for interpreting the law and

that it does not displace the other traditional tools of statutory

construction.'" Id. (quoting Richlin Sec. Serv. Co. v. Chertoff,

553 U.S. 571, 589 (2008)) (cleaned up). Indeed, the Supreme Court

has previously deemed broad, "any cause of action arising from"

language as "unmistakably clear," signaling Congress's intent to

abrogate sovereign immunity from suit. See Seminole Tribe of Fla.

v. Florida, 517 U.S. 44, 56-57 (1996) (examining tribal gaming

ordinances "vest[ing] jurisdiction in 'the United States district

courts . . . over any cause of action [initiated by an Indian

tribe] arising from the failure of a State to enter into

negotiations [with the Indian tribe] . . . or to conduct such

negotiations in good faith'" (quoting 25 U.S.C. § 2710)). In

Seminole Tribe, § 2710(d)(7)(A)(ii) and (iii) also granted

jurisdiction to the district courts over "any cause of action"

initiated by either a State or Indian tribe over certain activity

- 33 - or by the Secretary of the Interior to enforce some of the

statutory procedures. Id. at 57. As the district court in our

case pointed out, the language in PROMESA § 106(a) is similar to

the statutory language at issue in Seminole Tribe, though the

latter specified the plaintiff while PROMESA does not, but PROMESA

provides specific exceptions to jurisdiction whereas the tribal

gaming regulations did not.14

The district court also concluded that to consider

PROMESA § 106 anything but clear language of Congress's intent to

abrogate the Board's sovereign immunity would render § 106

superfluous. Not so, says the Board, because an action could still

14 Our reliance on the Supreme Court's reasoning in Seminole Tribe is not, as our dissenting colleague claims, misplaced. The dissent emphasizes the nature of the section of the Indian Gaming Regulatory Act in question -- 25 U.S.C. § 2710(d)(7)(A) -- as a "remedial scheme." Indeed, this part of the Act provided jurisdiction in the federal district courts over a claim that a state had not negotiated a Tribal-State compact in good faith, as required by the Act. See 517 U.S. at 49-50. But the designation of this section as "remedial" did not factor into the Court's reasoning about Congress's explicit intent to abrogate sovereign immunity and does not detract from its precedential value to us here. Seminole Tribe stands as a clear and fairly applicable principle that Congress need not expressly say that a "state shall not be immune under the Eleventh Amendment" in order for the Court to find clear language of its intent to abrogate sovereign immunity. See 517 U.S. at 56; see also In re Coughlin, 2022 WL 1438867, at *2 (stating there are no "magic words" for the unequivocal expression of intent to abrogate (quoting FAA, 566 U.S. at 291)). The dissent cannot deny that the Supreme Court held Congress's intent to abrogate sovereign immunity was "unmistakably clear" even though Congress did not so explicitly state in § 2710(d)(7)(A). See Seminole Tribe, 517 U.S. at 56.

- 34 - be brought under federal law. We note, however, that § 106 doesn't

explicitly limit the federal court's jurisdiction to federal law

claims. Congress could have included such a limitation, as it

included other limitations in § 106(a) and (e), but it did not

and, unlike our dissenting colleague who repeatedly asserts § 106

is intended to provide jurisdiction over federal claims only, we

decline to read it in.15 See In re Fin. Oversight & Mgmt. Bd. for

P.R., 7 F.4th at 37; N.H. Lottery Comm'n, 986 F.3d at 58. We

15 While Congress did not qualify "claims" as state, federal, or both, it is important to remember that Congress did provide a couple of other limits within PROMESA on the ways in which the Board's actions may be challenged in federal court. To wit, Congress exempted the Board from liability for some types of claims: PROMESA § 105, titled "Exemption from liability for claims," provides that "[t]he Oversight Board, its members, and its employees shall not be liable for any obligation of or claim against the Oversight Board or its members or employees or the territorial government resulting from actions taken to carry out this chapter." 48 U.S.C. § 2125. While we do not reach the merits of the parties' arguments about the scope of this section, there is no doubt that it serves as a limit on the kinds of claims that may be brought against the Board. Congress also included a supremacy clause: "The provisions of this chapter shall prevail over any general or specific provisions of territory law, State law, or regulation that is inconsistent with this chapter." 48 U.S.C. § 2103. This shield from compliance with inconsistent territory laws and regulations assists the Board as it formulates and executes its plans for Puerto Rico's fiscal recovery, and, though not a limit on the federal court's jurisdiction over claims against it, provides a defense to the Board for use against claims that its actions are in conflict with territorial laws and regulations.

- 35 - conclude "any action" includes claims based on either federal or

state law.16

As to the second necessary part of abrogation in the

context of sovereign immunity (abrogation through a "valid

exercise of power," Arecibo Cmty. Health Care, 270 F.3d at 24 n.9),

Congress expressly enacted PROMESA using its power pursuant to the

16 We also note that, before PROMESA was enacted, the status quo ante was that persons in Puerto Rico could sue the Commonwealth for damages in Commonwealth courts, but not in federal courts. PROMESA effectively reversed this venue regime by barring suit in Commonwealth courts while simultaneously allowing suits against the Commonwealth to be brought in federal court. Nothing in the language of § 106 suggests or even implies any intent to affect the merits of such re-routed claims. The Board urges a different view. It would have us find that PROMESA essentially wiped out all such suits by deeming them dead on arrival at the federal forum. But § 106 is not merely a "general authorization for suit in federal court." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). Rather, it is a claim-channeling provision which requires that claims against the Board that are otherwise cognizable in Commonwealth court must be brought in federal court. This is no reason to think that Congress intended this channeling to dictate the dismissal of such claims. Had Congress intended to bring about such a change in substance rather than venue we think it would have done so expressly. This is so especially for claims of violation of the Commonwealth's constitution because Congress had a direct role in the development of Puerto Rico's Constitution, authorizing the "constitution- making process," amending the draft constitution, and ultimately approving the final Constitution. Sánchez Valle, 579 U.S. at 76; see In re Fin. Oversight & Mgmt. Bd. for P.R., 916 F.3d at 104 (citing Sánchez Valle for its recognition of Congress's role in the creation of Puerto Rico's constitution). Therefore, Congress was certainly familiar with all the provisions within Puerto Rico's Constitution -- including the right to access public documents found in P.R. Const. § 4 (recall this is the right at the center of CPI's suit against the Board) -- and we can expect that Congress had Puerto Rico's constitutional provisions in mind when it was designing the legislation to help Puerto Rico navigate its fiscal crisis.

- 36 - Territorial Clause (again, see supra note 1), 48 U.S.C.

§ 2121(b)(2); an exercise of power that neither party has

questioned here and that the Board has not challenged in other

litigation, see Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius

Inv., LLC, 140 S. Ct. 1649, 1679 (2020) (Sotomayor, J., concurring)

("[T]he parties here do not dispute Congress' ability to enact

PROMESA under the Territories Clause in the first place; nor does

it seem strictly necessary to call that matter into question to

resolve the Appointments Clause concern presented here.").

The Board puts forth some additional arguments about why

it thinks the district court erred by concluding PROMESA § 106

constituted a waiver or abrogation of immunity, including that the

district court relied on the wrong statute's legislative history,

that the district court should not have been swayed by CPI not

having any forum in which to sue the Board if the Board was immune

from all causes of actions based on territorial law, and that the

district court should not have put any stock in the Board's

appearances in the PROMESA Title III restructuring cases. We do

not address these arguments because none change our conclusion

that, based on our de novo review of PROMESA § 106 and the

application of the strict abrogation elements, Congress abrogated

the Board's sovereign immunity in PROMESA § 106 for the reasons

we've stated, to the extent not excepted within this statutory

section.

- 37 - FINAL WORDS

For the reasons stated above, the district court's order

denying the Board's motion to dismiss CPI's 2019 Complaint on the

basis of sovereign immunity is affirmed. Costs to CPI.

- DISSENTING OPINION FOLLOWS -

- 38 - LYNCH, Circuit Judge, dissenting. With respect, I

dissent. The Board is correct that it is entitled to Eleventh

Amendment immunity and the case must be dismissed. The majority's

conclusion to the contrary conflicts with Supreme Court precedent,

First Circuit precedent, and precedent from other circuits, and

will have dire consequences.

I.

We have long recognized that Puerto Rico is entitled to

Eleventh Amendment immunity. See, e.g., Borrás-Borrero v.

Corporación del Fondo del Seguro del Estado, 958 F.3d 26, 33 (1st

Cir. 2020); Grajales v. P.R. Ports Auth., 831 F.3d 11, 15 (1st

Cir. 2016); Fresenius Med. Care Cardiovascular Res., Inc. v. P.R.

& Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir.

2003).17 The Board is part of the Puerto Rico government. 48

U.S.C § 2121(c)(1). The relevant question is whether Congress in

§ 106 of PROMESA, 48 U.S.C. § 2126, has expressly abrogated that

immunity.18

17 The D.C. Circuit has also held that the Eleventh Amendment applies to Puerto Rico; it found that the Puerto Rican Federal Relations Act, 48 U.S.C. § 734, granted Puerto Rico the same sovereign immunity that states possess. See P.R. Ports Auth. v. Fed'l Maritime Comm'n, 531 F.3d 868, 872 (D.C. Cir. 2008) (Kavanaugh, J.).

18 We have interlocutory appellate jurisdiction to consider whether the district court's denial of Eleventh Amendment immunity was error. See Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 123 (1st Cir. 2003).

- 39 - In my view it is clear that the Board is protected by

Eleventh Amendment immunity under numerous doctrines and Eleventh

Amendment principles, including that abrogation of Eleventh

Amendment immunity must be clearly and unequivocally stated; that

grants of jurisdiction to Article III courts alone do not abrogate

Eleventh Amendment immunity; that federal courts are prohibited

from ordering state officials to conform their conduct to state

law under Pennhurst State School & Hospital v. Halderman, 465 U.S.

89 (1984); and that courts may not second-guess Congress where the

text of a statute is clear. Further, the provisions of PROMESA on

which the majority relies, which provide remedies and instructions

as to the exercise of jurisdiction over federal claims, do not

support the majority's conclusion that Congress intended to

abrogate the Board's Eleventh Amendment immunity. In fact, the

other provisions of PROMESA reinforce that Congress did not intend

to abrogate immunity.

The majority and the plaintiffs argue that § 106

expressly abrogates Puerto Rico's Eleventh Amendment immunity.

"In order to determine whether Congress has abrogated the States'

sovereign immunity, we ask two questions: first, whether Congress

has unequivocally expressed its intent to abrogate the immunity,

and second, whether Congress has acted pursuant to a valid exercise

of power[.]" Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55

(1996) (cleaned up).

- 40 - In my view, the majority violates the rule that

abrogation of Eleventh Amendment immunity will only be found where

Congress has unequivocally expressed its intent to abrogate that

immunity. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)

("Congress may abrogate the States' constitutionally secured

immunity from suit in federal court only by making its intention

unmistakably clear in the language of the statute." (quoting

Dellmuth v. Muth, 491 U.S. 223, 228 (1989))); see also Mjosilovic

v. Oklahoma ex rel. Bd. of Regents., 841 F.3d 1129, 1131 (10th

Cir. 2016); Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir. 1999);

Mills v. Maine, 118 F.3d 37, 41 (1st Cir. 1997).

Section 106(a) is not an abrogation of Eleventh

Amendment immunity. It reads:

(a) Jurisdiction Except as provided in section 2124(f)(2) of this title (relating to the issuance of an order enforcing a subpoena), and subchapter III (relating to adjustments of debts), any action against the Oversight Board, and any action otherwise arising out of this chapter, in whole or in part, shall be brought in a United States district court for the covered territory or, for any covered territory that does not have a district court, in the United States District Court for the District of Hawaii.

48 U.S.C. § 2126. From the text of § 106(a) alone, the majority's

conclusion is error. Absolutely nothing in the text of this

section sets forth an intent to abrogate Eleventh Amendment

immunity.

- 41 - Indeed, the text reveals the choice by Congress not to

include language abrogating Eleventh Amendment immunity. In Allen

v. Cooper, the Supreme Court held that Congress's intent to

abrogate a state's Eleventh Amendment immunity was express where

the statute provided that a state "shall not be immune, under the

Eleventh Amendment [or] any other doctrine of sovereign immunity,

from suit in Federal court." 140 S. Ct. 994, 999, 1001 (2020)

(alteration in original) (quoting 17 U.S.C. § 511(a)). Such

language is conspicuously absent from PROMESA § 106.19 The Allen

Court found that intent to abrogate was furthered by the language

"that in such a suit a State will be liable, and subject to

remedies, 'in the same manner and to the same extent as' a private

party." 140 S. Ct. at 999, 1001 (quoting 17 U.S.C. § 501(a)).

Such language is also absent from PROMESA § 106. Significantly,

as noted in Allen, this language was "essentially verbatim" the

language the Court recognized as expressly abrogating Eleventh

Amendment immunity in Florida Prepaid Postsecondary Education

19 The majority cites to In re Coughlin, No. 21-1153, 2022 WL 1438867 (1st Cir. May 6, 2022) for the correct proposition that Congress need not invoke any particular "magic words" in order to abrogate sovereign immunity, but misses the key language of abrogation Congress used in that case. See id. at *2. In Coughlin, the provision of the Bankruptcy Code at issue stated "sovereign immunity is abrogated as to a governmental unit" with respect to certain provisions of the Code, which we found was a clear statement that the Code abrogated tribal sovereign immunity. Id. at *2, *4 (quoting 11 U.S.C. § 106(a)).

- 42 - Expense Board v. College Savings Bank, 527 U.S. 627 (1999), which

was decided before PROMESA was enacted. 140 S. Ct. at 1001.

The majority goes on to reason that if Congress had

wished to bar the assertion of Puerto Rico state law claims, it

would have explicitly added more language to § 106 to make that

clear. This proposition is wrong. See Blanciak v. Allegheny

Ludlum Corp., 77 F.3d 690, 696 (3rd Cir. 1999) (noting that where

the statutory text does not evince a clear intent to abrogate, the

court may not act as a "super legislature" and find an intent to

abrogate in order to avoid outcomes which seem "unjustifiable on

policy grounds"). An exclusive grant of jurisdiction to federal

courts for claims against the Board does not constitute a clear

statement abrogating Eleventh Amendment immunity. See United

States v. Nordic Vill., Inc., 503 U.S. 30, 37-38 (1992) (rejecting

argument that provision granting district courts exclusive

jurisdiction in bankruptcy proceedings waived sovereign immunity).

In essentially requiring Congress to include a clear statement

that it did not intend to abrogate Eleventh Amendment immunity --

rather than finding abrogation only in the presence of an

unmistakably clear express statement -- the majority turns the

longstanding rule on its head.

- 43 - Section 106(a) is a limited jurisdiction-granting

provision.20 The Supreme Court has repeatedly held that

jurisdiction-granting clauses like § 106 do not abrogate Eleventh

Amendment immunity. See Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 246 (1985) ("A general authorization for suit in federal

court is not the kind of unequivocal statutory language sufficient

to abrogate the Eleventh Amendment."); Blatchford v. Native Vill.

of Noatak & Circle Vill., 501 U.S. 775, 786 n.4 (1991) ("The fact

that Congress grants jurisdiction to hear a claim does not suffice

to show Congress has abrogated all defenses to that claim. The

issues are wholly distinct."); see also Mojsilovic, 841 F.3d at

1132 ("A general authorization for suit is insufficient to abrogate

the States' sovereign immunity."); BV Eng'g v. UCLA, 858 F.2d 1394,

1397-98, 1397 n.1 (9th Cir. 1988). In each of the cases in which

the Supreme Court and our court have recognized Eleventh Amendment

immunity, there was a federal statute granting federal

jurisdiction. Pennhurst itself involved a grant of jurisdiction

under § 504 of the Rehabilitation Act of 1973. 465 U.S. at 92.

This must be so, as federal courts exercise jurisdiction only

insofar as Congress extends it by statute. See Sheldon v. Sill,

20 The majority argues that § 106(a) is actually a "claim- channeling" provision. Not only does the text not support this reading, no authority supports the proposition that a claim- channeling provision is a clear statement abrogating Eleventh Amendment immunity.

- 44 - 49 U.S. 441, 449 (1850); see also R. Fallon, et al., Hart &

Wechsler's The Federal Courts and the Federal System 295-97 (7th

ed. 2015). The majority errs in treating the statutory grant of

jurisdiction in § 106 as not only a necessary but also a sufficient

condition to hale Puerto Rico into federal court.

The majority tries to justify its reliance on a

jurisdiction-granting provision to find an intent to abrogate by

citing to a single case, Seminole Tribe. In Seminole Tribe, the

Supreme Court considered the Indian Gaming Regulatory Act's

remedial scheme for ensuring the formation of Tribal-State

compacts, which grants federal courts jurisdiction over "any cause

of action initiated by an Indian tribe arising from the failure of

a State to enter into negotiations with the Indian tribe for the

purpose of entering into a Tribal–State compact," and only after

the tribe has made good-faith efforts to engage in such

negotiations. 517 U.S. at 49-50 (quoting §§ 2710(d)(7)(A)(i) and

(B)(i)). The Court found that this grant of jurisdiction over a

single type of lawsuit between a tribe and a state, after elaborate

statutory criteria had been met, clearly demonstrated Congress's

intent to abrogate states' Eleventh Amendment immunity in such

suits. Id. at 56-57. In contrast, § 106(a) grants federal

district courts jurisdiction over actions against the Board

without reference to any particular type of action. The majority

incorrectly suggests that the Court in Seminole Tribe was

- 45 - considering a similarly broad provision, when in fact, as the Court

there made clear, the grant of jurisdiction in that case was

circumscribed and accompanied by an "elaborate remedial scheme."

Id. at 50. Seminole Tribe does not, contrary to the majority,

provide justification for a departure from the usual rule that a

general grant of jurisdiction is not sufficient to abrogate

Eleventh Amendment immunity, and is certainly not an adequate

foundation for its argument that § 106(a) does so.

The majority's conclusion also violates the holding of

Pennhurst. In Pennhurst, the Supreme Court considered an action

against state officials brought under the Ex Parte Young doctrine,

which allows suits for constitutional violations to be brought

against state officials that the Eleventh Amendment would normally

bar. 465 U.S. at 102. The Supreme Court found that the Ex Parte

Young exception does not apply in suits brought against state

officials for violations of state law, because Article III courts

ordering state officials to comply with state law "conflicts

directly with the principles of federalism that underlie the

Eleventh Amendment." 465 U.S. at 106; see also Cuesnongle v.

Ramos, 835 F.2d 1486, 1496 (1st Cir. 1987) ("[S]overeign immunity

prohibits federal courts from ordering state officials to conform

their conduct to state law."). Yet that is now precisely what the

majority holds is required in this case. The majority is ordering

the Board to comply with Puerto Rico disclosure laws despite the

- 46 - Board's Eleventh Amendment immunity. Pennhurst clearly bars this

outcome.

Where the language of a provision has a plain and

unambiguous meaning, "the sole function of the courts is to enforce

it according to its terms." See Stauffer v. IRS, 939 F.3d 1, 7

(1st Cir. 2019) (quoting In re Fin. Oversight & Mgmt. Bd. for P.R.,

919 F.3d 121, 128 (1st Cir. 2019)). "[C]ourts must presume that

a legislature says in a statute what it means and means in a

statute what it says there." Owner-Operator Indep. Drivers Ass'n,

Inc. v. Supervalu, Inc., 651 F.3d 857, 862 (8th Cir. 2011) (quoting

United States v. I.L., 614 F.3d 817, 820 (8th Cir. 2010)). It is

clear from § 106(a) that this section of PROMESA does not abrogate

Eleventh Amendment immunity. The majority's attempts to read

abrogation into this provision by relying on other provisions of

PROMESA are unavailing. The majority argues that the fact that

Congress in § 106(c)21 contemplates remedies for constitutional

21 Section 106(c) reads:

(c) Timing of relief Except with respect to any orders entered to remedy constitutional violations, no order of any court granting declaratory or injunctive relief against the Oversight Board, including relief permitting or requiring the obligation, borrowing, or expenditure of funds, shall take effect during the pendency of the action before such court, during the time appeal may be taken, or (if appeal is taken) during the period before the court has entered its final order disposing of such action.

- 47 - violations somehow supports its abrogation holding. That is not

so. Such remedies are made available as to the federal causes of

action over which § 106 provides jurisdiction. The Rehabilitation

Act of 1973, which the Court found not to abrogate Eleventh

Amendment immunity in Atascadero, provided that "[t]he remedies,

procedures, and rights set forth in title VI of the Civil Rights

Act of 1964 shall be available to any person aggrieved" under the

statute. Atascadero, 473 U.S. at 245 (quoting 29 U.S.C. § 794a).

The provision of remedies for federal claims is not evidence of

abrogation. The majority's argument is also unconvincing because

PROMESA does not provide any remedies.

The majority attempts to justify its abrogation

conclusion with reference to the "except as provided" clause of

§ 106(a) and the limitation on jurisdiction contained in

§ 106(e).22 These provisions cabining the general grant of

jurisdiction in § 106(a) do not support the majority's position on

abrogation. Abrogation must be express and clearly stated, and

may not, as a matter of law, be found by implication.23 See Kimel,

48 U.S.C. § 2126(c). 22 Section 106(e) states, "There shall be no jurisdiction in any United States district court to review challenges to the Oversight Board's certification determinations under this chapter."

23 The majority's argument that Congress's involvement in the development of Puerto Rico's constitution somehow supports its

- 48 - 528 U.S. at 73. Further, to the extent that the majority purports

to be relying on the canon that all words must be given effect,

the Board's reading gives effect to all of the clauses. The Board

may be sued, in federal court only, for violations of PROMESA and

for violations of the federal constitution.

The majority's reading is not consistent with other

provisions of PROMESA, under which Congress has created federal

law obligations for the Board, to the exclusion of state law

obligations. Read in concert with § 106, these provisions,

contrary to the majority's reading, demonstrate that Congress

indeed intended for the Eleventh Amendment to operate to shield

the Board from the Puerto Rico disclosure obligations here at

issue. Congress, in enacting PROMESA, worked to strike a balance

between transparency, necessary to permit public oversight and

maintain public confidence, and confidentiality, necessary to

permit the Board to work effectively at its difficult and often

unpopular tasks.

For example, PROMESA requires the Board to make public

the findings of certain investigations, see 48 U.S.C. § 2124(p)

and any "gifts, bequests or devises and the identities of the

donors," see 48 U.S.C. § 2124(e), and it requires the Board to

"submit a report to the President, Congress, the Governor and the

abrogation holding is another instance of inferential reasoning in lieu of finding a clear statement.

- 49 - Legislature" "[n]ot later than 30 days after the last day of each

fiscal year," 48 U.S.C. § 2148(a). It bars other disclosures,

forbidding the Board to disclose the contents of certain tax

reports. See 48 U.S.C. § 2148(b)(2). PROMESA gives a great degree

of independence to the Board to determine what materials should be

disclosed, allowing the Board to hold executive sessions which are

closed to the public, see 48 U.S.C. § 2121(h)(4); specifying that

"[n]either the Governor nor the Legislature may[] . . . exercise

any control, supervision, oversight, or review over the Oversight

Board or its activities," 48 U.S.C. § 2128(a)(1); and directing

that "[t]he Oversight Board may incorporate in its bylaws, rules,

and procedures . . . such rules and regulations of the territorial

government as it considers appropriate to enable it to carry out

its activities under this Act with the greatest degree of

independence practicable," 48 U.S.C. § 2121(h)(3). Far from

"giv[ing] effect to every word and phrase" of the statute, see

City of Providence v. Barr, 954 F.3d 23, 37 (1st Cir. 2020)

(quoting Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16,

26 (1st Cir. 2006) (en banc)), the majority's interpretation of

§ 106 as abrogating Eleventh Amendment immunity renders these

provisions less meaningful.24

24 We focus our attention on the majority's reasoning, but the district court opinion reaching the same conclusion is also in error. The district court found that to grant recognition of the Board's Eleventh Amendment immunity would render PROMESA § 106

- 50 - II.

There are enormous adverse consequences which flow from

the majority's reading of § 106 as an abrogation of the Board's

Eleventh Amendment immunity. The majority's holding that the Board

cannot avail itself of Eleventh Amendment immunity will have

implications far into the future, in addition to posing burdens on

the Board in this case and beyond this case.25

"superfluous." Centro de Periodismo Investigativo v. Fin. Oversight & Mgmt. Bd., No. 17-1743, 2018 WL 2094375, at *6 n.12 (D.P.R. May 4, 2018). That is plainly not so. Section 106 permits suit against the Board in federal court for federal law claims against it, including claims that the Board has exceeded its authority under PROMESA, see, e.g., In re Fin. Oversight & Mgmt. Bd. for P.R., 945 F.3d 3, 5 (1st Cir. 2019), and claims for injunctive relief for violations of the federal constitution, see Ex Parte Young, 209 U.S. 123, 160 (1908). Section 106 ensures that claims against the Board, which might otherwise be brought in the commonwealth courts, are the exclusive province of the federal courts. The district court's conclusion, that Congress waived the Board's Eleventh Amendment immunity, which the plaintiffs also have argued on appeal, is both wrong and misguided. Centro de Periodismo, 2018 WL 2094375, at *5. It is wrong for the same reason that the abrogation holding is wrong: the statute does not clearly evince an intent to waive Eleventh Amendment immunity. Moreover, the district court mistakenly cited the legislative history of a bankruptcy provision rather than PROMESA § 106, describing the provision as a "waiver of sovereign immunity." Centro de Periodismo, 2018 WL 2094375, at *6 (quoting D. Austin, Cong. Rsch. Serv., R44532, The Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA; H.R. 5278, S. 2328) 36 (2016)). 25 Puerto Rico, for example, has successfully claimed Eleventh Amendment immunity in numerous cases in a variety of contexts. See, e.g., In re San Juan Dupont Plaza Hotel Fire Litig., 888 F. 2d 940, 943 (1st Cir. 1989) (affirming dismissal, on Eleventh Amendment grounds, of claims against the Tourism Company of Puerto Rico in mass tort action); Llewellyn-Waters v.

- 51 - In this case, the Board has been ordered to produce

privilege logs demonstrating why tens of thousands of documents

fall under various privileges that it has claimed. The Board's

brief explains why this is an enormous burden and interferes with

the serious tasks Congress has given it. Because this Puerto Rico

cause of action is not limited by a statute of limitations, it is

predictable that litigants will try to seek documents created or

relied on by the Board since its creation in 2016. As this case

demonstrates, the majority's holding has allowed and will continue

to allow the Board to be drawn into lengthy litigation with heavy

discovery burdens.

III.

Eleventh Amendment protection reflects the

Constitution's structural design, and where, as here, Congress has

not expressly abrogated Eleventh Amendment immunity and the

sovereign has not waived it, the federal courts must honor that

Univ. of P.R., 56 F. Supp. 2d 159, 161-62 (D.P.R. 1999) (dismissing claims against University of Puerto Rico in negligence action on Eleventh Amendment grounds); Dogson v. Univ. of P.R., 26 F. Supp. 2d 341, 341, 344 (D.P.R. 1998) (dismissing breach of contract, negligence, and sex discrimination claims brought under Puerto Rico law against the University of Puerto Rico on Eleventh Amendment grounds); Trans Am. Recovery Servs. v. Puerto Rico Mar. Auth., 820 F. Supp. 38, 38-39 (D.P.R. 1993) (dismissing, on Eleventh Amendment grounds, breach of contract action against Puerto Rico's Maritime Shipping Authority); Rodriguez Diaz v. Sierra Martinez, 717 F. Supp. 27, 29, 31 (D.P.R. 1989) (dismissing medical negligence claims against University of Puerto Rico and the Puerto Rico Medical Services Administration on Eleventh Amendment grounds).

- 52 - protection and dismiss the case. The majority today finds

congressional intent to abrogate absent any express indication of

such intent in the text of the statute, violating the Supreme

Court's mandate not to do so. See, e.g., Seminole Tribe, 517 U.S.

at 55-56. The majority decision finds an intent to abrogate in a

general grant of jurisdiction, contrary to decisions of the Supreme

Court and other circuits. See, e.g., Atascadero, 473 U.S. at 246;

see also Burnette, 192 F.3d at 57; BV Engineering, 858 F.2d at

1397-98; Gary A. v. New Trier High Sch. Dist. No. 203, 796 F.2d

940, 944 (7th Cir. 1986). It violates the well-established

principle of Pennhurst, that federal courts may not order state

officials to comply with state law, a principle which our circuit

and our sister circuits repeatedly have upheld. See, e.g., Vega

v. Semple, 963 F.3d 259, 284 (2d Cir. 2020); Doe v. Regents of the

Univ. of Cal., 891 F.3d 1147, 1152-53 (9th Cir. 2018); O'Brien v.

Mass. Bay Transp. Auth., 162 F.3d 40, 44 (1st Cir. 1998). The

implications, not only for the Board's future liability, but for

Eleventh Amendment doctrine going forward, are significant, and

today's decision should not go uncorrected.

I respectfully dissent.

- 53 -