United States Court of Appeals For the First Circuit
No. 24-1286
MIYA WATER PROJECTS NETHERLANDS B.V.,
Plaintiff, Appellant,
v.
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado Hernández, U.S. District Judge]
Before
Rikelman, Howard, and Aframe, Circuit Judges.
Benedict S. Bernstein, with whom Ricardo F. Casellas, Diana Pérez Seda, Carla S. Loubriel, Casellas Alcover & Burgos P.S.C., Tara M. Lee, Scott E. Lerner, and White & Case LLP were on brief, for appellant.
Mark D. Harris, with whom Timothy W. Mungovan, John E. Roberts, Laura E. Stafford, Adam L. Deming, Guy Brenner, Martin J. Bienenstock, and Proskauer Rose LLP were on brief, for appellee.
May 19, 2025 RIKELMAN, Circuit Judge. The Transparency and Expedited
Procedure for Public Records Access Act (TEPPRA) creates a right
to sue the Commonwealth of Puerto Rico to access public records
and documents. See P.R. Laws Ann. tit. 3, § 9913(1) (2019).
Appellant Miya Water Projects brought a claim under TEPPRA against
the Financial Oversight and Management Board for Puerto Rico ("the
Board"). The Board is an entity that was established by Congress
in 2016. See 48 U.S.C. § 2121. Even though Congress formed it,
the Board sits "within the territorial government" of the
Commonwealth. Id. § 2121(c).
After Miya sued the Board in federal court under TEPPRA,
the district court dismissed the case, holding that Eleventh
Amendment immunity shielded the Board from suit. On appeal, Miya
argues that the district court applied the wrong legal framework
in concluding that Puerto Rico's Eleventh Amendment immunity
extends to the Board. Miya also contends that, to the extent the
Board shares Puerto Rico's Eleventh Amendment immunity, the
Commonwealth waived that immunity through TEPPRA. We agree with
the district court that Puerto Rico's Eleventh Amendment immunity
extends to the Board and that the Commonwealth did not waive that
immunity through TEPPRA. Thus, we affirm.
I. BACKGROUND
In 2016, Congress enacted the Puerto Rico Oversight,
Management, and Economic Stability Act (PROMESA), 48 U.S.C.
- 2 - §§ 2101-2241, to address the financial crisis in Puerto Rico. See
Assured Guar. Corp. v. Fin. Oversight & Mgmt. Bd. for P.R. (In re
Fin. Oversight & Mgmt. Bd. for P.R.), 872 F.3d 57, 59 (1st Cir.
2017). Through PROMESA, Congress established the Board and charged
it with "achiev[ing] fiscal responsibility and access to the
capital markets" in Puerto Rico. See 48 U.S.C. § 2121(a). PROMESA
contains a "jurisdiction" provision, which requires any lawsuits
against the Board to be brought in federal court. See id.
§ 2126(a).
Three years later, in 2019, the Commonwealth enacted
TEPPRA. P.R. Laws Ann. tit. 3, §§ 9911-9923. TEPPRA codified a
right to access public records and documents from the Puerto Rico
government. See id. § 9913(1). The statute advances this policy
in several ways, including by requiring government entities to
designate Public Records Officers and by giving any person the
right to file a public records request. Id. §§ 9915-16. If the
government denies a person's records request, the statute empowers
that person "to file, pro se or by counsel, a Special Petition for
Public Records Disclosure Order with the Court of First Instance
of the Judicial Region of his residence." Id. § 9919.
In May 2022, Miya invoked TEPPRA to seek records from
the Board about its cancellation of a water infrastructure project
on which Miya had bid. The Board asserted that TEPPRA did not
apply to it and declined to produce any documents.
- 3 - Miya then sued the Board in the United States District
Court for the District of Puerto Rico, relying on both TEPPRA's
cause of action and PROMESA's jurisdictional provision. It brought
a single claim, alleging that the Board violated TEPPRA by refusing
to release the records and requesting that the court order it to
do so. The Board moved to dismiss the lawsuit, arguing that
Eleventh Amendment immunity shielded it from suit.
The district court agreed that the Board was protected
by Eleventh Amendment immunity and granted the Board's motion to
dismiss.1 See Miya Water Projects Neth. B.V. v. Fin. Oversight &
Mgmt. Bd. for P.R., No. 22-CV-1358, 2023 WL 10554818, at *2-8
(D.P.R. Dec. 12, 2023), report and recommendation adopted in
part, 2024 WL 1344112 (D.P.R. Feb. 13, 2024). First, citing our
binding precedent, the court explained that Puerto Rico has
Eleventh Amendment immunity even though it is a territory rather
than a state. See id. at *2-3. Second, it concluded that the
Board shares Puerto Rico's immunity as an "arm of the state." See
id. at *3-5. The arm-of-the-state test asks
whether the state has indicated an intention -- either explicitly by statute or implicitly through the structure of the entity -- that the entity share the state's sovereign immunity. If no explicit indication exists, the court must consider the structural indicators of the state's intention. If these
1 We refer to the magistrate judge and the district court judge together as "the district court."
- 4 - point in different directions, the court must proceed to the second stage and consider whether the state's treasury would be at risk in the event of an adverse judgment.
Irizarry-Mora v. Univ. of P.R., 647 F.3d 9, 12 (1st Cir. 2011)
(quoting Redondo Constr. Corp. v. P.R. Highway & Transp. Auth.,
357 F.3d 124, 126 (1st Cir. 2004)). The district court reasoned
that Puerto Rico's "intention" as to the Board's sovereign immunity
was unclear, given that Congress -- not the Commonwealth -- created
the Board. Miya Water Projects, 2023 WL 10554818, at *3. But it
observed that under our precedent, when there is ambiguity about
whether an entity is an arm of the state, "the primary focus is on
the risk to the state treasury." Id. at *5 (quoting Irizarry-Mora,
647 F.3d at 13). And it highlighted that, when it comes to the
Board, "[t]he Commonwealth entirely funds the Board's operations"
and pays judgments against the Board. Id.; see also 48 U.S.C.
§ 2127(b). Because "the impetus for the Eleventh Amendment [was]
the prevention of federal-court judgments that must be paid out of
a State's treasury," the court concluded that the Board must be
treated as an arm of Puerto Rico. Miya Water Projects, 2023 WL
10554818, at *5 (alteration in original) (quoting Hess v. Port
Auth. Trans-Hudson Corp., 513 U.S. 30, 48 (1994)).
The district court also held that the Commonwealth did
not waive the Board's Eleventh Amendment immunity through TEPPRA.
See id. at *6-8. It concluded that TEPPRA failed to meet the
- 5 - strict standards required to effect such a waiver under federal
law. See id. As a result, the court determined that it lacked
subject matter jurisdiction to decide Miya's case and dismissed
the complaint. See id. at *8; Miya Water Projects, 2024 WL
1344112, at *1.
Miya appeals.
II. DISCUSSION
We review de novo a district court's grant or denial of
a motion to dismiss based on Eleventh Amendment immunity. See
Cotto v. Campbell, 126 F.4th 761, 767 (1st Cir. 2025).
Miya argues that the district court had subject matter
jurisdiction over this case and thus erred in granting the Board's
motion to dismiss. The district court held, however, that it
lacked jurisdiction because Puerto Rico's Eleventh Amendment
immunity extends to the Board and Puerto Rico did not waive that
immunity through TEPPRA. See Miya Water Projects, 2023 WL
10554818, at *2-8.
We agree with the district court. The Eleventh Amendment
to the United States Constitution provides: "The 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. It has been
interpreted to "bar[] a state from being sued in federal court by
- 6 - its own citizens, citizens of another state, or citizens of a
foreign nation." Cotto, 126 F.4th at 767 (citing Hans v.
Louisiana, 134 U.S. 1, 10, 15 (1890)). Binding precedent and
Miya's own concessions settle most of the legal principles that
resolve this appeal: Puerto Rico enjoys Eleventh Amendment
immunity, the Board is an "arm" of Puerto Rico, and Congress did
not abrogate the Board's Eleventh Amendment immunity through
PROMESA.2
Indeed, by our assessment, the parties dispute only two
issues. First, they disagree on whether a legal framework other
than the arm-of-the-state test should determine whether Puerto
Rico's Eleventh Amendment immunity extends to the Board. Second,
they dispute whether Puerto Rico has waived the Board's Eleventh
Amendment immunity against suit in federal court through TEPPRA.
We reject Miya's arguments on both fronts.
As to the correct legal framework for determining the
Board's status, Miya offers no compelling reason why the
arm-of-the-state test is inapt. As to waiver, Miya's arguments
about TEPPRA's text, purpose, and legislative history fail to clear
2The Board argued below that TEPPRA does not apply to it, but it does not make this argument on appeal. Because the question of whether TEPPRA applies to the Board is not presented here, we assume without deciding that TEPPRA applies to the Board.
- 7 - the high bar required by Supreme Court precedent to demonstrate a
state's waiver of its Eleventh Amendment immunity.
A. Eleventh Amendment Immunity and the Arm-of-the-State Test
We have repeatedly held, and the parties do not dispute,
that the Eleventh Amendment applies to Puerto Rico, and that Puerto
Rico therefore enjoys Eleventh Amendment immunity. See, e.g.,
Toledo v. Sánchez, 454 F.3d 24, 31 n.1 (1st Cir. 2006) (collecting
cases); Borrás-Borrero v. Corporación del Fondo del Seguro del
Estado, 958 F.3d 26, 33 (1st Cir. 2020) (explaining that "Puerto
Rico is treated as a state for Eleventh Amendment purposes"
(quoting Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. &
Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir.
2003))). Miya argues, however, that Puerto Rico's Eleventh
Amendment immunity does not extend to the Board.3 We determine
whether an entity shares a state's Eleventh Amendment immunity by
asking whether that entity is an "arm of the state." See
Pastrana-Torres v. Corporación de P.R. para la Difusión Pública,
460 F.3d 124, 126-27 (1st Cir. 2006).
Here, Miya concedes that the Board is an arm of Puerto
Rico. Under our binding precedent, we need go no further. To be
3 In a previous case, we assumed, without deciding, that the Commonwealth's Eleventh Amendment immunity extends to the Board. See Centro de Periodismo Investigativo, Inc. v. Fin. Oversight & Mgmt. Bd. for P.R., 35 F.4th 1, 15 (1st Cir. 2022), rev'd and remanded, 598 U.S. 339 (2023).
- 8 - sure, as Miya points out, the Board was created by Congress
pursuant to its powers under the Territory Clause and "is a
creature of federal statute" (Miya's words), unlike the typical
arm of a state. See 48 U.S.C. § 2121. But the Territory Clause
is also the basis for the United States' authority over Puerto
Rico. See Commonwealth of Puerto Rico v. Sanchez Valle, 579 U.S.
59, 77 (2016). So, accepting Miya's reasoning that the Board lacks
Eleventh Amendment immunity because Congress relied on the
Territory Clause to demarcate the Board's powers could lead to the
conclusion that the Commonwealth would also lack Eleventh
Amendment immunity -- a conclusion that, as explained above, our
precedent forecloses and Miya does not press.4
Thus, based on Miya's concession and our precedent, we
conclude that the Board enjoys Eleventh Amendment immunity as an
arm of the Commonwealth.
B. Waiver of Eleventh Amendment Immunity
We turn next to whether the Commonwealth has waived the
Board's Eleventh Amendment immunity through TEPPRA. A state (or
4 We also note that Congress expressly designated the Board "an entity within the territorial government" of Puerto Rico. 48 U.S.C. § 2121(c). And as the Supreme Court has recognized, "Congress did not simply state that the Board is part of the local Puerto Ric[o] 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, 590 U.S. 448, 465 (2020).
- 9 - its arm) may be sued in federal court in two circumstances: when
Congress has abrogated the state's Eleventh Amendment immunity or
when the state itself has waived its immunity against suit in
federal court. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary
Educ. Expense Bd., 527 U.S. 666, 670 (1999). Here, the parties
agree that Congress did not abrogate the Board's Eleventh Amendment
immunity through PROMESA. Although Congress provided in PROMESA
that actions against the Board "shall be brought" in federal court,
48 U.S.C. § 2126, the Supreme Court has held that this language
does not meet the "high bar" for establishing that Congress
intended to eliminate the Board's Eleventh Amendment immunity.
Fin. Oversight & Mgmt. Bd. for P.R. v. Centro de Periodismo
Investigativo, Inc., 598 U.S. 339, 342 (2023) [hereinafter CPI].
Instead, the Court concluded, PROMESA's jurisdictional provision
simply means that where some other statute abrogates or waives the
Board's immunity, a party can sue the Board only in federal court.
See id. at 349-50. Thus, we focus our inquiry on whether the
Commonwealth has waived the Board's Eleventh Amendment immunity
against suit through TEPPRA.
A state's waiver of its Eleventh Amendment immunity must
be crystal clear. See Port Auth. Trans-Hudson Corp. v. Feeney,
495 U.S. 299, 305-06 (1990); Edelman v. Jordan, 415 U.S. 651, 673
(1974); Acevedo López v. Police Dep't of P.R., 247 F.3d 26, 28
(1st Cir. 2001). In evaluating a state statute like TEPPRA, a
- 10 - court can find a "waiver of Eleventh Amendment immunity 'only where
stated by the most express language or by such overwhelming
implication from the text as will leave no room for any other
reasonable construction.'" Feeney, 495 U.S. at 305-06 (cleaned
up) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-
40 (1985)); see also Acevedo López, 247 F.3d at 28.
Miya argues that TEPPRA contains an express waiver, but
we see none. Miya begins by pointing us to TEPPRA's
cause-of-action provision. See P.R. Laws Ann. tit. 3, § 9919.
But this provision merely confers a right to enforce TEPPRA in
"the Court of First Instance," id., which is a Commonwealth court.
Similarly, TEPPRA contains several other references to procedures
available only in the Commonwealth courts. See id. For example,
it explains that affected persons "shall be entitled to file . . .
a [petition] with the Court of First Instance of the Judicial
Region of his residence." Id. It requires "the Judicial Branch
[to] create and have available to the public a simple fillable
form in order to file such petition." Id. And it orders "the
Clerk of the Court of First Instance with which the petition was
filed [to] give notice" to the implicated government entity. Id.
It is well established, however, that "[a] State does
not waive its Eleventh Amendment immunity by consenting to suit
- 11 - only in its own courts." Feeney, 495 U.S. at 306.5 Indeed, Miya
acknowledges that a state's waiver of sovereign immunity in its
own courts does not waive Eleventh Amendment immunity in federal
court. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 99 n.9 (1984).
Miya nevertheless argues that this "principle[] of
federalism" does not apply to the Board because Congress created
the Board pursuant to its powers under the Territory Clause.
Miya's argument is foreclosed by our prior decisions. First, we
have already applied this "principle of federalism" to the
Commonwealth. See Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 33
(1st Cir. 2006) ("[T]he Commonwealth's 'waiver of sovereign
immunity in its own courts is not a waiver of the Eleventh
Amendment immunity in the federal courts.'" (quoting Pennhurst,
465 U.S. at 99 n.9)). And second, as explained above, we treat
the Board as an arm of the Commonwealth. Again, we recognize that
At oral argument, Miya represented that "the Supreme Court 5
has, on many occasions, and these are cited in our briefs, disregarded the fact that there were procedures unique to Commonwealth court when finding that the statute waived immunity in federal court." Miya's brief does not cite such a case, nor can we find one. The Supreme Court decision that Miya does rely on for the proposition that "procedures uniquely available in state court d[o] not alter availability of federal jurisdiction for suit" is not an Eleventh Amendment case and is inapposite. See Comm'rs of Rd. Improvement Dist. No. 2 v. St. Louis Sw. Ry. Co., 257 U.S. 547, 553-54 (1922) (discussing state procedure in the context of federal removal statute).
- 12 - the Board has unique features for an "arm of the state." It was
created by Congress, not by the Commonwealth, see 48 U.S.C. § 2121;
the President of the United States appoints and removes the Board's
members, see id. § 2121(e)(1)-(2), (e)(5)(B); and the Board may
veto decisions of Puerto Rico's governor and legislature, see id.
§§ 2141-42. Nevertheless, "the Board's structure, duties, and
powers make it 'part of the local Puerto Ric[o] government.'" CPI,
598 U.S. at 342 (quoting Fin. Oversight & Mgmt. Bd. for P.R. v.
Aurelius Inv., LLC, 590 U.S. 448, 465 (2020)). As part of Puerto
Rico's government, it shares in Puerto Rico's sovereign immunity.
Thus, the Commonwealth did not waive the Board's Eleventh Amendment
immunity in federal court by purporting to waive its immunity in
Commonwealth courts.
Miya also suggests that we should read TEPPRA as waiving
by implication the Board's Eleventh Amendment immunity. In making
this argument, Miya cites to the "applicability" section of TEPPRA.
That section provides that "[t]he provisions of this chapter shall
apply to the Government of Puerto Rico, that is, the Legislative,
the Judicial, and the Executive Branches, as well as all government
entities, public corporations, and municipalities." P.R. Laws
Ann. tit. 3, § 9912 (emphasis added). Because the Board can be
sued only in federal court under PROMESA, Miya contends, we must
imply a waiver of the Board's Eleventh Amendment immunity to
effectuate this language. Otherwise, Miya explains, it would be
- 13 - impossible to bring a TEPPRA claim against the Board in any court,
and TEPPRA would not apply to "all" Commonwealth government
entities. Similarly, Miya argues that immunizing the Board from
TEPPRA enforcement would "subvert the Commonwealth's intention
expressed in numerous provisions emphasizing the universality of
both TEPPRA's reach and the rights it establishes." See, e.g.,
id. § 9913(1) ("The public records and documents generated by the
government are presumed to be public and equally accessible to
everyone."); id. § 9913(5) ("The right to access public records is
a constitutional pillar and a fundamental human right."); id.
§ 9916 ("Any person may file a public records
request . . . without the need to show proof of a private or legal
interest."); id. § 9922 ("In the event of a conflict between the
provisions of this chapter and any other law, the provisions that
are most favorable to the person requesting public records or
documents shall prevail.").
Supreme Court precedent is clear, however, that Miya
cannot rely on such general language to imply a waiver of Eleventh
Amendment immunity. Instead, a court may imply a waiver only when
there is such "overwhelming implication" from a statute's text
that it "leave[s] no room for any other reasonable construction."
Feeney, 495 U.S. at 305 (quoting Atascadero, 473 U.S. at 240).
There is no such overwhelming implication of waiver in TEPPRA's
text.
- 14 - Indeed, the Supreme Court's reasoning in Feeney requires
us to reject Miya's argument. The consent-to-suit statute at issue
in that case provided that New York and New Jersey "consent[ed] to
suits, actions, or proceedings of any form or nature at law, in
equity or otherwise." Id. at 306. The Court explained that such
"general consent to suit provisions, standing alone," are
"insufficient to waive [the states'] Eleventh Amendment immunity."
Id. Absent an express reference to federal court, the Court
reiterated, these "expansive terms" would not confer federal
jurisdiction. Id. at 303, 306-07. Similarly, TEPPRA's broad
declaration that "[t]he provisions of [TEPPRA] shall apply to the
Government of Puerto Rico . . . as well as all government
entities," P.R. Laws Ann. tit. 3, § 9912, does not meet the
"particularly strict" test for waiver because it does not mention
federal court. Feeney, 495 U.S. at 305; see also Maysonet-Robles
v. Cabrero, 323 F.3d 43, 50-51 (1st Cir. 2003) (holding that
statute did not waive immunity where it did not reference federal
court); Atascadero, 473 U.S. at 241 (holding that consent to suit
provision did not waive immunity because it did "not specifically
indicate the State's willingness to be sued in federal court").
Unable to point to any overwhelming implication of
waiver in TEPPRA's text, Miya shifts to suggesting that we should
imply such a waiver based on the statute's legislative history and
purpose. As we explained above, however, a state's intent to waive
- 15 - its Eleventh Amendment immunity must be gleaned "from the text" of
the statute, not from legislative history. Feeney, 495 U.S. at
305 (quoting Atascadero, 473 U.S. at 240).
And even if we were to consider Miya's legislative
history and purpose arguments, they do not support its position.
Miya argues that "[i]n consenting to suit against the Board, the
Commonwealth was aware of the provisions of PROMESA." Because the
Commonwealth legislature knew that PROMESA channeled claims
against the Board to federal court, Miya contends, it would have
been redundant for the legislature to waive the Board's immunity
from suit in federal court. We do not agree. Statutory text
indicating a waiver of the Board's Eleventh Amendment immunity in
federal court would not have been redundant with PROMESA because,
as the Supreme Court held in CPI and as Miya acknowledges, PROMESA
did not abrogate the Board's Eleventh Amendment immunity in federal
court. See 598 U.S. at 351. Further, as Miya admits, the
legislature knew suits against the Board could not be brought in
Commonwealth courts because of PROMESA. Yet it limited TEPPRA's
cause of action provision to Commonwealth courts and did not
reference federal court. Thus, Miya has not convinced us that the
only "reasonable construction" of the statute, Feeney, 495 U.S. at
305-06 (quoting Atascadero, 473 U.S. at 240), is that the
Commonwealth intended to waive the Board's Eleventh Amendment
immunity through TEPPRA.
- 16 - We acknowledge that the interaction of TEPPRA, PROMESA,
and the Eleventh Amendment may leave Miya with no forum in which
to enforce TEPPRA against the Board -- assuming TEPPRA applies to
the Board in the first place. But because Miya has failed to
demonstrate a clear waiver of the Board's Eleventh Amendment
immunity against suit in federal court, the district court's ruling
was correct.
III. CONCLUSION
For all these reasons, we affirm the district court's
order dismissing Miya's claim for lack of subject matter
jurisdiction.
- 17 -