Centro De Periodismo Investigativo, Inc. v. Fin. Oversight & Mgmt. Bd. for P.R.
| Decision Date | 17 May 2022 |
| Docket Number | 21-1301 |
| Citation | 35 F.4th 1 |
| Parties | CENTRO DE PERIODISMO INVESTIGATIVO, INC., Plaintiff, Appellee, v. FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
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.
Before Lynch, Thompson, and Kayatta, Circuit Judges.
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.
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 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:
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 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 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 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 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 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
...
To continue reading
Request your trial
- Cooperativa de Ahorro y Credito Abraham Rosa v. Fin. Oversight & Mgmt. Bd. for P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.)
-
Hartunian v. Sweeney
... ... Inc. v. United States , 221 F.3d 34, 37 (1st Cir ... 2008) (quoting Centro Medico ... del Turabo, Inc. v. Feliciano de ... Centro de ... Periodismo Investigativo, Inc. v. Fin. Oversight & Mgmt ... ...
-
Perez v. Suarez
... ... case.” Centro de Periodismo Investigativo, Inc. v ... n. Oversight & Mgmt. Bd. for Puerto Rico , 35 F.4th ... PR Offic. Trans. 3, at 13]. In so ruling, the Puerto ... ...
-
Rosa v. The Fin. Oversight & Mgmt. Bd. for P.R. (In re the Fin. Oversight & Mgmt. Bd. for Puerto Rico)
... ... representation." Alt. Sys. Concepts, Inc. v ... Synopsys, Inc. , 374 F.3d 23, 29 (1st Cir ... , 32 F.4th 67, 73-75 (1st Cir. 2022); ... Centro de Periodismo Investigativo, Inc. v. Fin ... ...