Page:FOMBPR v. CPI.pdf/15

Rh

, dissenting.

At every stage of these proceedings, respondent has argued that petitioner lacks state sovereign immunity. Petitioner has consistently replied that it has that immunity and that nothing abrogates it. The courts below, bound by Circuit precedent, held that petitioner does have state sovereign immunity—but they also held that the immunity has been abrogated. The Court today disagrees with only that latter conclusion, holding that nothing abrogates petitioner’s immunity, but it “assume[s] without deciding” the logically antecedent question whether petitioner enjoys that immunity in the first place. In doing so, the majority effectively decides the outcome of this case. Because I would reach the antecedent question and hold that petitioner lacks the only immunity it has ever asserted, I respectfully dissent.

Respondent, Centro de Periodismo Investigativo, Inc. (CPI), sued petitioner, the Financial Oversight and Management Board for Puerto Rico, over a document-disclosure dispute. The Board moved to dismiss the lawsuit by invoking state sovereign immunity, which the Board claimed to possess as an arm of the Puerto Rican territorial government. CPI responded (both in the District Court and on appeal) that Puerto Rico has no such immunity and that, even