Amicus Curiae Brief — Financial Oversight and Management Board for Puerto Rico, Petitioner v. Centro de Periodismo Investigativo, Inc.

No. 22-96

IN THE

FINANCIAL OVERSIGHT AND MANAGEMENT BOARD

FOR PUERTO RICO,

v.

Petitioner,

CENTRO DE PERIODISMO INVESTIGATIVO, INC.,

Respondent.

On a Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF ESPACIOS ABIERTOS AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENT AND AFFIRMANCE

Brendan Benedict

Counsel of Record

Bahadur S. Khan

Michael D. Altebrando

BENEDICT LAW GROUP PLLC

322 G Street NE

Washington, DC 20002

(212) 287-9501

brendan@

benedictlawgroup.com

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 5

I.

There Is No Sovereign Immunity from

Mandamus Actions to Compel Performance of

Ministerial Duties. ................................................ 5

A. English Common Law Did Not Recognize

Sovereign Immunity from Mandamus,

Which Issued in the Sovereign’s Name. ........ 6

B. The Court’s Opinions from Marbury to

Pennhurst Find No Sovereign Immunity

from Mandamus to Perform Ministerial

Duties. ........................................................... 15

1. Antebellum Decisions of This Court

and State Supreme Courts. .................. 15

2. The Postwar Era and Federal

Mandamus Against State Officials....... 20

3. Larson and Pennhurst Preserve the

Ministerial

Duty

Basis

for

Mandamus. ............................................ 22

C. Puerto Rico Courts Issue Mandamus to

Compel the Ministerial Function to Make

Public Records Available. ............................. 24

II. Affirming on Mandamus Grounds Avoids

Injecting Uncertainty into Access to

Information Suits. ............................................... 28

CONCLUSION .......................................................... 33

ii

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) .................................................. 5

Anable’s Case,

3 Dyer 333 (K.B. 1416 est.) ...................................... 8

Bd. of Liquidation v. McComb,

92 U.S. 531 (1875) ............................................ 20, 22

Bhatia Gautier v. Roselló Neváres,

199 D.P.R. 59 (P.R. 2017) ...................................... 27

Bordley v. Lloyd,

1 H. & McH. 27 (Md. Ct. 1709) .............................. 19

Commonwealth v. Athearn,

3 Mass. 285 (1807) ................................................. 19

Commonwealth v. Coxe,

4 U.S. 170 (Pa. 1800) .............................................. 20

Commonwealth v. Justices,

4 Va. 9 (1815).......................................................... 20

Cooper v. President & Dirs. of Dismal Swamp

Canal Co., 6 N.C. 195 (1812) ................................. 20

De J. Cordero v. Prensa Insular de Puerto Rico,

Inc., 169 F.2d 229 (1st Cir. 1948).………………....25

Eng’g Servs. Int’l, Inc. v. P.R. Elec. Power Auth.,

No. CC-2018-513, 2020 WL 5659443

(P.R. 2020). ............................................................. 28

Espacios Abiertos LLC v. Rosselló Neváres,

KLAN201801348, 2019 WL 13185089 (P.R.

Cir. March 6, 2019) .................................................. 3

Ex Parte Young,

209 U.S. 123 (1908) .......................................... 21, 29

iii

FOMB v. Aurelius Inv., LLC,

140 S. Ct. 1649 (2020) ............................................ 25

Fornaro v. James,

416 F.3d 63 (D.C. Cir. 2005) .................................. 24

Great N. Life Ins. Co. v. Read,

322 U.S. 47 (1944) .................................................. 22

Hayburn’s Case,

2 U.S. 409 (1792) .................................................... 15

Houston v. Ormes,

252 U.S. 469 (1920) ................................................ 24

Idaho v. Coeur D'Alene Tribe,

521 U.S. 261 (1997) .......................................... 28, 30

In re Ayers,

123 U.S. 443 (1887) ................................................ 21

In re Lauritsen,

109 N.W. 404 (Minn. 1906) ...................................... 7

James Bagg’s Case,

77 Eng. Rep. 1271 (K.B. 1615) ............... 9, 10, 19, 27

John Gile’s Case,

93 Eng. Rep. 914 (K.B. 1731) ................................. 14

Kendall v. United States,

37 U.S. 524 (1838) .................................................. 18

Lapides v. Bd. of Regents,

535 U.S. 613 (2002), ............................................... 30

Larson v. Domestic & Foreign Com. Corp.,

337 U.S. 682 (1949) ................................................ 22

Lewis v. Clarke,

581 U.S. 155 (2017) ................................................ 29

Luskins v. Carver,

82 Eng. Rep. 488 (K.B. 1646) ................................... 9

iv

Lutz v. Post,

14 P.R. 830 (P.R. 1908) .................................... 25, 26

McBurney v. Young,

569 U.S. 221 (2013) ................................................ 13

Meacham v. Austin,

5 Day 233 (Ct. 1811) .............................................. 19

Middleton’s Case,

73 Eng. Rep. 752 (Common Pleas 1574) ................. 8

Minnesota v. Hitchcock,

185 U.S. 373 (1902) ................................................ 24

Mitchell v. Wisconsin,

139 S. Ct. 2525 (2019) ............................................ 28

Nogueras Cartagena v. Rexach Benítez,

141 P.R. Dec. 470 (1996) ........................................ 27

Orme v. Pemberton,

79 E.R. 119 (1640) .................................................... 9

P.R. Priv. Ass’n v. Laboy,

No. SJ-2020-CV-06276 (2020).................................. 3

Payton v. New York,

445 U.S. 573 (1980) ................................................ 10

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984). ......................................... passim

Poindexter v. Greenhow,

114 U.S. 270 (1885) ................................................ 21

Puerto Rico v. Branstad,

483 U.S. 219 (1987) ................................................ 20

Randolf’s Case (1313) .................................................. 8

Rex v. Barker,

97 E.R. 823 (1763) ...................................... 11, 12, 16

Rex v. Bishop of Ely,

101 Eng. Rep. 267 (K.B. 1794) ............................... 14

v

Rex v. Blooer,

97 Eng. Rep. 697 (K.B. 1760) ................................. 14

Richie v. McAuslin,

2 N.C. 220 (1795) .................................................... 20

Rolston v. Mo. Fund Comm'rs,

120 U.S. 390 (1887) .................................... 21, 22, 29

Runkel v. Winemiller,

4 H. & McH. 429 (Md. 1799) .................................. 19

Schweiker v. Hogan,

457 U.S. 569 (1982) ................................................ 28

Seminole Tribe v. Florida,

517 U.S. 44 (1996) .................................................. 32

Sikes v. Ransom,

6 Johns. 279 (N.Y. Sup. Ct. 1810).......................... 19

Speed v. Grayson,

2 Ky. 266 (1803) ..................................................... 19

State ex rel. Ferry v. Williams,

41 N.J.L. 332 (N.J. 1879) ....................................... 13

State ex rel. Lucas Cnty. Bd. of Comm’rs v. Ohio

Envt’l Prot. Agen., 724 N.E.2d 411 (Ohio 2000) .... 31

State v. Holliday,

8 N.J.L. 205 (N.J. 1825) ......................................... 19

State v. Wilmington Bridge Co.,

3 Del. 312 (1840) .................................................... 19

Strong’s Case,

1 Kirby 345 (Conn. Sup. Ct. 1787)......................... 19

T-Mobile S., LLC v. City of Roswell,

574 U.S. 293 (2015) ................................................ 31

Town of Manalapan v. Rechler,

674 So. 2d 789 (Fla. Dist. Ct. App. 1996) .............. 32

vi

United States v. Deneale,

25 F. Cas. 817 (D.C. Cir. 1801) .............................. 16

United States v. Lawrence,

3 U.S. 42 (1795) ...................................................... 16

Wash. Legal Found. v. United States Sent’g

Comm’n, 89 F.3d 897 (D.C. Cir. 1996)................... 24

Wis. Dep’t of Corr. v. Schacht,

524 U.S. 381 (1998) ................................................ 30

Constitutional Provisions

P.R. Const. Art. I, § 2 ................................................. 32

Statutes

P.R. Laws Ann. tit. 32, § 1781 (2019) ....................... 25

P.R. Laws Ann. tit. 32, § 1782 (2019) ....................... 25

Treatises

William Blackstone, 3 Commentaries on the

Laws of England (1765) ......................................... 15

2 Isaac ‘Espinasse, A Digest of the Law of

Actions and Trials at Nisi Prius (London, T.

Cadell 2d ed. 1793) ................................................. 17

James Lambert High, A Treatise on

Extraordinary Legal Remedies: Embracing

Mandamus, Quo Warranto, and Prohibition

(1884) .................................................................. 7, 18

Thomas Tapping, The Law & Practice of the

High Prerogative Writ of Mandamus, As It

Obtains in Both England & Ireland (1853 ed.). 7, 16

Books, Articles, and Reports

John Baker, The Reinvention of Magna Carta

1216-1616 (2017) .................................................... 10

vii

Raoul Berger, Standing to Sue in Public Actions:

Is it a Constitutional Requirement?, 43 Yale

L.J. 816 (1969) ........................................................ 13

Paul Craig, The Legitimacy of U.S.

Administrative Law and the Foundations of

English Administrative Law: Setting the

Historical Record Straight (2016), available

at: https://bit.ly/3URnB6o ...................................... 14

Audrey Davis, A Return to the Traditional Use

of the Writ of Mandamus, 24 Lewis & Clark L.

Rev. 1527 (2020) (note) .......................................... 17

Richard Fallon, Jr. et al., Hart & Wechsler’s The

Federal Courts and the Federal System (6th

ed. 2009) ............................................................. 9, 30

Bruce C. French, The Frontiers of the Federal

Mandamus Statute, 21 Vill. L. Rev. 637 (1976) .... 13

Leonard S. Goodman, Mandamus in the

Colonies—The Rise of the Superintending

Power of American Courts, 1 Am. J. Legal

Hist. 308 (1957) & 2 Am. J. Legal Hist. 129

(1958) ....................................................................... 23

Mark Hagger, The Earliest Norman Writs

Revisited, 82 Hist. Research 181 (2009) .................. 8

Geoffrey C. Hazard Jr., The Early Evolution of

the Common Law Writs: A Sketch, 6 Am. J.

Legal Hist. 114 (1962) .............................................. 8

Edith G. Henderson, Foundations of English

Administrative Law: Certiorari and

Mandamus in the Seventeenth Century (1963). .... 10

Robert H. Howell, An Historical Account of the

Rise and Fall of Mandamus, 15 V.U.W. L.

Rev. 127 (1985) ......................................................... 8

viii

Edward Jenks, The Prerogative Writs in English

Law, 32 Yale L. J. 523 (Apr. 1923) .......................... 8

James E. Pfander & Jacob P. Wentzel, The

Common Law Origins of Ex Parte Young, 72

Stanford L. Rev. 1269 (2020) ................. 9, 16, 17, 19

Richard Sharpe, The Use of Writs in the

Eleventh Century, 32 Anglo-Saxon Eng. 247

(2003). ....................................................................... 7

Harold Weintraub, English Origins of Judicial

Review By Prerogative Writ: Certiorari and

Mandamus, 9 N.Y. L.F. 478 (1963) ................. 10, 14

Other Authorities

Pablo Gluzmann et al., An Analysis of Puerto

Rico’s Debt Relief Needs to Restore Debt

Sustainability (Jan. 2018), available at

https://espaciosabiertos.org/wpcontent/uploads/DSA-English.pdf. .......................... 1

Press Release, Espacios Abiertos (July 23, 2018),

https://bit.ly/35OE1o5. ............................................. 2

Reorg Research, Nonprofit Espacios Abiertos

Sues AAFAF for Release of Debt Sustainability

Analysis, Fiscal Plan Baseline Assumptions

(March 23, 2018),

https://drive.google.com/file/d/1gLXKxSQia4X

r68UAnjNGzEpMCwUMb5vD/view. ....................... 2

Reporters Comm. for Freedom of the Press,

Pleading Format, https://www.rcfp.org/opengovernment-sections/5-pleading-format/

(accessed Dec. 26, 2022) .......................................... 32

INTEREST OF AMICUS CURIAE 1

Espacios Abiertos (in English, Open Spaces) is a

nonprofit organization founded in Puerto Rico in 2014

to bring about long-term systemic change in the

Commonwealth

by

promoting

transparency,

government accountability, and civic participation. To

further its mission, Espacios Abiertos regularly seeks

mandamus in Commonwealth courts against

Puerto Rico officials to compel the disclosure of

material public records, often resulting in postcomplaint mooting disclosures.

As part of Puerto Rico’s debt restructuring, the

Financial Oversight and Management Board for

Puerto Rico (“the Board”) requires the Commonwealth

to prepare financial plans for the Board’s approval. In

January 2018, a Commonwealth agency issued a New

Fiscal Plan for Puerto Rico at the Board’s direction,

which included, in summary form, the results of a debt

sustainability

analysis.

Espacios

Abiertos

commissioned its own debt relief study—led by

Pablo Gluzmann, Nobel laureate Joseph E. Stiglitz,

and Martín Guzmán, now Argentina’s Minister of

Finance 2—that it sought to compare with the

1 Both parties filed blanket consents to amicus briefs. No

counsel for a party authored this brief in any part, and no person

or entity other than amicus or amicus counsel made any

monetary contribution to fund the brief’s preparation or

submission.

See An Analysis of Puerto Rico’s Debt Relief Needs to

Restore Debt Sustainability (Jan. 2018), available at

https://espaciosabiertos.org/wp-content/uploads/DSAEnglish.pdf.

2

2

government’s model. Without a fair summary of the

Commonwealth’s analysis, it couldn’t recreate or

challenge that work. So it sought mandamus in the

San Juan trial court to compel disclosure of that

backup. 3 Following a hearing with expert witnesses,

the agency officials conceded the information was not

privileged from disclosure. Amended fiscal plans

followed.

Later in 2018, the Commonwealth called for public

comment on a draft plan for recovery from Hurricanes

Irma and María but made it available only in English. 4

The report was over 400 pages long with a public

comment window of 9 days. As much as 80 percent of

the Commonwealth is not fluent in English. 5 After

Espacios Abiertos sued for mandamus, Puerto Rico

officials then agreed to prepare a translation and

extended the comment period. These are just two

examples of the results Espacios Abiertos has

achieved with mandamus. See also Espacios Abiertos

LLC v. Rosselló Neváres, KLAN201801348, 2019 WL

See Reorg Research, Nonprofit Espacios Abiertos Sues

AAFAF for Release of Debt Sustainability Analysis, Fiscal Plan

Baseline

Assumptions

(March

23,

2018),

https://drive.google.com/file/d/1gLXKxSQia4Xr68UAnjNGzEpM

CwUMb5vD/view.

3

See Transformation & Innovation in the Wake of

Devastation: An Economic and Disaster Recovery Plan for

Puerto Rico

(July

9,

2019

draft),

available

at:

https://bit.ly/3vm7KkR.

4

5 See Press Release, Espacios Abiertos (July 23, 2018),

https://bit.ly/35OE1o5.

3

13185089 (P.R. Cir. March 6, 2019) (tax expenditure

plan disclosed during pending appeal to Puerto Rico

Supreme Court); P.R. Priv. Ass’n v. Laboy, No. SJ2020-CV-06276 (2020).

SUMMARY OF ARGUMENT

This is a mandamus action for access to public

records. (Pet. App. 173a.) The Board claims, as a

defendant in a litigation in federal court, sovereign

immunity from suit in the exclusive federal forum. CPI

and the courts below concluded that PROMESA

abrogated that immunity. But there’s a fundamental

issue that makes resolving that disagreement

unnecessary: a mandamus action to compel

performance of ministerial duties is not an action

against a sovereign at all.

I. That was the original understanding of the

Constitution, as informed by English common law,

and the practice of this Court and state supreme

courts just after the Founding. Writs evolved out of the

overlapping jurisdiction of royal, feudal, and

communal courts that co-existed in the first centuries

following the Norman Conquest. They began as letters

from the King, with his seal affixed, sometimes

bearing the Latin phrase, vobis mandamus—“we

command you.” In time, the Court of King’s Bench

heard petitions for writs, but the legal fiction persisted

that the King himself presided. In petitions for

mandamus, the complainant sues in the sovereign’s

name.

This tradition was well-known to the American

colonists, and early state supreme court decisions

duplicated it, often explicitly citing the King’s Bench

or English treatises to support mandamus power. In

4

some of its earliest and most important decisions, this

Court did likewise. After Marbury, the scope of

mandamus was clear: it would lie to compel a purely

ministerial duty, like the delivery of a public record,

but federal courts were powerless to order officials to

reach a particular decision within their discretion to

make.

After the Civil War, the Court held, and in other

cases discussed, that mandamus could issue in federal

court against a state official to comply with a

ministerial duty created by state law. Pennhurst cast

doubt on, but stopped short of, overruling those cases.

See Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89 (1984). Puerto Rico, for its part, followed

Marbury in holding, for more than a century, that

mandamus could compel a government official to make

available a public record. Today, that ministerial duty

applies to records requests from anyone, not just a

party with a beneficial interest.

II. The traditional understanding of mandamus

supplies the most straightforward resolution here. The

Court does not have to decide whether Puerto Rico

enjoys sovereign immunity like a State does or

whether Congress abrogated that immunity. Because

the real parties in interest are Board members in their

official capacities, not the Commonwealth, this is not

an action against a sovereign barred by sovereign

immunity.

Mandamus is particularly appropriate here

because, if the Board were immune from suit, there

would be no remedy against it for the right to access

public records enshrined in Puerto Rico’s constitution

and statutes. It offends the dignity of sovereigns just

5

as much to impose immunity the sovereign chose to

waive as it does to take away immunity the sovereign

chose to keep. Depriving the sovereign of the power to

grant a remedy in the sovereign’s name contravenes

the principles of Pennhurst.

If sovereign immunity bars mandamus to compel

performance of ministerial duties under Puerto Rico

law, that will inject uncertainty into mandamus

proceedings in Commonwealth courts and in States

that use mandamus as a FOIA remedy in the absence

of an express statutory waiver of immunity. The Court

should hold instead that there is no immunity defense

to mandamus for public records here and affirm.

ARGUMENT

I. There Is No Sovereign Immunity from

Mandamus Actions to Compel

Performance of Ministerial Duties.

The Court considers, at least in plan-of-theconvention waiver cases, the “evidence of the original

understanding of the Constitution” and the “theory

and reasoning of [the Court’s] earlier cases,” among

other factors. Alden v. Maine, 527 U.S. 706, 741, 745

(1999). Although Puerto Rico had no independent

sovereignty before becoming a U.S. territory, the

Alden factors still show that Puerto Rico would not

have understood mandamus for public records access

to be an action against the Commonwealth that

implicated sovereign immunity. In fashioning a

mandamus remedy for access to public information,

Puerto Rico looked not to the Spanish civil code but to

the decisions of the Court of King’s Bench in England

and this Court. The Court’s opinions from the early

6

nineteenth century and those of state supreme courts

make clear there was no sovereign immunity defense

to mandamus to perform a ministerial duty.

A. English Common Law Did Not

Recognize Sovereign Immunity from

Mandamus, Which Issued in the

Sovereign’s Name.

This understanding of mandamus has ancient

origins in the tradition of prerogative writs. 6 The

issuance of writs by the English King against lesser

officials began as an Anglo-Saxon practice, the “writcharter”; perhaps the earliest example issued around

990 commanding a shire court to hear a case. 7 The

Normans and Angevins, looking to assert their

authority over competing local courts, expanded the

practice, 8 and so the first “forms of royal intervention

were not strictly speaking judicial but executive or

6 See James Lambert High, A Treatise on Extraordinary

Legal Remedies: Embracing Mandamus, Quo Warranto, and

Prohibition 5 (1884); Thomas Tapping, The Law & Practice of the

High Prerogative Writ of Mandamus, As It Obtains in Both

England & Ireland 56 (1853 ed.).

See Richard Sharpe, The Use of Writs in the Eleventh

Century, 32 Anglo-Saxon Eng. 247, 250 & n.4 (2003).

7

See Mark Hagger, The Earliest Norman Writs Revisited,

82 Hist. Research 181, 182, 186 & Table 2 (2009) (counting 1,021

writs and writ-charters issued by Henry I in England); Geoffrey

C. Hazard, Jr., The Early Evolution of the Common Law Writs: A

Sketch, 6 Am. J. Legal Hist. 114, 116 (1962); Sharpe, supra, at

257-83 (collecting writs issued from Edward the Confessor to

Henry I).

8

7

administrative.” 9 In its infancy, the writ was simply “a

written directive from the king, witnessed and bearing

his seal, directed to a royal official [or others] ordering

the addressees to do or refrain from doing a designated

act—vobis mandamus.” 10

As the realm grew increasingly complex to govern,

the English crown would rely on justices to investigate

the basis for a writ. Originally, they rode circuit with

the King around the country, but by the 1300s, came

to reside at Westminster as a subset of the curia regis

known as the King’s Bench, “over which the King once

presided.” Richard Fallon, Jr. et al., Hart & Wechsler’s

The Federal Courts and the Federal System 854-55

(6th ed. 2009). 11

There is some scholarly debate over the specific

antecedents for what became known as the writ of

mandamus. Magna Carta, chapter 29, is the legendary

9 Hazard, Jr., supra, at 117; see also Robert H. Howell, An

Historical Account of the Rise and Fall of Mandamus, 15 V.U.W.

L. Rev. 127, 128 (1985); Edward Jenks, The Prerogative Writs in

English Law, 32 Yale L. J. 523 (Apr. 1923).

10 Hazard, Jr., supra, at 117; see also In re Lauritsen, 109

N.W. 404, 409 (Minn. 1906); High, supra, at 5 (similar).

See Richard A. Smith, King’s Bench, Court Of, Oxford

Companion to British Hist., available at: https://bit.ly/3C2Kjkl

(accessed Dec. 26, 2022); James E. Pfander & Jacob P. Wentzel,

The Common Law Origins of Ex Parte Young, 72 Stanford L. Rev.

1269, 1302 (2020) (“The writs were typically prosecuted in the

name of the Crown . . . such that when they issued, they did so as

a ‘command’ issuing from the monarch herself, as if still sitting

in person on the Bench.” (cleaned up)).

11

8

source attributed by Chief Justice Coke. 12 Another

candidate is the writ of quare impedit, which dates to

the Statute of Malborough in 1285 and provided for

the return to an ecclesiastical office. 13 Writs of

privilege, “used by the central courts to protect their

officers and litigants from arrest by the numerous

local courts,” 14 issued as early as the fourteenth

century. 15 Writs of restitution, a similar precursor,

restored those wrongfully excluded by courts or

Compare Tapping, supra, at 56 (the origin of mandamus

“may be safely referred to” chapter 29 of the Magna Carta) with

Jenks, supra, 32 Yale L. J. at 530 n.33 (“Of course [mandamus]

has also been attributed to Magna Carta. But that is common

form.”).

12

Harold Weintraub, English Origins of Judicial Review

By Prerogative Writ: Certiorari and Mandamus, 9 N.Y.L.F. 478,

486 & n. 48 (1963) (collecting cases).

13

Edith G. Henderson, Foundations of English

Administrative Law: Certiorari and Mandamus in the

Seventeenth Century 49 (1963).

14

See Middleton’s Case, 73 Eng. Rep. 752 (Common Pleas

1574). Middleton’s Case, in turn, cited Randolf’s Case (1313) and

Anable’s Case, 3 Dyer 333 (K.B. 1416 est.) in support of the writ.

Though Sir Dyer reports Anable’s Case as an opinion from

Chief Justice Fortescue, the “case seems to have been in 1416,”

when Sir William Hankford was Chief Justice. See John Baker,

The Reinvention of Magna Carta 1216-1616 at n.349 (2017);

Henderson, supra, at 53, 66-68 & App’x B at 175-76 (discussing

Anable’s Case and Randolf’s Case); Weintraub, supra, at 487

(noting that “judicial records of the time of 6 Edw. 2 (1313) are

also cited” in notes to Middleton’s Case).

15

9

municipalities; the King’s Bench granted several of

them between 1606 and 1615. 16

By all accounts the modern writ of mandamus

emerged by 1615 in an opinion by Chief Justice Coke

in James Bagg’s Case, 77 Eng. Rep. 1271 (K.B. 1615). 17

Bagg, a judge and former mayor, had been accused by

the town’s current mayor of insulting him and a long

line of predecessors. 18 The mayor removed Bagg from

the local court, and Bagg petitioned King’s Bench to

return to his post. The court issued mandamus

restoring Bagg, which Lord Coke described broadly:

“And in this case, first, it was resolved, that to

this court of King’s Bench belongs

(a) authority, not only to correct errors in

judicial proceedings, [b]ut other errors and

misdemeanors extra-judicial, tending to the

breach of peace, or oppression of the subjects,

or to the raising of faction, controversy, debate,

or to any manner of misgovernment; so that no

wrong or injury, either public or private, can

Henderson, supra, at 49; see also id. at App’x B at 163176 (collecting cases).

16

17 A writ in the form of mandamus issued with greater

frequency following Bagg’s Case, but the phrase “writ of

mandamus” was not used until Orme v. Pemberton, 79 E.R. 119

(1640). See Kevin Costello, Mandamus and Borough Political

Life, 1615 to 1780, 42:2 J. of L. Hist. 171, 175 n.28 (July 25, 2021)

for identifying a case earlier than Luskins v. Carver, 82 Eng. Rep.

488 (K.B. 1646).

18

Henderson, supra, at 46-48.

10

be done, but that it shall be (here) reformed or

punished by due course of law.”

77 Eng. Rep. at 1277-78.

To be sure, separation of powers was not on the

menu for the Coke court, and his broad claim to

mandamus jurisdiction found an immediate critic in

the Lord Chancellor. James I ordered Coke to explain

what “any manner of misgovernment” meant, and by

the end of 1616, Sir Henry Montagu replaced him as

Chief Justice. 19 But “we should not too hastily assume

that the contemporary view was ours, but rather

should consider that Coke’s and Mansfield’s sweeping

assertions of mandamus jurisdiction reflected English

practice in other prerogative writs,” which was likely

“on the minds of the Founders,” the States, and the

public. Raoul Berger, Standing to Sue in Public

Actions: Is it a Constitutional Requirement?, 43 Yale

L.J. 816, 825 (1969). Coke was, after all, “widely

recognized by the American colonists as the greatest

authority of his time on the laws of England.” Payton

v. New York, 445 U.S. 573, 593-94 & n.36 (1980)

(cleaned up) (collecting surveys).

“By 1762, on the eve of the American Revolution,”

use of mandamus in English courts “was

widespread.” 20 One recent survey of the English

reports between 1220 and 1867 found up to 7,111

19

Costello, supra, at 174.

Bruce C. French, The Frontiers of the Federal

Mandamus Statute, 21 Vill. L. Rev. 637, 641 (1976); see also

Costello, supra, at 171.

20

11

references to mandamus, 21 though a more modest

count of the rolls found 297 writs of restitution or

mandamus between 1660 and 1680, 308 between 1700

and 1720, and 373 between 1738 and 1768. 22 In a

series of decisions just before the Revolution,

Lord Mansfield defined the scope of the writ. 23 In Rex

v. Barker, 97 E.R. 823 (1763), King’s Bench ordered a

meetinghouse to accept a Protestant minister. Writing

for the court, the Chief Justice gave the definitive

restatement:

“A mandamus is a prerogative writ; to the aid

of which the subject is intitled, upon a proper

case previously shewn, to the satisfaction of

the Court. . . . It was introduced, to prevent

disorder from a failure of justice, and defect of

police. Therefore it ought to be used upon all

occasions where the law has established no

specific remedy, and where in justice and good

government there ought to be one. Within the

21 Paul Craig, The Legitimacy of U.S. Administrative Law

and the Foundations of English Administrative Law: Setting the

Historical Record Straight 36-37 (2016), available at:

https://bit.ly/3URnB6o (but noting that the “very great majority”

of cases “occurred from the sixteenth century onward” and that

the estimate does not correct for duplication by multiple

reporters, n. 130).

22 Costello, supra, at 176-180 & Tables, 1-3, respectively.

Weintraub, supra, at 502 (explaining that “the major

outlines of the writ of mandamus had come to be clearly

delineated” during Mansfield’s tenure as Chief Justice of

King’s Bench, which ended in 1788).

23

12

last century, it has been liberally interposed

for the benefit of the subject and advancement

of justice. The value of the matter, or the

degree of its importance to the public police, is

not scrupulously weighed. If there be a right,

and no other specific remedy, this should not

be denied.”

Id. at 824-25.

Two years later, Blackstone put mandamus this

way: “a command issuing in the king’s name from the

court of king’s bench, and directed to any person,

corporation, or inferior court of judicature, within the

king’s dominions; requiring them to do some

particular thing therein specified, which appertains to

their office and duty . . . . it issues in all cases where

the party hath a right to have any thing done, and

hath no other specific means of compelling its

performance.” 3 Commentaries on the Laws of

England 110 (1765). Notably, Blackstone explained

that mandamus “lies for the production, inspection, or

delivery, of public books and papers.” Id. English law

bristles with examples from this period. Among the

earliest was a 1660 petition against the outgoing

Sheriff of Nottingham “to deliver the records of the

office to his successor.” 24 Mandamus issued “to inspect

and take copies of the Court rolls” in disputes over

24 Henderson, supra, at 81-82 & n.74.

13

tenancy, 25 “to command the delivery to a prisoner or

his attorney of copies of the examinations of

witnesses,” 26 and “to command a bishop to allow

inspection of his register,” 27 among other examples. 28

King’s Bench granted these writs “without

worrying about the English tradition of sovereign

immunity.” 29 In actions seeking writs against

government officers, the “plaintiff proceeded in name

of the Crown itself,” and the defendant “was regarded

as having acted ‘coram non judice,’ or ‘without

jurisdiction,’ and thus was, like any other private

person,” amenable to suit. 30

But the writ would not issue for anything. To

obtain relief, the petitioner’s legal right had to be

25 Tapping, supra, at 211; see, e.g., State ex rel. Ferry v.

Williams, 41 N.J.L. 332, 334-36 (N.J. 1879) (collecting English

cases in which mandamus issued to permit inspection of manorial

records).

26 Tapping, supra, at 278.

27 Tapping, supra, at 196.

McBurney v. Young, 569 U.S. 221 (2013), is not to the

contrary. There, the Court held that a State’s refusal to give equal

FOIA access to citizens of other States did not vitiate a privilege

or immunity of citizenship protected by the Constitution. Id. at

224. Here, by contrast, positive law—codified in statutes—

provides mandamus for access to public records.

28

29 Pfander & Wentzel, supra, 72 Stanford L. Rev. at 1335.

30 Id. at 1336 (citation omitted).

14

clear. See Rex v. Blooer, 97 Eng. Rep. 697 (K.B. 1760). 31

When the legal right was subject to an official’s

judgment to grant, by contrast, no writ issued.

John Gile’s Case, 93 Eng. Rep. 914 (K.B. 1731), where

the court denied an application for mandamus to

command justices of the peace in Worcester to grant

the petitioner a tavern license, stands among the

earliest precedents for limiting mandamus to compel

performance of ministerial duties. 32 In Rex v. Bishop

of Ely, 101 Eng. Rep. 267 (K.B. 1794), the court denied

mandamus to reinstate a fellow of a Cambridge college

for “having written a seditious pamphlet.” The

seriatim opinions distinguished between the visitor’s

ministerial duty to hear an admission appeal and the

visitor’s discretion to decide the outcome. 33

Even as King’s Bench further defined mandamus

over the next century, as one leading treatise

summarized, “the most important principle” was “that

mandamus will lie to compel the performance of duties

purely ministerial in their nature.” 34 But “as to all acts

or duties necessarily calling for the exercise or

Audrey Davis, A Return to the Traditional Use of the

Writ of Mandamus, 24 Lewis & Clark L. Rev. 1527, 1533-35

(2020) (note) (collecting cases).

31

See id. at 1539 & n.110 (2020) (note) (quoting 2 Isaac

‘Espinasse, A Digest of the Law of Actions and Trials at Nisi Prius

661 (London, T. Cadell 2d ed. 1793)).

32

See id. at 268 (Kenyon, C.J.); id. at 269 (Annhurst, J.,

concurring); id. (Grose, J., concurring).

33

34

High, supra, at 30.

15

judgment and discretion, on the part of the officer or

body at whose hands their performance is required,

mandamus will not lie”—a rule “universal” in its

application by King’s Bench. 35

B. The Court’s Opinions from Marbury to

Pennhurst Find No Sovereign

Immunity from Mandamus to Perform

Ministerial Duties.

The “theory and reasoning” of this Court’s cases

after ratification and since then follow the same rule:

there is no sovereign immunity defense to mandamus

against an official to follow a ministerial duty. Like

their English counterparts, “state and federal courts

continued to caption proceedings in mandamus . . . as

if prosecuted by the public as a whole, with federal

courts naming the plaintiff as ‘United States ex rel.

[relator]’ or even just ‘United States,’ and state courts

doing

the

same

with

the

words

‘state,’

‘commonwealth,’ or ‘people.’ American courts explicitly

recognized that these principles defeated the

argument for sovereign immunity.” 36 This Court has

held likewise.

1.

Antebellum Decisions of This Court

and State Supreme Courts.

Start with Hayburn’s Case, 2 U.S. 409 (1792).

There, in reserving judgment on an application for

mandamus from the U.S. Attorney General to add

Id.

35

36 Pfander & Wentzel, supra, 72 Stanford L. Rev. at 1336.

16

Revolutionary War veterans to a pension program

Congress created, the Court noted that it “considers

the practice of the courts of King’s Bench and

Chancery in England, as affording outlines for the

practice of this court,” subject to the Court’s changes,

as necessary. Id. at 413.

With the practices of King’s Bench in mind, the

Court grappled with mandamus again in

United States v. Lawrence, 3 U.S. 42 (1795), where the

U.S. Attorney General sought mandamus to order a

New York federal judge to issue a warrant for the

arrest of a French naval commander. A unanimous

Court denied the petition and held that the judge “was

acting in a judicial capacity” in refusing to issue the

warrant, and that the Court had “no power to compel

a Judge to decide according to the dictates of any

judgment, but his own.” Id. at 53. By contrast, in

United States v. Deneale, 25 F. Cas. 817 (D.C. Cir.

1801), the court issued mandamus to compel a former

clerk to deliver “the record of wills” to his successor,

without mentioning sovereign immunity.

Marbury left no doubt that federal courts have

power to issue mandamus to compel government

officials to follow ministerial duties. Chief Justice

Marshall’s opinion for the Court quoted the above

excerpts from Barker and Blackstone, noting that

counsel cited “many other” authorities at argument

that “show how far the practice has conformed to the

general doctrines that have just been quoted.”

Marbury v. Madison, 5 U.S. 137, 169 (1803). The Court

described cases in which the action complained of by

the executive was within the President’s discretion,

which “can never be examinable by the courts.” Id. at

17

166. “But where a specific duty is assigned by law, and

individual rights depend upon the performance of that

duty,” mandamus would provide a remedy, for the

defendant “is amenable to the laws for his conduct;

and cannot at his discretion sport away the vested

rights of others.” Id.

Applying those principles, the Court found that

mandamus could issue against James Madison, then

the Secretary of State, to deliver the midnight

commission from the outgoing President Adams for

William Marbury to take his seat as a justice of the

peace. But the Court famously found itself without

jurisdiction to award that relief after holding the

Judiciary Act of 1789’s grant of original mandamus

jurisdiction unconstitutional. Id. at 175-76. Along the

way, the Court explained that mandamus could issue

for the ministerial duty of copying documents:

“[I]f so far from being an intrusion into the

secrets of the cabinet, it respects a paper,

which, according to law, is upon record, and to

a copy of which the law gives a right, on the

payment of ten cents . . . what is there in the

exalted station of the officer, which shall bar a

citizen from asserting, in a court of justice, his

legal rights, or shall forbid a court to listen to

the claim; or to issue a mandamus, directing

the performance of a duty, not depending on

executive discretion, but on particular acts of

congress and the general principles of law?”

Id. at 137.

The same distinction between discretionary and

ministerial duties mattered in Kendall v.

United States, 37 U.S. 524 (1838), in which the Court

18

affirmed mandamus against the Postmaster General

to pay amounts due to contractors for the Postal

Service as set out by Congress. The Postmaster

General argued that the action was “a proceeding

against him to enforce the performance of an official

duty” for which mandamus could not lie. Id. at 609.

The Court recognized separation of powers as a limit

to a federal court’s power to grant that relief, to a

point; “beyond that, all are subject to regulations by

law, touching the discharge of the duties required to

be performed.” Id. That Congress could be powerless

to enforce its regulation of the federal government was

“an alarming doctrine” for the Court. Id. It explained

that the duty to pay the disputed amounts stemmed

from law, not Presidential discretion—it was

“emphatically the case, where the duty enjoined is of a

mere ministerial character,” that the defendant is

amenable to mandamus. Id.

State supreme courts shared a broad view of

mandamus, often explicitly looking to King’s Bench for

guidance and in some cases granting mandamus to

compel the delivery of documents: 37

37 For an exhaustive summary of instances of mandamus in

the colonial era through the early 1800s, see Leonard S.

Goodman, Mandamus in the Colonies—The Rise of the

Superintending Power of American Courts, published in two parts

at 1 Am. J. Legal Hist. 308 (1957) & 2 Am. J. Legal Hist. 129

(1958).

19

•

Connecticut: Meacham v. Austin, 5 Day 233,

235 (1811); 38

•

Delaware: State v. Wilmington Bridge Co., 3

Del. 312, 315 (1840);

•

Kentucky: Speed v. Grayson, 2 Ky. 266 (1803)

(issuing mandamus commanding clerk to

deliver “all the records, paper, and things” to

successor);

•

Maryland: Runkel v. Winemiller, 4 H. & McH.

429, 449 (Md. 1799) (Chase, J.); 39

•

Massachusetts: Commonwealth v. Athearn, 3

Mass. 285, 287 (1807) (mandamus can issue

against a former clerk “to command him to

deliver over the records” to successor);

•

New Jersey: State v. Holliday, 8 N.J.L. 205,

206 (N.J. 1825);

•

New York: Sikes v. Ransom, 6 Johns. 279, 280

(N.Y. Sup. Ct. 1810);

See also Strong’s Case, 1 Kirby 345, 349 (Conn. Sup. Ct.

1787) (counsel citing Bagg’s Case and the Statute of Anne in

mandamus application, which the court granted).

38

In colonial times, the Provincial Court of Maryland

issued mandamus for a clerk “to deliver the records” of the court

so a successor could take office. Bordley v. Lloyd, 1 H. & McH. 27,

28 (1709).

39

20

•

North Carolina: Cooper v. President & Dirs. of

Dismal Swamp Canal Co., 6 N.C. 195, 196

(1812); 40

•

Pennsylvania: Commonwealth v. Coxe, 4 U.S.

170, 196 (Pa. 1800) (noting that mandamus

issued in England to “compel an old officer to

deliver records to a new one” and “a clerk of a

company to deliver up books”); and

•

Virginia: Commonwealth v. Justices, 4 Va. 9,

13-15 (1815).

2.

The Postwar Era and Federal

Mandamus Against State Officials.

This Court took up mandamus involving

federalism issues in a series of cases after the

Civil War. The Court upheld the power of federal

courts to issue mandamus against state officials for

constitutional claims. In Board of Liquidation v.

McComb, 92 U.S. 531 (1875), “it was no objection that

such an order might be sought in the federal courts

against a state officer.” Puerto Rico v. Branstad, 483

U.S. 219, 227 (1987). The Court noted that a “State,

without its consent, cannot be sued by an individual;

and a court cannot substitute its own discretion for

that of” state officials. 92 U.S. at 541. Although the

plaintiff raised a constitutional claim, the Court’s

reasoning embraced the ministerial duty basis for

mandamus: it was “well settled, that, when a plain

See also Richie v. McAuslin, 2 N.C. 220 (1795) (asking

if the form of relief against a lower court “should not have been a

mandamus”).

40

21

official duty, requiring no exercise of discretion, is to

be performed, and performance is refused, any person

who will sustain personal injury by such refusal may

have a mandamus to compel its performance . . .” Id.;

see also Poindexter v. Greenhow, 114 U.S. 270, 290-91

(1885).

The Court later found no federal forum immunity

from mandamus against a state official to follow a

ministerial duty imposed by state law. In Rolston v.

Missouri Fund Commissioners, 120 U.S. 390, 392

(1887), the Court affirmed entry of an injunction

against state commissioners to prevent them from

selling a mortgaged railroad. A state law made it the

commissioners’ duty “to assign the liens in question to

the trustees when they make a certain payment.” Id.

at 411. After making the payment, but not receiving

the liens, a bondholder sued. The commissioners

argued that “the suit cannot be maintained because it

is in its effect a suit against the state” barred by

sovereign immunity. Id. The Court rejected the

defense, holding that “the suit is to get a state officer

to do what a statute requires of him. The litigation is

with the officer, not the state.” Id.; see also In re Ayers,

123 U.S. 443, 506 (1887) (explaining that the

Eleventh Amendment “is not intended in any way . . .

to forbid suits against officers in their official capacity”

for mandamus “where such suits are authorized by

law, and the act to be done or omitted is purely

ministerial”).

In Ex Parte Young, 209 U.S. 123 (1908), the Court

held that federal courts could enjoin state officials

from enforcing statutes that violated the Constitution,

notwithstanding state sovereign immunity. But there

22

again the Court looked toward the general principle

that mandamus can “direct affirmative action where

the officer having some duty to perform not involving

discretion, but merely ministerial in its nature,

refuses or neglects to take such action.” Id. at 158.

Later cases reaffirmed this principle. See Great N. Life

Ins. Co. v. Read, 322 U.S. 47, 50 (1944) (summarizing

McComb and Rolston as holding that “the immunity of

the sovereign does not extend” to bar mandamus “to

perform a plain ministerial duty”).

3.

Larson and Pennhurst Preserve the

Ministerial Duty Basis for

Mandamus.

Neither Larson nor Pennhurst disturbed that

rule. See Larson v. Domestic & Foreign Com. Corp.,

337 U.S. 682, 695 (1949). Pennhurst cited Larson as

rejecting the argument that a suit for an injunction

against a state official in federal court could proceed

because the state official acted beyond the scope of his

authority in committing torts. See Pennhurst, 465 U.S.

at 112-13. But Larson went no further; the Court

acknowledged that “[t]here may be, of course, suits for

specific relief against officers of the sovereign which

are not suits against the sovereign.” 337 U.S. at 689.

Thus, “where the officer’s powers are limited by

statute, his actions beyond those limitations are

considered individual and not sovereign actions.” Id.

The traditional distinction between ministerial and

discretionary duties still obtained: “in such cases the

relief can be granted, without impleading the

sovereign, only because of the officer’s lack of

delegated power” but “[a] claim of error in the exercise

of that power is therefore not sufficient.” Id. at 690.

23

Pennhurst is not to the contrary. There, the Court

held that “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 State itself.” 465

U.S. at 117 (emphasis added). The defendants—

officials at the Pennhurst hospital—were “found not to

have improved conditions in a state institution

adequately under state law.” Id. at 107. The district

court enjoined them “to provide suitable community

living arrangements” and create “detailed procedures”

for admission to the institution, all to be monitored by

a special master. Id. at 93-94. The funding for these

new undertakings came “almost entirely from the

State.” Id. at 124.

In holding that sovereign immunity barred the

injunction, the Court carefully distinguished between

suits against state officials for “purely discretionary

duties,” which “went to sovereign immunity, and not

to the court’s mandamus powers generally,” id. at 110

& n.20, and those where the “state officials were

ordered to comply with a ‘plain ministerial duty,’ a far

cry from this case,” id. at 109 n.18. The logic was that

“discretionary duties have a greater impact on the

sovereign because they ‘bring the operation of the

governmental machinery into play.’” Id. at 110 & n.20

(quoting Larson, 337 U.S. at 715 (Frankfurter, J.,

dissenting)). The all-encompassing directives in the

injunction to spend more and do better under state law

by federal power put the federal court in the position

of superintending a state for “not fulfilling its

legislative promises.” Id. at 109. Because “it cannot be

doubted that the statutes at issue” in Pennhurst gave

24

the state defendants “broad discretion” in their duties,

their conduct “would not be ultra vires” even under the

line of cases cited in dissent. Id. at 111.

But the Pennhurst majority assured the dissent

that it was not overruling the ultra vires line of cases.

Id. at 111 n.21. Rather, claims for mandamus or

injunctive relief against state officials in federal court

in future cases would “turn[] on whether the defendant

state official was empowered to do what he did.” Id. at

111, nn. 21 & 22.

This is the same understanding that governs

mandamus actions in federal court against federal

officials to follow ministerial duties today: “No

separate waiver of sovereign immunity is required to

seek a writ of mandamus to compel an official to

perform a duty required in his official capacity.”

Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005)

(Roberts, J.); see Fallon, Jr., Federal Courts 854 (“The

Supreme Court has held that mandamus actions are

not barred by sovereign immunity.”); see also Houston

v. Ormes, 252 U.S. 469 (1920); Minnesota v. Hitchcock,

185 U.S. 373, 386 (1902); Wash. Legal Found. v.

United States Sent’g Comm’n, 89 F.3d 897, 901 (D.C.

Cir. 1996).

C. Puerto Rico Courts Issue Mandamus

to Compel the Ministerial Function to

Make Public Records Available.

Puerto Rico takes a similar approach to

mandamus in its courts. Mandamus for access to

public records dates to the Commonwealth’s earliest

laws. The Foraker Act, passed in 1900, offered

Puerto Rico limited self-rule: the President appointed

Puerto Rico’s Governor, Supreme Court, and upper

25

legislative body, but a lower legislative house was

popularly elected. See FOMB v. Aurelius Inv., LLC,

140 S. Ct. 1649, 1660 (2020). In 1905, Puerto Rico’s

legislature enacted an evidentiary statute codifying

that “[e]very citizen has a right to inspect and take a

copy of any public document of Puerto Rico, except as

otherwise expressly provided by law.” P.R. Laws Ann.

tit. 32, § 1781 (2019); see De J. Cordero v. Prensa

Insular de Puerto Rico, Inc., 169 F.2d 229, 232 n.1 (1st

Cir. 1948). The statute created a ministerial duty for

“”[e]very public officer having the custody of a public

document” to give, “on demand, a certified copy of it”

in exchange for printing fees. P.R. Laws Ann. tit. 32, §

1782 (2019).

The statute was soon at issue in Lutz v. Post, 14

P.R. 830 (P.R. 1908). There, a newspaper editor

petitioned the local court for mandamus directing the

Governor (then appointed by the President) to make

available a judge’s answer to ethics charges in his

possession. Id. at 831. The trial court denied the

application, and the plaintiff appealed. Id. at 832. In

Puerto Rico’s Supreme Court, the Governor argued

that the court did not have jurisdiction to issue

mandamus against him. Id. at 833. The court—made

up entirely of Presidential appointees—looked not to

the Napoleonic Code or Justinian, but to the tradition

of Coke, Mansfield, and Marbury:

“[W]e are amply justified in holding that as to

ministerial duties the general principle of

allowing relief by mandamus against

executive officers should be upheld and

applied; and the mere fact that it is the

Governor of P[ue]rto Rico against whom the

26

relief, by this extraordinary writ, is sought

should not impede or deter the courts in or

from the exercise of their jurisdiction; since it

is well established and cannot be denied that

the authority of the courts is supreme in the

consideration and determination of all legal

questions, judicially submitted to them, within

the proper limits of their jurisdiction; and no

man is exempt from the operation of the law;

and the duty of faithfully executing the laws is

incumbent on the governor by virtue of his

official oath, and should the relief sought be

refused the applicants might be utterly

without redress.”

Id. at 840-41.

Ultimately, though, the Lutz court found that

mandamus to produce the document in that case was

discretionary because the plaintiff newspaper editor

had not shown he was “beneficially interested” under

the mandamus statute and was improperly seeking

the document “perhaps to gratify public curiosity, and

to create a market for the newspaper.” Id. at 842-43.

Puerto Rico’s Supreme Court “in effect overruled”

the portion of Lutz that held that a newspaper could

not show a beneficial interest in public records.

Cordero, 169 F.2d at 233. The First Circuit noted that

“the right of the press to inspect public documents had

progressed considerably since 1908 when the Lutz case

was decided and . . . ‘the Justices who took part in its

decision would not decide it now, insofar as this point

is concerned, in the manner they did more than thirty

eight years ago.’” Id. (quoting 67 P.R. 83, 95 (P.R.

1947)). The Puerto Rico Supreme Court rejected the

27

argument that there was no positive duty requiring an

official to permit inspection of documents. It was “not

necessary that the duty to permit the inspection be

expressly imposed by law as an obligation

appertaining to an office;” rather, it is enough that

“the right of inspection ipso facto gives rise to the duty

. . . to permit the inspection.” Cordero, 67 P.R. at 92.

Citing Marbury and Blackstone, the Court explained

that mandamus would lie to allow inspection of public

records, and that the press was beneficially interested

to claim that relief. Id. at 93-95. 41

Puerto Rico began drafting its Constitution in

1950, which incorporated that broader understanding

of the right of access to public records. See generally

Bhatia Gautier v. Roselló Neváres, 199 D.P.R. 59 (P.R.

2017) (J.A. 72a-117a) (certified translation). In 2019,

the Transparency Act became law, which explains that

a “petition for writ of mandamus has been the

appropriate appeal mechanism to compel compliance

with any duty, as is the case when access to public

information is requested.” (J.A. 8a, Br. Am. Curiae of

Espacios Abiertos et al., at ADD13) (certified

translation). With the limitations of Lutz left behind,

today “every citizen, just for being such, has active

legitimacy to request and access public information”

with mandamus. Eng’g Servs. Int’l, Inc. v. P.R. Elec.

Power Auth., No. CC-2018-513, 2020 WL 5659443, at

*4, (P.R. 2020).

See also Nogueras Cartagena v. Rexach Benítez, 141 P.R.

Dec. 470, 543-44 (1996) (Naveira de Rodón, J., dissenting) (citing

Bagg’s Case as persuasive authority for mandamus).

41

28

II. Affirming on Mandamus Grounds Avoids

Injecting Uncertainty into Access to

Information Suits.

A mandamus action against a government agent

to compel performance of a duty required in his official

capacity is not an action against a sovereign. The

Court can affirm the judgment for that reason alone.

See Schweiker v. Hogan, 457 U.S. 569, 585 n.24 (1982);

see also Mitchell v. Wisconsin, 139 S. Ct. 2525, 2551

(2019) (Gorsuch, J., dissenting). To “conclude that

PROMESA does not abrogate the Board’s immunity,

the Court must determine that such immunity exists.”

U.S. Br. 15 n.2. The simplest path to determining that

no such immunity exists is recognizing that a

sovereign is not the real party in interest. The Court

can do that without unsettling decades of law on

whether Puerto Rico enjoys sovereign immunity

independent of the federal government or holding that

any such immunity was abrogated across-the-board.

Affirming on mandamus grounds is necessarily

limited to actions seeking mandamus, an exceptional

remedy granted only when there are no others to

enforce a clear legal right.

It is true that the respondent sued the Board as

an entity, rather than naming Board members in their

official capacities in the complaint. See U.S. Br. 21 n.4.

But the “elementary mechanics of captions and

pleading” cannot deprive CPI of mandamus. Idaho v.

Coeur D'Alene Tribe, 521 U.S. 261, 270 (1997). The

Court’s “cases establish that, in the context of lawsuits

against state and federal employees or entities, courts

should look to whether the sovereign is the real party

in interest to determine whether sovereign immunity

29

bars the suit.” Lewis v. Clarke, 581 U.S. 155, 161-62

(2017). In doing so, it is not “the characterization of the

parties in the complaint” that matters, but whether

the relief runs against the sovereign. Id.

An action against a government official to compel

the ministerial obligation to produce public records is

not an action against a sovereign in Puerto Rico courts.

And if a ministerial duty arose under federal law

against a federal official, there would be no immunity

from mandamus in federal court to compel

performance of that duty, either. While Pennhurst cast

doubt on Rolston and language from the Court’s prior

mandamus cases, it stopped short of explicitly

overruling them. And Pennhurst’s federalism concerns

do not apply here, where the nominal defendant is a

territory, not a State.

To affirm on traditional mandamus grounds, the

Court does not have to extend Ex Parte Young actions

to enforce ministerial duties under state law writ

large. It is enough to limit mandamus against state or

Commonwealth officials in federal court for

performance of ministerial duties under local law to

instances when relief in local courts is foreclosed by

federal forum exclusivity. That combination of facts—

a federal statute compelling non-federal claims to be

brought exclusively in federal court—is unlikely to

ever reoccur outside the territories. Precisely because

Puerto Rico is a territory, the incursions on its selfrule tolerated here would be impossible to implement

against a State. The Court should not allow

Puerto Rico’s sovereignty to be abrogated in all the

ways but one.

30

A contrary holding—that the Board is immune

from mandamus actions if Congress did not abrogate

that immunity—presents three challenges.

First, if the Board’s immunity defense succeeds,

mandamus against Board members for public records

will be extinguished. The Board admitted below that

its position would leave plaintiffs without a forum

given PROMESA’s grant of exclusive jurisdiction to

federal court. (J.A. 4a, FOMB Br. 30-31.) This makes

a world of difference from typical cases in which the

relief against the state official is available in state

courts. Cf. Coeur D’Alene, 521 U.S. at 274 (finding no

need to extend Young where the State’s courts “are

open to hear the case”).

Here, like in Lapides v. Board of Regents, 535

U.S. 613 (2002), the Commonwealth is not immune

from the claim at issue in its courts. Rejecting the idea

that a state defendant could remove to federal court

and gain immunity from claims it was not immune

from under state law, the Court found “that neither

those who wrote the Eleventh Amendment nor the

States themselves . . . would intend to create that

unfairness.” Id. at 622. Just as a State may not invoke

the jurisdiction of the federal court and then “turn

around and say the Eleventh Amendment bars the

jurisdiction of the federal court,” the Board should not

be permitted to channel all claims to federal court only

to say they are barred there. Wis. Dep’t of Corr. v.

Schacht, 524 U.S. 381, 393 (1998) (Kennedy, J.,

concurring). Without mandamus as the remedy of last

resort in federal court, there will be no remedy at all.

Second, the Board’s position would allow it to

show even less in the future. The Board points out that

31

PROMESA permits closed-door proceedings, see 48

U.S.C. § 2121(h)(4), but proposes a rule that would

excuse producing meeting minutes. “But the local

zoning board or town council is not the Star Chamber,”

T-Mobile S., LLC v. City of Roswell, 574 U.S. 293, 315

(2015) (Roberts, C.J., dissenting), and neither is an

unelected body governing over 4 million people. A

ruling foreclosing mandamus against Board members

for records access transforms sovereign immunity into

official impunity, allowing the Board to publish its

reasoning only in English or not at all.

Third, even a ruling in CPI’s favor that suggests

there is immunity from mandamus that requires

abrogation or waiver could inject uncertainty into

mandamus relief for public records access against

other Puerto Rico government officials and in States

where mandamus is the FOIA remedy. Defendants in

future cases might introduce, in Commonwealth

courts, a sovereign immunity defense. If the

ministerial duty exception is irrelevant, Puerto Rico

courts may have to confront for the first time whether

the Commonwealth waived sovereign immunity for

public records claims in it courts—something taken for

granted for more than a century.

Some States still use mandamus as a FOIA

remedy, too. See, e.g., State ex rel. Lucas Cnty. Bd. of

Comm’rs v. Ohio Envt’l Prot. Agen., 724 N.E.2d 411

(Ohio 2000); Town of Manalapan v. Rechler, 674 So. 2d

32

789, 790 (Fla. Dist. Ct. App. 1996). 42 The ability to see

public records might be frustrated in States that have

not yet passed a law expressly waiving sovereign

immunity for those claims. States might not have

thought that necessary given the history of mandamus

to compel performance of ministerial duties.

* * *

Mandamus expresses the will of the sovereign.

But the sovereign is not dignified by blocking relief

that issues in the sovereign’s name. And the State or

Commonwealth’s sovereignty, in our republican

system, is merely a consequence of the people’s

sovereignty. “[T]he ultimate sovereignty rests in the

people themselves.” Seminole Tribe v. Florida, 517

U.S. 44, 151 (1996) (Souter, J., dissenting); accord P.R.

Const. Art. I, § 2 (“The Government of the

Commonwealth of Puerto Rico shall be . . . subordinate

to the sovereignty of the people of Puerto Rico.”). The

sovereignty of the people of Puerto Rico is vanquished,

not vindicated, by extinguishing a right they created

in their constitution to immunize a government they

do not elect. “[I]t is difficult to think of a greater

intrusion on . . . sovereignty than” that. Pennhurst,

465 U.S. at 106.

The people of Puerto Rico deserve better. The

Court should apply the longstanding doctrine that

sovereign immunity is no defense to mandamus to

compel performance of ministerial duties. And those

42 See Reporters Comm. for Freedom of the Press, Pleading

Format, https://www.rcfp.org/open-government-sections/5pleading-format/ (accessed Dec. 26, 2022) (collecting cases).

33

governed by the Board without a say may finally learn,

after five years of litigation and confirmation of

Puerto Rico’s restructuring plan, what the Board

insists on keeping from them.

CONCLUSION

For all these reasons, the Court should affirm the

judgment of the court of appeals.

Respectfully submitted,

Brendan Benedict

Counsel of Record

Bahadur S. Khan

Michael D. Altebrando

BENEDICT LAW GROUP PLLC

322 G St. NE

Washington, DC 20002

(212) 287-9501

brendan@

benedictlawgroup.com

Counsel for amicus curiae

December 27, 2022