Puerto Rico's Eleventh Amendment status anxiety.

• Author: Chandler, Adam D.

Puerto Rico is not among the fifty united states, so the Eleventh Amendment--which gives immunity only to "States" (1)--appears not to apply. But ever since then-Judge Breyer first addressed the issue thirty years ago, the First Circuit has been consistent and clear in recognizing Puerto Rico's Eleventh Amendment sovereign immunity. As this Comment will demonstrate, that holding, which the First Circuit has repeated dozens of times, is founded on Judge Breyer's mistaken reading of prior cases on common law immunity, not on constitutional immunity, and has not since been supported by any additional analysis or reasoning. Thus, Puerto Rico's long-enjoyed Eleventh Amendment immunity is liable to evaporate if the U.S. Supreme Court takes a more skeptical approach.

The Supreme Court will soon have an opportunity to weigh in on the Eleventh Amendment question if it grants certiorari in the First Circuit case Vaqueria Tres Monjitas, Inc. v. Irizarry. (2) In their briefs in opposition to certiorari, respondents question the legitimacy of Puerto Rico's invocation of Eleventh Amendment protection; (3) petitioners reply that "the proposition that Puerto Rico is entitled to sovereign immunity is not open to serious debate." (4) The Court has shown interest in the case by referring it to the Acting Solicitor General for his views on granting certiorari. (5)

The first four Parts of this Comment show that, should the Court decide to face the Eleventh Amendment question directly, it would be a mistake for it to adopt the faulty reasoning underlying the First Circuit's case law. It does not follow, however, that Puerto Rico must be treated like the other American territories, none of which currently enjoys Eleventh Amendment protection. Part V of this Comment surveys those territories and concludes that, among them, Puerto Rico's claim to Eleventh Amendment protection is the strongest. For historical and structural reasons, recognizing Puerto Rico's claim to Eleventh Amendment immunity will not start down a slippery slope to similar claims on behalf of territories like Guam. Thus, while the First Circuit's repeated holdings on Puerto Rico and the Eleventh Amendment are no more than a house of cards, there are still justifications for a constitutional distinction between Puerto Rico and the other territories that could sustain the Eleventh Amendment status quo among the territories.

1. SOVEREIGN IMMUNITY: ELEVENTH AMENDMENT VERSUS COMMON LAW

   The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (6) The Supreme Court has repeatedly held that the Eleventh Amendment extends beyond its plain terms to give states immunity not only in suits by citizens of other states but also in suits by their own citizens. (7) In short, the Amendment prevents a private party from suing a state without the state's consent. (8) That protection for the states was of such central concern to the Founders that the Supreme Court's initial failure to recognize states' immunity prompted an immediate constitutional amendment. (9)

   States do not rely solely on the Eleventh Amendment for their sovereign immunity, however. The Supreme Court has explained that sovereign immunity is a fundamental preconstitutional doctrine that has protected the states since their inceptions. (10) But there are substantial differences between this common law notion of sovereign immunity and constitutionally enshrined Eleventh Amendment immunity. The Court's "understanding of common-law sovereign immunity does not protect against liability under the laws of a superior governmental authority," meaning that common law immunity can be abrogated not only by a state's legislature but also by Congress. (11) In addition, while common law immunity protects a sovereign from being "sued in its own courts without its consent, ... it affords no support for a claim of immunity in another sovereign's courts." (12) Thus, without the Eleventh Amendment, a sovereign has immunity from claims raised "in its own courts under its own local laws," but not from claims raised "in federal court based on federal law." (13) As this Comment will explain in Part III, there is no dispute that Puerto Rico enjoys common law immunity, but the U.S. Supreme Court has yet to recognize its Eleventh Amendment immunity.

2. HISTORY OF PUERTO RICO'S TERRITORIAL STATUS

   Since 1899, Congress has granted a steadily increasing measure of autonomy to Puerto Rico, culminating in 1952 with a governing constitution adopted by the people of Puerto Rico. Puerto Rico has emerged as a sovereign territory that has amassed many of the trappings of the united states while remaining outside their number. The particular features of Puerto Rico's territorial status and relationship to the United States influence its claim to constitutional sovereign immunity.

   The relationship between the United States and Puerto Rico began in 1898 when the Treaty of Paris, ending the Spanish-American War, gave the United States possession of the formerly Spanish territory. Shortly thereafter, Congress ratified the treaty and set out its governing relationship with Puerto Rico in the Foraker Act, (14) which recognized a political entity known as "The People of Porto Rico," but did not recognize its residents as U.S. citizens or provide for any form of self-government. (15) The Jones Act followed in 1917, (16) granting U.S. citizenship (17) and a bill of rights to the Puerto Rican people. (18) Finally, in 1950, Congress provided a way for Puerto Rico to adopt its own constitution and form its own government. Congress enacted a law repealing the structural provisions of the Jones Act--which structured Puerto Rico's executive, legislature, and courts--and replacing those provisions with a new constitution to be adopted by the people of Puerto Rico. (19) Unlike the Foraker and Jones Acts, Public Law 600 was "in the nature of a compact," requiring the consent of both Congress and Puerto Rico before Puerto Rico's constitution would become effective. (20) Puerto Rico approved the compact in 1951 and approved a constitution in 1952; in doing so it became a commonwealth.

   Since that time, the U.S. Supreme Court has hinted that it considers Puerto Rico to be state-like. In Examining Board of Engineers, Architects & Surveyors v. Flores de Otero, (21) the Court observed that Puerto Rico could conceivably be considered a state (22) and noted its uniqueness: "We readily concede that Puerto Rico occupies a relationship to the United States that has no parallel in out history...." (23) More pointedly still, the Court has approvingly quoted an observation from the First Circuit that "'Puerto Rico has .. .not become a State in the federal Union like the 48 States, but it would seem to have become a State within a common and accepted meaning of the word."' (24) Over the years, too, the Court has round more constitutional provisions that apply to Puerto Rico than provisions that do not. (25) But no matter how state-like the Court thinks Puerto Rico is, the Court has yet to determine whether Puerto Rico enjoys the same Eleventh Amendment protection that the states do. (26)

3. THE SUPREME COURT'S VIEW: AT LEAST COMMON LAW IMMUNITY

   The Supreme Court is aware that deciding when to treat Puerto Rico like a state--and when not to--is a "delicate subject." (27) Perhaps accordingly, in 1993, the Supreme Court expressly declined to rule on the question of Puerto Rico's Eleventh Amendment immunity, (28) and despite being faced with regular opportunities to do so, (29) the Court has not spoken on the issue since that time.

   The Supreme Court has long recognized Puerto Rico's common law sovereign immunity, however, beginning with Porto Rico v. Rosaly y Castillo in 1913. (30) In Rosaly y Castillo, the Court relied in part on the resemblance of Puerto Rico's government and organic act (the Foraker Act) (31) to the Territory of Hawaii's; (32) the Court had recognized Hawaii's common law immunity just six years earlier. (33) The Court also construed the congressional purpose behind Puerto Rico's organic act as granting Puerto Rico state-like autonomy. (34) The Court actually went so far as to say that not recognizing Puerto Rico's common law immunity would "destroy the government [Congress tried] to create." (35)

   Thus, while the Supreme Court recognizes some measure of sovereign immunity for Puerto Rico and has hinted that Puerto Rico is distinctly state like among the country's territories, its reticence to endorse the First Circuit's Eleventh Amendment holding is an important qualification.

4. THE FIRST CIRCUIT: THE ELEVENTH AMENDMENT APPLIES

   The U.S. Court of Appeals for the First Circuit has appellate jurisdiction over the U.S. District Court for the District of Puerto Rico. The First Circuit has consistently held that Puerto Rico, though not a state, is entitled to Eleventh Amendment immunity as if it were. The First Circuit first embraced this holding in 1981 (36)--in an opinion by then-Judge Breyer--and assumed Puerto Rico's immunity even earlier. (37) Since 1981, the First Circuit has reiterated the holding at least twenty-eight times--about once a year--and described it as "settled," a "verity," "consistently held," and "beyond dispute." (38) The court recently referred to these precedents as a "phalanx of cases." (39) Notably, then-Judge Breyer was on ten of the panels contributing to that phalanx, authoring or signing onto the holding in each of those ten cases.

   Through all of...