Thomas, J., dissenting
if it did, that immunity would be abrogated by the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), 48 U. S. C. §2101 et seq. Bound by Circuit precedent holding that Puerto Rico enjoys state sovereign immunity, each court below rejected CPI’s first argument. See 35 F. 4th 1, 14 (CA1 2022). But the courts below also agreed with CPI’s second argument that the Board’s immunity was abrogated.
When the Board asked us to review that holding, CPI once again raised its lead argument, pointing out that we logically could not reverse the First Circuit’s judgment without first addressing whether the Board actually has the immunity that the Board claims has not been abrogated. And, in its merits brief, CPI made Puerto Rico’s lack of state sovereign immunity its lead argument. There is nothing more that CPI could have done to preserve this antecedent, dispositive argument.
Yet the majority skips it entirely, “assum[ing] without deciding that Puerto Rico is immune from suit in federal district court”—while also deciding that PROMESA does not abrogate that assumed immunity. Ante, at 5. In doing so, it effectively consigns CPI’s case to the dustbin, remanding back to a Circuit where Circuit precedent will dictate the outcome. CPI might be forgiven for wondering whether we granted certiorari only insofar as our review would favor the Board.
The majority asserts that it need not address CPI’s argument because “[t]he proceedings below did not examine these matters, and we agreed to tackle only the abrogation question.” Ibid. But it is unclear why the court below would have examined the matter any further, given its precedent.[1]
- ↑ The fact that the First Circuit barely addressed the issue below, simply noting Circuit precedent, is surely irrelevant; we have often granted certiorari on questions that were resolved below with drive-by citations to binding precedent, sometimes in footnotes. See, e.g., App. to Pet. for Cert. in Lora v. United States, O. T. 2022, No. 22–49, p. 11a, n. 3;
