Irizarry-Mora v. University of Puerto Rico

United States Court of Appeals
For the First Circuit

No. 09-2314

DR. JESÚS IRIZARRY-MORA,

Plaintiff, Appellant,

v.

UNIVERSITY OF PUERTO RICO,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Torruella, Lipez, and Thompson, Circuit Judges.

Edelmiro Salas González for appellant.
Oreste R. Ramos Pruetzel, with whom Julio Nigaglioni Arrache
and Laura B. Arroyo-Lugo were on brief, for appellee.

July 21, 2011
 LIPEZ, Circuit Judge. Adhering to longstanding

precedent, the district court dismissed this age discrimination

action against the University of Puerto Rico ("University" or

"UPR") on the ground that the University is an arm of the state

entitled to Eleventh Amendment immunity from suit in federal court.

On appeal, the plaintiff asserts that this circuit's test for

analyzing whether a public entity is an arm of the state has

changed in recent years, and he argues that the University does not

qualify for that status under current law. Detecting no error in

the court's analysis, we affirm.

I.

We recount only briefly the underlying facts alleged in

the complaint, as the details of the alleged discrimination play no

role in our analysis. Plaintiff Jesús Irizarry-Mora ("Irizarry"),

a sociologist with a Ph.D. in population planning, applied during

the second semester of the 2005-2006 academic year to be an

Assistant Professor at the University of Puerto Rico. He was not

chosen for the position. A job announcement seeking candidates for

the position of Assistant Professor of Sociology was again

published during the fall semester of the next academic year.

Irizarry reapplied, and he again was not selected. The individual

hired for the position was thirty years old. At the time Irizarry

filed this lawsuit in 2008, he was forty-eight.

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 Irizarry alleged in his complaint that the UPR

discriminated against him on the basis of his age and retaliated

against him for filing discrimination charges, in violation of the

Age Discrimination in Employment Act, 29 U.S.C. § 623(a), (d). The

University moved to dismiss the complaint for lack of subject

matter jurisdiction, asserting that the UPR is an arm of the state

and thus entitled to immunity from suit in federal court under the

Eleventh Amendment. See Hess v. Port Auth. Trans-Hudson Corp., 513

U.S. 30, 39 (1994); Fresenius Med. Care Cardiovascular Res., Inc.

v. P.R. & the Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 59

(1st Cir. 2003).

In ruling on the motion to dismiss, the district court

observed that the District of Puerto Rico and the First Circuit had

"consistently concluded that the UPR is an instrumentality of the

state for Eleventh Amendment purposes and, as such, is not amenable

to suit in federal court." Irizarry-Mora v. Univ. of P.R., No.

3:08-cv-2004-ADC, slip op. at 5 (D.P.R. Aug. 24, 2009). The court

rejected Irizarry's argument that our decision in Fresenius had set

out a "totally new test" for identifying an arm of the state and

thus cast doubt on the validity of earlier precedent. The court

further noted that the District of Puerto Rico had reexamined the

UPR's status on numerous occasions after Fresenius and had

"declined to depart from the 'well settled proposition' that the

UPR is immune from suit in federal court." Id. (quoting Montalvo-

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Padilla v. Univ. of P.R., 492 F. Supp. 2d 36, 44 (D.P.R. 2007)).

The court also pointed to the First Circuit's reiteration after

Fresenius, "albeit in passing, that the UPR is an arm of the

Commonwealth and shares its sovereign immunity." Id. (citing

Montalvo-Padilla, 492 F. Supp. 2d at 44 (citing Toledo v. Sánchez,

454 F.3d 24, 31 n.1 (1st Cir. 2006); Aponte-Torres v. Univ. of

P.R., 445 F.3d 50, 55 (1st Cir. 2006))).

Notwithstanding the precedent weighing against the

plaintiff's position, the district court went on to perform its own

thoughtful evaluation of the arm-of-the-state factors prescribed in

the case law. See infra Section II. It agreed with the previous

decisions in concluding that the UPR is entitled to immunity from

suit in federal court. Hence, it dismissed Irizarry's action, and

this appeal followed.1

1
The district court also rejected Irizarry's request for
equitable relief under the Ex Parte Young doctrine, which allows
prospective injunctive relief against state officers who are sued
in their official capacities. See Ex Parte Young, 209 U.S. 123
(1908); Negrón-Almeda v. Santiago, 579 F.3d 45, 52 (1st Cir. 2009).
Irizarry's suit names as a defendant only the University, not any
individuals. In the absence of consent, waiver, or abrogation, the
Eleventh Amendment bars suit against states themselves regardless
of the form of relief sought. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984); Metcalf & Eddy, Inc. v. P.R.
Aqueduct & Sewer Auth., 991 F.2d 935, 938 (1st Cir. 1993); see also
Torres-Álamo v. Puerto Rico, 502 F.3d 20, 24 (1st Cir. 2007)
(noting that the Commonwealth of Puerto Rico is treated as a state
for purposes of the Eleventh Amendment). In his reply brief,
Irizarry states that he does not challenge the court's ruling on
injunctive relief.

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 II.

A. Legal Background

Before our 2006 decision in Fresenius, this court for

more than a decade had assessed an entity's arm-of-the-state status

under a multi-factor test that was set out in Metcalf & Eddy, Inc.

v. Puerto Rico Aqueduct & Sewer Authority, 991 F.2d 935, 939-40

(1st Cir. 1993). In Fresenius, we examined Supreme Court decisions

that had "updated and clarified the arm-of-the-state doctrine" in

the years since Metcalf & Eddy to determine "whether those opinions

cause us to reshape the Metcalf & Eddy test." Fresenius, 322 F.3d

at 63. Concluding that a reshaping was appropriate, id. at 59, we

relied primarily on the Court's decision in Hess to reformulate our

analysis as a two-part inquiry whose steps reflected the Eleventh

Amendment's twin concerns for the States' dignity and their

financial solvency. Fresenius, 322 F.3d at 63, 68. Under that

"two-stage framework,"

a court must first determine whether the state
has indicated an intention – either explicitly
by statute or implicitly through the structure
of the entity – that the entity share the
state's sovereign immunity. If no explicit
indication exists, the court must consider the
structural indicators of the state's
intention. If these point in different
directions, the court must proceed to the
second stage and consider whether the state's
treasury would be at risk in the event of an
adverse judgment.

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Redondo Constr. Corp. v. P.R. Highway & Transp. Auth., 357 F.3d

124, 126 (1st Cir. 2004) (citation omitted); see also Fresenius,

322 F.3d at 65-66.

Appellant asserts that this evolution of the law means

that arm-of-the-state determinations predating Fresenius are no

longer binding. That argument, however, fails to recognize that we

explicitly stated in Fresenius that the "reshaping" of our law did

not represent an actual change in the substance of the analysis.

We observed that Hess had "refined" the Metcalf & Eddy analysis,

which we described as "consistent with Hess." Fresenius, 322 F.3d

at 68. Indeed, we observed that Metcalf & Eddy "presciently

predicted the ways in which the Supreme Court would view the

issue." Id. at 62.

The "reshaping" effected in Fresenius was the replacement

of Metcalf & Eddy's multi-factor test with the Supreme Court's

two-part inquiry: first, the structural prong and, if necessary,

the impact-on-the-treasury prong. The specific considerations

remained essentially the same, however, because the Metcalf & Eddy

factors covered elements relevant to both the agency's operational

autonomy and its fiscal independence.2 Although the inquiry was

2
We listed the following seven factors in Metcalf & Eddy:

(1) whether the agency has the funding power to enable it
to satisfy judgments without direct state participation
or guarantees; (2) whether the agency's function is
governmental or proprietary; (3) whether the agency is
separately incorporated; (4) whether the state exerts

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not framed as a progression from one stage to the next, as in

Fresenius and Hess, the same "two key questions" and the same types

of factors informed our analysis.3 Fresenius, 322 F.3d at 68.

Hence, Fresenius was not a turning point in our Eleventh Amendment

jurisprudence. Rather, our course was fixed in Metcalf & Eddy,

control over the agency, and if so, to what extent; (5)
whether the agency has the power to sue, be sued, and
enter contracts in its own name and right; (6) whether
the agency's property is subject to state taxation; and
(7) whether the state has immunized itself from
responsibility for the agency's acts or omissions.

991 F.2d at 939-40.
3
Under Hess, as described in Fresenius, the relevant
structural considerations include:

(1) extent of state control including through the
appointment of board members and the state's power to
veto board actions or enlarge the entity's
responsibilities; (2) how the enabling and implementing
legislation characterized the entity and how the state
courts have viewed the entity; (3) whether the entity's
functions are readily classifiable as state functions or
local or non-governmental functions; and (4) whether the
state bore legal liability for the entity's debts.

Fresenius, 322 F.3d at 65 n.7 (citing Hess, 513 U.S. at 44-46).

The relevant considerations on the fiscal relationship include:

whether the state laws impose an obligation on the state
to be responsible for payment of judgments against the
entity (on this point federal courts are not free to
assume that a state will voluntarily assume the payment
of the entity's debts if the entity is in need); other
sources of revenue for the entity; and whether the agency
is so structured that, as a practical matter, the state
anticipated budget shortfalls that would render the
entity constantly dependent on the state.

Fresenius, 322 F.3d at 65 n.8 (citing Hess, 513 U.S. at 49-50).

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which "foreshadowed" Hess in determining that "when there is

ambiguity from the structure about whether an entity is an arm of

the state, the primary focus is on the risk to the state treasury."

Id. at 66.

Arguably, our conclusion that the substance of the law

did not change in Fresenius is enough to resolve this case. We

observed in Metcalf & Eddy that "[w]here the agency's activity and

its relation to the state remain essentially the same, prior

circuit precedent will be controlling." 991 F.2d at 940 n.4.

Indeed, the UPR has been deemed an arm of the state for more than

three decades, see Pinto v. Universidad de P.R., 895 F.2d 18, 18

(1st Cir. 1990); Perez v. Rodriguez Bou, 575 F.2d 21, 25 (1st Cir.

1978), and no factual change in its relationship with the

Commonwealth is asserted. The principle of stare decisis thus has

considerable force here.

Nonetheless, we recognize that the original precedent on

the UPR's status predates even Metcalf & Eddy. In addition,

although we have assumed the continuing validity of that precedent

at least twice since Fresenius, the Eleventh Amendment was not a

live issue in either case. See Toledo, 454 F.3d at 31 n.1, 40

(finding that the UPR was not entitled to immunity for the

particular claims at issue); Aponte-Torres, 445 F.3d at 53, 55

(holding that the plaintiffs "fail[ed] to articulate a cognizable

federal claim"). Thus, like the district court, we think brief

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consideration of the two-part Fresenius inquiry is warranted to

confirm that our precedent is in line with current law.4

B. Application of the Arm-of-the-State Test

1. Structural Factors

The distinctive, public-oriented role that a state

university typically plays in its state's higher education

landscape undoubtedly accounts for the fact that "the vast majority

of state universities . . . have been found to be 'arms' of the

State." See Univ. of R.I. v. A.W. Chesterton Co., 2 F.3d 1200,

1204 (1st Cir. 1993); see also 13 Charles Alan Wright, Arthur R.

Miller, Edward H. Cooper & Richard D. Freer, Federal Practice &

Procedure § 3524.2, at 325-32 (2008) (noting that "state

universities usually are considered arms of the state"). Each

state university nonetheless "must be evaluated in light of its

unique characteristics." A.W. Chesterton, 2 F.3d at 1204.

Although Puerto Rico law contains no explicit statement

of intention that the University share the Commonwealth's sovereign

4
The district court dismissed the case for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1),
although it referenced documents outside the complaint. Whether
the court's ruling is treated as a dismissal under Rule 12(b) or a
grant of summary judgment, our standard of review is de novo. See
Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 98 (1st Cir.
2002) (stating that application of "the immunity doctrine under the
Eleventh Amendment is a question of law that engenders de novo
review on appeal"). In either case, we also view the record in the
light most favorable to the non-moving party. See McCloskey v.
Mueller, 446 F.3d 262, 266 (1st Cir. 2006) (Rules 12(b)(1) and
12(b)(6)); Fresenius, 322 F.3d at 68 (summary judgment).

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immunity, statutory provisions and case law together describe a

public role for the University consistent with such a relationship.

By statute, the UPR has an "obligation of service to the people of

Puerto Rico," P.R. Laws Ann., tit. 18, § 601(a), and it is exempted

from the payment of taxes because it "achieves a public purpose of

the Commonwealth." Id. § 612(f).

The UPR's important public role also has been

acknowledged by the Puerto Rico Supreme Court. In University of

Puerto Rico v. Puerto Rico Association of University Professors,

136 P.R. Dec. 335, No. JR-91-103 (June 13, 1994),5 the court noted

the UPR's obligation "[a]s a university of the State . . . to serve

the People of Puerto Rico," Unoff. Trans. at 44 (quotation marks

omitted), and it rejected a suggestion that the UPR could increase

fees to the same extent as could a private university in order to

raise revenue:

For evident reasons, increasing the costs of
registration so substantially would create
very serious problems concerning the role
played by U.P.R. in Puerto Rico's society, not
to mention those related to its
implementation. An increase like the Board
suggests, sufficiently high so as to convert
the U.P.R. into a profitable operation, would
cause serious problems, for example,
concerning students. It would affect both the
capacity of our young ones to obtain good
quality higher education as well as the
U.P.R.'s capacity to fulfill its statutory
mission of developing the intellectual and

5
The parties stipulated to a partial translation of this
case, and our citations will be to that unofficial translation.

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 spiritual wealth of our people, "especially
those less favored in terms of financial
resources." 18 L.P.R.A. sec. 601(b)(4).6

Id. at 45 (emphasis omitted).7 The Commonwealth's reliance on the

UPR to make higher education accessible to students for whom the

government feels a special responsibility is also shown by a

specific UPR tuition exemption for the children of Puerto Rico

military members who have died in action, remain missing, or are

prisoners of war. See P.R. Laws Ann. tit. 18, § 612(b).

In further support of the proposition that the University

is an arm of the Commonwealth, we note that ten of the thirteen

members of its governing board are appointed by the governor, with

the advice and consent of the Puerto Rico Senate, P.R. Laws Ann.

6
Section 601 lists the objectives of the University of Puerto
Rico and directs the University to, inter alia,

[f]ully develop the intellectual and spiritual wealth
latent in our people, so that the values of the
intelligence and spirit of the exceptional personalities
that arise from all social sectors, especially those
least favored in economic resources, may be put to the
service of the Puerto Rican community.

P.R. Laws Ann. tit. 18, § 601(b)(4).
7
Although the Puerto Rico Supreme Court's ruling does not
directly address the question of sovereign immunity and would not,
in any event, be dispositive on the question, its observations are
pertinent to our attempt to divine legislative intent. See Redondo
Constr. Corp., 357 F.3d at 128 (noting that, "'[w]hile not
dispositive, consistent decisions of a state's highest court
construing an agency's or institution's relationship with the
central government are important guideposts in a reasoned attempt
to locate the agency's or institution's place within the scheme of
things.'" (alteration in original) (quoting Metcalf & Eddy, 991
F.2d at 942)).

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tit. 18, § 602(b)(1),8 and the Board originally was convened by the

Secretary of Education, id. § 602(b)(4). See Pastrana-Torres v.

Corporación de P.R. para la Difusión Pública, 460 F.3d 124, 127

(1st Cir. 2006) (noting that Commonwealth control is indicated

where board comprised of government officials and private citizens

is appointed by the governor and confirmed by the Senate); A.W.

Chesterton Co., 2 F.3d at 1207 (noting that appointment of ten of

thirteen board members by the governor with consent of Senate is "a

legislative design most courts routinely view as evidence of an

entity's lack of independence from State control") (citing cases).9

The Board of Trustees plays a significant role in governing the

University, including appointing the President and Chancellors, in

consultation with academic senates, P.R. Laws Ann. tit. 18,

§ 602(e)(7), and "supervis[ing] the general progress of the

institution," id. § 602 (d). The Board also approves the

8
The three other members consist of one student and two
faculty members, who are elected by their peers to serve one-year
terms. P.R. Laws Ann. tit. 18, § 602(b)(1) & (2). The governor's
appointees serve staggered six-year terms. Id. § 602(b)(2).
9
We observed in Fresenius that "[t]he governor's appointment
power over the board is not enough in itself to establish that [an
entity] is an arm of the state." 322 F.3d at 71. In fact, where,
as here, the governor-appointed board members serve terms
potentially longer than a governor's tenure and may "only be
discharged after determination of just cause after filing charges,"
P.R. Laws Ann. tit. 18, § 602(b)(2), the trustees are insulated "to
some degree" from political pressure, and the University's
independence is accordingly increased. See A.W. Chesterton Co., 2
F.3d at 1208. It remains structurally significant, however, that
the University's governing authority resides primarily in
individuals appointed by the governor.

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university system's annual budget and the appointment of the

Finance Director, and it is charged with "[r]ender[ing] a yearly

report to the Governor and the Legislature concerning its

activities and the status and finances of the University." Id.

§ 602 (e)(8), (9), (10).

These structural signals strongly indicate that the

Commonwealth's "'dignity' interest as a sovereign in not being

haled into federal court" embraces the University. See Fresenius,

322 F.3d at 63. Yet we acknowledge that the UPR also possesses

attributes of an autonomous agency. It controls and may acquire

its own properties, it may create subsidiary corporations, and its

debts are by law not considered those of the Commonwealth. See

P.R. Laws Ann. tit. 18, §§ 612(a), 602(e)(19), 612(f), 822. As

appellant argues, the University has "a significant degree of

autonomy" to set policy, see id. §§ 602(d), 603(a),10 and the UPR

is authorized to borrow money "for any of its purposes and

activities" by issuing bonds or notes, id. § 612(e). It also has

authority to raise revenue by charging tuition and other fees, id.

10
Section 602(d), titled "Powers and duties," states that
"[t]he Board shall formulate the directives which shall govern the
direction and development of the University, it shall examine and
approve the general operational standards proposed by the
legislative and administrative bodies of the latter, . . . and
shall supervise the general progress of the institution."
Section 603(a) states that the University "shall function with
academic and administrative autonomy within the standards provided
by this chapter and those that may be set forth in the University
regulations or in resolutions of the Board of Trustees."

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§ 612(b),11 and to spend the proceeds generated from such sources,

as well as from the sale of property and donations, "in the best

interest of the University," id. § 612(c). Although the University

is expressly authorized to issue bonds "for the purpose of

acquiring or constructing any project," such revenue bonds "shall

not constitute a debt of the Commonwealth of Puerto Rico" and shall

not "pledge the good faith and credit of the Commonwealth." Id. §

822.

The authority to conduct day-to-day operations is not

necessarily inconsistent with a conclusion that the Commonwealth

intends the UPR to share its sovereign status. See, e.g., Kashani

v. Purdue Univ., 813 F.2d 843, 847 (7th Cir. 1987) ("[T]hese powers

are granted the university only so that it is able to carry out its

primary purpose of education, in contrast to a city or county,

whose exercise of such powers . . . is its very raison d'etre.").

Yet, some of the structural indicators unquestionably point in the

other direction. We thus think it prudent to proceed to the second

stage of the Eleventh Amendment inquiry "and consider whether the

state's treasury would be at risk in the event of an adverse

judgment." Redondo Constr. Corp., 357 F.3d at 126.

11
As the Puerto Rico Supreme Court observed in the passage
quoted above, however, the power to assess tuition and fees may as
a practical matter be limited by the UPR's mission to serve
"especially those least favored in economic resources," P.R. Laws
Ann. tit. 18, § 601(b)(4). See P.R. Ass'n of Univ. Profs., 136
P.R. Dec. 335, Unoff. Trans. at 45.

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 2. Impact on the Treasury

It is undisputed that the Commonwealth provides the bulk

of the funding for the University's operations. By law, the

Commonwealth must dedicate 9.6% of its general fund revenues to the

UPR. P.R. Laws Ann. tit. 18, § 621-1. The parties debate what

percentage of the University's budget those funds represent, but

even appellant acknowledges that more than sixty percent of the

UPR's funding comes from the government. He argues that the

institution's non-government funds are "more than sufficient" to

satisfy any judgments, asserting that in one recent year the UPR

had nearly $579 million in non-Commonwealth income.12 Appellant's

calculations, however, patently overestimate the University's

available resources by including funds that are identified as

restricted in the budget document on which he relies. Indeed, in

the reported year, 2008-2009, only about one-fifth of the non-

Commonwealth funds appear to have been unrestricted,13 leaving the

Commonwealth as the source for nearly ninety percent of the

12
Appellant draws his figures from a document included in the
appendix and titled "University of Puerto Rico Consolidated Budget
by Funding Account" for fiscal year 2008-2009. He reports that the
document was taken from the University's annual report, as
published on its website. We rely on the same document.
13
Appellant asserts that the UPR's 2008-2009 budget reports
nearly $579 million in income from sources other than the
Commonwealth government, or thirty-seven percent of its budget. Of
that sum, however, more than $258 million was in restricted federal
funds, $99 million was identified as allocated to a "Permanent
Improvement Program," and another $100 million of donations and
self-generated revenues were labeled as restricted funds.

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University's general fund. See P.R. Ass'n of Univ. Profs., 136

P.R. Dec. 335, Unoff. Trans. at 42 (observing that, at the time of

the decision in 1994, eighty-six percent of the University's budget

came from the General Fund of the Commonwealth).

More importantly, however, the University's status cannot

turn on whether its budget shows enough non-Commonwealth income to

allow it, in theory, to pay a court judgment. Allocating any

portion of the University's general fund revenues to court

judgments not only would dilute the impact of the public funds the

UPR receives, but such damage awards also would diminish the

University's ability to comply with its statutory mission to

provide "good quality higher education" for all residents of Puerto

Rico. Id. at 45.14 The UPR does not have the flexibility to offset

14
In both Fresenius and Metcalf & Eddy, we emphasized that "a
state agency cannot claim Eleventh Amendment immunity solely on the
basis that judgments against it may absorb unrestricted funds
donated by the state and, in that way, redound indirectly to the
depletion of the state's treasury." Metcalf & Eddy, 991 F.2d at
941; see also Fresenius, 322 F.3d at 75. That description does not
apply to the significantly different financial circumstances here.
In Metcalf & Eddy, the agency at issue received some government
funding but was largely financed by user fees and bonds. 991 F.2d
at 940. Similarly, in Fresenius, most of the agency's funding came
from "sources other than the Commonwealth's treasury." 322 F.3d at
72.
Contrary to appellant's suggestion, the Commonwealth's 2009
fiscal stabilization act has no effect on our analysis as it did
not change the financial relationship between the Commonwealth and
the University. It excluded new revenues raised under the Act from
the statutory 9.6 percent funding formula so that such revenues
could be "expressly directed to reducing the structural deficit of
the Central Government." 2009 P.R. Laws Act No. 7, Statement of
Motives ("Special Act to Declare a State of Fiscal Emergency and to
Establish a Comprehensive Fiscal Stabilization Plan to Salvage the

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unanticipated expenses by passing the additional costs on to its

customers. See id.; cf. Metcalf & Eddy, 991 F.2d at 940 ("Although

the central government subsidizes the agency to some extent, [the

agency] relies mostly on user fees and bonds to support its

operations."). Because providing affordable higher education for

Puerto Rico residents is the Commonwealth's goal, the Commonwealth

must as a practical matter ensure the University's financial

viability – regardless of its responsibility for particular

University debts. We suggested as much in Fresenius, where we

observed that the Commonwealth may indirectly assume the obligation

for an entity's debts "by providing virtually all the funds needed

for [its] operation." 322 F.3d at 72; see also Pastrana-Torres,

460 F.3d at 128 (same); Metcalf & Eddy, 991 F.2d at 941 (quoting

Blake v. Kline, 612 F.2d 718, 723 (3d Cir. 1979), for the

proposition that "'the nature of the state's obligation to

contribute may be more important than the size of the

contribution'").

In sum, the Commonwealth's investment, financial and

otherwise, in the UPR's ability to fulfill its "obligation of

service to the people of Puerto Rico," P.R. Laws Ann. tit. 18,

§ 601(a), puts Commonwealth funds at risk when University funds are

at risk. Hence, we are comfortable that our longstanding precedent

remains consistent with current Eleventh Amendment principles.

Credit of Puerto Rico").

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Accordingly, we affirm the district court's judgment dismissing

this action on the ground that appellant's claims are foreclosed by

the Eleventh Amendment.

So ordered.

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