301 B.R. 90 (Bkrtcy.W.D.Okl. 2003), 99-19986, In re Powers

Docket NºBankruptcy No. 99-19986-WV.
Citation301 B.R. 90
Party NameIn re Sandra Joan POWERS, Debtor. Sandra Joan Powers, Plaintiff, v. Alaska Commission on Post-Secondary Education, Defendant.
Case DateSeptember 30, 2003
CourtUnited States Bankruptcy Courts, Tenth Circuit

Page 90

301 B.R. 90 (Bkrtcy.W.D.Okl. 2003)

In re Sandra Joan POWERS, Debtor.

Sandra Joan Powers, Plaintiff,

v.

Alaska Commission on Post-Secondary Education, Defendant.

Bankruptcy No. 99-19986-WV.

Adversary No. 00-1042-WV.

United States Bankruptcy Court, W.D. Oklahoma.

September 30, 2003

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[Copyrighted Material Omitted]

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Russ B. Haskins, Shawnee, OK, for Plaintiff.

Mark Clayton Choate, San Diego, CA, for Defendant.

ORDER ON MOTION TO DISMISS

THOMAS M. WEAVER, Chief Judge.

This matter comes before the court on the amended motion to dismiss for lack of subject matter jurisdiction filed by defendant Alaska Commission on Post-Secondary Education ("Defendant"), to which plaintiff Sandra Joan Powers ("Plaintiff") filed her response in objection. The issues have been fully briefed and are ripe for determination. After careful review of the motion and supporting brief, Plaintiff's response and the applicable law, the court finds that the motion should be granted.

Plaintiff brings the instant adversary proceeding seeking a determination that a certain student loan debt owed to Defendant is dischargeable in her bankruptcy proceeding pursuant to 11 U.S.C. § 523(a)(8). 1 Defendant filed the instant amended motion to dismiss for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1), which is made applicable to adversary proceedings by FED. R. BANKR. P. 7012(b). Defendant argues that, in accordance with Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the court lacks subject matter jurisdiction over Defendant in this adversary proceeding seeking to obtain monetary relief by discharging Plaintiff's student loan obligations to Defendant, which is an "arm of the State of Alaska." Defendant contends that, in enacting § 106(a) of the Bankruptcy Code, which purports to abrogate a state's Eleventh Amendment immunity, Congress failed to act pursuant to a valid grant of constitutional authority. Defendant further contends that the State of Alaska has not waived its Eleventh Amendment immunity from suit in federal court.

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In response, Plaintiff concedes that Defendant is an "arm of the State of Alaska" and is entitled to assert the state's Eleventh Amendment immunity. See Memorandum Supporting Response to Motion to Dismiss at p. 1. In addition, Plaintiff concedes that Defendant has not voluntarily waived its Eleventh Amendment immunity from suit. Id. Thus, the only remaining issue for resolution is whether § 106(a)'s purported abrogation of the state's Eleventh Amendment immunity is constitutional.

The Eleventh Amendment states: "The 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." U.S. C ONST. amend. XI. The Supreme Court has treated this amendment as an affirmation of the sovereign immunity of the states and has interpreted it to prohibit a federal court action against a state by its own citizens as well as by citizens of other states. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

There are two recognized exceptions to Eleventh Amendment immunity. The first applies when sovereign immunity is abrogated by an act of Congress. The second, which Plaintiff concedes is inapplicable here, applies when the state has consented to the suit and waived its sovereign immunity. Seminole Tribe, 517 U.S. at 54, 116 S.Ct. 1114. Seminole Tribe dealt with the first type of exception. It sets out a two-part test for determining whether sovereign immunity is abrogated by an act of Congress. First, a court must determine whether Congress has unequivocally expressed its intent to abrogate the immunity. Second, a court must determine whether Congress has acted pursuant to a valid exercise of power. Id. at 55, 116 S.Ct. 1114.

Section 106(a) clearly meets the "unequivocal intent to abrogate" test. Straight v....

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