Burke, In re

• Citation: 146 F.3d 1313
• Decision Date: 22 July 1998
• Docket Number: No. 97-8917,97-8917
• Parties: 40 Collier Bankr.Cas.2d 643, 32 Bankr.Ct.Dec. 1147, Bankr. L. Rep. P 77,755, 11 Fla. L. Weekly Fed. C 1618 In re: Gary BURKE, Pamela Burke, Debtors. STATE OF GEORGIA DEPARTMENT OF REVENUE, Plaintiff-Appellant, v. Gary BURKE; Pamela Burke, Defendants-Appellees. In Re; Raymond D. HEADRICK, Cynthia J. Headrick, Debtors. The STATE OF GEORGIA, Department of Revenue, Plaintiff-Appellant, v. Raymond D. HEADRICK; Cynthia J. Headrick, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1313

146 F.3d 1313

40 Collier Bankr.Cas.2d 643, 32 Bankr.Ct.Dec. 1147,

Bankr. L. Rep. P 77,755,

11 Fla. L. Weekly Fed. C 1618

In re: Gary BURKE, Pamela Burke, Debtors.

STATE OF GEORGIA DEPARTMENT OF REVENUE, Plaintiff-Appellant, v. Gary BURKE; Pamela Burke, Defendants-Appellees.

In Re; Raymond D. HEADRICK, Cynthia J. Headrick, Debtors.

The STATE OF GEORGIA, Department of Revenue, Plaintiff-Appellant, v. Raymond D. HEADRICK; Cynthia J. Headrick, Defendants-Appellees.

No. 97-8917.

United States Court of Appeals Eleventh Circuit.

July 22, 1998.

Thurbert Baker, W. Wright Banks, Jr., Shereen M. Walls, Attys. Gen., Atlanta, GA, for Plaintiffs-Appellants.

Scott J. Klosinski, Augusta, GA, David J. Bederman, Emory University School of Law, Atlanta, GA, for Defendants-Appellees.

Leonard H. Gerson, Angel & Frankel, P.C., New York City, for Amicus Curiae Business Bankruptcy Law Committee, New York County Lawyers Ass'n.

Appeal from the United States District Court for the Southern District of Georgia.

Before ANDERSON and BIRCH, Circuit Judges, and COHILL ^*, Senior District Judge.

ANDERSON, Circuit Judge:

In this consolidated appeal of two separate bankruptcy proceedings, the State of Georgia Department of Revenue ("the State") appeals the district court's affirmance of two bankruptcy court orders denying the State's motion to dismiss and motion for summary judgment based on Eleventh Amendment immunity. Because we conclude that the State waived its Eleventh Amendment immunity by filing a proof of claim in each of the bankruptcy proceedings, we affirm.

I. FACTS AND PROCEDURAL HISTORY

The first bankruptcy case involves Gary and Pamela B. Burke ("the Burkes"). In August 1992, the Burkes sought relief under Chapter 13 of the Bankruptcy Code. The Georgia Department of Revenue filed a proof of claim that included an unsecured priority claim of $12,437.40 for unpaid state income taxes covering the tax years 1980-84. This claim was later adjudged to be a general unsecured claim. After the case was converted to Chapter 7, the bankruptcy court entered a general discharge order releasing the Burkes from liability for all dischargeable debts. Before the case was closed, however, neither party requested that the bankruptcy court determine whether the taxes accrued in 1980-84 were discharged. In May 1994, three months after the entry of the discharge, the Department of Revenue wrote a letter to the Burkes demanding payment of these taxes and warning that nonpayment could result in collection by garnishment, attachment, or levy. The Burkes then reopened their Chapter 7 case and filed an adversary action against the State of Georgia, alleging that the Department of Revenue violated the discharge injunction of 11 U.S.C. § 524(a) by sending the demand letter for unpaid state income taxes. ¹ After its motion for summary judgment was denied, ² the State moved to dismiss the Burkes' action, relying on Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), and arguing that the relief sought by the Burkes was barred by the Eleventh Amendment. The bankruptcy court initially declined to address this issue, relying instead on its finding that the State of Georgia had waived its sovereign immunity by filing a proof of claim against the Burkes' bankruptcy estate. See In re Burke, 200 B.R. 282, 287-88 (Bankr.S.D.Ga.1996). In denying the State's motion to alter or amend the previous order, the bankruptcy court concluded that § 106(a) ³ of the Bankruptcy Code unequivocally expressed congressional intent to abrogate states' sovereign immunity for violations of the discharge injunction of § 524 and that § 106(a) was enacted by a valid exercise of power under the Fourteenth Amendment. See In re Burke, 203 B.R. 493, 497 (Bankr.S.D.Ga.1996) (reasoning that in light of Seminole Tribe, the Bankruptcy Clause of Article I did not empower Congress to abrogate the Eleventh Amendment, but that abrogation could be accomplished under the Fourteenth Amendment). In an alternative holding, the bankruptcy court concluded that even if the State of Georgia was immune from suit for its alleged violations of the discharge injunction, it had waived that immunity by filing a proof of claim against the Burkes. In re Burke, 203 B.R. at 497-98.

In the second bankruptcy proceeding, Raymond D. and Cynthia J. Headrick ("the Headricks") filed a petition for relief under Chapter 13 of the Bankruptcy Code in December 1994. The Georgia Department of Revenue filed a proof of claim for state income taxes. Thereafter, in October 1995, the Department of Revenue issued an "Official Assessment and Demand for Payment" against the Headricks, and then issued a "Collection Notice" demanding immediate payment of the taxes and warning that nonpayment would result in collection by levy, garnishment, or attachment. Subsequently, the Headricks filed an adversary action against the State of Georgia, alleging that the State's collection attempts violated the automatic stay prescribed by 11 U.S.C. § 362. ⁴ The State moved for summary judgment, arguing that it was entitled to sovereign immunity and, alternatively, that as a matter of law it had not violated the automatic stay. The bankruptcy court found both grounds to be without merit and denied the motion. See In re Headrick, 200 B.R. 963, 965-69 (Bankr.S.D.Ga.1996) (adopting the same reasoning as in In re Burke, and thus finding that the State's immunity was abrogated because § 106(a) was enacted by Congress pursuant to a valid exercise of authority under the Fourteenth Amendment, or alternatively, that the State waived its immunity by filing a proof of claim against the debtors). The State's motion to alter or amend the previous order denying summary judgment was denied. See In re Headrick, 203 B.R. 805 (Bankr.S.D.Ga.1996). The State of Georgia then appealed the bankruptcy court's orders in In re Burke and In re Headrick to the District Court for the Southern District of Georgia. In affirming the bankruptcy court's orders, the district court concluded that "the case law now uniformly acknowledges that Congress did not have the power to enact § 106(a) pursuant to those powers granted it under the Bankruptcy Clause of Article I," but that § 106(a) validly abrogates Georgia's sovereign immunity because "the bankruptcy code creates privileges and immunities enforceable by Congress under § 5 of the Fourteenth Amendment." District Court Order, at 6-8 (July 23, 1997). ⁵ The State of Georgia appeals this order.

II. DISCUSSION

Our jurisdiction in this case arises from the district court's denial of the State of Georgia's claim to Eleventh Amendment immunity; such a denial grants the State the right of an immediate, interlocutory appeal. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 689, 121 L.Ed.2d 605 (1993) (applying collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)); see also Seminole Tribe of Florida v. Florida, 11 F.3d 1016, 1021 (11th Cir.1994); aff'd, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The grant or denial of a state's sovereign immunity defense is an issue of law subject to de novo review by this court. See Seminole Tribe, 11 F.3d at 1021.

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. Const. amend. XI. Although the Eleventh Amendment only expressly prohibits suits against states by citizens of other states, the Supreme Court has long held that the Eleventh Amendment also bars suits brought against a state by its own citizens. Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 507, 33 L.Ed. 842 (1890). However, there are certain well-established exceptions to Eleventh Amendment immunity. First, a state may waive its Eleventh Amendment immunity and consent to suit in federal court. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Second, Congress can abrogate states' Eleventh Amendment immunity if Congress unequivocally expresses an intent to abrogate state immunity and acts pursuant to a valid exercise of power. See Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984)).

Relying on Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the State of Georgia contends that Congress' power to abrogate states' Eleventh Amendment immunity only exists under § 5 of the Fourteenth Amendment and that § 106(a) of the Bankruptcy Code was not enacted pursuant to the Fourteenth Amendment. The debtors ⁶ respond that § 106(a) validly abrogates states' sovereign immunity because § 106(a) was enacted pursuant to § 5 of the Fourteenth Amendment in order to enforce a protected due process property interest or the privileges and immunities of federal citizenship as recognized in § 1 of the Fourteenth Amendment. ⁷ However, we need not resolve this abrogation issue because assuming arguendo that the State of Georgia has Eleventh Amendment immunity and it has not been validly abrogated by § 106(a), we conclude that in this case the State waived its sovereign immunity by filing a proof of claim in the debtors' bankruptcy proceedings.

Waiver of Eleventh Amendment Immunity ⁸

The State of Georgia contends that, under its constitution, only the Georgia General Assembly may waive the State's sovereign immunity, and that waiver is limited to the extent provided in the Georgia Constitution. ⁹ Subsection (f) of article I, section 2, paragraph 9 of the Georgia Constitution clearly provides that the constitution's limited waiver of...