Fernandez, Matter of
Decision Date | 10 December 1997 |
Docket Number | Nos. 96-31013,97-30529,s. 96-31013 |
Citation | 130 F.3d 1138 |
Parties | In the Matter of Julian E. FERNANDEZ, Estate of, Debtor, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, State of Louisiana, Appellant, v. PNL ASSET MANAGEMENT COMPANY LLC; Jean O. Turner, Appellees. In the Matter of Julian E. FERNANDEZ, Debtor, STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Appellee, v. Jean O. TURNER, trustee; PNL Asset Management Company, Appellants. |
Court | U.S. Court of Appeals — Fifth Circuit |
Ronald J. Bertrand, Bertrand & Soileau, Rayne, LA, for Dept. of Transp. and Dev., State of La.
Mark Bernard Stern, Michael Eugene Robinson, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for United States.
Gerald F. Slattery, Jr., Paul J. Goodwin, Schully, Roberts, Slattery & Jaubert, New Orleans, LA, for PNL Asset Management Company LLC.
Jan M. Hayden, Robyn Jeana Spalter, Tristan Edwards Manthey, Bronfin & Heller, New Orleans, LA, for Jean O. Turner.
Leonard Howard Gerson, Angel & Frankel, New York City, for Business Bankruptcy Law Committee of the New York County Lawyers' Association, Amicus Curiae.
Appeals from the United States District Court for the Eastern District of Louisiana; Patrick E. Carr, Judge.
Before REYNALDO G. GARZA, HIGGINBOTHAM and DAVIS, Circuit Judges.
It is ORDERED that the petitions for rehearing filed in the above case are DENIED. We revise the last paragraph of Section III and the first paragraph of Section IV to read as follows:
It is well-established that the Eleventh Amendment does not bar the United States government from filing suit in federal court against a state. United States v. Mississippi, 380 U.S. 128, 140, 85 S.Ct. 808, 815, 13 L.Ed.2d 717 (1965) ( ); United States v. Texas, 143 U.S. 621, 641-46, 12 S.Ct. 488, 492-94, 36 L.Ed. 285 (1892). It is, however, a great leap to suggest that granting continuing federal jurisdiction in tandem with 12 U.S.C. § 1819(b)(1) and 28 U.S.C. § 1345 permit private successors to the FDIC to avoid the Eleventh Amendment by slipping into the shoes of the United States. While a state's consent to being sued by the United States is deemed to be given when admitted into the Union, the same cannot be said with respect to a private party stepping into the shoes of an agency of the federal government which may be seen to lie "outside the structure of the [original] Union." See Monaco v. Mississippi, 292 U.S. 313, 322-23, 330, 54 S.Ct. 745, 748, 751, 78 L.Ed. 1282 (1934) ( )(quoting The Federalist No. 81); United States v. Texas, 143 U.S. 621, 646, 12 S.Ct. 488, 494, 36 L.Ed. 285 (1892) ( ). In other words, a private successor to the FDIC cannot by implication enjoy the status accorded the national government for Eleventh Amendment purposes. Rather, ...
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