In Re: Vegliante

• Court: Court of Appeals for the Third Circuit
• Decided: July 30, 2002
• Docket: 01-3972
• Status: Unpublished

Opinion

Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit

7-30-2002

In Re: Vegliante Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3972

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Recommended Citation "In Re: Vegliante " (2002). 2002 Decisions. Paper 463. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/463

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IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 01-3972

In Re: Rudolph Vegliante, Jr. Debtor

Rudolph Vegliante, Jr., Appellant

v.

STATE OF NEW JERSEY, DEPARTMENT OF TREASURY, DIVISION OF TAXATION

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 01-cv-00788) District Judge: Honorable James M. Munley

Argued June 27, 2002

Before: AMBRO and STAPLETON, Circuit Judges O’NEILL*, District Judge

(Filed: July 30, 2002 )

* Honorable Thomas N. O’Neill, Senior United States District Court Judge for the Eastern District of Pennsylvania, sitting by designation.

Brett J. Riegel, Esquire (Argued) Amori & Riegel 717 Sarah Street Stroudsburg, PA 18360 Attorney for Appellant

David Samson Attorney General of New Jersey Patrick DeAlmeida Deputy Attorney General of Counsel Tracey E. Richardson (Argued) Deputy Attorney General on the Brief Office of Attorney General of New Jersey Department of Treasury, Division of Taxation 25 Market Street, P.O. Box 106 Trenton, NJ 08625 Attorneys for Appellee

Transcribed by: Geraldine C. Laws, CET

(Proceedings recorded by electronic sound recording; transcript prepared by AAERT-certified transcriber.)

(The following bench opinion was delivered in open court:)

BENCH OPINION

AMBRO, Circuit Judge

THE HONORABLE JUDGE AMBRO: The Supreme Court stated in

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73 (1996), that "the 11th Amendment

restricts the judicial power under Article III, and Article I cannot be used to circumvent the

constitutional limitations placed upon federal jurisdiction." In In Re: Sacred Heart Hospital

2 of Norristown, 133 F.3d 237 (3d Cir. 1998), we observed that "since Seminole Tribe,

Section 5 of the 14th Amendment has been the sole basis for Congress to abrogate the

States' immunity under the 11th Amendment." Id. at 242 (quoting College Savings Bank v.

Florida Prepaid Post-Secondary Education Expense Board, 131 F.3d 353, 358 (3d

Cir.1997)). We held in Sacred Heart that the bankruptcy clause is not a valid source of

abrogation power. Sacred Heart, 133 F.3d at 243.

In this case, Vegliante asks us to allow him to pursue an adversary proceeding in

bankruptcy against the State of New Jersey. The adversary proceeding at issue is plainly a

suit within the meaning of the 11th Amendment. Missouri v. Fiske, 290 U.S. 18, 26 (1993)

(quoting Cullens v. Virginia, 19 U.S. 264 (1821)). The State of New Jersey received a

summons requiring it to appear in court or face a default judgment against it. That qualifies

as a suit. See id.

Vegliante seeks to prosecute a suit against the State of New Jersey without its

consent. We cannot oblige that request in light of Sacred Heart's ruling on state sovereign

immunity. Therefore, the District Court's order is affirmed.

3 TO THE CLERK:

Please file the foregoing Bench Opinion.

By the Court,

/s/ Thomas L. Ambro Circuit Judge