OPINION
PUSATERI, Bankruptcy Judge.
Asserting a violation of its sovereign immunity, the Wyoming Department of Transportation (“the DOT”) moved to dismiss an adversary proceeding filed against it by Beverley A. Straight (“Straight”), the Chapter 7 debtor. Straight’s adversary proceeding seeks damages against the DOT resulting from the DOT’s violation of 11 U.S.C. §§ 362(a) and 525(a) when it revoked Straight’s “Disadvantaged Business Enterprise” (“DBE”) certification solely because of Straight’s bankruptcy filing. The bankruptcy court denied the DOT’s motion to dismiss on the grounds that rulings in Wyoming Dep’t of Transp. v. Straight (In re Straight), 209 B.R. 540 (D.Wyo.1997), holding that the DOT’s sovereign immunity in a related matter was validly abrogated under § 106(a) or waived under § 106(b), and Wyoming Dep’t of Transp. v. Straight (In re Straight), 143 F.3d 1387 (10th Cir.), cert. denied, 525 U.S. 982, 119 S.Ct. 446, 142 L.Ed.2d 400 (1998), affirming the district court’s holding that the DOT waived its sovereign immunity under § 106(b), established the law of the case. We find the doctrine of law of the case to be inapplicable under the facts of this case, and conclude that § 106(a) is an unconstitutional attempt to abrogate Wyoming’s sovereign immunity from Straight’s adversary proceeding.1 Consequently, the bankruptcy court’s decision must be reversed.
[407]*407
1. Background,
A. The Contempt and Fee Orders
Straight operated a highway flagging business known as “Centerline Traffic Control and Flagging” (“Centerline”). Centerline was certified by the DOT as a DBE. DBE certification entitled Center-line to bid for subcontracting jobs on federally-funded state highway projects in which general contractors obtain federal incentives for hiring DBE’s. The DBE certification process is conducted through the DOT, and the DOT also lets construction bids.2
On January 13, 1995, Straight and her husband filed a petition under Chapter 13 of the Bankruptcy Code. The DOT received notice of the case. Although the DOT did not file a proof of claim, the Wyoming Department of Employment and the Wyoming Workers’ Safety & Compensation Division (“the Other State Entities”) filed proofs of claim that totaled about $30,000.
Shortly after Straight and her husband filed their Chapter 13 petition, the DOT recertified Centerline as a DBE. However, a few weeks later, the DOT sent a letter indicating it intended to decertify Center-line as a DBE because Straight had filed a Chapter 13 case and “lost the ability to control [her] business; that control now lies in the hands of the Bankruptcy Court and the Bankruptcy Trustee.” The letter gave a short period to respond. Straight replied that the legal premise for the DOT’s threat to decertify Centerline was incorrect, citing § 1304(b) of the Bankruptcy Code. The DOT proceeded to de-certify Centerline as a DBE on March 28, 1995, claiming that Centerline was no longer eligible for DBE status under 49 C.F.R. § 23.53(a)(2) because Straight did not “possess the financial and bonding resources necessary to operate the business in its field of work.” The notice of this action added that Straight had 180 days to appeal the decision to the United States Department of Transportation.
The Straights filed a “Motion for Order to Show Cause and/or Contempt Citation,” asserting that the DOT’s decertification of Centerline as a DBE constituted a violation of the automatic stay under § 362(a) and the prohibition in § 525(a) against revoking Straight’s property rights based solely on her bankruptcy filing. The bankruptcy court issued an order to show cause, scheduling a hearing on the matter for August 1995. The DOT did not appear at the hearing, but filed a written response to the motion and order that the court received later that day.
On September 20, 1995, the bankruptcy court issued an order on the Straights’ motion (“the Contempt Order”), holding that the DOT’s stated reason for revoking the DBE certification was mere pretext, and that the revocation violated §§ 362(a) and 525(a). The bankruptcy court ordered the DOT to reinstate Centerline as a DBE, awarded the Straights attorney’s fees and costs, and ordered their attorney to serve on the DOT an itemization of the fees and costs incurred. The Contempt Order also stated: “[S]hould the [Straights] seek damages in addition to their attorney fees, they must file an adversary proceeding in accordance with Fed. R. Bankr.P. 7001.” The Straights’ attorney thereafter filed an itemization and served it on the DOT. The DOT did not object to the itemization, and on July 11, 1996, the bankruptcy court entered an order approving fees and costs of $1,949.94 (“the Fee Order”).
B. Appeal of the Fee Order
The DOT appealed the Fee Order to the United States District Court for the District of Wyoming, asserting a violation of its sovereign immunity. That court affirmed, finding that § 106(a) expressly áb-rogated the DOT’s sovereign immunity for actions under §§ 362 and 525. Wyoming [408]*408Dep’t of Transp. v. Straight (In re Straight), 209 B.R. 540 (D.Wyo.1997) (“Straight I”). In light of its analysis of Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the court ruled that § 106(a) was constitutional. Id. at 546-555. Alternatively, the court held that the DOT’s sovereign immunity had been waived under § 106(b) when the Other State Entities filed proofs of claim. Id. at 555-58.
The district court’s order was affirmed by the United States Court of Appeals for the Tenth Circuit. Wyoming Dep’t of Transp. v. Straight (In re Straight), 143 F.3d 1387 (10th Cir.) (“Straight II”), cert. denied, 525 U.S. 982, 119 S.Ct. 446, 142 L.Ed.2d 400 (1998). The Tenth Circuit refused to address the constitutionality of § 106(a) and its application to the case, but affirmed on the ground that the DOT’s sovereign immunity had been waived under § 106(b) as a result of the filing of the Other State Entities’ proofs of claim, and that § 106(b) is constitutional. Id. at 1389-92.
C. The Damages Suit
While the appeal of the Fee Order was pending, and in compliance with the bankruptcy court’s directive in the Contempt Order, the Straights filed an adversary proceeding against the DOT (“the Damages Suit”). In it, they sought compensatory and punitive damages, plus attorney’s fees and costs, based on contracts Straight claims she lost because the DOT revoked the DBE certificate, contracts that would allegedly have produced net profits of over $250,000. At some point, Straight’s husband was dismissed from the suit. The DOT filed a motion to dismiss the complaint, declaring that “this Court has no jurisdiction to proceed against the [DOT] on the grounds and for the reason that the State is not a creditor of the [Straights] nor has the State waived its sovereign immunity under the 11th Amendment to the United States Constitution.”
At the DOT’s request, the bankruptcy court postponed ruling on the motion to dismiss while the Fee Order appeal was pending. After the decision in Straight II, however, the bankruptcy court entered an order denying the DOT’s motion. In that order, the bankruptcy court held that the decisions in Straight I and Straight II disposed of the DOT’s claim of sovereign immunity, stating: “[T]he matter has effectively been resolved by the District Court’s order of May 14, 1997 in the underlying bankruptcy case, which was affirmed by the Tenth Circuit Court of Appeals.” The DOT timely appealed, bringing the dispute to us.
D. Conversion of Straight’s Chapter IS case to Chapter 7
About three months after the filing of the Damages Suit, the bankruptcy court entered orders that bifurcated Straight’s case from her husband’s case, dismissed her husband’s case, and converted her case to one under Chapter 7. No Chapter 13 plan of reorganization for either of the Straights was ever confirmed.
Neither the bankruptcy court’s order denying the DOT’s motion to dismiss the Damages Suit nor the briefs filed in this appeal addressed the conversion of Straight’s case from Chapter 13 to Chapter 7, or the effect of that conversion on the issue of any waiver of the DOT’s sovereign immunity under § 106(b). In supplemental briefing required by this Court, however, Straight admits that, pursuant to § 348(f)(1), the claim she asserts against the DOT in the Damages Suit is no longer property of the estate.3
[409]*409
II. Appellate Jurisdiction
With the consent of the parties, this Court has jurisdiction to hear timely-filed appeals from “final judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit. 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr.P. 8002. This appeal is properly before us. The DOT timely filed a notice of appeal from the bankruptcy court’s order, and the parties have consented to this Court hearing the appeal by failing to elect to have it heard by the district court. Id. § 158(c); Fed. R. Bankr.P. 8001; 10th Cir. BAP L.R. 8001-1. In a prior order, this Court determined the order appealed is a final order under the collateral order doctrine.
III. Standard of Review
“For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see Fed. R. Bankr.P. 8013; Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1370 (10th Cir.1996). The bankruptcy court’s order refusing to dismiss the Damages Suit based on the preclusive effect of Straight I and Straight II is reviewed de novo. See, e.g., State Bank v. Gledhill (In re Gledhill), 76 F.3d 1070, 1082 (10th Cir.1996) (applicabili ty of preclusive doctrines reviewed de novo); United States v. Lacey, 982 F.2d 410, 411 (10th Cir.1992) (preclusive effect of prior judgment reviewed de novo); see also Straight II, 143 F.3d at 1387 (applying de novo review to sovereign immunity holding).
IV.Discussion
Contrary to the bankruptcy court’s ruling, we conclude that neither Straight I nor Straight II establishes the law of the case for the Damages Suit, and therefore they are not binding on the issues of waiver or the constitutionality of § 106(a). The DOT has not waived its sovereign immunity in the Damages Suit under § 106(b) or common law. Furthermore, because § 106(a) is an unconstitutional attempt to abrogate the DOT’S sovereign immunity from the Damages Suit,4 the bankruptcy court’s order refusing to dismiss the Damages Suit is reversed.
[410]*410
A. The law of the case doctrine
In the Tenth Circuit, the law of the case doctrine is defined as follows:
Issues decided on appeal become the law of the case and are to be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, “unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.”
Woods v. Kenan (In re Woods), 215 B.R. 623, 625 (10th Cir. BAP 1998) (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.), reh’g denied, 381 F.2d 34 (5th Cir.1967)), aff'd, 173 F.3d 770 (10th Cir.), cert. denied, — U.S. -, 120 S.Ct. 187, 145 L.Ed.2d 157 (1999). The doctrine does not apply “‘unless an appellate decision has issued on the merits of the claim sought to be precluded.’ ” Mitchell v. Maynard, 80 F.3d 1433, 1448 (10th Cir.1996) (quoting Wilmer v. Board of County Comm’rs, 69 F.3d 406, 409 (10th Cir.1995)); accord Octagon Resources, Inc. v. Bonnett Resources Corp. (In re Meridian Reserve, Inc.), 87 F.3d 406, 410 (10th Cir.1996). An earlier decision, therefore, will not apply to a later matter in related litigation if the later claim, although premised on similar facts, is based on different evidence or admissions. See, e.g., Meridian Reserve, 87 F.3d at 410 (doctrine does not apply where previous ruling was made in different context, involving different considerations); Guidry v. Sheet Metal Workers Int’l Ass’n, Local No. 9, 10 F.3d 700, 706 (10th Cir.1993) (doctrine does not apply if earlier matter is “factually distinct”), modified on other grounds on rehearing en banc, 39 F.3d 1078 (10th Cir.1994), cert. denied, 514 U.S. 1063, 115 S.Ct. 1691, 131 L.Ed.2d 556 (1995). This is particularly true in bankruptcy, where a “case” may involve a series of distinct adversary proceedings or contested matters, each involving a similar set of facts, but different claims based on different evidence.
B. Straight I and Straight II
An analysis of the application of the law of the case doctrine in this case requires that we review the holdings in Straight I and Straight II. In Straight I, the DOT argued that sovereign immunity barred the bankruptcy court’s Fee Order. The district court rejected this contention, holding that § 106(a) abrogated the DOT’s sovereign immunity, and was constitutional under Seminole Tribe. Straight I, 209 B.R. at 546-55. Alternatively, the district court held that the Other State Entities’ proofs of claim served as a waiver of the DOT’s sovereign immunity under § 106(b). Id. at 555-58.
Straight II, 143 F.3d at 1389, affirmed the district court’s § 106(b) ruling only, concluding that the constitutionality of § 106(a) need not be addressed because the DOT’s immunity had been waived under § 106(b).5 To determine whether § 106(b) applies, the Tenth Circuit said the following questions must be answered:
1) What is a “governmental unit” and does Wyoming fit that definition in this case; 2) if so, has the Debtor asserted a claim against Wyoming that is “property of the estate”; 3) did that claim arise “from the same transaction or occur-[411]*411renee” as the proofs of claim previously filed by the State?
Id. at 1390. Answering these questions, the Circuit first held that the DOT was a “governmental unit” as that term is defined in § 101(27). Straight II, 143 F.3d at 1390-91. The DOT and the Other State Entities, also “governmental units,” were all parts of the State of Wyoming, which should be regarded in bankruptcy as one unified entity. Id. Therefore, the Other State Entities’ proofs of claim 'applied to all of Wyoming’s agencies for purposes of § 106(b). Id.
The Tenth Circuit also held that the claim Straight was asserting against the DOT was “property of the estate,” stating:
That leads us to consideration of whether Ms. Straight has asserted a claim against Wyoming that is property of the estate. Although one might expect that claims of this nature are normally for money damages, the action before us at this time seeks a recovery that is not essentially monetary. In filing her motion to show cause and for contempt, Ms. Straight ... initially sought the restoration of the certificate she owned prior to bankruptcy that was essential to the conduct of her postpetition business. Without that certificate, she could not conduct her affairs as a flagging contractor, nor could she effect a Chapter 13 plan. We believe, therefore, there can be no doubt that in this quest the Debtor was in every sense seeking the return of property of the estate as that concept is broadly defined in 11 U.S.C. § 541(a)(1).
Id. at 1391 (emphasis added).
Finally, answering the third question, the Circuit concluded that the claim asserted against the DOT arose from the “same transaction or occurrence” as the Other State Entities’ proofs of claim. Id. at 1391-92. The Circuit held that those proofs of claim, which asserted claims related to Straight’s operation of Centerline, were linked to the DOT’s decertification of Centerline as a DBE, which was what prompted Straight to seek a contempt order against the DOT. Id. at 1391. Since both the proofs of claim and the contempt allegations arose from Straight’s business, the Tenth Circuit concluded that the respective claims arose from the same transaction or occurrence. Id. at 1392.
C. Straight II is not the law of the case in the Damages Suit
Applying the law of the case doctrine to issues of waiver under § 106(b) in this appeal, we conclude that Straight II is not binding in the Damages Suit. Unlike Straight’s claim against the DOT in Straight II, the claim asserted by Straight in the Damages Suit is not, by the parties’ admissions and applicable law, “property of the estate.” This element of § 106(b) not being met, we need not address whether Straight II is the law of the case on the other two elements of the test the Tenth Circuit applied under § 106(b).
Section 106(b) requires that a debt- or’s claim against a governmental unit be “property of the estate” as that term is defined in the Bankruptcy Code. 11 U.S.C. § 106(b); Straight II, 143 F.3d at 1390-91. Straight II held that Straight’s claim against the DOT in the Fee Order appeal was property of the estate under § 541(a)(1) because she was seeking “restoration of the certificate she owned prior to bankruptcy that was essential to the conduct of her postpetition business.” Id. at 1391. The modest attorney fees at issue were only incidental to the claim in the Fee Order appeal, which Straight II determined was “not essentially monetary.” Id. It elaborated that “[without that certificate, [Straight] could not conduct her affairs as a flagging contractor, nor could she effect a Chapter 13 plan.” Id. Based on this premise, the Tenth Circuit held that “there can be no doubt that in this quest [Straight] was in every sense seeking the return of property of the estate as that concept is broadly defined in 11 U.S.C. § 541(a)(1).” Id.
[412]*412Straight’s claim against the DOT in the Damages Suit is a postpetition cause of action, seeking damages based on contracts that Straight asserts: (1) were obtained by her business postpetition; (2) would have produced net profits of over $250,000; and (3) were lost because the DOT violated §§ 362(a) and 525(a). The parties agree that Straight’s claim against the DOT in the Damages Suit is not property of the Chapter 7 estate. Straight’s position, expressed in her Supplemental Brief, is that any recovery she receives in the Damages Suit is not property of the estate, but is hers alone.
Straight’s position is supported by application of the express terms of the Bankruptcy Code. While her claim against the DOT could be viewed as property of the estate under § 1306(a),6 that section no longer applies because Straight’s Chapter 13 case has been converted to Chapter 7. Pursuant to § 348(f)(1), when Straight’s case was converted to Chapter 7, the Chapter 7 estate consisted of the property still in her possession or control that was property of the estate as of the date she originally filed for bankruptcy.7 Since the claim asserted in the Damages Suit did not even exist on the petition date, it is not property of the Chapter 7 estate.
Because (1) the parties agree that Straight’s claim against the DOT in the Damages Suit is not property of the estate, and (2) this agreement is consistent with the plain language of § 348(f), this case is factually distinguishable from Straight II. The application of § 106(b) to the Fee Order in Straight II, therefore, is not binding as law of the case in the Damages Suit.
D. Common law waiver is inapplicable in the Damages Suit
Since § 106(b) was held to apply in the Fee Order appeal, the district court and the Tenth Circuit were not required in Straight I or Straight II to address whether the DOT had waived its sovereign immunity under common law rules of waiver. As § 106(b) does not apply in the Damages Suit, we must examine whether common law waiver applies, prior to an analysis of whether § 106(a) is constitutional. See, e.g., Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173, 184, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999) (“[W]e do not ordinarily reach out to make novel or unnecessarily broad pronouncements on constitutional issues when a case can be fully resolved on a narrower ground.”); Clinton v. Jones, 520 U.S. 681, 690, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (“ Tf there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.’ ” (quoting Rescue Army v. Municipal Court, 331 U.S. 549, 570 n. 34, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947); further internal quotations omitted)); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 7, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993) (courts should not pass on constitutionality of Act of Congress if constitutional issue [413]*413can be avoided (citing eases)). For the reasons set forth below, we hold that the DOT’s sovereign immunity has not been waived under common law rules of waiver.
The Supreme Court has indicated that: “A State may effectuate a waiver of its constitutional immunity by a state statute or constitutional provision, or by otherwise waiving its immunity to suit in the context of a particular federal program.” Atascadero State Hosp. v. Scanlon, 478 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), quoted in Innes v. Kansas State Univ. (In re Innes), 184 F.3d 1275, 1278 (10th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1530, 146 L.Ed.2d 345 (2000). The Tenth Circuit’s recent application of common law waiver of sovereign immunity in bankruptcy compels an inquiry into the doctrine’s applicability in the present appeal, where the underlying events implicate a federal program. See Innes, 184 F.3d at 1278-81 (without mentioning § 106(b), Tenth Circuit held that Kansas waived immunity in discharge-ability action by participating in federal program mandating compliance with bankruptcy laws); Gardner v. New Jersey, 329 U.S. 565, 574, 67 S.Ct. 467, 91 L.Ed. 504 (1947) (bankruptcy court may entertain objections to State’s proof of claim despite assertion of sovereign immunity); Rose v. United States Dep’t of Educ. (In re Rose), 187 F.3d 926 (8th Cir.1999) (relying on common law principle set forth in Gardner that submission of proof of claim in bankruptcy waives immunity); Georgia Dep’t of Revenue v. Burke (In re Burke), 146 F.3d 1313 (11th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 2410, 144 L.Ed.2d 808 (1999) (applying Gardner, not § 106(b)).
Common law waiver is narrow in scope. It “require[s] an unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment.” Atascadero, 473 U.S. at 241, 105 S.Ct. 3142, quoted in Innes, 184 F.3d at 1278; see College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 2226, 144 L.Ed.2d 605 (1999) (“College Savings”); United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). “The test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.” Atascadero, 473 U.S. at 241, 105 S.Ct. 3142. “A waiver of Eleventh Amendment immunity will be found ‘only where stated by the most expressive language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.’ ” Innes, 184 F.3d at 1278 (quoting Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (internal quotation omitted)). Even if a State’s constitution or statute waives immunity in its own courts, such a waiver is insufficient to waive its immunity in federal court. College Savings, 119 S.Ct. at 2226; Atascadero, 473 U.S. at 241, 105 S.Ct. 3142; Innes, 184 F.3d at 1279. Furthermore, a sovereign’s consent to be sued “‘must be construed strictly in favor of the sovereign.’ ” Nordic Village, 503 U.S. at 34, 112 S.Ct. 1011 (quoting McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951)).
Wyoming has not waived its immunity in federal actions by constitutional provision or statute. The Wyoming Constitution provides that “[s]uits may be brought against the state in such manner and in such courts as the legislature may by law direct.” Wyo. Const. art. 1, § 8. Wyo. Stat. Ann. § 1-35-101 declares that actions against the State may only be maintained in state courts. See Williams v. Eaton, 443 F.2d 422 (10th Cir.1971) (immunity is waived in Wyoming only for actions in state courts, not federal courts).
The DOT also has not waived its immunity by participating in the DBE program, which is administered, in part, by the United States Secretary of Transportation. The federal regulations implementing the DBE program in no way re[414]*414quire a waiver of a participating State’s sovereign immunity. See 49 C.F.R. subtit. A, pt. 23, subpt. F (1998). While the Tenth Circuit held in Innes, 184 F.3d at 1280-81, that a State’s participation in a federal program that requires adherence to bankruptcy law is sufficient to effect a waiver of sovereign immunity, the applicable federal regulations in this case, unlike those in Innes,8 do not mention bankruptcy. See 49 C.F.R. subtit. A, pt. 23, subpt. F.
Finally, although some courts have held that a State’s active participation in a case or its filing of a proof of claim waives the State’s immunity as to all matters in the case,9 we do not adopt this position because it would render § 106(b) useless, and run counter to the Supreme Court’s insistence on strictly construing waivers of sovereign immunity. See Nordic Village, 503 U.S. at 34, 112 S.Ct. 1011. See also United States v. Murdock Mach. & Eng’g Co., 81 F.3d 922 (10th Cir.1996) (under Bankruptcy Act, which did not contain waiver of sovereign immunity provision similar to § 106, United States was immune from suit related to automatic stay despite fact it had filed proof of claim; court makes clear that filing proof of claim did not waive immunity of United States in general).
E. The constitutional ruling in Straight I is not law of the case
Having found § 106(b) waiver and common law waiver inapplicable to the Damages Suit, we are faced squarely with the issue of whether the DOT’s sovereign immunity has been validly abrogated by § 106(a). The bankruptcy court determined that it was bound by the district court’s decision in Straight I, which held, in part, that § 106(a) is constitutional. See Straight I, 209 B.R. at 546-55. We conclude that Straight I is not binding as the law of the case in the Damages Suit.
As discussed above, the law of the case doctrine requires that “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983), quoted in Stifel, Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1543 (10th Cir.1996). “This rule of practice promotes the finality and efficiency of the judicial process by ‘protecting against the agitation of settled issues.’ ” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (quoting IB J. Moore, J. Lucas, & T. Currier, Moore’s Federal Practice ¶ 0.404[1], at 118 (1984)). At first blush, the doctrine would appear to apply in this case to the district court’s constitutional analysis of § 106(a).
Certain exceptions to the law of the case doctrine, however, prevent its application in this case. First, the law of the case doctrine does not apply to dictum. Meridian Reserve, 87 F.3d at 410; 18 J. Moore, Moore’s Federal Practice § 134.21[2] & n. 3 (3d ed.1999) (citing several cases) [hereafter “Moore’s”]. In Straight II, the Tenth Circuit effectively ruled that the constitutional ruling in Straight I was dictum, because that matter [415]*415was properly decided under § 106(b). See Straight II, 143 F.3d at 1389 and 1392. Second, the law of the case doctrine is also inapplicable if there has been a change in the law, either due to a statutory change or a decision by a higher court. Moore’s, § 134.21[3]; Stifel, 81 F.3d at 1544. Since Straight I was decided, the Supreme Court has handed down five cases that establish that the district court’s constitutional analysis was incorrect. Kimel v. Florida Bd. of Regents, — U.S. -, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (“Florida Prepaid ”); College Savings, 527 U.S. 666, 119 S.Ct. 2219; Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (addressing Congress’ power to enforce Fourteenth Amendment, but not States’ sovereign immunity). Because these exceptions to the law of the case doctrine apply, Straight I is not binding, and we must examine the constitutionality of § 106(a) de novo.
F. The constitutionality of § 106(a)
In Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2246-47, 144 L.Ed.2d 636 (1999), the Supreme Court explained that although it had sometimes referred to the States’ sovereign immunity as “Eleventh Amendment immunity,” the immunity actually does not derive from that Amendment. Instead, it is a fundamental aspect of the immunity the States enjoyed before the ratification of the Constitution, and includes all that immunity except to the extent the States were required to surrender it as part of the constitutional design or under subsequent Amendments to the Constitution. Except for the waiver-by-filing-proof-of-claim theories we have rejected above, no claim is made here that Wyoming’s immunity from the Damages Suit has been affected in any way except by Congress’ enactment of § 106(a). In a series of decisions beginning with Semi-
nole Tribe, the Court has made clear that Congress has only limited authority to abrogate the States’ immunity by statutes similar to § 106(a). See Seminole Tribe; Alden; College Savings; Florida Prepaid; Kimel.
The DOT asserts that § 106(a) is not a valid abrogation of Wyoming’s sovereign immunity. Section 106(a) provides in part:
Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following:
(1) Sections 105, 106, 107, 108, 303, 346, 362, 363, 364, 365, 366, 502, 503, 505, 506, 510, 522, 523, 524, 525, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 722, 724, 726, 728, 744, 749, 764, 901, 922, 926, 928, 929, 944, 1107, 1141, 1142, 1143, 1146, 1201, 1203, 1205, 1206, 1227, 1231, 1301, 1303,1305, and 1327 of this title.
The four succeeding subsections of § 106(a) further define various aspects of this abrogation. For example, subsection (3) specifies that money recoveries are authorized but that punitive damages are not. In the Damages Suit, Straight asked for punitive damages, so this provision bars that aspect of her claim.
The parameters of a valid abrogation of sovereign immunity are limited. According to Seminole Tribe, a statute attempting to abrogate the States’ sovereign immunity will pass constitutional muster only if two questions can be answered, “Yes”: “first, whether Congress has ‘unequivocally expressed] its intent to abrogate the immunity,’ Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); and second, whether Congress has acted ‘pursuant to a valid exercise of power,’ ibid.” 517 U.S. at 55, 116 S.Ct. 1114 (alteration in original).
1. Section 106(a) is an unequivocal expression of intent to abrogate the States’ sovereign immunity
Section 106(a) clearly meets the “unequivocal intent to abrogate” test. It pro[416]*416vides that “sovereign immunity is abrogated as to a governmental unit ... with respect to” a list of sixty sections of the Bankruptcy Code, and that “[t]he court may hear and determine any issue arising with respect to the application of such sections to governmental units.” 11 U.S.C. § 106(a)(1) & (2). It also authorizes the bankruptcy court to “issue against a governmental unit an order, process, or judgment under such sections ..., including an order or judgment awarding a money recovery.” Id. § 106(a)(3). The term “governmental unit” means a “State” and a “department, agency, or instrumentality of ... a State.” Id. § 101(27).
Thus, in § 106(a), Congress has made its intention to abrogate the States’ sovereign immunity “ ‘unmistakably clear in the language of the statute.’ ” Seminole, 517 U.S. at 56, 116 S.Ct. 1114 (quoting Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)); see also Sacred Heart Hosp. v. Pennsylvania Dep’t of Pub. Welfare (In re Sacred Heart Hosp.), 133 F.3d 237, 243 (3d Cir.1998) (in enacting § 106(a), Congress unequivocally expressed its intent to abrogate the States’ Eleventh Amendment immunity); accord Schlossberg v. Maryland Comptroller of the Treasury (In re Creative Goldsmiths of Washington, D.C., Inc.), 119 F.3d 1140, 1145 (4th Cir.1997), cert. denied, 523 U.S. 1075, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998). The DOT does not dispute that it is a “governmental unit” to which § 106(a) applies. Consequently, if § 106(a) was enacted pursuant to a valid exercise of power, it validly abrogates the DOT’S sovereign immunity.
2. Section 106(a) was not enacted pursuant to a valid exercise of power if premised on art. I, § 8 of the Constitution
In Seminole Tribe, the Supreme Court ruled that Congress could not use its power under the Indian Commerce Clause, U.S. Const, art. I, § 8, cl. 3, to abrogate the immunity of unconsenting States from suits by private parties in federal courts. 517 U.S. at 57-73, 116 S.Ct. 1114. The Court overruled the decision of Pennsylvania v. Union Gas Co., 491 U.S. 1, 19-20, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), which had upheld abrogation pursuant to the Interstate Commerce Clause. Id. at 61-66, 109 S.Ct. 2273. Since then, the Court has declared that Seminole Tribe means that none of Congress’ powers under article I of the Constitution will support an attempt to abrogate the States’ sovereign immunity. Alden v. Maine, 527 U.S. 706, -, 119 S.Ct. 2240, 2246, 144 L.Ed.2d 636 (1999); Florida Prepaid, 527 U.S. at -, 119 S.Ct. at 2205. After these decisions, it is clear that Congress’ article I power “To establish ... uniform Laws on the subject of Bankruptcies throughout the United States” does not include the power to abrogate the States’ sovereign immunity. U.S. Const, art. I, § 8, cl. 4.
8. Considered as a whole, § 106(a) was not enacted pursuant to a valid exercise of power under § 5 of the Fourteenth Amendment of the Constitution
Congress may abrogate the States’ sovereign immunity under § 5 of the Fourteenth Amendment. Kimel, 120 S.Ct. at 644; Alden, 119 S.Ct. at 2267; College Savings, 119 S.Ct. at 2223; Florida Prepaid, 119 S.Ct. at 2205; Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114. This provision empowers Congress “to enforce” with “appropriate legislation” the guarantees set forth in § 1 of the Fourteenth Amendment: namely, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”10 We next consider, therefore, whether Congress properly enacted § 106(a) pursuant to its power to enforce that Amendment.
[417]*417So far as we have found, all the Circuit court decisions considering the question since Seminole Tribe was decided have ruled that § 106(a) cannot be interpreted to have resulted from an exercise of Congress’ power to enforce the Fourteenth Amendment. See Sacred Heart Hosp. v. Pennsylvania Dep’t of Pub. Welfare (In re Sacred Heart Hosp.), 133 F.3d 237, 243-44 (3d Cir.1998); Department of Transp. & Dev. v. PNL Asset Management Co. LLC (In re Fernandez), 123 F.3d 241, 245 (5th Cir.1997), amended on different point, 130 F.3d 1138; Schlossberg v. Maryland Comptroller of the Treasury (In re Creative Goldsmiths of Washington, D.C., Inc.), 119 F.3d 1140, 1146-47 (4th Cir.1997), cert. denied, 523 U.S. 1075, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998). We agree with these courts that the full reach of § 106(a) cannot be considered to have been aimed at preventing the States from violating the Fourteenth Amendment. For example, many of the provisions § 106(a) makes applicable to the States concern only, or at least mainly, types of relief made available to a trustee or debt- or-in-possession in a bankruptcy case without regard to any action that might have been taken by a State. (These include § 363 on the use, sale, or lease of property, § 364 on obtaining postpetition credit, and § 365 on executory contracts and unexpired leases.) Another provision listed in § 106(a), § 547, would authorize the recovery of preferences from the States, and preferences require absolutely no wrongdoing by the parties from whom they may be recovered.
A Even considered only in connection with §§ 862(a) or 525(a), § 106(a) was not enacted pursuant to a valid exercise of power under § 5 of the Fourteenth Amendment of the Constitution
The dissent suggests that the validity of § 106(a) must be evaluated separately for each of the sixty Bankruptcy Code provisions listed in it. Such a separate analysis of the Code provisions referenced in § 106(a) would honor the maxim of statutory construction that allows for an unconstitutional provision to be severed in order to save the balance of the statute. In Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per cu-riam), the Court noted the standard for determining the severability of an unconstitutional provision: “ ‘Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’” (quoting Champlin Refining Co. v. Corporation Comm’n, 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932)). It should be noted that Congress indicated its intent that unconstitutional provisions be severed when it included a severability provision in the Bankruptcy Reform Act of 1994, the Act that amended § 106 into its present form.11
Yet even taking the approach of considering the abrogation of the States’ immunity only in connection with the specific provisions the debtor contends were violated in this case, §§ 362(a) and 525(a), we cannot agree that Congress had the authority under the Fourteenth Amendment to subject unconsenting States to private parties’ suits based on those provisions. Recent Supreme Court decisions make that view untenable.
Since Seminole Tribe, the Supreme Court has decided a number of cases concerning Congress’ power to enforce the Fourteenth Amendment. In the first, City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), a church alleged that a religiously-neutral state law [418]*418of general applicability violated the Religious Freedom Restoration Act of 1993 (RFRA) by infringing on the church’s free exercise of its religion. As the case came to the Court, the question was whether RFRA was a constitutional use of Congress’ power to enforce the Fourteenth Amendment. The Court concluded RFRA did not merely enforce the Due Process or Equal Protection Clauses of the Amendment, but instead exceeded Congress’ authority because it sought to change what the rights protected by those Clauses were. Id. at 531-32, 117 S.Ct. 2157. The Court indicated that the remedial, rather than substantive, basis of Congress’ power requires there to be “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that-end.” Id. at 520, 117 S.Ct. 2157. The Court noted that the legislative record of the RFRA lacked examples of modern instances of generally applicable laws passed because of religious bigotry. Id. at 529-31, 117 S.Ct. 2157. But RFRA’s major problem was that it attempted to make a substantive change in constitutional protections. Id. at 531-35, 117 S.Ct. 2157. Although the decision did not involve a Congressional attempt to abrogate the States’ immunity, it provided an analytical framework for subsequent cases that did.
In the summer of 1999, the Court decided two cases directly involving Congressional attempts to abrogate the States’ sovereign immunity that were claimed to be permissible exercises of its Fourteenth Amendment enforcement power. The Court found both attempts to be invalid. In one of the cases, College Savings Bank, 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999), the C,ourt ruled that property rights allegedly being protected under the Trademark Remedy Clarification Act were not property rights protected by the Due Process Clause of the Fourteenth Amendment. Id. at -, 119 S.Ct. at 2224-25. Consequently, the Act could not constitutionally abrogate the States’ immunity in order to protect those rights. Id.
The second case more significantly influences our analysis in this case, and requires a more extensive description. In it, Florida Prepaid, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), the Court indicated that the abrogation attempted in the Patent and Plant Variety Protection Remedy Clarification Act was not permissible because Congress had failed to identify any pattern of patent infringement by the States, much less a pattern of unreme-died patent infringement. Id. at -, 119 S.Ct. at 2207. In order to violate the Due Process Clause of the Fourteenth Amendment, the Court said, the States would not only have to invade patent rights, but also use sovereign immunity to deny patent owners compensation for those invasions. Id. City of Boerne, the Court said, declared “that for Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” Id. Because of the limited record of constitutional violations by the States, Congress’ failure to restrict the Act’s application to the States to cases involving arguable constitutional violations rendered it so out of proportion to a supposed remedial or preventive object that it cannot be understood to be in response to or designed to prevent unconstitutional behavior. Id. at -, 119 S.Ct. at 2210-11. Instead, the Act appears to have been intended to provide a uniform remedy for patent infringement and to place the States on the same footing as private parties under federal patent law. Id. at -, 119 S.Ct. at 2211. These are proper Article I concerns, but the Article I powers cannot support the abrogation attempted in the Act. Id.
More recently, in Kimel v. Florida Board of Regents, — U.S. -, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), the Court ruled that the abrogation of the States’ immunity found in the Age Discrimination in Employment Act (ADEA) also exceeded [419]*419Congress’ § 5 enforcement power. The Equal Protection Clause of the Fourteenth Amendment prohibits States from using age classifications that are not rationally-related to a legitimate state interest. Id., 120 S.Ct. at 645-47. The ADEA prohibited substantially more state employment decisions and practices than would likely be held unconstitutional under the rational basis equal protection standard, and the legislative record did not show that Congress had uncovered evidence of a pattern of unconstitutional age discrimination by the States. Id., 120 S.Ct. at 647-49. These two shortcomings made the attempted abrogation invalid. Id., 120 S.Ct. at 649.
These cases indicate that only a history of constitutional violations of the substantive provisions of the Fourteenth Amendment by the States can justify a statute abrogating their immunity in order to “enforce” those substantive provisions against them. To determine what sort of history would be required in the bankruptcy context, we must consider what substantive rights the Amendment grants. Certainly, it bestows no express right to bankruptcy relief of any sort. Furthermore, the Supreme Court has held that there is no constitutional right to a bankruptcy discharge, United States v. Kras, 409 U.S. 434, 446-47, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), and seems unlikely now to recognize any other general bankruptcy rights as inherent in the Constitution. The Court has not relied on the Privileges and Immunities Clause of the Amendment as a source of an implied or unstated constitutional right for many years, relying instead on the Due Process Clause as such a source. Sacred Heart Hosp., 133 F.3d at 244-45 & n. 11. The Due Process Clause of the Amendment prohibits a State from depriving a person of property without due process of law, and we can assume without deciding that at least some licenses, permits, charters, franchises, and other similar grants constitute “property” protected by the Clause. The Clause has been interpreted to require both (1) procedural due process — no deprivation of property unless fair procedures are used in doing so — and (2) substantive due process — no deprivation for an arbitrary reason, even if the procedures used are fair. Archuleta v. Colorado Dep’t of Insts., Div. of Youth Servs., 936 F.2d 483, 489-90 (10th Cir.1991); see also Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 528-29 (10th Cir.1998) (indicating substantive due process is violated if government action shocks consciences of federal judges, standard that may be equivalent to arbitrariness, or may be measure of arbitrariness required for executive rather than legislative action to violate substantive due process). Protecting people from State deprivations of their property based solely on their bankruptcy filing might provide a Fourteenth Amendment basis for § 106(a), if the Supreme Court would conclude that such deprivations are arbitrary or “shock the consciences” of the Justices. In Kras, the Court also held that classifications based on bankruptcy and challenged under the Equal Protection Clause are acceptable if supported by a rational justification. 409 U.S. at 445, 93 S.Ct. 631. Protecting people who file for bankruptcy from State discrimination based solely on their filing might also provide a Fourteenth Amendment basis for § 106(a), if the Supreme Court would conclude that such discrimination has no rational justification.
Can §§ 362(a) and 525(a), as they might be applied to the States, be viewed as tailored to remedy or prevent State conduct violating those Fourteenth Amendment rights? The automatic stay imposed by § 362(a) temporarily prevents creditors and other interested entities from taking certain actions against people who file for bankruptcy, a provisional remedy that might, in part, prevent States from violating those rights. Section 525(a) provides in pertinent part:
(a) ... [A] governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition [420]*420such a grant to, [or] discriminate with respect to such a grant against, ... a person that is ... a debtor under this title ... solely because such bankrupt or' debtor is ... a debtor under this title ..., has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title....
11 U.S.C. § 525(a). This provision might also, in part, prevent States from taking debtors’ property arbitrarily or discriminating against them without a rational justification. So, if Congress had identified a history of States unconstitutionally acting in violation of the stay, or taking property from or discriminating against people who filed for bankruptcy, then § 106(a) might be a proper exercise of Congress’ power to enforce the Fourteenth Amendment. However, we have not been directed to nor found any indication that Congress has ever identified such a history, either when it amended § 106 in 1994, see H.R.Rep. No. 103-885 at 42 (1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3350-51. or when it originally enacted §§ 362(a) and 525(a) in 1978 as part of the new Bankruptcy Code.
For § 525(a) alone, the dissent suggests the Supreme Court’s decision in Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971), supplies the necessary history. That case involved a Supremacy Clause challenge to a provision in Arizona’s Motor Vehicle Safety Responsibility Act. Under that Act, a person against whom a judgment had been entered for damages arising from an automobile accident could have his or her driver’s license and registration suspended if the judgment remained unsatisfied for sixty days, and the suspension would continue until the judgment was paid. Id. at 641-42, 91 S.Ct. 1704. The challenged provision declared that “‘[a] discharge in bankruptcy ... shall not relieve the judgment debtor from any of the requirements of this article.’ ” Id. at 642, 91 S.Ct. 1704 (quoting Ariz.Rev.Stat. Ann. § 28-1163(B)). Provisions requiring proof of financial responsibility for a future period were not before the Court. Id. at 642-43, 91 S.Ct. 1704. The Arizona Supreme Court had ruled that the main purpose of the Act was to protect the public using the highways from financial hardship that might result from the use of automobiles by financially irresponsible persons. Id. at 644, 91 S.Ct. 1704 (relying on and quoting from Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963), and citing many later cases following this ruling). Overruling two of its prior cases that had upheld similar state laws, the Supreme Court held this Arizona provision violated the Supremacy Clause by frustrating the purpose of the bankruptcy discharge to free debtors from the pressure and discouragement of most old debts. Id. at 649-52, 91 S.Ct. 1704. Thus, Perez addressed only a State’s attempt to avoid part of the impact of a bankruptcy discharge by forcing the debtor to pay a discharged debt.
When it adopted the new Bankruptcy Code in 1978, Congress indicated that § 525(a) codified Perez. H.R.Rep. No. 595, 95th Cong., 1st Sess. 366-7 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 81 (1978). While that is true so far as it goes, we note that § 525(a) also extended well beyond Perez. In that case, Arizona had not denied, revoked, suspended, or refused to renew the debtors’ drivers’ licenses and registration solely because they had filed for bankruptcy or were insolvent, but only because they had not paid a debt that had been discharged in bankruptcy. The portions of § 525(a) that prohibit acting against a person solely for filing for bankruptcy, or for being insolvent before filing for bankruptcy, thus cannot accurately be said to be derived from Perez. In addition, it appears the Arizona law required all judgment debtors, not just those who obtained a bankruptcy discharge, to pay the judgments against them arising out of automobile accidents before they could get their licenses renewed. The anti-discrimination portions of § 525(a), then, are not [421]*421really based on Perez, either. In passing, we note that in the case before us, Wyoming did not require Straight to pay a discharged or dischargeable debt. For present purposes, although the Fourteenth Amendment was not involved in Perez, we may assume that the States would violate the Due Process Clause of the Amendment if they took property from a debtor in violation of the Supremacy Clause, or would violate the Equal Protection Clause if they discriminated against a debtor in violation of the Supremacy Clause. Nevertheless, Perez supplies at most a history of unconstitutional State actions that could support the prohibition in § 525(a) against denying, revoking, suspending, or refusing to renew a license, permit, charter, franchise, or other similar grant to a person who has not paid a debt that is dischargea-ble or has been discharged. It provides no indication the States had a history of doing the other things prohibited by § 525(a).
The extensions of Perez found in § 525(a) indicate to us that the Supreme Court would conclude that Congress failed to restrict the provision to cases involving arguable constitutional violations by the States. This renders it so out of proportion to a supposed remedial or preventive object that it cannot be understood to be in response to or designed to prevent unconstitutional behavior, which the Court said in Florida Prepaid was required to make Congress’ abrogation of the States’ sovereign immunity a permissible exercise of its power to enforce the Fourteenth Amendment. Instead, somewhat like the patent law at issue in Florida Prepaid, § 525(a) appears to have been intended to subject the States to the limitations and place them on the same footing as private parties would be under bankruptcy law if they had the States’ power to regulate activities requiring licenses, permits, and similar grants of authority.
Because the history of unconstitutional State actions is so limited and § 525(a) addresses so many State actions not involved in that history, we conclude that the abrogation attempted in § 106(a)(1) is invalid even if we must consider it only in connection with § 525(a). We do not ignore the bankruptcy court’s finding that the DOT violated §§ 362(a) and 525(a) because it revoked Straight’s DBE certification while the automatic stay was in effect and solely because she had filed for bankruptcy, or condone the DOT’s actions if in fact so motivated. These actions might even constitute a violation of Straight’s rights under the Fourteenth Amendment, and make this case one that might contribute to a history that Congress could rely on to abrogate the States’ immunity in the future for similar actions. However, the Supreme Court’s decisions have made clear that Congress cannot assume the States might violate debtors’ Fourteenth Amendment rights in the future and abrogate the States’ immunity based on that assumption. Instead, if the States actually demonstrate a propensity to take unconstitutional actions, then Congress may, acting within its authority to enforce the substantive provisions of the Fourteenth Amendment, forcibly subject the States to private parties’ suits for future violations. In § 106(a) of the Bankruptcy Code, Congress has exceeded its authority under § 5 of the Fourteenth Amendment.
V. Conclusion
The bankruptcy court’s order denying the DOT’s motion to dismiss the Damages Suit was premised on an incorrect application of the law of the case doctrine that overlooked the factual differences between the Fee Order at issue in Straight I and Straight II and the Damages Suit. Moreover, because § 106(a) represents an invalid attempt to abrogate the DOT’s sovereign immunity, the Damages Suit must be dismissed. The bankruptcy court’s order is REVERSED, and the case is remanded for entry of an order granting the DOT’s motion to dismiss.