ORDER ON APPEAL
BOWEN, Jr., District Judge.
This matter is before the Court on the Government’s appeal from the judgment of the bankruptcy court entered August 3, 1992. Two issues only are presented on appeal: (1) whether 11 U.S.C. § 106(a) effected a waiver of sovereign immunity even though the Internal Revenue Service did not file a proof of claim; and (2) whether the bankruptcy court lacked jurisdiction to award attorney fees against the United States under 11 U.S.C. § 362(h). For the reasons set forth below, the Court affirms the judgment of the bankruptcy court in this matter.
I. BACKGROUND
Odessa Taylor filed a Chapter 13 bankruptcy
case on October 13, 1989. The United States, through the Internal Revenue Service (IRS) as its agent, was a listed creditor of the debtor in the Chapter 13 case and received notice of the Chapter 13 filing. The IRS subsequently withheld a portion of Taylor’s 1989 tax refund to offset a tax liability from a prior year. Taylor filed an adversary proceeding against the United States, alleging the IRS violated the automatic stay provision of 11 U.S.C. § 362(a).
The Government moved to dismiss on the ground that there was no applicable waiver of sovereign immunity under 11 U.S.C. § 106. The bánkruptcy court decided that § 106(a) did effectively waive sovereign immunity even though the Government filed no proof of claim in the underlying Chapter 13 case, denied the motion to dismiss, and subsequently awarded Taylor damages and attorney fees for the Government’s willful violation of the automatic stay.
The Government appealed to this Court, which on September 5, 1991, affirmed the bankruptcy court’s findings of fact and conclusions of law as to the Government’s waiver of sovereign immunity and the jurisdiction of the bankruptcy court to award damages and attorney fees to Taylor. The Court remanded the case, however, for enumeration of the method used to deter
mine the amount of damages and attorney fees.
The bankruptcy court entered its Order on Remand on July 31, 1992, and entered an Amended Judgment on August 3, 1992. The United States now appeals.
II. ANALYSIS
A. Sovereign Immunity Waiver Under 11 U.S.C. § 106(a)
The Government argues that the bankruptcy court erred in deciding that 11 U.S.C. § 106(a) effected a waiver of sovereign immunity, because the IRS did not file a proof of claim in the Chapter 13 bankruptcy case. This Court previously affirmed the bankruptcy court’s decision that the Government waived sovereign immunity under § 106(a) without filing proof of claim, and the issue would not now merit extended discussion but for the intervening decision by the Supreme Court in
United States v. Nordic Village, Inc.,
— U.S. -, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992), decided February 25, 1992, which the Government now cites in support of its position.
Nordic Village
held that 11 U.S.C. § 106(c)
does not effectively waive the Government’s sovereign immunity from an action seeking monetary recovery in bankruptcy because the text of subsection (c) is ambiguous and does not unequivocally express such a waiver. Although the Court had no occasion in
Nordic Village
to consider the precise question raised by the appeal in the present case, the Court noted in passing that § 106(a) — which was not at issue in
Nordic Village
— specifies a waiver of sovereign immunity when the Government has filed a proof of claim. — U.S. at -, 112 S.Ct. at 1012;
see In Re Town & Country Home Nursing Services, Inc.,
963 F.2d 1146, 1152 n. 2 (9th Cir.1992). The Government now relies upon this
obi-ter dictum
from
Nordic Village
in support of the argument that sovereign immunity has not been effectively waived in the case
sub judice.
Any waiver of sovereign immunity must be “unequivocally expressed” in the text of the statute to be effective.
Nordic Village,
at -, 112 S.Ct. at 1012. Title 11 U.S.C. § 106(a) explicitly provides that “[a] governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the [bankruptcy] estate and that arose out of the same transaction or occurrence out of which such governmental unit’s
claim
arose.”
Id.
(emphasis added). “Claim,” in turn, is statutorily defined to include
“right to payment,
whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured_” 11 U.S.C. § 101 (emphasis added).
Neither § 106(a) nor § 101 distinguish between filed and unfiled claims.
See In Re Town & Country Home,
963 F.2d at 1150.
Free access — add to your briefcase to read the full text and ask questions with AI
ORDER ON APPEAL
BOWEN, Jr., District Judge.
This matter is before the Court on the Government’s appeal from the judgment of the bankruptcy court entered August 3, 1992. Two issues only are presented on appeal: (1) whether 11 U.S.C. § 106(a) effected a waiver of sovereign immunity even though the Internal Revenue Service did not file a proof of claim; and (2) whether the bankruptcy court lacked jurisdiction to award attorney fees against the United States under 11 U.S.C. § 362(h). For the reasons set forth below, the Court affirms the judgment of the bankruptcy court in this matter.
I. BACKGROUND
Odessa Taylor filed a Chapter 13 bankruptcy
case on October 13, 1989. The United States, through the Internal Revenue Service (IRS) as its agent, was a listed creditor of the debtor in the Chapter 13 case and received notice of the Chapter 13 filing. The IRS subsequently withheld a portion of Taylor’s 1989 tax refund to offset a tax liability from a prior year. Taylor filed an adversary proceeding against the United States, alleging the IRS violated the automatic stay provision of 11 U.S.C. § 362(a).
The Government moved to dismiss on the ground that there was no applicable waiver of sovereign immunity under 11 U.S.C. § 106. The bánkruptcy court decided that § 106(a) did effectively waive sovereign immunity even though the Government filed no proof of claim in the underlying Chapter 13 case, denied the motion to dismiss, and subsequently awarded Taylor damages and attorney fees for the Government’s willful violation of the automatic stay.
The Government appealed to this Court, which on September 5, 1991, affirmed the bankruptcy court’s findings of fact and conclusions of law as to the Government’s waiver of sovereign immunity and the jurisdiction of the bankruptcy court to award damages and attorney fees to Taylor. The Court remanded the case, however, for enumeration of the method used to deter
mine the amount of damages and attorney fees.
The bankruptcy court entered its Order on Remand on July 31, 1992, and entered an Amended Judgment on August 3, 1992. The United States now appeals.
II. ANALYSIS
A. Sovereign Immunity Waiver Under 11 U.S.C. § 106(a)
The Government argues that the bankruptcy court erred in deciding that 11 U.S.C. § 106(a) effected a waiver of sovereign immunity, because the IRS did not file a proof of claim in the Chapter 13 bankruptcy case. This Court previously affirmed the bankruptcy court’s decision that the Government waived sovereign immunity under § 106(a) without filing proof of claim, and the issue would not now merit extended discussion but for the intervening decision by the Supreme Court in
United States v. Nordic Village, Inc.,
— U.S. -, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992), decided February 25, 1992, which the Government now cites in support of its position.
Nordic Village
held that 11 U.S.C. § 106(c)
does not effectively waive the Government’s sovereign immunity from an action seeking monetary recovery in bankruptcy because the text of subsection (c) is ambiguous and does not unequivocally express such a waiver. Although the Court had no occasion in
Nordic Village
to consider the precise question raised by the appeal in the present case, the Court noted in passing that § 106(a) — which was not at issue in
Nordic Village
— specifies a waiver of sovereign immunity when the Government has filed a proof of claim. — U.S. at -, 112 S.Ct. at 1012;
see In Re Town & Country Home Nursing Services, Inc.,
963 F.2d 1146, 1152 n. 2 (9th Cir.1992). The Government now relies upon this
obi-ter dictum
from
Nordic Village
in support of the argument that sovereign immunity has not been effectively waived in the case
sub judice.
Any waiver of sovereign immunity must be “unequivocally expressed” in the text of the statute to be effective.
Nordic Village,
at -, 112 S.Ct. at 1012. Title 11 U.S.C. § 106(a) explicitly provides that “[a] governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the [bankruptcy] estate and that arose out of the same transaction or occurrence out of which such governmental unit’s
claim
arose.”
Id.
(emphasis added). “Claim,” in turn, is statutorily defined to include
“right to payment,
whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured_” 11 U.S.C. § 101 (emphasis added).
Neither § 106(a) nor § 101 distinguish between filed and unfiled claims.
See In Re Town & Country Home,
963 F.2d at 1150.
Although the statutory language alone seems sufficiently clear to support a conclusion that a waiver of sovereign immuni
ty is triggered by existence of the claim itself, rather than by filing a proof of claim, it is worth noting the result that would be achieved if the Government’s contrary interpretation were to prevail. Here, the Government filed no proof of claim yet
exercised
its “right” to payment by withholding Taylor’s refund as a setoff. By arguing that it retains sovereign immunity under these circumstances, the Government is, in effect, “put in the precarious position of arguing that whereas the mere filing of a claim is sufficient to waive sovereign immunity, the actual receipt of payment on a claim not formally filed produces no such waiver.”
In Re Town & Country Home,
963 F.2d at 1153
(post-Nordic Village
decision holding Government’s actions in enforcing post-petition payment were the functional equivalent of filing a claim and were sufficient to waive sovereign immunity under 11 U.S.C. § 106(a), even though no formal proof of claim was filed). To accept such an argument “would enable the [Government to achieve by self-help what it could not accomplish through the procedures of the bankruptcy court,
i.e.,
retain its immunity while extracting payment from the estate.”
Id. Nordic Village’s obiter dictum
notwithstanding, this Court does not read the language of § 106(a) as permitting such a result. Therefore, because the IRS withheld a portion of Taylor’s tax refund after she filed her Chapter 13 petition, the IRS had a “claim” within the meaning of 11 U.S.C. § 101, and that claim triggered a waiver of sovereign immunity under 11 U.S.C. § 106(a) even though the IRS filed no proof of claim.
B. Award of Attorney Fees Under 11 U.S.C. § 362(h)
The Government argues that the bankruptcy court lacked jurisdiction to award attorney fees against the United States under 11 U.S.C. § 362(h).
The Court considered this argument in its order of September 5, 1991, and, upon review of the record now on appeal, adheres to its previous decision affirming the bankruptcy court’s finding of facts and conclusions of law as to the jurisdiction of the bankruptcy court to award attorney fees in this case.
III. CONCLUSION
Title 11 U.S.C. § 106(a) effected a waiver of the Government’s sovereign immunity in this case even though the Internal Revenue Service did not file proof of claim for Plaintiff’s tax liability. Furthermore, the bankruptcy court had jurisdiction to award attorney fees against, the United States in accordance with 11 U.S.C. § 362(h).
Accordingly, the judgment of the bankruptcy court is AFFIRMED.