In Re James C. Pearson, Ida J. Pearson, Debtors. James C. Pearson, Ida J. Pearson v. United States

917 F.2d 1215 23 Collier Bankr.Cas.2d 1535 , 20 Bankr.Ct.Dec. 1949 , Bankr. L. Rep. P 73,671 In re James C. PEARSON, Ida J. Pearson, Debtors. James C. PEARSON, Ida J. Pearson, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 89-35819. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 13, 1990. Decided Oct. 30, 1990. Barry L. Taub, Eugene, Or., for plaintiffs-appellants. John A. Dudeck, Jr., Atty., U.S. Dept. of Justice, Tax Div., Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before CANBY, KOZINSKI and TROTT, Circuit Judges. KOZINSKI, Circuit Judge: 1 This case presents an issue of first impression in this circuit: Is the United States immune from suit for money damages for violating the Bankruptcy Code's automatic stay, 11 U.S.C. Sec. 362 (a)? 2 A. Bankruptcy Code section 106(c) provides that "governmental units" are bound by any code provision that "contains 'creditor', 'entity ', or 'governmental unit' ... [and by] a determination of the court of an issue arising under such a provision...." 11 U.S.C. Sec. 106 (c) (emphasis added). The Code's automatic stay…

This ease presents an issue of first impression in this circuit: Is the United States immune from suit for money damages for violating the Bankruptcy Code’s automatic stay, 11 U.S.C. § 362 (a)?

A. Bankruptcy Code section 106(c) provides that “governmental units” are *1216 bound by any code provision that “contains ‘creditor’, ‘entity’, or ‘governmental unit’ ... [and by] a determination of the court of an issue arising under such a provi-sion_” 11 U.S.C. § 106 (c) (emphasis added). The Code’s automatic stay provision, in turn, operates against all “entities,” 11 U.S.C. § 362 (a); it therefore binds all governmental units pursuant to section 106(c). Because the United States is a governmental unit, 11 U.S.C. § 101 (26), it is bound by the stay. So far, everyone agrees.

B. The plurality opinion m Hoffman v. Connecticut Dept. of Income Maintenance, — U.S. -, 109 S.Ct. 2818 , 106 L.Ed.2d 76 (1989) (White, J., joined by Rehnquist, C.J., and O’Connor & Kennedy, JJ.), held that section 106(c) only waives sovereign immunity for purposes of injunctive and declaratory relief; it does not waive immunity from suit for money damages. Id. 109 S.Ct. at 2822-23 . While Hoffman dealt with the…

concurring:

I concur in the result reached by the majority opinion.