Schulman

In these consolidated bankruptcy appeals, the California State Water Resources Control Board (the “State Board”) and the California Underground Storage Tank Cleanup Fund (the “Fund”) challenge the district court’s orders denying them Eleventh Amendment immunity. In particular, the State Board contends that it is an arm of the state of California, that it did not waive its Eleventh Amendment immunity, and that 11 U.S.C. § 106 does not validly abrogate such immunity. The Fund raises a narrower Eleventh Amendment question, arguing merely that it is an “arm of the state.” The State Board also appeals the district court’s order ruling that abstention is not appropriate, under 28 U.S.C. § 1334 (c), and, on cross-appeal, George E. Schulman, the bankruptcy trustee, (the “Trustee”) seeks reversal of the district court’s order finding that fees payable to the Fund are “taxes” for bankruptcy purposes, under 11 U.S.C. § 507 (a)(8). We affirm in part, reverse in part, dismiss in part, and remand for further proceedings.

More precisely, we hold that while the State Board is an arm of the State of California, it has waived its Eleventh Amendment immunity in the Trustee’s mandamus action. In the…