Hoffman v. Conn. Dept. of Inc. Maint.
492 U.S. 96 (1989)

Annotate this Case

U.S. Supreme Court

Hoffman v. Conn. Dept. of Inc. Maint., 492 U.S. 96 (1989)

Hoffman v. Connecticut Department of Income Maintenance

No. 88-412

Argued April 19, 1989

Decided June 23, 1989

492 U.S. 96

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Syllabus

Section 106(c) of the Bankruptcy Code provides that, "notwithstanding any assertion of sovereign immunity," any provision of the Code that contains "creditor,' `entity,' or `governmental unit' applies to governmental units," § 106(c)(1); and that "a determination by the court of an issue arising under such a provision binds governmental units," § 106(c)(2). Petitioner Hoffman, the bankruptcy trustee in two unrelated Chapter 7 proceedings, filed separate adversarial proceedings in the Bankruptcy Court. One was a "turnover" proceeding under § 542(b) against respondent Connecticut Department of Income Maintenance to recover Medicaid payments owed for services rendered by a bankrupt convalescence home. The other, filed against respondent Connecticut Department of Revenue Services, sought under § 547(b) to avoid the payment of state taxes, interest, and penalties as a preference, and to recover an amount already paid. Respondents moved to dismiss both actions as barred by the Eleventh Amendment. The Bankruptcy Court denied the motions on the ground that Congress, in enacting § 106(c), had abrogated the States' Eleventh Amendment immunity from actions under §§ 542(b) and 547(b), which contain the "trigger" words enumerated in § 106(c)(1), and that Congress had authority to do so under the Bankruptcy Clause of the Constitution. The state respondents appealed to the District Court, and respondent United States intervened. The District Court reversed without reaching the issue of congressional authority. The Court of Appeals affirmed, concluding that § 106(c)'s plain language abrogates sovereign immunity only to the extent necessary to determine a State's rights in the debtor's estate, and does not abrogate such immunity from recovery of an avoided preferential transfer of money or from a turnover proceeding.

Held: The judgment is affirmed.

850 F.2d 50, affirmed.

JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE KENNEDY, concluded that, in enacting § 106(c), Congress did not abrogate the Eleventh Amendment immunity of the States. Congress has not made an intention to abrogate unmistakably clear in the provision's language. The narrow scope of the waivers of sovereign immunity

Page 492 U. S. 97

as to certain particular claims in §§ 106(a) and (b) make it unlikely that Congress adopted in § 106(c) a broad abrogation of immunity making States subject to all provisions of the Code containing any of the trigger words. If it did, § 106(c) would apply to over 100 Code provisions. Section 106(c)(2), joined to subsection (c)(1) by the conjunction "and," narrows the type of relief to which the section applies, since, unlike §§ 106(a) and (b), it does not provide an express authorization for monetary recovery from the States. Thus, a State that files no proof of claim would be bound, like other creditors, by a discharge of debts, including unpaid taxes, but would not be subject to monetary recovery. Under this construction, the language "notwithstanding any assertion of sovereign immunity" waives the immunity of the Federal Government, so that it is bound by the Bankruptcy Court's determination of issues even when it did not appear and subject itself to such court's jurisdiction. In contrast, under petitioner's argument that the sections containing the trigger words supply the authorization for monetary recovery, § 106(c) would have exactly the same effect if subsection (c)(2) had been omitted. This Court is not persuaded that the use of the word "determine" in the Code's jurisdictional provision, 28 U.S.C. § 157(b)(1), is to the contrary. That provision authorizes bankruptcy judges to determine "cases" and "proceedings," not issues, and to "enter appropriate orders and judgments," not merely to bind governmental units by their determinations. Petitioner's reliance on § 106(c)'s legislative history and the policies underlying the Bankruptcy Code is also misplaced, since they are not based on the text of the statute, and thus cannot be used to determine whether Congress intended to abrogate the Eleventh Amendment. Pp. 492 U. S. 100-104.

JUSTICE SCALIA, although concluding that petitioner's actions are barred by the Eleventh Amendment, would affirm the Court. of Appeals' judgment on the ground that Congress had no power to abrogate the States' Eleventh Amendment immunity. It makes no sense to affirm the constitutional principle that the judicial power of the United States does not extend to a suit directly against a State by one of its citizens unless the State itself consents to be sued, and to hold, at the same time, that Congress can override the principle by statute in the exercise of its Article I powers. P. 492 U. S. 105.

WHITE, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and O'CONNOR and KENNEDY, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 492 U. S. 105. SCALIA, J., filed an opinion concurring in the judgment, post, p. 492 U. S. 105. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ.,

Page 492 U. S. 98

joined, post, p. 492 U. S. 106. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 492 U. S. 111.

JUSTICE WHITE announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE KENNEDY join.

The issue presented by this case is whether § 106(c) of the Bankruptcy Code, 11 U.S.C. § 106(c), authorizes a bankruptcy court to issue a money judgment against a State that has not filed a proof of claim in the bankruptcy proceeding.

Petitioner Martin W. Hoffman is the bankruptcy trustee for Willington Convalescent Home, Inc. (Willington), and

Page 492 U. S. 99

Edward Zera in two unrelated Chapter 7 proceedings. On behalf of Willington, he filed an adversarial proceeding in United States Bankruptcy Court -- a "turnover" proceeding under 11 U.S.C. § 542(b) -- against respondent Connecticut Department of Income Maintenance. Petitioner sought to recover $64,010.24 in payments owed to Willington for services it had rendered during March, 1983, under its Medicaid contract with Connecticut. Willington closed in April, 1983. At that time, it owed respondent $121,408 for past Medicaid overpayments that Willington had received, but respondent filed no proof of claim in the Chapter 7 proceeding.

Petitioner likewise filed an adversarial proceeding in United States Bankruptcy Court on behalf of Edward Zera against respondent Connecticut Department of Revenue Services. Zera owed the State of Connecticut unpaid taxes, penalties, and interest, and, in the month prior to Zera's filing for bankruptcy, the Revenue Department had issued a tax warrant resulting in a payment of $2,100.62. Petitioner sought to avoid the payment as a preference, and recover the amount paid. See 11 U.S.C. § 547(b).

Respondents moved to dismiss both actions as barred by the Eleventh Amendment. In each case, the Bankruptcy Court denied the motions to dismiss, reasoning that Congress, in § 106(c), had abrogated the States' Eleventh Amendment immunity from actions under §§ 542(b) and 547(b) of the Bankruptcy Code, and that Congress had authority to do so under the Bankruptcy Clause of the United States Constitution, Art. I, § 8, cl. 4. Respondents appealed to the United States District Court, and the United States intervened because of the challenge to the constitutionality of § 106. The District Court reversed without reaching the issue of congressional authority. 72 B.R. 1002 (Conn.1987). The court held that § 106(c), when read with the other provisions of § 106, did not unequivocally abrogate Eleventh Amendment immunity.

Page 492 U. S. 100

The United States Court of Appeals for the Second Circuit affirmed the District Court. 850 F.2d 50 (1988). The Court of Appeals concluded that the plain language of § 106(c) abrogates sovereign immunity "only to the extent necessary for the bankruptcy court to determine a state's rights in the debtor's estate." Id. at 55. The section does not, according to the Court of Appeals, abrogate a State's Eleventh Amendment immunity from recovery of an avoided preferential transfer of money or from a turnover proceeding. The Court of Appeals specifically rejected petitioner's reliance on the legislative history of § 106(c) because that expression of congressional intent was not contained in the language of the statute, as required by Atascadero State Hospital v. Scanlon,473 U. S. 234, 473 U. S. 242 (1985). Because the actions brought by petitioner were not within the scope of § 106(c), the Court held that they were barred by the Eleventh Amendment.

The Second Circuit's decision conflicts with the decisions of the Third Circuit in Vazquez v. Pennsylvania Dept. of Public Welfare, 788 F.2d 130, 133, cert. denied, 479 U.S. 936 (1986), and the Seventh Circuit in McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F.2d 311, 326-327, cert. denied, 484 U.S. 895 (1987). We granted certiorari to resolve the conflict, 488 U.S. 1003 (1989), and we now affirm.

Section 106 provides as follows:

"(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose."

"(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate."

"(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity -- "

Page 492 U. S. 101

"(1) a provision of this title that contains 'creditor,' 'entity,' or 'governmental unit' applies to governmental units; and"

"(2) a determination by the court of an issue arising under such a provision binds governmental units."

11 U.S.C. § 106.

Neither § 106(a) nor § 106(b) provides a basis for petitioner's actions here, since respondents did not file a claim in either Chapter 7 proceeding. Instead, petitioner relies on § 106(c), which, he asserts, subjects "governmental units," which includes States, 11 U.S.C. § 101(26), to all provisions of the Bankruptcy Code containing any of the "trigger" words in § 106(c)(1). Both the turnover provision, § 542(b) and the preference provision, § 547(b) contain trigger words -- "an entity" is required to pay to the trustee a debt that is the property of the estate, and a trustee can under appropriate circumstances avoid the transfer of property to "a creditor." Therefore, petitioner reasons, those provisions apply to respondents "notwithstanding any assertion of sovereign immunity," including Eleventh Amendment immunity.

We disagree. As we have repeatedly stated, to abrogate the States' Eleventh Amendment immunity from suit in federal court, which the parties do not dispute would otherwise bar these actions, Congress must make its intention "unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon, supra, at 473 U. S. 242; see also Dellmuth v. Muth,491 U. S. 223, 491 U. S. 227-228 (1989); Welch v. Texas Dept. of Highways and Public Transp.,483 U. S. 468, 483 U. S. 474 (1987) (plurality opinion). In our view, § 106(c) does not satisfy this standard.

Initially, the narrow scope of the waivers of sovereign immunity in §§ 106(a) and (b) makes it unlikely that Congress adopted in § 106(c) the broad abrogation of Eleventh Amendment immunity for which petitioner argues. The language of § 106(a) carefully limits the waiver of sovereign immunity

Page 492 U. S. 102

under that provision, requiring that the claim against the governmental unit arise out of the same transaction or occurrence as the governmental unit's claim. Subsection (b) likewise provides for a narrow waiver of sovereign immunity, with the amount of the offset limited to the value of the governmental unit's allowed claim. Under petitioner's interpretation of § 106(c), however, the only limit is the number of provisions of the Bankruptcy Code containing one of the trigger words. With this "limit," § 106(c) would apply in a scattershot fashion to over 100 Code provisions.

We believe that § 106(c)(2) operates as a further limitation on the applicability of § 106(c), narrowing the type of relief to which the section applies. Section 106(c)(2) is joined with subsection (c)(1) by the conjunction "and." It provides that a "determination" by the bankruptcy court of an "issue" "binds governmental units." This language differs significantly from the wording of §§ 106(a) and (b), both of which use the word "claim," defined in the Bankruptcy Code as including a "right to payment." See 11 U.S.C. § 101(4)(A). Nothing in § 106(c) provides a similar express authorization for monetary recovery from the States.

The language of § 106(c)(2) is more indicative of declaratory and injunctive relief than of monetary recovery. The clause echoes the wording of sections of the Code such as § 505, which provides that "the court may determine the amount or legality of any tax," 11 U.S.C. § 505(a)(1), a determination of an issue that obviously should bind the governmental unit, but that does not require a monetary recovery from a State. We therefore construe § 106(c) as not authorizing monetary recovery from the States. Under this construction of § 106 (c), a State that files no proof of claim would be bound, like other creditors, by discharge of debts in bankruptcy, including unpaid taxes, see Neavear v. Schweiker, 674 F.2d 1201, 1204 (CA7 1982); cf. Gwilliam v. United States, 519 F.2d 407, 410 (CA9 1975), but would not be subjected to monetary recovery.

Page 492 U. S. 103

We are not persuaded by the suggestion of petitioner's amicus that the use of the word "determine" in the jurisdictional provision of the Code, 28 U.S.C. § 157(b)(1), is to the contrary. Brief for INSLAW, Inc., as Amicus Curiae 1011. That provision authorizes bankruptcy judges to determine "cases" and "proceedings," not issues, and provides that the judge may "enter appropriate orders and judgments," not merely bind the governmental unit by its determinations. Moreover, the construction we give to § 106(c) does not render irrelevant the language of the section that it applies "notwithstanding any assertion of sovereign immunity." The section applies to the Federal Government as well, see 11 U.S.C. § 101(26) (defining "governmental unit" as including the "United States"), and the language in § 106(c) waives the sovereign immunity of the Federal Government, so that the Federal Government is bound by determinations of issues by the bankruptcy courts even when it did not appear and subject itself to the jurisdiction of such courts. See, e.g., Neavear, supra, at 1204.

Petitioner contends that the language of the sections containing the trigger words supplies the necessary authorization for monetary recovery from the States. This interpretation, however, ignores entirely the limiting language of § 106(c)(2). Indeed, § 106(c), as interpreted by petitioner, would have exactly the same effect if subsection (c)(2) had been totally omitted. "It is our duty to give effect, if possible, to every clause and word of a statute,'" United States v. Menasche,348 U. S. 528, 348 U. S. 538-539 (1955) (quoting Montclair v. Ramsdell,107 U. S. 147, 107 U. S. 152 (1883)), and neither petitioner nor his amicus suggests any effect that their interpretation gives to subsection (c)(2).

Finally, petitioner's reliance on the legislative history of § 106(c) is also misplaced. He points in particular to floor statements to the effect that "section 106(c) permits a trustee or debtor in possession to assert avoiding powers under title 11 against a governmental unit." See 124 Cong.Rec. 32394

Page 492 U. S. 104

(1978) (statement of Rep. Edwards); id. at 33993 (statement of Sen. DeConcini). The Government suggests that these statements should be construed as referring only to cases in which the debtor retains a possessory or ownership interest in the property that the trustee seeks to recover, Brief for United States 20, and cites as an example this Court's decision in United States v. Whiting Pools, Inc.,462 U. S. 198 (1983) (holding that the Internal Revenue Service could be required to turn over to bankrupt estate tangible property to which debtor retained ownership).

The weakness in petitioner's argument is more fundamental, however, as the Second Circuit properly recognized. As we observed in Dellmuth v. Muth, supra, at 491 U. S. 230, "[l]egislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment." If congressional intent is unmistakably clear in the language of the statute, reliance on committee reports and floor statements will be unnecessary, and if it is not, Atascadero will not be satisfied. 491 U.S. at 491 U. S. 228-229. Similarly, the attempts of petitioner and his amicus to construe § 106(c) in light of the policies underlying the Bankruptcy Code are unavailing. These arguments are not based in the text of the statute, and so, too, are not helpful in determining whether the command of Atascadero is satisfied. See 491 U.S. at 491 U. S. 230.

We hold that, in enacting § 106(c), Congress did not abrogate the Eleventh Amendment immunity of the States. Therefore, petitioner's actions in United States Bankruptcy Court under §§ 542(b) and 547(b) of the Code are barred by the Eleventh Amendment. Since we hold that Congress did not abrogate Eleventh Amendment immunity by enacting § 106 (c), we need not address whether it had the authority to do so under its bankruptcy power. Cf. Pennsylvania v. Union Gas Co.,491 U. S. 1 (1989). The judgment of the Second Circuit is affirmed.

@It is so ordered.

Page 492 U. S. 105

JUSTICE O'CONNOR, concurring.

Although I agree with JUSTICE SCALIA that Congress may not abrogate the States' Eleventh Amendment immunity by enacting a statute under the Bankruptcy Clause, a majority of the Court addresses instead the question whether Congress expressed a clear intention to abrogate the States' Eleventh Amendment immunity. On the latter question, I agree with JUSTICE WHITE, and join the plurality's opinion.

JUSTICE SCALIA, concurring in the judgment.

I concur in the Court's judgment that

"petitioner's actions in United States Bankruptcy Court under §§ 542(b) and 547(b) of the [Bankruptcy] Code are barred by the Eleventh Amendment."

Ante at 492 U. S. 104. I reach this conclusion, however, not on the plurality's basis that "Congress did not abrogate Eleventh Amendment immunity" of the States, ibid., but on the ground that it had no power to do so. As I explained in my opinion concurring in part and dissenting in part in Pennsylvania v. Union Gas Co.,491 U. S. 1, 491 U. S. 35-42 (1989), it makes no sense to affirm the constitutional principle established by Hans v. Louisiana,134 U. S. 1 (1890), that

"'a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends, unless the State itself consents to be sued,'"

Welch v. Texas Dept. of Highways and Public Transp.,483 U. S. 468, 483 U. S. 486 (1987) (plurality opinion), quoting Hans, supra, at 134 U. S. 21 (Harlan, J., concurring), and to hold at the same time that Congress can override this principle by statute in the exercise of its Article I powers. Union Gas involved Congress' powers under the Commerce Clause, but there is no basis for treating its powers under the Bankruptcy Clause any differently. Accordingly, I would affirm the judgment of the Court of Appeals without the necessity of considering whether Congress intended to exercise a power it did not possess.

Page 492 U. S. 106

JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting.

In my view, the language of § 106(c) of the Bankruptcy Code (Code), 11 U.S.C. § 106(c), satisfies even the requirement that Congress' intent to abrogate the States' Eleventh Amendment immunity be "unmistakably clear." Atascadero State Hospital v. Scanlon,473 U. S. 234, 473 U. S. 242 (1985). Because Congress clearly expressed its intent to authorize a bankruptcy court to issue a money judgment against a State that has not filed a proof of claim in a bankruptcy proceeding, and because Congress has the authority under the Bankruptcy Clause to abrogate the States' Eleventh Amendment immunity, I respectfully dissent.

Section 106(c) states that, "notwithstanding any assertion of sovereign immunity," any Code provision containing one of the trigger words -- "creditor," "entity," or "governmental unit" -- applies to the States, and that "a determination by the court of an issue arising under such a provision binds [the States]" (emphasis added). The drafters of § 106(c) were fully aware of "the requirement in case law that an express waiver of sovereign immunity is required in order to be effective." 124 Cong.Rec. 32394 (1978) (statement of Rep. Edwards); id. at 33993 (statement of Sen. DeConcini); see Employees v. Missouri Dept. of Public Health and Welfare,411 U. S. 279, 411 U. S. 285 (1973). They therefore carefully abrogated the States' sovereign immunity in three steps. First, they eliminated "any assertion of sovereign immunity." § 106(c). Second, they included States within the trigger words used elsewhere in the Code. § 106(c)(1). Third, they provided that States would be bound by the orders of the bankruptcy court. § 106(c)(2). What the plurality sees as redundancy in subsections (c)(1) and (c)(2) is thus more reasonably understood as evidence of the importance Congress attached to

Page 492 U. S. 107

ensuring that the abrogation of sovereign immunity was express. [Footnote 1]

By its terms, § 106(c) makes no distinction between Code provisions that contain trigger words and permit only injunctive and declaratory relief and Code provisions that contain trigger words and permit money judgments. Nevertheless, by placing heavy emphasis on the word "determination" in § 106(c)(2), the plurality concludes that § 106(c), in its entirety, is "more indicative of declaratory and injunctive relief than of monetary recovery." Ante at 492 U. S. 102. The plurality justifies this conclusion by accepting an analogy to the use of the word "determine" in a Code provision dealing with taxes, § 505(a)(1), while rejecting an equally compelling analogy to the use of the word "determine" in the Code's jurisdictional provision, 28 U.S.C. § 157(b)(1) (1982 ed., Supp. V). But instead of trying to force meaning into the word "determination" through competing analogies to other Code provisions, we should give decisive weight to the explicit language abrogating sovereign immunity.

The plurality correctly points out that the abrogation of sovereign immunity in § 106(c) should not be read to overwhelm

Page 492 U. S. 108

the narrow scope of the voluntary waiver set forth in §§ 106(a) and (b). But the plurality's conclusion that § 106(c) must therefore refer only to declarative and injunctive relief rests on the mistaken assumption that, without such a narrowing interpretation, "the only limit is the number of provisions in the Bankruptcy Code containing one of the trigger words." Ante at 492 U. S. 102 (emphasis added). The plurality then raises the specter that "§ 106(c) would apply in a scattershot fashion to over 100 Code provisions," ibid., offering virtually endless opportunities for money judgments against the States.

Nothing could be further from the truth, for most of the Code provisions containing trigger words do not contemplate money judgments. Some provide States, in their role as creditors or entities, with rights against the debtor. [Footnote 2] Others limit relief against "creditors," "entities," or "governmental units" to declaratory or injunctive relief. [Footnote 3] Only a

Page 492 U. S. 109

handful of the triggered sections clearly contemplate money judgments against a "creditor," "entity," or "governmental unit." These include the Code provisions at issue in this case, i.e., the provision giving a trustee the power to avoid preferential payments made to "creditors," § 547, and the provision requiring "entities" to turn over property and money belonging to the debtor. § 542. [Footnote 4] Thus, rather than reading § 106(c) in isolation as the plurality does, the provision should be read in light of the Code provisions containing the trigger words "creditor," "entity," and "governmental unit." Only in this way is it possible to appreciate the limited extent to which Congress sought to abrogate the States' sovereign immunity in § 106(c). See Kelly v. Robinson,479 U. S. 36, 479 U. S. 43 (1986) (Code should be read as an integrated whole).

By expressly including States within the terms "creditor" and "entity," Congress intended States generally to be treated the same as ordinary "creditors" and "entities," who are subject to money judgments in a relatively small number of Code provisions. The effect of today's decision is to exempt States from these provisions, which are crucial to the efficacy of the Code. The plurality therefore ignores Congress' careful choice of language and turns States into preferred

Page 492 U. S. 110

actors. [Footnote 5] By allowing a trustee to recapture payments made to creditors 90 days before a bankruptcy petition is filed, the preference provision prevents anxious creditors from grabbing payments from an insolvent debtor, and hence getting more than their fair share. After today, however, any State owed money by a debtor with financial problems will have a strong incentive to collect whatever it can, as fast as it can, even if doing so pushes the debtor into bankruptcy. Ordinary creditors will soon realize that States can receive more than their fair share; the very existence of this governmental power will cause these other creditors, in turn, to increase pressure on the debtor. See McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F.2d 311, 328 (CA7), cert. denied, 484 U.S. 895 (1987). [Footnote 6] The turnover provision is designed to prevent third parties from keeping property of the debtor or from refusing to make payments owed to the debtor, thereby aiding the reorganization of the debtor's affairs

Page 492 U. S. 111

or the orderly and equitable distribution of the estate. See United States v. Whiting Pools, Inc.,462 U. S. 198, 462 U. S. 202-203 (1983). Exempting States from this provision, as well as from the preference provision, undermines these important policy goals of the Code.

My conclusion that Congress intended § 106(c) to abrogate the States' Eleventh Amendment immunity against money judgments requires me to decide whether Congress has the authority under the Bankruptcy Clause to do so. [Footnote 7] In Pennsylvania v. Union Gas Co.,491 U. S. 1, 491 U. S. 19 (1989) (plurality opinion); id. at 491 U. S. 57 (WHITE, J., concurring in judgment), we held that Congress has the authority under the Commerce Clause to abrogate the States' Eleventh Amendment immunity. I see no reason to treat Congress' power under the Bankruptcy Clause any differently, for both constitutional provisions give Congress plenary power over national economic activity. See The Federalist No. 42, p. 271 (C. Rossiter ed. 1961) (J. Madison) (describing the Bankruptcy Clause and the Commerce Clause as "intimately connected"); cf. ante at 492 U. S. 105 (SCALIA, J., concurring in judgment).

For the reasons stated, I respectfully dissent.

[Footnote 1]

Not surprisingly, most courts considering § 106(c) have concluded that it clearly allows a trustee to recover preferences from a State and to require a State to turn over money belonging to the debtor. See, e.g., WJM, Inc. v. Massachusetts Dept. of Public Welfare, 840 F.2d 996, 1001 (CA1 1988); McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F.2d 311, 326-327 (CA7), cert. denied, 484 U.S. 895 (1987); Neavear v. Schweiker, 674 F.2d 1201, 1202-1204 (CA7 1982); Rhode Island Ambulance Services, Inc. v. Begin, 92 B.R. 4, 6-7 (Bkrtcy.Ct., RI 1988); Tew v. Arizona State Retirement System, 78 B.R. 328, 329-331 (SD Fla. 1987); cf. Gingold v. United States, 80 B.R. 555, 561 (Bkrtcy.Ct., ND Ga. 1987); R & L Refunds v. United States, 45 B.R. 733, 735 (Bkrtcy.Ct.,WD Ky. 1985); Gower v. Farmers Home Administration, 20 B.R. 519, 521-522 (Bkrtcy.Ct., MD Ga. 1982); Remke, Inc. v United States, 5 B.R. 299, 300-302 (Bkrtcy.Ct., ED Mich. 1980). A leading bankruptcy commentator also reads § 106(c) to abrogate state sovereign immunity. 2 Collier on Bankruptcy

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