United States Court of Appeals
For the First Circuit
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No. 00-2255
IN RE: ROBERT L. GOSSELIN,
Debtor.
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ROBERT L. GOSSELIN,
Plaintiff, Appellant,
v.
COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF REVENUE,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
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Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and DiClerico,* District Judge.
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Robert F. Casey, Jr. for appellant.
* Of the District of New Hampshire, sitting by designation.
Jeffrey S. Ogilvie, Litigation Bureau, Massachusetts Department
of Revenue, with whom Thomas Reilly, Attorney General, was on brief
for appellee.
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January 9, 2002
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LYNCH, Circuit Judge. This is an appeal brought by
Robert Gosselin, a Chapter 7 debtor, from a district court
decision that the Eleventh Amendment bars his adversary action
against the Commonwealth of Massachusetts. We affirm, but we do
not adopt the district court's reasoning, nor do we reach the
constitutionality of 11 U.S.C. § 106(a), a Bankruptcy Code
provision which explicitly abrogates the states' sovereign
immunity with respect to the bankruptcy court's ability to
declare state tax debts dischargeable.
I.
In 1998 Gosselin filed a petition for bankruptcy under
Chapter 7 of the Bankruptcy Code.1 11 U.S.C. §§ 701-784 (2000).
The Commonwealth of Massachusetts, as is common in "no asset"
cases, did not file a proof of claim or otherwise participate in
the original Chapter 7 proceeding. Shortly after initiating his
Chapter 7 petition, Gosselin brought an adversary action against
the Commonwealth in the United States Bankruptcy Court to obtain
a specific ruling that certain past due taxes to the
Commonwealth were dischargeable. The Commonwealth moved to
1 In February 1999, the bankruptcy court entered an order
discharging Gosselin's debts.
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dismiss the proceeding, asserting its Eleventh Amendment
sovereign immunity against being sued in the courts of the
United States without its consent.2
The Commonwealth later argued that, under
§ 523(a)(1)(C), Gosselin's tax debts were not dischargeable
because he willfully attempted to evade or defeat the tax. But,
the Commonwealth argued, the Eleventh Amendment barred the
bankruptcy court from entertaining the substance of Gosselin's
claim, despite § 106(a)'s authorization of suit in federal court
and purported abrogation of state sovereign immunity with
respect to § 523 (and fifty-nine other provisions of the Code).3
2 The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another state .
. . .
U.S. Const. amend XI.
3 11 U.S.C. § 106 states, in relevant part:
(a) 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 . . . 523, 524 [and fifty-eight other
sections] . . . of this title.
(2) The court may hear and determine any issue arising with
respect to the application of such sections to governmental
units.
(3) The court may issue against a governmental unit an
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The Commonwealth claimed that § 106(a) was an invalid abrogation
of its sovereign immunity. The bankruptcy court denied the
Commonwealth's motion to dismiss, and later ruled on summary
judgment that the state taxes were discharged. The Commonwealth
appealed and the district court reversed the bankruptcy court
and held that Congress, being constrained by the Eleventh
Amendment, had exceeded its power by enacting § 106(a). United
States Dep't of Treasury v. Gosselin, 252 B.R. 854, 858-59 (D.
Mass. 2000). The district court, therefore, reversed the
bankruptcy court's grant of summary judgment and reversed the
bankruptcy court's denial of the Commonwealth's motion to
dismiss. Id. at 859.
II.
Our review of the district court's order is de novo.
Parella v. Retirement Bd. of the R.I. Employees' Ret. Sys., 173
F.3d 46, 53 (1st Cir. 1999). We affirm, but without adopting
the district court's reasoning or reaching the constitutionality
of § 106(a). We do so because, on appeal, Gosselin's brief has
order, process, or judgment under such sections or the
Federal Rules of Bankruptcy Procedure . . . .
The Code defines "governmental unit" to include states. 11 U.S.C. §
101(27) (2000).
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presented not a single colorable argument for why his suit
against the Commonwealth should be allowed to go forward. Other
than stating, as the issue presented for review, the question of
whether the Eleventh Amendment prohibits a debtor from bringing
an adversary proceeding against the Commonwealth to have a state
tax debt declared dischargeable, Gosselin's only argument on
appeal is that the state has waived its immunity by statute.
The argument is raised for the first time on appeal; it is
frivolous, and we decline to consider it. Garcia-Ayala v. Lederle
Parenterals, Inc., 212 F.3d 638, 645 (1st Cir. 2000) (holding that
failure to brief an argument constitutes waiver); Piazza v. Aponte
Roque, 909 F.2d 35, 37 (1st Cir. 1990) ("Except in extraordinary
circumstances . . . a court of appeals will not consider an issue
raised for the first time at oral argument."); United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (applying "the settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived"); see also Fed. R. App. P. 28(a).
Therefore, we affirm the district court's judgment that
Gosselin's claim should be dismissed. However, we need not, and
do not, adopt the district court's reasoning. We are loathe to
address the constitutionality of a statute in the absence of
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adequate briefing by the parties, and the United States, by
declining our invitation to file a brief, has chosen to shed no
additional light on the matter.4
We consider the scope of our opinion to be extremely
limited given that we affirm only because Gosselin has, in
essence, defaulted by failing to present any colorable argument
on appeal. Accordingly, this opinion would have no preclusive
or precedential effect on a case in which the Commonwealth were
to seek to collect its tax debts and Gosselin were to defend on
the basis of his general discharge in bankruptcy. Similarly,
our holding here would not be determinative of any case, brought
under Ex parte Young, 209 U.S. 123 (1908), in which Gosselin or
anyone else attempted to prevent a state official from
unlawfully collecting a discharged tax debt. The issues that
would be presented by such cases are distinct.
Affirmed.
4 Because this is a suit questioning the constitutionality of
a federal statute and the United States is not a party, the party
raising the constitutional question was obligated to notify the Clerk
of this court. Fed. R. App. P. 44. Because neither party gave proper
notice, this court did so. See 28 U.S.C. § 2403(a) (1994). The United
States, after considering the question for some time, has informed us
that it does not wish to participate in this matter.
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