United States Court of Appeals,
Eleventh Circuit.
No. 94-6372.
In re JOVE ENGINEERING, INC., Debtor-Appellant, Cross-Appellee,
v.
INTERNAL REVENUE SERVICE, Appellee, Cross-Appellant.
Aug. 29, 1996.
Appeals from the United States District Court for the Northern
District of Alabama. (No. CV93-PT-1544-S), Robert B. Propst, Judge.
Before BIRCH and BARKETT, Circuit Judges, and SMITH*, Senior
Circuit Judge.
EDWARD S. SMITH, Senior Circuit Judge:
Jove Engineering, Inc. ("Jove") appeals the district court's
order denying it relief against the Internal Revenue Service
("IRS") under 11 U.S.C. § 362(h),1 and limiting Jove's relief under
11 U.S.C. § 105. The district court limited Jove's relief to the
amount of $500 as attorney fees, to be offset against any
bankruptcy liability to IRS, for the violation by IRS of 11 U.S.C.
§ 362(a), and specifically the automatic stay provision which arose
when Jove filed a petition for reorganization under Chapter 11 of
the Bankruptcy Code. In re Jove Engineering, Inc., 171 B.R. 387
(N.D.Ala.1994). IRS cross-appeals the district court's award of
attorney fees under § 105. We have resolved several issues which
required clarification in this circuit, and we remand to the
district court to assess attorney fees consistent with 28 U.S.C. §
*
Honorable Edward S. Smith, Senior U.S. Circuit Judge for
the Federal Circuit, sitting by designation.
1
All citations are to the 1994 United States Code, as
amended, unless otherwise noted.
2412(d)(2)(A) and 26 U.S.C. § 7430.
Initially we conclude we have jurisdiction to review the
district court's order as a "final decision" under 28 U.S.C. §
1291, notwithstanding that court's remand to the bankruptcy court.
We further conclude that, as amended in 1994, 11 U.S.C. § 106
unequivocally waives sovereign immunity for monetary damages under
11 U.S.C. §§ 105(a) and 362(h). However, Jove is not entitled to
relief under § 362(h) because the term "individual," as used in
that provision, does not include a corporation. Jove is entitled
to relief under § 105(a) which, distinct from the court's inherent
powers, grants the court statutory powers to enter monetary
damages. An award of monetary sanctions is appropriate in this
case because IRS willfully violated the automatic stay when it knew
the stay was in effect and intended the actions that violated the
stay, regardless whether any IRS employee had the specific intent
to violate the stay. In this case, monetary sanctions are limited
to actual expenses, such as attorney fees, because Jove's claim for
coercive sanctions appear more punitive in nature and Congress
expressly declined to waive sovereign immunity for punitive
damages. We must remand to the district court to assess attorney
fees consistent with both 28 U.S.C. § 2412(d)(2)(A) and 26 U.S.C.
§ 7430 because neither the parties nor the court addressed the
criteria of these provisions.
Facts
On October 20, 1992, Jove filed a petition for reorganization
which automatically invokes the stay provision of 11 U.S.C. §
362(a). On November 6, 1992, the bankruptcy court clerk sent
notice of the case to all 413 creditors, including IRS which Jove
listed as a disputed creditor.
On November 12, 1992, Ms. Judy Hibbard of IRS's Special
Procedures Staff in Birmingham wrote a letter to Jove's president,
Mr. Walter H. Brough, acknowledging Jove's bankruptcy filing and
discussing IRS's concerns when a taxpayer files for bankruptcy.
IRS forwarded a copy of this letter to Jove's attorney, Mr. Romaine
Scott. On November 18, Jove's attorney wrote a letter to Ms.
Hibbard requesting all future contact be directed to him instead of
his client. On November 25, Jove's attorney wrote a similar letter
to Ms. Hibbard which included a copy of the "notice of first
meeting of creditors."
Sometime in November 1992, the IRS Birmingham office entered
a computer code showing Jove filed a Chapter 11 petition. The IRS
center in Memphis ("Memphis office") had access to this entry.
This code did not preclude accepting payments or sending payment
requests related to post-petition liability. IRS did not initially
enter a computer code to "freeze" collection activities. IRS
usually does not enter this bankruptcy "freeze" code because, as
configured, not entering a "freeze" permits the computer system to
credit post-petition payments.
Sometime after filing the bankruptcy petition, Jove filed a
Form 941 tax return with the Memphis office for the tax quarter
ending September 30, 1992 (all pre-petition tax liability). On
December 21, the Memphis office mailed Jove a "Request for Payment"
seeking to collect taxes, penalties and interest totaling
$112,433.65 for a tax period occurring both pre- and post-petition.
This request warned Jove to make payment before December 31 to
2
avoid further penalty. Although Jove's tax return was for
pre-petition liability, the computer code did not preclude this
request, apparently because the return was actually filed
post-petition. IRS did not explain why the computer code does not
preclude collection attempts for returns filed post-petition that
only reference pre-petition liability.
On January 7, 1993, Jove's attorney sent a letter to the
Memphis office requesting that IRS participate in the bankruptcy
process by filing a claim with the bankruptcy court. Ms. Della
Sanford, Chief of the Correspondence Section in the Memphis office,
mailed a reply letter stating IRS had no record that Mr. Scott was
authorized to receive information on Jove's behalf, and, in order
for him to receive such information, Mr. Scott must provide a power
of attorney, a tax information authorization or "other written
evidence of ... [his] authority." Forms for "power of attorney"
and "tax information authorization" were included in the letter.
On March 4, 1993, IRS filed with the bankruptcy court a "Proof
of Claim" against Jove for unpaid taxes, penalties and interest
totaling $304,239.08. On March 29, the Memphis office mailed a
certified letter to Jove entitled "Notice of Intent to
Levy—Immediate Response Required" seeking $41,745.61 in taxes,
penalties and interest for the tax period ending December 31, 1992
(this quarter included 19 pre-petition days). The letter warned
further that, if payment was not received by April 28, "the law
2
As of December 21, 1992, although there were some payments
toward Jove's tax liability, there was an alleged $92,923.57
underpayment of the $139,387.77 total liability.
allows us to seize your property or rights to property such as real
estate and personal property to collect the amount you still owe."
On April 5, Jove's attorney mailed to the Memphis office an
executed power of attorney form which IRS marked "received" on
April 8. This letter reiterated information in prior letters and
further stated "any further direct communications with [Jove] will
be interpreted as a willful violation of the automatic stay and
appropriate action will be taken." However, on April 15, IRS
issued another "Notice of Intent to Levy—Immediate Response
Required" requesting payment for only $3,813.913 and referencing
the tax period ending December 31, 1992. On April 28, 1993, Jove
filed a motion with the bankruptcy court to hold IRS in civil
contempt for violating the automatic stay.
On May 3, 1993, the Memphis office sent Jove a letter stating
IRS had no record Mr. Scott was authorized to act for Jove, and
directing Jove to clear up the matter with the IRS office in
Birmingham. On May 17, Jove received a notice from IRS stating
"balance due on 3rd Q and 4th Q 941 returns for 1992. Plus 1992
940. Failure to keep appointment could result in enforcement
action."
Jove's attorney contacted Mr. Leon F. Kelly, Jr., Assistant
U.S. Attorney in Birmingham, concerning IRS's post-petition
activity. In turn, Mr. Kelly contacted Ms. Hibbard's office after
which, on May 23, IRS entered a computer code to "freeze" any
further extra-judicial action.
3
Apparently there had been further payments on the tax
liability which was reduced from $41,743.61 to $3,818.91.
Ms. Martha Langston, an IRS Revenue Officer in Birmingham,
received a transfer of collection responsibilities which included
the Jove account. At the time, the computer system contained the
November 1992 bankruptcy entry, but no "freeze" code. On June 1,
1993, Ms. Langston made an unannounced visit to Jove's place of
business to discuss the balance due for the 1992 fourth quarter on
Jove's 941 return. Ms. Langston left a sealed envelope for Jove's
president which contained information about collection and a note
warning that failing to keep an appointment could result in an
enforcement action. Several days later, Ms. Langston learned Jove
was in bankruptcy and the collection action was "frozen." She then
canceled her appointment and closed her file.
Proceedings Below
On April 28, 1993, Jove filed a motion with the bankruptcy
court to hold IRS in civil contempt for violating the automatic
stay. Jove later filed a motion to withdraw the contempt motion to
district court due to concern whether the bankruptcy court had
authority to rule on the contempt motion. On July 19, the
bankruptcy court granted Jove's motion to withdraw the contempt
motion to district court. After receiving briefs and conducting a
hearing, the district court issued a memorandum opinion making
findings of facts and conclusions of law. After thoroughly
reviewing conflicting circuit decisions, the district court held
that Jove, as a corporation, was not an "individual" entitled to
relief under 11 U.S.C. § 362(h) based on (1) the plain meaning of
the statute; (2) the statute's different treatment of individuals,
corporations and partnerships; and (3) "the fact that § 362(h) was
adopted as a part of "Consumer Credit Amendments,' suggests that
only individuals, not corporations, were intended." The district
court stated that Jove is entitled to some relief under 11 U.S.C.
§§ 105 and 106(b), limited to the extent of the government's claim,
and precluding punitive or consequential damages which cannot be
specifically determined with reasonable certainty. The district
court then held that "Jove is entitled to recover reasonable
attorney fees for the extra-judicial time reasonably spent in
responding to the actions of the I.R.S. which constitute
violations." (emphasis in original).
The district court reserved ruling and issued an order
permitting Jove to present further proof that IRS acted maliciously
because, "Regardless of sovereign immunity, § 105 would not allow
for the recovery of punitive damages or consequential damages that
cannot be determined with reasonable certainty; particularly for
non-malicious violations.... In any event, this court's discretion
would dictate to the contrary."
Upon further consideration, the district court found IRS's
alleged "willful and heinous" conduct consisted of:
(1) One mild informative letter concerning the bankruptcy
procedure. There may have been a phone call from Hibbard to
Brough concerning the same matters. This did not violate the
stay.
(2) One mild, not pursued, request for payment as to the
quarter ending September 30, 1992;
(3) Two notices of intent to levy with reference to a
period, over two-thirds of which was post-petition; and
(4) the mild visit and moderately threatening note of Ms.
Langston.
In re Jove Engineering, Inc., 171 B.R. 387, 392 (N.D.Ala.1994)
(emphasis in original). The district court also noted that the
November 12, 1992 letter from IRS states:
Occasionally the Service inadvertently levies on or seizes
property of the debtor subsequent to the filing of the
petition for reorganization. If a problem of this kind is
encountered, please call our office immediately at (205)731-
1248. We will attempt to resolve the matter as expeditiously
as possible. In virtually every case, we can quickly release
the levy. Filing a motion to hold the Internal Revenue
Service in contempt usually delays resolution of the matter.
Jove, 171 B.R. at 390. The district court concluded that "all the
purported violations were inadvertent and could have been remedied
with a phone call. [This court] cannot find the defendant in
contempt." Id. at 394. The district court further stated:
Even if the IRS should be held in contempt and sanctioned, the
amount awarded by the court under these circumstances is
sufficient. The ignoring of the telephone number specifically
given to cover the situation, the fast action once that number
was contacted, the lack of any willfulness by any human being,
the total overplaying of the alleged harm, the rush to file
the contempt proceedings while the problem was being promptly
addressed, etc. all militate against any substantial award.
Id. at 394-95. Pursuant to § 105, the district court entered an
order awarding Jove $500 as attorney fees to be "credited toward
any amount determined to be due IRS in the bankruptcy proceedings."
Id. at 395.
Although the district court's order remanded the case to the
bankruptcy court and the bankruptcy proceedings were still pending,
Jove filed this appeal contesting the district court's denying
recovery under § 362(h) and, alternatively, the court's limiting
recovery under § 105 to an offset of $500 as attorney fees. IRS
cross-appeals, challenging the award of attorney fees.
Standard of Review
A. Review of Conclusions of Law and Fact
We exercise complete and independent review over the district
court's conclusions of law. Peterson v. Atlanta Housing Authority,
998 F.2d 904, 912 (11th Cir.1993). We review the district court's
findings of fact for clear error. Elston v. Talladega County Bd.
of Ed., 997 F.2d 1394, 1405 (11th Cir.1993). A district court's
finding is clearly erroneous when, "although there is evidence to
support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed." Elston, 997 F.2d at 1405 (quoting Anderson v. Bessemer
City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518
(1985)).
B. Review of Civil Contempt
A finding of civil contempt must be based on "clear and
convincing evidence" that a court order was violated. Jordan v.
Wilson, 851 F.2d 1290, 1292 n. 2 (11th Cir.1988); Sizzler Family
Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d 1529,
1534 n. 4 (11th Cir.1986). "This ["clear and convincing' evidence
standard] is more exacting than the "preponderance of the evidence'
standard but, unlike criminal contempt, does not require proof
beyond a reasonable doubt."4 Jordan, 851 F.2d at 1292. We review
the district court's grant or denial of civil contempt for abuse of
discretion. Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512,
4
"Criminal contempt sanctions are punitive in nature and are
imposed to vindicate the authority of the court. On the other
hand, sanctions in civil contempt proceedings may be employed for
either or both of two purposes: to coerce the defendant into
compliance with the court's order, and to compensate the
complainant for losses sustained." Local 28, Sheet Metal
Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 443, 106 S.Ct. 3019,
3033, 92 L.Ed.2d 344 (1986).
1516 (11th Cir.1990) (citing Afro-American Patrolmen's League v.
City of Atlanta, 817 F.2d 719, 723 (11th Cir.1987)); Jordan, 851
F.2d at 1292; Sizzler, 793 F.2d at 1534 n. 4. "A district court
abuses its discretion when it misconstrues its proper role, ignores
or misunderstands the relevant evidence, and bases its decision
upon considerations having little factual support." Arlook v. S.
Lichtenberg & Co., Inc., 952 F.2d 367, 374 (11th Cir.1992). In
bankruptcy proceedings, the court has discretionary statutory
powers under 11 U.S.C. § 105(a) that states "The court may issue
any order, process, or judgment that is necessary or appropriate to
carry out the provisions of this title." Id. (emphasis added); In
re Mroz, 65 F.3d 1567, 1571-72 (11th Cir.1995).
Although we review the court's grant or denial of civil
contempt in bankruptcy proceedings for abuse of discretion, we
apply less deference in the context of an automatic stay violation.
We have characterized the automatic stay of 11 U.S.C. § 362(a) as
"essentially a court-ordered injunction, [and] any person or entity
who violates the stay may be found in contempt of court." Carver
v. Carver, 954 F.2d 1573, 1578 (11th Cir.), cert. denied, 506 U.S.
986, 113 S.Ct. 496, 121 L.Ed.2d 434 (1992). Although essentially
a court-ordered injunction, the automatic stay nevertheless is
actually a legislative creation with unique properties different
from court-ordered injunctions. As its common name suggests, the
"automatic stay" arises automatically when a petition is filed,
unless falling within an exception under § 362(b). In contrast, a
court-ordered injunction is discretionary, not automatic, and
usually does not arise until after a complainant files a separate
motion. The metes and bounds of the automatic stay are provided by
statute and systematically applied to all cases. However, the
metes and bounds of court-ordered injunctions are provided on a
case-by-case basis by the issuing court specifically tailoring the
injunction to fit the specific circumstances of the specific case.
See, e.g., Howard Johnson, 892 F.2d at 1514; Jordan, 851 F.2d at
1291; Afro-American Patrolmen's League, 817 F.2d at 721; Sizzler,
793 F.2d at 1532-33.
The nature of court-ordered injunctions requires the
enforcing court not only to determine whether the order was
violated, but to make case specific determinations whether "1) the
allegedly violated order was valid and lawful; 2) the order was
clear, definite and unambiguous; and 3) the alleged violator had
the ability to comply with the order." Jordan, 851 F.2d at 1292 n.
2. In contrast, determinations (1) whether the automatic stay is
valid and lawful and (2) whether the automatic stay is clear,
definite and unambiguous do not vary on a case-by-case basis.
The issuance and enforcement of court-ordered injunctions
typically require a case-by-case analysis over which the issuing
and enforcing court is in a better position to assess than a
reviewing court. However, this case-by-case variation is not as
prevalent for the legislatively imposed automatic stay of § 362(a).
This places the reviewing court in a position comparable to the
enforcing court when considering automatic stay violations. Courts
of appeal have an independent role in assessing the intent of
Congress in its enactment of a statutory provision, such as the
automatic stay, which is different from the assessment of a
district court's specific order, such as an injunction. For that
reason, we apply a less deferential "abuse of discretion" standard
when reviewing civil contempt for an automatic stay violation than
we generally would in other contexts.5
Jurisdiction
The parties did not raise the issue whether we have appellate
jurisdiction over the district court's order which remanded to the
bankruptcy court to offset the attorney fee award against any claim
by IRS. However, we raise the jurisdiction issue sua sponte. In
re Miscott Corp., 848 F.2d 1190, 1192 (11th Cir.1988); In re
Briglevich, 847 F.2d 759, 760 (11th Cir.1988); Robinson v. Tanner,
798 F.2d 1378, 1379 (11th Cir.1986). Upon careful review, we
conclude this court has appellate jurisdiction over the district
court's order as a final decision under 28 U.S.C. § 1291.
A. No Jurisdiction of Appeal Under § 158(d)
Under 28 U.S.C. § 158(d), this court has jurisdiction to hear
all final orders from a district court that exercised appellate
jurisdiction over bankruptcy court orders. Section 158 states in
pertinent part:
(a) The district courts of the United States shall have
jurisdiction to hear appeals from final judgments, orders, and
decrees, and, with leave of the court, from interlocutory
orders and decrees, of bankruptcy judges entered in cases and
proceedings referred to the bankruptcy judge under section 157
of this title....
5
We do not intimate a new standard of review. There are
few, if any, bright lines concerning what constitutes an "abuse
of discretion." This standard lies within the standard of review
continuum whose contours are developed on a case-by-case basis.
We only hold that we are more inclined to reverse the trial court
if we disagree with its decision regarding an automatic stay
violation than we would be in another context.
(c) An appeal under subsection (a) ... of this section
shall be taken in the same manner as appeals in civil
proceedings generally are taken to the courts of appeals from
the district courts and in the time provided by Rule 8002 of
the Bankruptcy Rules.
(d) The courts of appeals shall have jurisdiction of
appeals from all final decisions, judgments, orders, and
decrees entered under subsection (a) and (b) of this section.
28 U.S.C. § 158 (1993).6 The plain meaning of this provision
grants this court jurisdiction of appeals only where the district
court exercised appellate jurisdiction from a decision by a
bankruptcy judge, not where the district court exercised original
jurisdiction. United States v. Ron Pair Enterprises, Inc., 489
U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) ("The
plain meaning of legislation should be conclusive, except in the
rare cases in which the literal application of a statute will
produce a result demonstrably at odds with the intention of its
drafters."). In this case, the bankruptcy judge made no ruling,
and the district court entered its orders solely under its original
jurisdiction of bankruptcy cases. Therefore, our jurisdiction does
not arise from § 158(d). United States v. Nicolet, Inc., 857 F.2d
202 (3d Cir.1988); In re Amatex Corp., 755 F.2d 1034, 1038 (3d
Cir.1985).
B. Jurisdiction of Appeal from "Final Decision" Under § 1291
There is no specific provision granting courts of appeal
jurisdiction to review orders entered by district courts exercising
6
This represents § 158 prior to the 1994 amendments. The
1994 amendments do not apply because this case was commenced
prior to October 22, 1994. Bankruptcy Reform Act of 1994, Pub.L.
No. 103-394, 108 Stat. 4150 § 702(b)(1) (set out as a note under
11 U.S.C. § 101). However, the 1994 amendments do not appear to
change our jurisdiction analysis.
their original, non-appellate bankruptcy powers. See Metro
Transportation Co. v. North Star Reinsurance Co., 912 F.2d 672, 676
(3d Cir.1990). However, if the district court's order is a final
decision, we will have jurisdiction under 28 U.S.C. § 1291 which
provides that "[t]he courts of appeals ... shall have jurisdiction
of appeals from all final decisions of the district courts of the
United States." 28 U.S.C. § 1291; see Metro Transportation, 912
F.2d at 676; In re Martin Brothers Toolmakers, Inc., 796 F.2d
1435, 1437 (11th Cir.1986) (jurisdiction under § 1291 where
district court order remands to bankruptcy court). In the
bankruptcy context, "finality" under § 1291 is viewed similarly to
"finality" under § 158(d) and its predecessor, § 1293. In re
F.D.R. Hickory House, Inc., 60 F.3d 724, 725 n. 2 (11th Cir.1995);
In re Red Carpet Corp., 902 F.2d 883, 890 n. 5 (11th Cir.1990); In
re TCL Investors, 775 F.2d 1516, 1518 (11th Cir.1985); In re
International Horizons, Inc., 689 F.2d 996, 1000 n. 6 (11th
Cir.1982). A final decision "is one which ends the litigation on
the merits and leaves nothing for the court to do but execute the
judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct.
631, 633, 89 L.Ed. 911 (1945); F.D.R. Hickory House, 60 F.3d at
726.
Courts "consistently consider[ ] finality in a more pragmatic
and less technical way in bankruptcy cases than in other
situations." In re Amatex Corp., 755 F.2d 1034, 1039 (3d
Cir.1985); see In re Dow Corning, 86 F.3d 482, 487-88 (6th
Cir.1996); In re Greene County Hospital, 835 F.2d 589, 594 (5th
Cir.1988) (citing In re Saco Local Development Corp., 711 F.2d 441
(1st Cir.1983)). The Third Circuit explained:
The rationale for viewing finality under a less rigorous
standard in the bankruptcy areas is clear. Bankruptcy cases
frequently involve protracted proceedings with many parties
participating. To avoid the waste of time and resources that
might result from reviewing discrete portions of the action
only after a plan of reorganization is approved, courts have
permitted appellate review of orders that in other contexts
might be considered interlocutory.
Amatex, 755 F.2d at 1039. We similarly explained:
[T]he statutory requirement of finality is a flexible concept,
grounded in the practicalities of the situation. This
accommodative approach is vital in the context of bankruptcy.
Viewed realistically, a bankruptcy case is simply an
aggregation of controversies, many of which would constitute
individual lawsuits had a bankruptcy petition never been
filed. While the goal of the bankruptcy process is to bring
all present and potential contestants together and decide all
the claims at the same time, a truly simultaneous resolution
is impossible.... [F]inality of bankruptcy orders cannot be
limited to the last order concluding the bankruptcy case as a
whole.... [A]ny order within a bankruptcy case which
concludes a particular adversary proceeding should be deemed
final and reviewable.
Martin Brothers, 796 F.2d at 1437; see also In re The Charter Co.,
778 F.2d 617, 621 (11th Cir.1985).
A district court's order is not deprived of its finality
merely because it remands to the bankruptcy court. This court has
consistently recognized that a district court order that remands to
the bankruptcy court may be a final decision if all that remains to
be done by the bankruptcy court regarding the order is a
ministerial duty that does not require significant judicial
activity involving considerable discretion.7 T & B Scottdale
7
In other cases where we determined a remand was not a final
order, the remand required the bankruptcy court to exercise
discretion or make further factual or legal findings. See, e.g.,
In re Dixie Broadcasting, Inc., 871 F.2d 1023, 1029 (11th Cir.)
(District court's remand order not final because bankruptcy court
must consider factors to determine bad faith which is an
evaluative process involving more than ministerial duties), cert.
Contractors v. United States, 866 F.2d 1372, 1375 (11th Cir.1989)
(citing In re Miscott, 848 F.2d 1190, 1191-1192 (11th Cir.1988));
see also Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516
(11th Cir.1990) (similar rule in non-bankruptcy context).
In this case, the district court order remands to the
bankruptcy court to offset up to $500 against any claim by IRS.
This order concerns a particular, discrete controversy concerning
the automatic stay violation which is completely separable from any
other controversies in the bankruptcy proceedings. Although the
order remands to the bankruptcy court, the bankruptcy court need
only perform the ministerial duty of offsetting up to $500 against
any claim of IRS without exercising any discretion or making any
further factual or legal findings. See In re Delta Resources,
Inc., 54 F.3d 722, 727 (11th Cir.), cert. denied, --- U.S. ----,
116 S.Ct. 488, 133 L.Ed.2d 415 (1995). Therefore, we conclude the
district court's order finding IRS violated the automatic stay and
limiting remedies for the violation is a final decision within our
appellate jurisdiction under § 1291.
Sovereign Immunity
The United States may not be sued absent a waiver of its
denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989); In
re Briglevich, 847 F.2d 759, 761 (11th Cir.1988) (Where the
district court remanded to bankruptcy court to determine amount
of money paid only for necessary contract work, the order "is not
a final order under § 158(d) [s]ince [it] remand[s] for more than
merely mechanical or ministerial findings."); The Charter Co.,
778 F.2d at 621 (Order was not final where bankruptcy court still
had to resolve appropriateness of cash transfers and remedies);
see also TCL Investors, 775 F.2d at 1519 ("The district court's
order ... in no way determines the merits of the case or any of
the substantive rights of the parties. Until the factual record
is fully developed ... the issues presented cannot be adequately
presented on appeal.").
sovereign immunity. United States v. Mitchell, 445 U.S. 535, 538,
100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980). In order to be
effective, "[w]aivers of the Government's sovereign immunity ...
must be unequivocally expressed ... [and] are not generally to be
liberally construed." United States v. Nordic Village, Inc., 503
U.S. 30, 33, 112 S.Ct. 1011, 1014, 117 L.Ed.2d 181 (1992) (internal
quotations omitted). As amended in 1994, after the district
court's decision in this case, 11 U.S.C. § 106 provides an
unequivocal, express waiver of sovereign immunity for specifically
enumerated bankruptcy provisions, stating, "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 105, 106, ... 362 ... of
8
this title." 11 U.S.C. § 106(a) (1994). The statute provides
further that "[t]he court may issue against a governmental unit an
order, process, or judgment under such sections ... including an
order or judgment awarding money recovery, but not including an
award of punitive damages." 11 U.S.C. § 106(a)(3). However, the
statute further provides that, "Nothing in this section shall
create any substantive claim for relief or cause of action not
otherwise existing under this title, the Federal Rules of
Bankruptcy Procedure, or nonbankruptcy law." 11 U.S.C. §
8
The 1994 amendment to this section applies retroactively to
this case. Bankruptcy Reform Act of 1994, Pub.L. 103-394, 118
Stat. 4150 § 701(b)(2)(B) (set out as a note under 11 U.S.C. §
101). This amendment statutorily overruled the Supreme Court's
decision in United States v. Nordic Village, 503 U.S. 30, 112
S.Ct. 1011, 117 L.Ed.2d 181 (1992), to the extent the Court found
§ 106 did not waive sovereign immunity. H.R.Rep. No. 835, 103d
Cong., 2d Sess. 42 (1994), reprinted in 1994 U.S.C.C.A.N. 3340,
3350; see In re Ryan, 64 F.3d 1516, 1519 n. 2 (11th Cir.1995).
106(a)(5). Therefore, Jove must show that some source outside of
§ 106 entitles it to relief. In this regard, Jove argues that both
§ 362(h) and § 105 provide independent sources of relief for IRS
violating the automatic stay.
IRS Liability Under § 362(h)
Section 106(a) unequivocally waives sovereign immunity for §
362 which contains the automatic stay provisions. Jove argues
subsection (h) of § 362 provides an independent source of relief
for IRS's violating the automatic stay. This provision states,
An individual injured by any willful violation of a stay
provided by this section shall recover actual damages,
including costs and attorneys' fees, and, in appropriate
circumstances, may recover punitive damages.
11 U.S.C. § 362(h) (emphasis added). Although this section clearly
provides an independent source for recovery, IRS argues it does not
apply in this case because Jove is a "corporation," not an
"individual."
A. Circuits Are Split Whether a Corporation is an "Individual"
The circuit courts are equally divided whether the term
"individual" in § 362(h) includes a corporation. The Third and
Fourth Circuits hold the term "individual" includes corporations,
but the Second and Ninth Circuits hold the term "individual" does
not include corporations. Compare In re Atlantic Business and
Community Corp., 901 F.2d 325, 329 (3d Cir.1990) and Budget Service
Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292 (4th
Cir.1986) with In re Goodman, 991 F.2d 613, 619 (9th Cir.1993) and
In re Chateaugay Corp., 920 F.2d 183 (2d Cir.1990).
The most often cited case construing the term "individual" in
§ 362(h) to include a corporation is In re Tel-A-Communications
Consultants, Inc., 50 B.R. 250 (D.Conn.1985).9 The court stated:
The ... question ... is whether or not Congress intended
the subsection (h) sanctions to apply only in favor of
individual debtors as the language of that subsection
literally provides. I think not. Subsection (h) must be read
with the rest of Code § 362 [which] suggests no basis for such
a narrow construction. On the contrary, the automatic stay
provided by Code § 362(a) was intended to give all debtors
broad relief from all entities. As the legislative history of
Code § 362 states:
The automatic stay is one of the fundamental debtor
protections provided by the bankruptcy laws. It gives
the debtor a breathing spell from his creditors. It
stops all collection efforts, all harassment, and all
foreclosure actions. It permits the debtor to attempt a
repayment or reorganization plan, or simply to be
relieved of the financial pressures that drove him into
bankruptcy.
It seems highly unlikely that only individual debtors were
meant to have a remedy against those who willfully violate the
automatic stay designed to protect all debtors. There is no
legislative history to suggest that result.
Tel-A-Communications, 50 B.R. at 254.
The Fourth Circuit quoted the above passage from Tel-A-
Communications and, without any further analysis, concluded "we
construe the word "individual' [within § 362(h) ] to include a
corporate debtor." Budget Service, 804 F.2d at 292. The Third
Circuit followed by simply stating, "Although Section 362(h) refers
to an individual, the section has uniformly been held to be
9
The impact of this case is interesting because the court's
conclusion that a corporation is an "individual" is dicta—neither
party contested that issue. Tel-A-Communications, 50 B.R. at 254
("[T]he defendant has not claimed such a narrow reading of
subsection (h) [i.e., a corporation is not an "individual'].
Instead the defendant ... claim[s] that its action was not a
willful violation."). We further note that Tel-A-Communications
was decided before United States v. Ron Pair Enterprises, Inc.,
489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), where the
Supreme Court set forth the plain meaning doctrine for construing
the complex Bankruptcy Code. The Chateaugay line of cases rely
primarily on Ron Pair in holding the term "individual" in §
362(h) does not include a corporation.
applicable to a corporate debtor." Atlantic Business, 901 F.2d at
329 (citing Budget Service, 804 F.2d at 292).
The Second Circuit was the first circuit to conclude the term
"individual" within § 362(h) does not include a corporation.
Chateaugay, 920 F.2d at 186-87. The court relied on the plain
meaning of the statute, and further concluded that "even applying
[the Tel-A-Communications ] analysis simply on its own terms ... it
[is] entirely plausible that the use of the word "individual' was
intentional, and that Congress was enacting a series of measures
meant to benefit only natural persons." Id. at 185-86. The Ninth
Circuit adopted the reasoning in Chateaugay and held " "individual'
means individual, and not a corporation or other artificial
entity." Goodman, 991 F.2d at 619. As set forth below, we agree
with the reasoning in Chateaugay and conclude that the district
court correctly held that the term "individual" in § 362(h) does
not include a corporation.
B. Plain Meaning Doctrine
In United States v. Ron Pair Enterprises, Inc., the Supreme
Court set forth the plain meaning doctrine for construing the
complex Bankruptcy Code, stating:
Congress worked on the formulation of the [Bankruptcy Code of
1978] for nearly a decade. It was intended to modernize the
bankruptcy laws, and as a result made significant changes in
both the substantive and procedural laws of bankruptcy.... In
such a substantial overhaul of the [bankruptcy] system, it is
not appropriate or realistic to expect Congress to have
explained with particularity each step it took. Rather, as
long as the statutory scheme is coherent and consistent, there
generally is no need for a court to inquire beyond the plain
language of the statute.... The plain meaning of legislation
should be conclusive, except in the rare cases in which the
literal application of a statute will produce a result
demonstrably at odds with the intention of its drafters. In
such cases, the intention of the drafters, rather than the
strict language, controls.
489 U.S. 235, 240-42, 109 S.Ct. 1026, 1030-31, 103 L.Ed.2d 290
(1989) (emphasis added) (internal quotations omitted). Therefore,
we must first construe the plain meaning of the term "individual,"
and then determine whether applying the plain meaning is
demonstrably at odds with Congress's intent. We conclude the plain
meaning of the term "individual" does not include a corporation,
and applying this meaning is not demonstrably at odds with
Congress's intent.
1. Plain Meaning of "Individual" Does Not Include a
Corporation—We first note that the Bankruptcy Code does not define
the term "individual." However, "it should be generally assumed
that Congress expresses its purposes through the ordinary meaning
of the words it uses." Escondido Mutual Water Co. v. La Jolla
Indians, 466 U.S. 765, 772, 104 S.Ct. 2105, 2110, 80 L.Ed.2d 753
(1984); National Coal Ass'n v. Chater, 81 F.3d 1077, 1081-82 (11th
Cir.1996) (Construing the plain meaning of "reimbursement");
Financial Security Assurance, Inc. v. Tollman-Hundley Dalton, L.P.,
74 F.3d 1120, 1124 (11th Cir.1996) (Construing the plain meaning of
the term "rent" in § 552(b) of the Bankruptcy Code). Webster's New
Collegiate Dictionary defines "individual" as "a particular being
or thing as distinguished from a class, species or collection ...
a single human being as contrasted with a social group or
institution." Webster's New Collegiate Dictionary 581 (8th ed.
1979). Similarly, Black's Law Dictionary defines "individual" as
"a single person as distinguished from a group or class, and also,
very commonly, a private or natural person as distinguished from a
partnership, corporation, or association ... it may, in proper
cases, include artificial persons." Black's Law Dictionary 773
(6th ed. 1996). As these definitions show, the term "individual"
does not ordinarily include a corporation. Therefore, we conclude
the plain meaning of the term "individual" in § 362(h) does not
include a corporation.10
2. Plain Meaning Not at Odds with Legislative Intent—We must
construe the term "individual" by its plain meaning unless such a
construction presents "the rare case[ ] in which the literal
application of [the] statute will produce a result demonstrably at
odds with the intention of its drafters." Ron Pair, 489 U.S. at
242, 109 S.Ct. at 1031 (quoting Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973
(1982)) (internal quotations omitted).
We conclude that interpreting "individual" to exclude
corporations is not at odds with Congress's intent because the
Bankruptcy Code itself distinguishes between an "individual" and a
"corporation," and we may reasonably assume Congress only intended
§ 362(h) to benefit natural persons. The Bankruptcy Code uses the
term "individual" in a manner distinct from a corporation. For
example, the Code defines "person" to "include[ ] individual,
10
Indeed, those court's adopting the Tel-A-Communications
analysis apparently agree that the plain meaning of the term
"individual" does not include a corporation. See Budget Service,
804 F.2d at 292 ("[Section 362(h) ] sanctions are not limited to
the relief of an "individual' in the literal sense.") (emphasis
added); Tel-A-Communications, 50 B.R. at 254 ("The initial
question then is whether or not Congress intended the subsection
(h) sanctions to apply only in favor of individual debtors as the
language of that subsection literally provides.") (emphasis
added).
partnership, and corporation." 11 U.S.C. § 101(41). The
Chateaugay court noted that "[t]hroughout the code, rights and
duties are allocated in some instances to "individuals' and in
others to "persons' ... [and the] text of ... [the bankruptcy] code
sections demonstrates that Congress used the word "individual'
rather than "person' to mean a natural person." Chateaugay, 920
F.2d at 184 (citing 11 U.S.C. §§ 109 and 101(39)). A bankruptcy
court within this circuit similarly concluded that "in defining
"person,' Congress used the word "individual' to distinguish
natural persons from corporations and partnerships. Other sections
of the Bankruptcy Code either make the same distinction or use the
word "individual' in such a way that its only intended meaning
could be a natural person."11 In re Georgia Scale Co., 134 B.R. 69,
70 (S.D.Ga.1991).
The Tel-A-Communications line of cases rely on the legislative
11
The court listed the following examples:
Section 101(9)(A)(i) defines corporation as an
"association having a power or privilege that a private
corporation, but not an individual or a partnership,
possess." Section 101(8) defines "consumer debt" as a
"debt incurred by an individual primarily for a person,
family, or household purpose." Section 101(18) defines
"family farmer" differently if the farmer is an
"individual or individual and spouse," § 101(18)(A),
than if the farmer is a "corporation or partnership," §
101(18)(B). Section 101(31) gives a separate
definition for "insider" if the debtor is an
"individual," § 101(31)(A), rather than a
"corporation," § 101(31)(B). Section 101(44) defines
"railroad" as a "common carrier ... engaged in the
transportation of individuals ..." Section 101(45)
defines "relative" as an "individual related by
affinity or consanguinity within the third degree as
determined by the common law, or individual in a step
or adoptive relationship within such third degree."
Georgia Scale, 134 B.R. at 70-71.
history of the Bankruptcy Code of 1978 to support a liberal
definition of the term "individual" to include a corporation. Tel-
A-Communications, 50 B.R. at 254. However, as theChateaugay court
noted, "[§ 362(h) ] was added to the code after the rest of the
section was enacted ... Therefore, legislative history and
construction which support broad coverage for the automatic stay
imposed by § 362(a) do not necessarily apply to subsection (h),
which deals only with sanctions for violating the stay."
Chateaugay, 920 F.2d at 186. Prior to the enactment of § 362(h),
sanctions for violating the automatic stay were imposed under the
court's contempt powers pursuant to § 105(a) which states that a
court "may issue any order, process, or judgment that is necessary
or appropriate to carry out the provisions of this title." 11
U.S.C. § 105(a) (1983); 12 In re Crysen/Montenay Energy Co., 902
F.2d 1098, 1104 (2d Cir.1990). When enacting § 362(h) in 1984, "it
is entirely possible that Congress ... chose to expand the remedies
one step at a time." Chateaugay 920 F.2d at 186.
Congress may well have thought that individual debtors were
particularly vulnerable to violations of the stay by [those]
who may ... believe that individuals are less likely than
corporations to be aware of their rights under the automatic
stay ... warrant[ing] an explicit code provision to punish
stay violation and compensate debtors [who are] individuals.
Id. Therefore, in addition to the discretionary remedies already
available to both individuals and corporations under § 105, it is
reasonable to infer that Congress enacted § 362(h) to provide
mandatory compensatory and discretionary punitive damages for
12
Section 105(a) was amended in 1984 by striking the word
"bankruptcy" that preceded "court." Bankruptcy Amendments and
Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 §
118(1) (1984).
individual debtors only. Unlike individuals, corporations are
still limited to the discretionary remedies of § 105. See In re
Pace, 67 F.3d 187, 193 (9th Cir.1995) (Damages in the form of costs
and attorney's fees that are not available to non-individual under
§ 362(h) are available under § 105(a) as a sanction for ordinary
civil contempt); Chateaugay, 920 F.2d at 186-87 ("For other
debtors [who are not natural persons], contempt proceedings are the
proper means of compensation and punishment for willful violations
of the automatic stay."); In re Skinner, 917 F.2d 444, 447 (10th
Cir.1990) (Section 105 provides civil contempt powers); In re
Walters, 868 F.2d 665, 670 (4th Cir.1989) (recognizing civil
contempt power under § 105(a)); Georgia Scale, 134 B.R. at 73 ("§
362(h) is not an available remedy for the corporate debtor ... Such
debtor's remedies for violations of the automatic stay are provided
for pursuant to the court's power of civil contempt."); Forestry
Products, Inc. v. Hope, 34 B.R. 753 (M.D.Ga.1983).
We also note that § 362(h) was enacted under the "Consumer
Credit Amendments" section of the Bankruptcy Amendments and Federal
Judgeship Act of 1984 which contained a series of measures
concerning only natural persons. Pub.L. No. 98-353, 98 Stat. 333,
352 (Title III, Subtitle A § 304). Therefore, it is reasonable to
assume Congress intended § 362(h) to benefit natural persons only.
Of course, we need not determine whether Tel-A-Communications
presents a more persuasive analysis of legislative intent. Even if
we considered the Tel-A-Communications alternative more appealing,
we may not stray from the plain meaning of the term "individual"
because "[c]ourts are not authorized to rewrite a statute because
they might deem its effects susceptible of improvement." Badaracco
v. C.I.R., 464 U.S. 386, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984). The
preceding analysis is only intended to ensure that interpreting the
term "individual" in § 362(h) to mean only natural persons does not
present "the rare case[ ] in which literal application of [the]
statute will produce a result demonstrably at odds with the
intention of its drafters." Ron Pair, 489 U.S. at 242, 109 S.Ct.
at 1031 (emphasis added). Concluding otherwise, we affirm the
district court's holding that Jove is not entitled to relief under
§ 362(h) because the term "individual" is limited to natural
persons and does not include corporations or other artificial
entities.
IRS Liability for Contempt
Jove argues that, even if it is not entitled to relief under
11 U.S.C. § 362(h), it is entitled to relief under the court's
contempt powers pursuant to 11 U.S.C. § 105. We agree, and hold
that § 105 creates a statutory contempt power in bankruptcy
proceedings, distinct from the court's inherent contempt powers,
for which Congress unequivocally waives sovereign immunity.
A. Inherent and Statutory Contempt Powers
Before determining whether § 105 provides an independent
source of relief for violation of the automatic stay, we must first
distinguish between the court's statutory and inherent contempt
powers. In a nutshell: Section 105 aside, courts have inherent
contempt powers in all proceedings, including bankruptcy, to
"achieve the orderly and expeditious disposition of cases."
Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 2132, 115
L.Ed.2d 27 (1991). Under § 105, Congress expressly grants court's
independent statutory powers in bankruptcy proceedings to "carry
out the provisions of" the Bankruptcy Code through "any order,
process, or judgment that is necessary or appropriate." 11 U.S.C.
§ 105(a).
1. Inherent Contempt Powers—In Chambers, the Supreme Court
explained that courts possess inherent powers which "necessarily
result ... from the nature of their institution ... [and] cannot be
dispensed with in a Court, because they are necessary to the
exercise of all other[ ] [powers]." 501 U.S. at 43, 111 S.Ct. at
2132. Among these powers, "it is firmly established that the power
to punish for contempts is inherent in all courts." Chambers, 501
U.S. at 44, 111 S.Ct. at 2132 (internal quotations omitted);
Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531,
1535, 16 L.Ed.2d 622 (1966) ("There can be no question that courts
have inherent power to enforce compliance with their lawful orders
through civil contempt."). We recently affirmed a court's using
its inherent contempt power to award attorney fees for violating
the automatic stay of § 362(a). In re Mroz, 65 F.3d 1567, 1575
(11th Cir.1995) (quoting Chambers, 501 U.S. at 49, 111 S.Ct. at
2129-30).13
13
We noted that these inherent powers include the contempt
power as well as
the power of a federal court to control admission to
its bar, punish parties for contempt, vacate its own
judgment upon proof that a fraud has been perpetrated
upon the court, bar a disruptive criminal defendant
from the court room, dismiss an action on grounds of
forum non conveniens, act sua sponte to dismiss a suit
for failure to prosecute, and assess attorney's fees
against counsel.
The Supreme Court made clear that these inherent powers arise
independently of any statute or rule, stating:
These powers are governed not by rule or statute but by the
control necessarily vested in courts to manage their own
affairs so as to achieve the orderly and expeditious
disposition of cases.... We discern no basis for holding that
the sanctioning scheme of the statute and the rules displaces
the inherent power to impose sanctions for the bad-faith
conduct described above. These other mechanisms, taken alone
or together, are not substitutes for the inherent power, for
that power is both broader and narrower than other means of
imposing sanctions. First, where as each of the other
mechanisms reaches only certain individuals or conduct, the
inherent power extends to a full range of litigation abuses.
At the very least, the inherent power must continue to exist
to fill in the interstices.... [T]he inherent power of a court
can be invoked even if procedural rules exists which sanction
the same conduct.... [A] federal court [is not] forbidden to
sanction bad-faith conduct by means of the inherent power
simply because that conduct could also be sanctioned under the
statute or the Rules.
Chambers, 501 U.S. at 43-50, 111 S.Ct. at 2132-36 (internal
quotations omitted).
The Chambers court warned that a court must "exercise caution
in invoking its inherent power," stating:
Because of their very potency, inherent powers must be
exercised with restraint and discretion. A primary aspect of
that discretion is the ability to fashion an appropriate
sanction for conduct which abuses the judicial process....
[W]hen there is bad-faith conduct in the course of litigation
that could be adequately sanctioned under the Rules, the court
ordinarily should rely on the Rules rather than the inherent
power. But if in the informed discretion of the court,
neither the statute nor the Rules are up to the task, the
court may safely rely on its inherent power.
Id. at 44-45, 50, 111 S.Ct. at 2132-33, 2136.
2. Statutory Contempt Powers—Distinct from the court's
inherent powers are statutory contempt powers that § 105(a) grants
in the bankruptcy context, stating, "The court may issue any order,
Mroz, 65 F.3d at 1575 (11th Cir.1995) (citing Chambers, 501
U.S. at 43-44, 111 S.Ct. at 2132).
process, or judgment that is necessary or appropriate to carry out
the provisions of this title." 11 U.S.C. § 105(a); see Carver v.
Carver, 954 F.2d 1573, 1578 (11th Cir.), cert. denied, 506 U.S.
986, 113 S.Ct. 496, 121 L.Ed.2d 434 (1992); Borg-Warner Acceptance
Corp. v. Hall, 685 F.2d 1306, 1308-09 (11th Cir.1982). If the
automatic stay provision is violated, courts generally award
damages under the separate statutory contempt power of § 105. See,
e.g., In re Pace, 67 F.3d 187, 193 (9th Cir.1995) (Damages in the
form of costs and attorney's fees for willful violations that are
not available to non-individual under § 362(h) are available under
§ 105(a) as a sanction for ordinary civil contempt); In re
Chateaugay, 920 F.2d 183, 186-87 (2d Cir.1990) ("For other debtors
[who are not natural persons], contempt proceedings are the proper
means of compensation and punishment for willful violations of the
automatic stay.").
Section 105(a) states "[t]he court may issue any order,
process or judgment that is necessary or appropriate to carry out
the provisions of this title." 11 U.S.C. § 105(a) (emphasis
added). Sovereign immunity aside, § 105 uses the broad term "any"
which encompasses all forms of orders including those that award
monetary relief. The term "any" should be given this broad
construction under the "settled ruled that a statute must, if
possible, be construed in such fashion that every word has some
operative effect." United States v. Nordic Village, 503 U.S. 30,
36, 112 S.Ct. 1011, 1015, 117 L.Ed.2d 181 (1992). The broad term
"any" is only limited to those orders that are "necessary or
appropriate" to carry out the Bankruptcy Code. Therefore, the
plain meaning of § 105(a) encompasses any type of order, whether
injunctive, compensative or punitive, as long as it is "necessary
or appropriate to carry out the provisions of" the Bankruptcy Code.
See Rice v. United States, 78 F.3d 1144, 1151 (6th Cir.1996). We
must construe § 105(a) by this plain meaning unless such
construction presents "the rare case[ ] in which literal
application of [the] statute will produce a result demonstrably at
odds with the intention of its drafters." United States v. Ron
Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031,
103 L.Ed.2d 290 (1989). There is nothing in the Bankruptcy Code to
indicate that, compared to other remedies, monetary relief under §
105 is particularly not "necessary or appropriate." Indeed, it is
clear that monetary relief is "necessary or appropriate" for
certain violations of the automatic stay. Although we disagree
with the ultimate conclusion of the Tel-A-Communications line of
cases, we agree with their underlying premise that a monetary
remedy helps secure the fundamental protections of the automatic
stay. See In re Tel-A-Communications Consultants, Inc., 50 B.R.
250, 254 (D.Conn.1985). Further, Congress's enacting § 362(h)
clearly shows that it considers monetary awards "necessary or
appropriate" for certain automatic stay violations. Therefore, we
conclude § 105(a) grants courts independent statutory powers to
award monetary and other forms of relief for automatic stay
violations to the extent such awards are "necessary or appropriate"
to carry out the provisions of the Bankruptcy Code.
B. Waiver of Sovereign Immunity for § 105
Having determined that § 105(a) grants an independent
statutory source for monetary relief, we must consider sovereign
immunity. Congress amended § 106 to waive expressly and
unequivocally sovereign immunity under § 105 and other sections "to
the extent set forth in this section." 11 U.S.C. § 106(a)(1).
Section 106 expressly extends this waiver to permit a court to
"issue against a governmental unit ... an order, process, or
judgment awarding a money recovery, but not including an award of
punitive damages." 11 U.S.C. § 106(a)(3). By its plain meaning,
§ 106(a) unequivocally waives sovereign immunity for court-ordered
monetary damages under § 105, although such damages must not be
punitive. Therefore, we conclude Jove may seek "necessary or
appropriate" monetary relief under the district court's § 105
statutory powers for IRS violating the automatic stay.
C. IRS in Contempt Under § 105
When the automatic stay is violated, courts generally find
the violator in contempt under 11 U.S.C. § 105 if the violation is
"willful." See In re Pace, 67 F.3d 187, 193 (9th Cir.1995); In re
Goodman, 991 F.2d 613, 620 (9th Cir.1993); In re Chateaugay Corp.,
920 F.2d 183, 187 (2d Cir.1990); cf. In re Mroz, 65 F.3d 1567,
1575 (11th Cir.1995) ("Invocation of a court's inherent power
requires a finding of bad faith."). Regarding "willfulness," we
have stated that, "[a]lthough the definition varies somewhat from
context to context, willfulness generally connotes intentional
action taken with at least callous indifference for the
consequences." Sizzler Family Steak Houses v. Western Sizzlin
Steak House, Inc., 793 F.2d 1529, 1535 (11th Cir.1986). Other
circuits find automatic stay violations willful if the violator (1)
knew of the automatic stay and (2) intentionally committed the
violative act, regardless whether the violator specifically
intended to violate the stay. See Price v. United States, 42 F.3d
1068, 1071 (7th Cir.1994) ("A "willful violation' does not require
a specific intent to violate the automatic stay."); Citizens Bank
v. Strumpf, 37 F.3d 155, 159 (4th Cir.1994) ("To constitute a
willful act, the creditor need not act with specific intent but
must only commit an intentional act with knowledge of the automatic
stay."), rev'd on other grounds, --- U.S. ----, 116 S.Ct. 286, 133
L.Ed.2d 258 (1995); Goodman, 991 F.2d at 618 ("A "willful
violation' does not require a specific intent to violate the
automatic stay," but only that the defendant knew of the automatic
stay and intended the acts that violated the stay); Budget Service
Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292-93 (4th
Cir.1986) (Willful violation where contemnor "knew of the pending
petition and intentionally attempted to repossess the vehicles in
spite of it."). We have similarly stated that "the focus of the
court's inquiry in civil contempt proceedings is not on the
subjective beliefs or intent of the alleged contemnors in complying
with the order, but whether in fact their conduct complied with the
order at issue." Howard Johnson Co., Inc. v. Khimani, 892 F.2d
1512, 1516 (11th Cir.1990). The Supreme Court explained:
The absence of wilfulness does not relieve from civil
contempt. Civil as distinguished from criminal contempt is a
sanction to enforce compliance with an order of the court or
to compensate for losses or damages sustained by reason of
noncompliance. Since the purpose is remedial, it matters not
with what intent the defendant did the prohibited act.
McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497,
499, 93 L.Ed. 599 (1949).
In this case, the district court stated "[t]here was
absolutely no malice and nothing approaching "arrogant defiance' or
reckless disregard ... [a] computer was, perhaps, not finely
tuned." In re Jove Engineering, Inc., 171 B.R. 387, 394
(N.D.Ala.1994). The court declined to find IRS in contempt because
"all the purported violations were inadvertent and could have been
remedied with a phone call." Jove, 171 B.R. at 394. The court
expressly held there were no willful violations and, "[e]ven if,
technically, there were [willful violations], the circumstances do
not call for punishment." Id. at 395 n. 20. We disagree with the
trial court's holding of no willful violations.
Under the general "willful violation" test used by other
circuits, IRS's conduct was in contempt because IRS (1) knew the
automatic stay was invoked and (2) intended the actions which
violated the stay. There is no dispute IRS knew the automatic stay
was invoked based on the (i) bankruptcy court's November 6, 1992
notice; (ii) Jove's November 18 letter to Ms. Hibbard; (iii)
Jove's November 25 letter to Ms. Hibbard; (iv) Jove's January 7,
1993 letter to the IRS Memphis office; (v) Jove's April 5 letter
to the Memphis office; (vi) Jove's April 28 contempt motion and
(vii) Mr. Kelly's May 1993 phone call to Ms. Hibbard. Further
there is no dispute IRS intended the actions that violated the
automatic stay, even though no particular IRS employee may have
specifically intended to violate the stay. These violative actions
include: (i) Memphis office's December 21, 1992 "Request for
Payment;" (ii) Memphis office's March 29, 1993 "Notice of Intent
to Levy—Immediate Response Required;" (iii) April 15 "Notice of
Intent to Levy—Immediate Response Required" and (iv) Ms. Langston's
June 1 on-site visit and threatening note. Therefore, Jove has
made a prima facie showing that IRS willfully violated the
automatic stay. "[O]nce the moving party makes a prima facie
showing that the court order was violated, the burden of production
shifts to the alleged contemnor to show a present inability to
comply that goes beyond a mere assertion of inability." Howard
Johnson, 892 F.2d at 1516 (internal quotations omitted).
The record indicates that the district court insufficiently
considered some of the relevant evidence. Its conclusion that all
purported violations were inadvertent and could have been remedied
by a phone call is an insufficient balancing of the circumstances
that caused actual and necessary extra expense to the taxpayer.
Jove's attorney laid the basis for cooperation in his November
18, 1992 letter in response to Ms. Hibbard's letter of November 12,
in which IRS not only acknowledged the bankruptcy, but acknowledged
Scott's representative status by forwarding to him a copy of its
letter to Jove. Thus IRS could have included at that time the
request for a power of attorney that it sent two months later, in
January 1993. All communications of record between the parties
were in usual written form until May 1993. The first phone call of
record was made by Mr. Scott to Mr. Kelly who then called Ms.
Hibbard's office. It is not all that clear that the violations
could have been remedied with a phone call from Mr. Scott to IRS.
This overlooks the effect on IRS, causing the immediate freeze,
attributable to the fact that there was in place a contempt
proceeding, and that the phone call came from the United States
Attorney's Office.
Speaking of phone calls, the capability to communicate, in
most telephone systems, works in both directions. Although Mr.
Kelly did apparently promptly initiate the freeze as a result of
Mr. Scott's May 1993 call, IRS was presented with several instances
when it could have made a phone call itself, at least during the
period of April 8, 1993, when IRS actually received Mr. Scott's
power of attorney, and May 17, 1993, yet IRS continued to violate
the stay for over a month, which was excessive even if there had
been no computer. Ms. Langston also could have made a phone call,
or at least entered into some limited discussion during her visit
of June 1, 1993 adequate enough to have alerted her to the
information that she obtained internally several days later. The
violations were not "occasional" in this case, but were repeated.
In an operation as large and as generally efficient and
cooperative as the Internal Revenue Service, it is understandable
that many failures of communication may occur, especially if its
computer is the culprit. However, that is a problem for IRS,
especially if it is persistent and unremedied. Even if IRS's
problem with equipment is due entirely to agency budgeting or
legislative appropriation, in any event it is not a burden to be
shifted to taxpayer or taxpayer's counsel.
We are not persuaded by IRS's attempts to avoid responsibility
for its conduct by blaming its computer system for not properly
"freezing" collection activities and blaming Jove for not calling
IRS. We are more persuaded by a recent bankruptcy decision which
similarly considered IRS violations attributed to known computer
problems. In re Flynn, 169 B.R. 1007 (S.D.Ga.1994). The Flynn
court found IRS liable for violating the stay because "[IRS's]
failure to correct known, glaring weaknesses in its internal
controls which cause it to repeatedly violate the automatic stay
constitutes bad faith and an arrogant defiance of the majesty of
the Federal Law which has embodied 11 U.S.C. § 362 as its
"fundamental protection' to debtors in bankruptcy." In re Flynn,
169 B.R. at 1024. At least one commentator notes that IRS "is a
frequent violator of the automatic stay provisions of the
bankruptcy code" and "[d]ue to an uncooperative computer, the IRS
has not adequately controlled enforcement actions against tax
debtors, a shortcoming that has resulted in numerous
"opportunities' for the IRS to appear before the bankruptcy courts
to try and explain its repeated violations of the bankruptcy code."
Matthew J. Fischer, The Equal Access to Justice Act—Are the
Bankruptcy Courts Less Equal than Others?, 92 Mich.L.Rev. 2248,
2250-51 (1994).
Perhaps IRS's frequent violations led it to forward to debtors
the following notice which includes a hotline to report violations:
Occasionally the Service inadvertently levies on or seizes
property of the debtor subsequent to the filing of the
petition for reorganization. If a problem of this kind is
encountered, please call our office immediately at (205) 731-
1248. We will attempt to resolve the matter as expeditiously
as possible. In virtually every case, we can quickly release
the levy. Filing a motion to hold the Internal Revenue
Service in contempt usually delays resolution of the matter.
Jove, 171 B.R. at 390. This attempt to burden debtors with
policing IRS's misconduct is a complete derogation of the law. It
is well settled that "[e]ach party to a court order is responsible
for ensuring its own compliance with that order and for shouldering
the cost of compliance." Sizzler, 793 F.2d at 1535. Although
whether Jove could have remedied the violations with a phone call
may be relevant in assessing damages, such an inquiry is irrelevant
in determining whether IRS is in contempt for violating the
automatic stay. The relevant inquiry is not whether Jove had the
ability to ensure that IRS complies with the automatic stay, but
whether IRS had the ability to comply with the automatic stay.
Howard Johnson, 892 F.2d at 1516 (The alleged contemnor must
present evidence of "a present inability to comply that goes beyond
a mere assertion of inability.") (internal quotations omitted);
Jordan v. Wilson, 851 F.2d 1290, 1291 n. 2 (11th Cir.1988) (Must
demonstrate that "the alleged violator had the ability to comply
with the order."). In assessing IRS's ability to comply,
"[c]onduct that evinces substantial, but not complete, compliance
with the court order may be excused if it was made as part of a
good faith effort at compliance." Howard Johnson, 892 F.2d at
1516. We do not find such a good faith effort where IRS frequently
violates the automatic stay, IRS knows its computer system
configuration inevitably leads to violations,14 and IRS seeks to
burden debtors with policing its violations. Therefore, we
conclude the district court abused its discretion by not finding
IRS in contempt under § 105 for willfully violating the automatic
stay.
14
It appears IRS knew its computer system would inevitably
lead to stay violations, although it did not know for certain
which particular debtors would be harmed. Though not of equal
fatality, this is akin to shooting a gun into a crowd, aware it
will inevitably injure someone, although not knowing which
particular person will be injured.
D. Sanctions Under § 105
The purpose of civil contempt sanctions is to (1) compensate
the complainant for losses and expenses it incurred because of the
contemptuous act, and (2) coerce the contemnor into complying with
the court order. EEOC v. Guardian Pools, Inc., 828 F.2d 1507, 1515
(11th Cir.1987); Sizzler Family Steak Houses v. Western Sizzlin
Steak House, Inc., 793 F.2d 1529, 1534 (11th Cir.1986). In this
case, Jove seeks (1) actual out-of-pocket expenses it incurred in
protecting its automatic stay rights and (2) severe monetary
sanctions to induce IRS to cease violating the stay.
1. Coercive Sanctions—The district court concluded that "the
circumstances do not call for punishment" if there were willful
violations. If the elements of contempt exist subject to the
statutory powers of the enforcing court under 11 U.S.C. § 105, the
character of the circumstances is more properly a function of the
assessment of sanctions than of the determination whether there was
a violation, and therefore a contempt. Sanctions imposed for civil
contempt to coerce compliance "cannot be any greater than necessary
to ensure such compliance" and may not be so excessive as to be
punitive in nature. Citronelle-Mobile Gathering, Inc. v. Watkins,
943 F.2d 1297, 1304 (11th Cir.1991); In re Trinity Industries, 876
F.2d 1485, 1493 (11th Cir.1989). This distinction between coercive
and punitive sanctions, which serves to distinguish between civil
and criminal contempt, is particularly important in this case where
Congress expressly declines to waive sovereign immunity for
punitive damages. 11 U.S.C. § 106(a)(3). Unfortunately, there are
few bright lines. International Union v. Bagwell, --- U.S. ----,
---- n. 3, 114 S.Ct. 2552, 2557 n. 3, 129 L.Ed.2d 642 (1994)
(Noting that "[n]umerous scholars have criticized as unworkable the
traditional distinction between civil and criminal contempt."). In
searching for those bright lines, we are mindful of "the
traditional principle that the Government's consent to be sued must
be construed strictly in favor of the sovereign." United States v.
Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 1014-15, 117
L.Ed.2d 181 (1992) (internal quotations omitted).
Sanctions are coercive if they serve the complainant rather
than vindicate some public interest. Penfield Co. v. Securities &
Exchange Commission, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed.
1117 (1947). Sanctions are also coercive if the contemnor has the
ability to control the extent of the sanction. See Penfield, 330
U.S. at 590, 67 S.Ct. at 921 ("One who is fined, unless by a day
certain he produces the books, has it in his power to avoid any
penalty. And those who are imprisoned until they obey the order,
"carry the keys of their prison in their own pockets.' "); see
also Local 28, Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S.
421, 444, 106 S.Ct. 3019, 3033, 92 L.Ed.2d 344 (1986)
("[P]etitioners could purge themselves of the contempt by ending
their discriminatory practices and by achieving the court-ordered
membership goal; they would then be entitled ... to recover any
moneys remaining in the Fund."); Shillitani v. United States, 384
U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966) ("[T]he
justification for coercive imprisonment as applied to civil
contempt depends upon the ability of the contemnor to comply with
the court's order."); Southern Railway Co. v. Lanham, 403 F.2d
119, 124 (5th Cir.1968) (Unconditional fine is punitive in nature
because "[i]t does not permit appellant to purge itself and remove
the sanction by compliance with the court's discovery order.").
In discussing the civil and criminal sanctions for indirect
contempt (i.e., contemptuous acts that occur out of the court), the
Supreme Court explained:
The paradigmatic coercive, civil contempt sanction ...
involves confining a contemnor indefinitely until he complies
with an affirmative command such as an order to pay alimony,
or to surrender property ordered to be turned over to a
receiver, or to make a conveyance.... [T]he contemnor is able
to purge the contempt and obtain his release by committing an
affirmative act, and thus carries the keys of his prison in
his own pocket. By contrast, a fixed sentence of imprisonment
is punitive and criminal if it is imposed retrospectively for
a completed act of disobedience, such that the contemnor
cannot avoid or abbreviate the confinement through later
compliance.... When a contempt involves the prior conduct of
an isolated, prohibited act, the resulting sanction has no
coercive effect. The defendant is furnished no key, and he
cannot shorten the term by promising not to repeat the
offense.... Where a fine is not compensatory, it is civil
only if the contemnor is afforded an opportunity to purge.
Thus, a flat, unconditional fine totaling even as little as
$50 announced after a finding of contempt is criminal if the
contemnor has no subsequent opportunity to reduce or avoid the
fine through compliance. A close analogy to coercive
imprisonment is a per diem fine imposed for each day a
contemnor fails to comply with an affirmative court order.
Like civil imprisonment, such fines exert a constant coercive
pressure, and once the jural command is obeyed, the future,
indefinite, daily fines are purged.
Bagwell, --- U.S. at ---- - ----, 114 S.Ct. at 2557-58 (internal
quotations omitted).
While not the exclusive distinctions between coercive and
punitive awards, these considerations, (i) whether the award
directly serves the complainant rather than public interest and
(ii) whether the contemnor may control the extent of the award,
sufficiently demonstrate that the district court did not abuse its
discretion by refusing to award sanctions to induce IRS to cease
violating the stay. There is no dispute that IRS has ceased taking
any actions against Jove that would violate the automatic stay.
Jove apparently seeks severe monetary damages in the form of a
fixed non-compensatory fine rather than "a per diem fine imposed
for each day a contemnor fails to comply with an affirmative court
order." Bagwell, --- U.S. at ----, 114 S.Ct. at 2558. To award a
fixed monetary sanction to induce IRS not to violate the automatic
stay in the future appears punitive because it would serve the
general public interest of protecting the automatic stay more than
it would serve Jove's particular interest where there is no
indication IRS will take any future action against Jove. Moreover,
such a fixed fine would have no coercive effect because IRS could
not purge itself of the sanction. See Bagwell, --- U.S. at ----,
114 S.Ct. at 2558 ("[A] flat, unconditional fine totaling even as
little as $50 announced after a finding of contempt is criminal if
the contemnor has no subsequent opportunity to reduce or avoid the
fine through compliance."). Therefore, we affirm the district
court's denying an award of non-compensatory, coercive damages.
2. Attorney Fees—If IRS violates the automatic stay, courts
awarding attorney fees must consider provisions from three
statutory schemes: the Bankruptcy Code, the Equal Access to
Justice Act ("EAJA"), and the Internal Revenue Code. In
considering these provisions, we are mindful of the fundamental
principle of statutory construction that, "[w]hen interpreting and
construing two [or more] acts that affect one particular subject
matter or area, the court must attempt to reconcile the acts, if
possible, so as to produce a symmetrical whole." Columbia Gas Dev.
Corp. v. Federal Energy Regulatory Commission, 651 F.2d 1146, 1158
(5th Cir.1981); see Araya v. McLelland, 525 F.2d 1194, 1196 (5th
Cir.1976) ("[W]hen possible, statutes should be construed so as not
to be in conflict with each other.").
Regarding automatic stay violations, the Bankruptcy Code
provides two relevant, independent sources for awarding attorney
fees, § 105(a) (discretionary) and § 362(h) (mandatory), and two
relevant limitations on the sovereign immunity waiver, § 106(a)(3)
(consistency with EAJA costs) and § 106(a)(4) (consistency with
nonbankruptcy law). As discussed, Jove is a corporation which
cannot seek relief under § 362(h), but may seek several forms of
relief under § 105(a) including attorney fees. Further, Congress's
unequivocal waiver of sovereign immunity specifically provides that
an "order or judgment for costs or fees under this title or the
Federal Rules of Bankruptcy Procedure against any governmental unit
shall be consistent with the provisions and limitations of section
2412(d)(2)(A) of title 28 [defining "fees and other expenses' under
EAJA]." 11 U.S.C. § 106(a)(3) (emphasis added). Therefore, the
plain meaning of the statute requires an award of attorney fees
under the statutory powers of § 105(a) to be consistent with §
2412(d)(2)(A) which defines those "fees and other expenses" that
may be awarded under EAJA.15
15
Section 2412(d)(2)(A) was recently amended by § 232(b)(1)
of the Contract with America Advancement Act of 1996 by striking
"$75" and inserting "$125." Pub.L. No. 104-121, 110 Stat. 847,
863 § 232(b)(1) (Judicial Proceedings under Subtitle C—Equal
Access to Justice Act Amendments) (enacted March 29, 1996).
Although the issue is not before us, we note that this amendment
probably does not apply in this case because § 233 of the Act
states, "The amendments made by section[ ] ... 322 [sic?] shall
apply to civil actions and adversary adjudications commenced on
The district court's memorandum supporting its first order
states that "Jove's claim for attorney fees is made pursuant only
to 11 U.S.C. § 105 and § 362(h). It does not claim fees pursuant
to 26 U.S.C. § 7430." Section 7430 is an Internal Revenue Code
provision waiving sovereign immunity for costs and fees "[i]n any
... court proceeding which is brought ... against the United States
in connection with the ... collection ... of any tax, interest, or
penalty." Unlike the EAJA, the § 106 sovereign immunity waiver is
not limited to proceedings to which § 7430 does not apply. See 28
U.S.C. § 2412(e) ("The provisions of this section shall not apply
to any costs, fees, and other expenses in connection with any
proceeding to which section 7430 of the Internal Revenue Code of
1986 applies."). However, the § 106 waiver does require that
"[t]he enforcement of any such order, process, or judgment against
any governmental unit shall be consistent with appropriate
nonbankruptcy law applicable to such governmental unit." 11 U.S.C.
or after the date of the enactment of this subtitle." 110 Stat.
at 864. The pre-amendment text of § 2412(d)(2)(A) reads as
follows:
"fees and other expenses" includes the reasonable
expenses of expert witnesses, the reasonable cost of
any study, analysis, engineering report, test, or
project which is found by the court to be necessary for
the preparation of the party's case, and reasonable
attorney fees (The amount of fees awarded under this
subsection shall be based upon prevailing market rates
for the kind and quality of the services furnished,
except that (i) no expert witness shall be compensated
at a rate in excess of the highest rate of compensation
for expert witnesses paid by the United States; and
(ii) attorney fees shall not be awarded in excess of
$75 per hour unless the court determines that an
increase in the cost of living or a special factor,
such as the limited availability of qualified attorneys
for the proceedings involved, justifies a higher fee.).
§ 106(a)(4) (emphasis added). The plain meaning of the statute
waives sovereign immunity for attorney fees awarded pursuant to the
court's § 105 statutory powers, but such awards must be consistent
with § 7430. Therefore, we conclude that a district court
exercising its discretion to award attorney fees under § 105 must
consider the criteria of § 7430. Cf. In re Cascade Roads, Inc., 34
F.3d 756, 767-69 (9th Cir.1994) (Award of costs and attorneys fees
must be made pursuant to § 7430 because contempt proceeding against
IRS for violating the automatic stay is "in connection with" the
determination and collection of taxes). The district court here
did not address § 7430 criteria because Jove expressly declined to
seek relief under that code provision. Further, the court did not
address § 2412(d)(2)(A) because § 106 did not reference that code
provision until it was amended which occurred after the district
court's decision in this case. The district court clearly has
discretion in assessing the damages under 11 U.S.C. § 105, but
since the record does not reflect whether the award is appropriate
in consideration of all applicable provisions, we must remand this
case to the district court to award attorney fees pursuant to §
105(a) and consistent with § 7430 and § 2412(d)(2)(A).
Conclusion
We conclude that we have jurisdiction to review the district
court's order as a "final decision" under 28 U.S.C. § 1291
notwithstanding the court's remand to the bankruptcy court. We
affirm the district court's conclusion that Jove is not an
"individual" entitled to relief under 11 U.S.C. § 362(h), but Jove
may seek discretionary relief under the statutory powers of 11
U.S.C. § 105(a) which are distinct from the court's inherent
powers. The district court abused its discretion by not finding
IRS in contempt—IRS wilfully violated the automatic stay because it
knew the automatic stay was in effect and intended the actions
which violated the stay, regardless whether any particular IRS
employee had the specific intent to violate the stay. The district
court did not abuse its discretion in declining to award severe
monetary sanctions to coerce IRS into complying with the automatic
stay because Jove seeks a fixed, unconditional fine which is
punitive in nature, not merely coercive, and Congress expressly
declines to waive sovereign immunity for punitive damages. The
court has discretion to award attorney fees under § 105(a), but
such awards must be consistent with 28 U.S.C. § 2412 and 26 U.S.C.
§ 7430. We remand to the district court for further proceedings
consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.