US Court of Appeals
U.S. Court of Appeals for the Ninth Circuit

Case Name:
Case Number:Date Filed:





                                                     No. 98-56475
                                                     BAP No.
                                                     CC-97-01350 OlBrMe

Appeal from the Bankruptcy Appellate Panel
for the Ninth Circuit
Lawrence Ollason, Philip H. Brandt, and James W. Meyers,
Bankruptcy Judges, Presiding

Argued and Submitted
November 3, 1999--Pasadena, California
Submission Vacated November 8, 1999
Resubmitted March 14, 2000

Filed April 21, 2000

Before: James R. Browning and A. Wallace Tashima,
Circuit Judges, and Samuel P. King,* District Judge.
*Honorable Samuel P. King, Senior United States District Judge for the
District of Hawaii, sitting by designation.


Opinion by Judge Tashima




Harry H. Mitchell, Palm Desert, California, appellant pro se.


David S. Chaney, Deputy Attorney General, Los Angeles,
California, for the appellees.



TASHIMA, Circuit Judge:

Harry and June Mitchell ("Mitchells") filed an adversary
complaint in their bankruptcy case against the California
Franchise Tax Board ("FTB") and the California Board of
Equalization ("Board") (together, the "State") to determine
the amount and dischargeability of taxes owed to the State.
The Mitchells also asserted state and federal claims, alleging,
inter alia, violations of the Fourteenth Amendment. The
Mitchells appeal the Bankruptcy Appellate Panel's ("BAP")
affirmance of the bankruptcy court's dismissal of all claims
for lack of jurisdiction on the basis of state sovereign immu-
nity under the Eleventh Amendment of the United States Con-
stitution. We have jurisdiction over this appeal pursuant to 28
U.S.C. S 158(d) and affirm the decision of the BAP.


The Mitchells filed a voluntary Chapter 7 bankruptcy peti-
tion in bankruptcy court in late 1995. The Mitchells listed the
FTB as one of their creditors to whom they owed approxi-
mately $300,000 in state income taxes and interest. The FTB
did not file a proof of claim in the Mitchells' bankruptcy pro-
ceedings. In February 1996, the bankruptcy court issued a
general discharge order as to all pre-petition debts.

In March 1997, the Mitchells filed their first amended com-
plaint against the FTB and the Board in bankruptcy court to:
(i) Determine the amount and dischargeability of their debt to
the FTB ("Count 1"); (ii) Assert claims of common law fraud
and violations of the California Revenue and Taxation Code


("Count 2"); and (iii) Claim violations of due process and
equal protection under the Fourteenth Amendment ("Count
3"). The State defended against all counts by asserting failure
to state a claim. Specifically, the State answered Count 1 of
the complaint by admitting the tax debt was discharged pursu-
ant to the terms of the bankruptcy court's order, but denied
the allegation that the debt was dischargeable under the Bank-
ruptcy Code. The State answered Counts 2 and 3 by asserting
Eleventh Amendment sovereign immunity. In April 1997, the
State enlarged its assertion of Eleventh Amendment immunity
to include Count 1 by filing a motion to dismiss all claims for
lack of jurisdiction.

The bankruptcy court, relying upon Seminole Tribe of Flor-
ida v. Florida, 517 U.S. 44 (1996), dismissed the case for lack
of jurisdiction. The BAP affirmed, Mitchell v. California
Franchise Tax Bd., 222 B.R. 877, 881-82 (B.A.P. 9th Cir.
July 15, 1998) (holding that although Congress expressed its
intent to abrogate Eleventh Amendment immunity in 11
U.S.C. S 106(a), it could not do so under Seminole Tribe). The
BAP found that S 106(a) was passed pursuant to the Bank-
ruptcy Clause of Article I, which does not provide Congress
with abrogation power, as opposed to the Fourteenth Amend-
ment, S 5, which does. See id. Additionally, the panel noted
that: (i) Count 1 of the Mitchells' complaint was a "suit" for
Eleventh Amendment purposes; (ii) The State did not waive
its immunity by admitting the tax debt was discharged or by
amending its answer; (iii) Application of Seminole Tribe was
not retroactive because the Mitchells' amended complaint was
filed after Seminole Tribe was decided; and (iv) The State was
immune from the Mitchells' Fourteenth Amendment due pro-

cess and equal protection claims. See id. at 882-88.


We review decisions of the BAP de novo. See Arden v.
Motel Partners (In re Arden), 176 F.3d 1226, 1227 (9th Cir.
1999). In other words, we independently review the bank-


ruptcy court's rulings on appeal from the BAP. See Tuli v.
Republic of Iraq (In re Tuli), 172 F.3d 707, 709 (9th Cir.
1999). Jurisdictional issues in bankruptcy, including sover-
eign immunity assertions, are also reviewed de novo. See Vyl-
ene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.),
90 F.3d 1472, 1475 (9th Cir. 1996). The bankruptcy court's
findings of fact are reviewed for clear error. See Ardmor
Vending Co. v. Kim (In re Kim), 130 F.3d 863, 865 (9th Cir.


Under the Eleventh Amendment,1 a state is immune from
suit under state or federal law by private parties in federal
court absent a valid abrogation of that immunity or an express
waiver by the state. See College Savs. Bank v. Florida Pre-
paid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2223
(1999); Seminole Tribe, 517 U.S. at 64-68.


[1] The Mitchells first contend that they have not com-
menced a "suit" against the State. By its terms, the Eleventh
Amendment only provides immunity in "suit[s ] in law or
equity." Courts have found that certain bankruptcy proceed-
ings do not constitute "suits" in the Eleventh Amendment
sense. In Texas v. Walker, 142 F.3d 813, 820-22 (5th Cir.
1998), cert. denied, 119 S. Ct. 865 (1999), for example, the
1 The Eleventh Amendment provides:

      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, or
      by Citizens or Subjects of any Foreign State.

U.S. Const. amend XI. The amendment has been interpreted as applying
to suits against a state by its own citizens. See Hans v. Louisiana, 134 U.S.
1, 15 (1890). The amendment also bars suits against state agencies. See
Florida Dep't of State v. Treasure Salvors, Inc. , 458 U.S. 670, 684 (1981).


Fifth Circuit found that a discharge order concerning a debt
owed to a state does not constitute a suit where the state is
neither a defendant nor listed as a creditor. Similarly, in Vir-
ginia v. Collins (In re Collins), 173 F.3d 924, 929 (4th Cir.
1999), cert. denied, 120 S. Ct. 785 (2000), the court found
that there was no Eleventh Amendment suit where the debtors
asked for their bankruptcy case to be reopened -- but did not
directly sue the state -- for a determination that certain debts
owed the state were discharged pursuant to a previous dis-
charge order.

[2] The Walker court noted, however, that "commencement
of certain adversary proceedings directly against a state that
has not filed a proof of claim in a bankruptcy case would"
come within the scope of the Eleventh Amendment. Walker,
142 F.3d at 823; see also Maryland v. Antonelli Creditor's
Liquidating Trust, 123 F.3d 777, 786-87 (4th Cir. 1997)
(holding that while an original bankruptcy proceeding where
"[t]he state is not named [as] a defendant" is not a suit, "an
adversary proceeding" directly against the state would be).

[3] The Mitchells' contention that Count 1 did not rise to
the level of an Eleventh Amendment suit must fail, because
they instituted an adversary proceeding directly against the
State.2 In order to resolve their complaint, the Bankruptcy
Court must make a separate determination specifically bind-
ing on the State as to whether particular debts owed to the
State were discharged. See 28 U.S.C. S 157(b)(2)(I) (actions
to determine the "dischargeability of particular debts" are
within core bankruptcy jurisdiction).

[4] Although the Mitchells argue that Count 1 is "essen-
tially a petition," the complaint particularly requests a deter-
mination of dischargeability with respect to "all defendants,"
including the FTB and the Board. Such a determination
2 The Mitchells do not contend that Counts 2 or 3 are not Eleventh
Amendment suits.


entails the exercise of in personam jurisdiction over the State
in contrast to the bankruptcy court's general in rem jurisdic-
tion over the property of the estate. See Collins, 179 F.3d at
930 (distinguishing "jurisdiction over the debtor and his
estate" from "bankruptcy court jurisdiction over the state").
Unlike a general discharge order, in the present case, a sum-
mons was served on the State, such that it was required to
respond to the Mitchells' complaint. See NVR Homes, Inc. v.
Clerks of the Circuit Courts (In Re NVR), 189 F.3d 442, 451
(4th Cir. 1999) (utilizing "coercion . . . to attend" and the
requirement of "jurisdiction over the state" as factors in ana-
lyzing whether a proceeding constituted a "suit " under the
Eleventh Amendment), cert. denied, 120 S. Ct. 936 (2000); cf.
Collins, 173 F.3d at 929 ("The Commonwealth .. . was not
named as a defendant, was not served with process, and was
not compelled to appear in bankruptcy court.").

[5] The Mitchells further argue that because they did not
request affirmative monetary relief, there is no suit. While
courts generally construe "action leading to an order forcing
a payment to citizens [as] the quintessential`suit' under the
Eleventh Amendment," In re NVR Homes, 189 F.3d at 453,
this factor is not dispositive. See id.; Morrell v. Franchise Tax
Bd. (In re Morrell), 218 B.R. 87, 89-90 (Bankr. C.D. Cal.
1997) (holding debtor's complaint to determine dischargea-
bility of tax debt barred by Eleventh Amendment).

[6] Moreover, a decision in favor of the Mitchells would
effectively prevent the State from collecting monies otherwise
due to it, and it is difficult to draw a rational distinction
between a bankrupt's attempt to recover funds already paid to
the state from one that seeks to discharge present debts to the
state. Finally, suits only requesting non-monetary relief do not
divest the state of its immunity. See Seminole Tribe, 517 U.S.
at 58 ("The Eleventh Amendment does not exist solely in
order to `preven[t] federal-court judgments that must be paid
out of a State's treasury . . . .' ") (quoting Hess v. Port Auth.
Trans-Hudson Corp., 513 U.S. 30, 48 (1994)); Pennhurst


State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)
(holding that the Eleventh Amendment applies "regardless of
the nature of the relief sought"). This principle reinforces the
notion that we should not rely too heavily upon whether a
money judgment is sought in determining whether a "suit"
exists in the first instance.3

[7] In sum, because the outcome of the Mitchells' com-
plaint would coercively affect the legal position of the State
via federal court jurisdiction, the proceedings constitute a
"suit" within the scope of the Eleventh Amendment. See Mis-
souri v. Fiske, 290 U.S. 18, 26-27 (1933) (finding that a suit
for Eleventh Amendment purposes involves " `process sued
out by [the] individual against the state, for the purpose of
establishing some claim against it by the judgment of a
court' ") (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,
407, 408 (1821) (Marshall, C.J.)).


[8] The Mitchells next argue that the State waived its
immunity with respect to Count 1, because it did not immedi-
ately assert immunity with respect to that count and admitted
that the debt was discharged. In general, sovereign immunity
is jurisdictional in nature and may be asserted at any time. See
Treasure Salvors, 458 U.S. at 683 n.18 ("The fact that the
State appeared and offered defenses on the merits does not
foreclose consideration of the Eleventh Amendment issue;
`the Eleventh Amendment defense sufficiently partakes of the
nature of a jurisdictional bar' that it may be raised at any point
of the proceedings.") (quoting Edelman v. Jordan, 415 U.S.
3 In Ranstrom v. IRS (In re Ranstrom), 215 B.R. 454 (Bankr. N.D. Cal.
1997), the bankruptcy court held that a discharge proceeding was not a
"suit" for Eleventh Amendment purposes. The reasoning of that case,
however, has been severely undercut by Seminole Tribe and Florida Pre-
paid Postsecondary Educ. Expense Bd. v. College Savs. Bank, 119 S. Ct.

2199 (1999).


651, 678 (1974)); California Franchise Tax Bd. v. Jackson (In
re Jackson), 184 F.3d 1046, 1048 (9th Cir. 1999) ("Eleventh
Amendment sovereign immunity limits the jurisdiction of the
federal courts and can be raised by a party at any time during
judicial proceedings . . . ."). Furthermore, a state must "un-
equivocally express[ ] its consent to federal jurisdiction." In
re Jackson, 184 F.3d at 1049. "Accordingly, our `test for
determining whether a State has waived its immunity from
federal-court jurisdiction is a stringent one.'  " College Savs.
Bank, 119 S. Ct. at 2226 (quoting Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 241 (1985)).

In Hill v. Blind Indus. and Servs., 179 F.3d 754 (9th Cir.
1999), we held that, by defending on the merits and failing to
assert its Eleventh Amendment immunity until the opening
day of trial, a Maryland agency ("BISM") had waived its
immunity. The Hill court reasoned:

      By waiting until the first day of trial, BISM hedged
      its bet on the trial's outcome. Rather than send jurors
      and witnesses home while the parties briefed and
      argued the merits of BISM's Eleventh Amendment
      defense, the trial court properly took the motion
      under advisement and proceeded with trial. BISM
      thus had the best of both worlds. . . . The integrity
      of the judicial process is undermined if a party,
      unhappy with the trial court's rulings or anticipating
      defeat, can unilaterally void the entire proceeding
      and begin anew in a different forum.

Id. at 756-57.

[9] The facts of this case, however, are distinguishable
from those in Hill. Here, the State immediately asserted its
immunity as to Counts 2 and 3 and asserted immunity as to
Count 1 less than one month after the first amended complaint
was filed. Furthermore, the State did not unambiguously
admit liability on Count 1, as the Mitchells contend. Rather,


while the State admitted in its answer that the Mitchells' "al-
leged debt to defendant FTB was discharged in the Discharge
Order of the Bankruptcy Court," it also separately denied that
the FTB's claim was discharged and denied that the debt was
dischargeable under the Bankruptcy Code.

[10] Even if the State had admitted the debt was dis-
charged, this is not equivalent to "a clear declaration of the
state's intention" to waive its immunity. Edelman, 415 U.S.
at 673 (internal quotation marks and citations omitted). A
party may have clear duties under the law, yet simultaneously
be immune from suit. Nor does it appear that the "integrity of
the judicial process" was in any manner undermined by the
State's subsequent assertion of immunity as it was in Hill. 179
F.3d at 756-57.

[11] Finally, because the State did not file a proof of claim
in either case, it did not waive its immunity under 11 U.S.C.
S 106(b). Cf. In re Jackson, 184 F.3d at 1050 (finding that a
state waived its Eleventh Amendment immunity when it filed
a proof of claim).


[12] Congress may abrogate state sovereign immunity in
federal court if, "pursuant to a valid exercise of power, [it]
unequivocally expresses its intent to abrogate the immunity."
Green v. Mansour, 474 U.S. 64, 68 (1985), quoted in Semi-
nole Tribe, 517 U.S. at 55. Congress has clearly expressed its
intent to abrogate state sovereign immunity in S 106(a), which
provides in relevant part that "[n]othwithstanding an assertion
of sovereign immunity, sovereign immunity is abrogated as to
a governmental unit" with respect to proceedings brought to
determine (1) tax liability under 11 U.S.C. S 105 and (2) dis-
chargeability of debts under 11 U.S.C. S 523. 4 See Sacred
4 The Mitchells rely on their argument that a state has no immunity with
respect to suits filed directly under the Fourteenth Amendment, S 1, to
assert Counts 2 and 3.


Heart Hosp. v. Pennsylvania (In re Sacred Heart Hosp.), 133
F.3d 237, 243 (3d Cir. 1998) (finding clear expression of
abrogation in S 106(a)); Department of Transp. & Dev. v.
PNL Asset Mgt. Co. (In re Fernandez), 123 F.3d 241, 243 (5th
Cir.) (same), amend. on denial of reh'g, 130 F.3d 1138
(1997); Schlossberg v. Maryland (In re Creative Goldsmiths),
119 F.3d 1140, 1144-45 (4th Cir.) (same), cert. denied, 523
U.S. 1075 (1998). Thus, the crucial issue is whether Congress
acted within the scope of its power in enactingS 106(a).

[13] In Seminole Tribe, the Supreme Court held that Con-
gress may not abrogate state sovereign immunity under its
Article I powers. See 517 U.S. at 72-73; see also Florida Pre-
paid, 119 S. Ct. at 2205 ("Seminole Tribe makes clear that
Congress may not abrogate state sovereign immunity pursuant
to its Article I powers . . . ."). Florida Prepaid, which held
that Congress cannot abrogate sovereign immunity under the
Patent Clause of Article I, reaffirms that there is no exception
to Seminole Tribe for exclusively federal powers, even those
involving exclusive federal jurisdiction.5  See id.; see also
Sofamore Danek Group, Inc. v. Brown, 124 F.3d 1179, 1183
(9th Cir. 1997) (finding no exception to Seminole Tribe for
exclusively federal powers). In short, there is no policy-based
exception -- such as national uniformity -- to the Seminole
Tribe rule that Congress may not abrogate state immunity
from suit under Article I. See Seminole Tribe , 517 U.S. at 72-
73; In re Creative Goldsmiths, 119 F.3d at 1145-46.

[14] In Seminole Tribe, however, the Court reaffirmed its
holding in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), that
Congress may abrogate immunity pursuant to its enforcement
powers under S 5 of the Fourteenth Amendment. See Semi-
nole Tribe, 517 U.S. at 58-60. Congress, though, may only
pass "appropriate" legislation pursuant toS 5; in particular,
Congress must enforce a right protected under the Fourteenth
5 See 28 U.S.C. S 1338(a) (vesting exclusive jurisdiction over patent
cases in federal courts).


Amendment, as well as exercise its power in a "remedial"
manner. Florida Prepaid, 119 S. Ct. at 2206 (quoting City of
Boerne v. Flores, 521 U.S. 507, 519 (1997)) (internal quota-
tion marks omitted).

[15] Section 106(a) has been viewed by most courts
addressing the issue as having been passed pursuant to the
Bankruptcy Clause of Article I. See In re Sacred Heart Hosp.,
133 F.3d at 244 (finding S 106(a) not to be passed pursuant
to the Fourteenth Amendment and cataloguing the numerous
courts that have so found). Congress need not, however, spe-
cifically cite its source of power when legislating pursuant to
the Fourteenth Amendment, S 5. See EEOC v. Wyoming, 460
U.S. 226, 243 n.18 (1983), cited in Oregon Short Line R.R. v.
Department of Revenue, 139 F.3d 1259, 1266 (9th Cir. 1998).
Furthermore, because a determination of the amount and dis-
chargeability of a debt concerns the "property of the estate,"
11 U.S.C. S 541, these claims arguably involve a right pro-
tected by the Due Process Clause.6 But see In re Creative
Goldsmiths, 119 F.3d at 1146-47 (expressing the view that
such an approach "would justify every federal enforcement
scheme as a requirement of due process"); United States v.
Nebraska (In re Doiel), 228 B.R. 439, 446 (D.S.D. 1998)

(rejecting a due process-based argument for abrogation).

[16] We need not determine, however, whether S 106(a)
was passed to enforce a protection afforded by the Fourteenth
Amendment, because S 106(a) is not remedial, and thus was
not an appropriate exercise of Congress's enforcement powers
(even if Congress had intended it to be). In order to be an
appropriate exercise of its remedial powers, congressional
abrogation of Eleventh Amendment immunity underS 5 of
the Fourteenth Amendment must be "congruen[t ] and propor-
6 Additionally, once Congress confers a statutory benefit, that benefit is
protected by the Due Process Clause (even if Congress could otherwise
completely withhold the interest). See Cleveland Bd. of Educ. v. Louder-
mill, 470 U.S. 532, 541 (1985).


tional[ ] between the injury to be prevented or remedied and
the means adopted to that end." Florida Prepaid, 119 S. Ct.
at 2206 (quoting City of Boerne, 521 U.S. at 519-20) (internal
quotation marks omitted); see also Dare v. California, 191
F.3d 1167, 1173 (9th Cir. 1999).

[17] Congruence requires "identification of the `Fourteenth
Amendment evil or wrong that Congress intend[s ] to remedy,'
using historical experience as a reference point. " Dare, 191
F.3d at 1174 (quoting Florida Prepaid, 119 S. Ct. at 2207
(internal quotation marks and citations omitted)). In particu-
lar, Congress must identify a "pattern of constitutional viola-
tions" by the states. Florida Prepaid, 119 S. Ct. at 2207. Once
that pattern has been identified, proportionality "requires con-
sideration of whether the provisions of the [abrogation] statute
are proportional to their remedial or preventive goal." Dare,
191 F.3d at 1174 (citing Florida Prepaid, 199 S. Ct. at 2210).

[18] In both the original and amended version of S 106(a),7
Congress made no findings that states had been engaging in
a pattern of constitutional violations of federal bankruptcy
law. See H.R. Rep. No. 95-595 (1977), reprinted in 1978
U.S.C.C.A.N. 5963; H.R. Rep. No. 103-835, at 42 (1994).
Until Congress makes findings of a pattern of state violations
and passes legislation that is proportional to its remedial aims,
S 106(a) must be viewed as an unconstitutional assertion of
Congress's power, because it fails the congruence require-
ment of City of Boerne.8See In re Fernandez, 123 F.3d at 245
7 In response to United States v. Nordic Village, Inc., 503 U.S. 30
(1992), and Hoffman v. Connecticut Dep't of Income Maintenance, 492
U.S. 96, 104 (1989), Congress amended 11 U.S.C.S 106 in 1994 to make
the wording of the statute a clear expression of abrogation. See Bank-
ruptcy Reform Act of 1994, Pub. L. No. 103-394, 108 Stat. 4106 (1994);
H.R. Rep. No. 103-835, at 42 (1994), reprinted in 1994 U.S.C.C.A.N.

3336, 3350-51.
8 If it cannot satisfy the congruence requirement, the legislation must of
necessity fail the proportionality requirement, because there are no find-
ings of state constitutional violations to be remedied. See Florida Prepaid,
119 S. Ct. at 2210.


("[T]here is no indication that Congress passed the 1994 Act
to remedy any incipient breaches or even some unarticulated,
general violation of the rights specified in S 1 of the Four-
teenth Amendment.").


[19] The Mitchells additionally argue that states are not
entitled to immunity for claims directly under the Fourteenth
Amendment, S 1, or for violations by states of the Supremacy
Clause. Supreme Court case law is clear, however, that there
are only two means by which a state loses its immunity in fed-
eral court: waiver and abrogation. See College Savs. Bank,
119 S. Ct. at 2223 ("[W]e have recognized only two circum-
stances [i.e., waiver and abrogation] in which an individual
may sue a State."). Indeed, the basic rationale behind the Ex
Parte Young doctrine9 is to allow parties to enforce their fed-
eral rights in state or federal court by suing government offi-
cials for prospective relief, because the state itself cannot be
sued without its consent. See Alden v. Maine, 119 S. Ct. 2240,
2262-63 (1999) (citing General Oil v. Crain, 209 U.S. 211
(1908)); Pennhurst, 465 U.S. at 104-05.

[20] Granted, as the Mitchells note, "through the Four-
teenth Amendment, federal power extend[s] to intrude upon
the province of the Eleventh Amendment . . . ." Seminole
Tribe, 517 U.S. at 58-60. Nonetheless, the Supreme Court has
never held that private parties may sue states without Con-
gress first passing implementing legislation under the Four-
teenth Amendment, S 5. Indeed, Seminole Tribe continues its
discussion of the Fourteenth Amendment's "intru[sion] upon
the province of the Eleventh Amendment" by stating that
"therefore . . . S 5 of the Fourteenth Amendment allow[s]
Congress to abrogate the immunity from suit guaranteed by
that Amendment." Id. at 59 (emphasis added); see Pennhurst,
465 U.S. at 99-100, 119-121 (citing Quern v. Jordan, 440
9 Ex Parte Young, 209 U.S. 123 (1908).


U.S. 332, 342 (1979) (holding that suits under 42 U.S.C.
S 1983 do not override state immunity)).10

[21] Similarly, the Supremacy Clause dictates that federal
law trumps state law, but does not itself abrogate state sover-
eign immunity in federal court: although a state may be bound
by federal law, a private party is not entitled to utilize a fed-
eral court to determine a state's obligations. See Alden, 119
S. Ct. at 2255 ("The Constitution, by delegating to Congress
the power to establish the supreme law of the land .. . does
not foreclose a State from asserting immunity to claims aris-
ing under federal law merely because that law derives not
from the State itself but from the national power.").


[22] The Mitchells lastly contend that Seminole Tribe was
impermissibly applied retroactively to bar their claims. By the
time the Mitchells commenced their suit against the State,
however, Seminole Tribe had already been decided; further,
" `a court lacks discretion to consider the merits of a case over
which it is without jurisdiction, and thus, by definition, a
jurisdictional ruling may never be made prospective only.' "
Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203
(1988) (quoting Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 379-80 (1981)). Although the FTB was named as a
creditor in the Mitchells' initial bankruptcy filing and the dis-
charge order was entered prior to Seminole Tribe , the present
issue is not whether the discharge order bound the State (on
which we do not express an opinion), but whether the bank-
ruptcy court could exercise jurisdiction over the suit filed by
the Mitchells against the State to determine the amount and
dischargeability of their debts. Thus, the earliest possible time

to determine jurisdiction was when the Mitchells filed their
complaint against the State, which was post-Seminole Tribe.
10 Pennhurst also held that pendent (now supplemental) claims under
state law are barred by the Eleventh Amendment, thereby precluding
Count 2 of the Mitchells' complaint. See Pennhurst, 465 U.S. at 120-21.



Under Seminole Tribe, Congress cannot abrogate state sov-
ereign immunity pursuant to Article I of the United States
Constitution. Furthermore, in enacting S 106(a), even assum-
ing Congress acted pursuant to the Fourteenth Amendment,
S 5, it did not satisfy the congruence requirement of City of
Boerne. Thus, we conclude that Congress did not act within
the scope of its abrogation power in enacting S 106(a). The
Mitchells' additional claims are also without merit.

For the foregoing reasons, the decision of the BAP is


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