# United States v. Nordic Village, Inc./Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Stevens
Justice Scalia delivered the opinion of the Court.
This case presents a narrow question: Does §106(c) of the Bankruptcy Code waive the sovereign immunity of the United States from an action seeking monetary recovery in bankruptcy?

#### I

Respondent Nordic Village, Inc., filed a petition for relief under Chapter 11 of the Bankruptcy Code in March 1984. About four months later, Josef Lah, an officer and shareholder of Nordic Village, drew a $26,000 check on the company's corporate account, $20,000 of which was used to obtain a cashier's check in that amount payable to the Internal Revenue Service (IRS). Lah delivered this check to the IRS and directed it to apply the funds against his individual tax liability, which it did.
In December 1984, the trustee appointed for Nordic Village commenced an adversary proceeding in the Bankruptcy Court for the Northern District of Ohio, seeking to recover, among other transfers, the $20,000 paid by Lah to the IRS. The Bankruptcy Court permitted the recovery. The unauthorized, postpetition transfer, the court determined, could be avoided under §549(a) and recovered from the IRS under §550(a) of the Bankruptcy Code. It entered a judgment against the IRS in the amount of $20,000, which the District Court affirmed.
[p. 32] A divided panel of the United States Court of Appeals for the Sixth Circuit affirmed. 915 F.2d 1049 (1990). It upheld the reasoning of the lower courts and rejected a jurisdictional defense (raised for the first time on appeal) that sovereign immunity barred the judgment entered against the Government. We granted certiorari. 501 U.S. 1216 (1991).

#### II

Section 106 of the Bankruptcy Code provides:
   "(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose.
   "(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate.
   "(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity—
   "(1) a provision of this title that contains 'creditor,' 'entity,' or 'governmental unit' applies to governmental units; and
   "(2) a determination by the court of an issue arising under such a provision binds governmental units." 11 U.S.C. §106.
Three Terms ago we construed this provision in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96 (1989). The issue there was whether §106(c) authorizes a monetary recovery against a State. We held that it does not, though the Justices supporting that judgment failed to agree as to why. A plurality of the Court determined that §106(c) does not permit a bankruptcy court to issue mone- [p. 33] tary relief against a State. Id., at 102 (White, J., joined by Rehnquist, C. J., and O'Connor and Kennedy, JJ.). That conclusion, the plurality said, was compelled by the language of §106(c), the relationship between that subsection and the rest of the statute, and the requirement that congressional abrogation of the States' Eleventh Amendment immunity be clearly expressed. The concurrence found it unnecessary to construe the statute, concluding that Congress lacks authority under the Bankruptcy Clause to abrogate the States' immunity from money-damages actions. Id., at 105 (Scalia, J., concurring in judgment). Like the Court of Appeals here, a dissent determined that the language of §106(c), particularly that of paragraph (c)(1), supplies the necessary waiver. Id., at 106 (Marshall, J., joined by Brennan, Blackmun, and Stevens, JJ.).
Contrary to the Government's suggestion, Hoffman does not control today's decision. It is true, to be sure, that Congress made clear in §106 that (insofar as is within Congress' power) state and federal sovereigns are to be treated the same for immunity purposes. See 11 U.S.C. §101(27) (1982 ed., Supp. II) ("'governmental unit' means United States [and] State"). Since, however, the Court in Hoffman was evenly divided over what that treatment was as to the States; and since the deciding vote of the concurrence, denying amenability to suit, rested upon a ground (the Eleventh Amendment) applicable only to the States and not to the Federal Government, see Federal Housing Authority v. Burr, 309 U.S. 242, 244 (1940); the holding in Hoffman has no binding force here. The separate opinions dealing with the statutory question are relevant, however, and we shall in fact rely on the reasoning of the plurality.

#### III

Waivers of the Government's sovereign immunity, to be effective, must be "'unequivocally expressed.'" Irwin v. [p. 34] Department of Veterans Affairs, 498 U.S. 89, 95 (1990) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980), and United States v. King, 395 U.S. 1, 4 (1969)). Contrary to respondent's suggestion, moreover, they are not generally to be "liberally construed." We have on occasion narrowly construed exceptions to waivers of sovereign immunity where that was consistent with Congress' clear intent, as in the context of the "sweeping language" of the Federal Tort Claims Act, United States v. Yellow Cab Co., 340 U.S. 543, 547 (1951), see, e. g., id., at 554–555, Block v. Neal, 460 U.S. 289, 298 (1983), United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 383 (1949), or as in the context of equally broad "sue and be sued" clauses, see, e. g., Franchise Tax Bd. of California v. United States Postal Service, 467 U.S. 512, 517–519 (1984), FHA v. Burr, supra, at 245. These cases do not, however, eradicate the traditional principle that the Government's consent to be sued "must be 'construed strictly in favor of the sovereign,' McMahon v. United States, 342 U.S. 25, 27 (1951), and not 'enlarge[d]...beyond what the language requires,'" Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983) (quoting Eastern Transportation Co. v. United States, 272 U.S. 675, 686 (1927)), a rule of construction that we have had occasion to reaffirm once already this Term, see Ardestani v. INS, 502 U.S. 129, 137 (1991).
Subsections (a) and (b) of §106 meet this "unequivocal expression" requirement with respect to monetary liability. Addressing "claim[s]," which the Code defines as "right[s] to payment," §101(4)(A), they plainly waive sovereign immunity with regard to monetary relief in two settings: compulsory counterclaims to governmental claims, §106(a); and permissive counterclaims to governmental claims capped by a setoff limitation, §106(b). Next to these models of clarity stands subsection (c). Though it, too, waives sovereign immunity, it fails to establish unambiguously that the waiver extends to monetary claims. It is susceptible of at least two interpretations that do not authorize monetary relief.
[p. 35] Under one interpretation, §106(c) permits the bankruptcy court to issue "declaratory and injunctive"—though not monetary— relief against the Government. Hoffman, 492 U.S., at 102. This conclusion is reached by reading the two paragraphs of subsection (c) as complementary rather than independent: The first paragraph identifies the subject matter of disputes that courts may entertain under the subsection and the second paragraph describes the relief that courts may grant in such disputes. That is to say, the second paragraph specifies the manner in which there shall be applied to governmental units the provisions identified by the first paragraph, i. e., a manner that permits declaratory or injunctive relief but not an affirmative monetary recovery.
Several factors favor this construction. The distinction it establishes—between suits for monetary claims and suits for other relief—is a familiar one, and is suggested by the contrasting language used in subsections (a) and (b) ("claim[s]") and in subsection (c) ("determination[s]" of "issue[s]"), Hoffman, 492 U.S., at 102. It also avoids eclipsing the carefully drawn limitations placed on the waivers in subsections (a) and (b). The principal provision of the Code permitting the assertion of claims against persons other than the estate itself is §542(b), which provides that "an entity that owes a debt that is property of the estate and that is matured, payable on demand, or payable on order, shall pay such debt to, or on the order of, the trustee." If the first paragraph of §106(c) means that, by reason of use of the trigger word "entity," this provision applies in all respects to governmental units, then the Government may be sued on all alleged debts, despite the prior specification in subsections (a) and (b) that claims against the Government will lie only when the Government has filed a proof of claim, and even then only as a setoff unless the claim is a compulsory counterclaim. Those earlier limitations are reduced to trivial application if paragraph (c)(1) stands on its own. See id., at 101–102. This construction also attaches practical consequences to para- [p. 36] graph (c)(2), whereas respondent's interpretation violates the settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect. See id., at 103; United States v. Menasche, 348 U.S. 528, 538–539 (1955). Respondent has suggested no function to be performed by paragraph (2) if paragraph (1) operates to treat the Government like any other "entity" or "creditor," regardless of the type of relief authorized by an applicable Code provision.
Under this interpretation, §106(c), though not authorizing claims for monetary relief, would nevertheless perform a significant function. It would permit a bankruptcy court to determine the amount and dischargeability of an estate's liability to the Government, such as unpaid federal taxes, see 11 U.S.C. §505(a)(1) (permitting the court to "determine the amount or legality of any tax") (emphasis added), whether or not the Government filed a proof of claim. See 492 U.S., at 102–103. Cf. Neavear v. Schweiker, 674 F.2d 1201, 1203– 1204 (CA7 1982) (holding that under §106(c) a bankruptcy court could discharge a debt owed to the Social Security Administration). The Government had repeatedly objected, on grounds of sovereign immunity, to being bound by such determinations before §106(c) was enacted in 1978. See, e. g., McKenzie v. United States, 536 F.2d 726, 728–729 (CA7 1976); Bostwick v. United States, 521 F.2d 741, 742–744 (CA8 1975); Gwilliam v. United States, 519 F.2d 407, 410 (CA9 1975); In re Durensky, 377 F.Supp. 798, 799–800 (ND Tex. 1974), appeal dism'd, 519 F.2d 1024 (CA5 1975).
Subsection (c) is also susceptible of another construction that would not permit recovery here. If the two paragraphs of §106(c) are read as being independent, rather than the second as limiting the first, then, pursuant to the first paragraph, Code provisions using the triggering words enumerated in paragraph (c)(1) would apply fully to governmental units. But that application of those provisions would be limited by the requirements of subsections (a) and (b), in accord- [p. 37] ance with the phrase that introduces subsection (c) ("Except as provided in subsections (a) and (b) of this section"). This exception, in other words, could be read to mean that the rules established in subsections (a) and (b) for waiver of Government "claim[s]" that are "property of the estate" are exclusive, and preclude any resort to subsection (c) for that purpose. That reading would bar the present suit, since the right to recover a postpetition transfer under §550 is clearly a "claim" (defined in §101(4)(A)) and is "property of the estate" (defined in §541(a)(3)). (The dissent appears to read paragraphs (c)(1) and (c)(2) as being independent but provides no explanation of what the textual exception could mean under that reading.)
The foregoing are assuredly not the only readings of subsection (c), but they are plausible ones—which is enough to establish that a reading imposing monetary liability on the Government is not "unambiguous" and therefore should not be adopted. Contrary to respondent's suggestion, legislative history has no bearing on the ambiguity point. As in the Eleventh Amendment context, see Hoffman, supra, at 104, the "unequivocal expression" of elimination of sovereign immunity that we insist upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee report. Cf. Dellmuth v. Muth, 491 U.S. 223, 228–229 (1989).

#### IV

Respondent proposes several alternative grounds for affirming the judgment below, all unpersuasive. First, it claims that the necessary waiver can be found in 28 U.S.C. §1334(d), which grants the district court in which a bankruptcy case is initiated "exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate." Respondent urges us to construe this language as empowering a bankruptcy court to compel the United States or a State to return any property, including money, that passes into the [p. 38] estate upon commencement of the bankruptcy proceeding. Under this theory, a sovereign's exposure to suit would not be governed by the specific language of §106, but would be concealed in the broad jurisdictional grant of §1334(d). Besides being unprecedented and running afoul of the unequivocal-expression requirement, this theory closely resembles an argument we rejected just last Term. In Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 (1991), the argument was made that Alaska's Eleventh Amendment immunity to suit was abrogated by 28 U.S.C. §1362, a jurisdictional grant, akin to §1334(d), that gives district courts jurisdiction over "all civil actions, brought by any Indian tribe...aris[ing] under the Constitution, laws, or treaties of the United States." Rejecting that contention, we observed: "The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim. The issues are wholly distinct." Id., at 787, n. 4.
Equally unpersuasive is respondent's related argument that a bankruptcy court's in rem jurisdiction overrides sovereign immunity. As an initial matter, the premise for that argument is missing here, since respondent did not invoke, and the Bankruptcy Court did not purport to exercise, in rem jurisdiction. Respondent sought to recover a sum of money, not "particular dollars," cf. Begier v. IRS, 496 U.S. 53, 62 (1990) (emphasis deleted), so there was no res to which the court's in rem jurisdiction could have attached, see Pennsylvania Turnpike Comm'n v. McGinnes, 268 F.2d 65, 66–67 (CA3), cert. denied, 361 U.S. 829 (1959). In any event, we have never applied an in rem exception to the sovereign-immunity bar against monetary recovery, and have suggested that no such exception exists, see United States v. Shaw, 309 U.S. 495, 502–503 (1940). Nor does United States v. Whiting Pools, Inc., 462 U.S. 198 (1983), establish such an exception, or otherwise permit the relief requested here. That case upheld a Bankruptcy Court order that the IRS [p. 39] turn over tangible property of the debtor it had seized before the debtor filed for bankruptcy protection. A suit for payment of funds from the Treasury is quite different from a suit for the return of tangible property in which the debtor retained ownership. The Court's opinion in Whiting Pools contains no discussion of §106(c), and nothing in it suggests that an order granting monetary recovery from the United States would be proper.
Resort to the principles of trust law is also of no help to respondent. Most of the trust decisions respondent cites are irrelevant, since they involve private entities, not the Government. The one that does involve the Government, Bull v. United States, 295 U.S. 247 (1935), concerns equitable recoupment, a doctrine that has been substantially narrowed by later cases, see United States v. Dalm, 494 U.S. 596, 608 (1990), and has no application here.
Neither §106(c) nor any other provision of law establishes an unequivocal textual waiver of the Government's immunity from a bankruptcy trustee's claims for monetary relief. Since Congress has not empowered a bankruptcy court to order a recovery of money from the United States, the judgment of the Court of Appeals must be reversed.
It is so ordered.