FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 11, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-11655

________________________

D. C. Docket Nos. 05-01633-CV-ORL-31-DAB & 01-03306-BKC-KS

IN RE: 

Gregg Takafumi Omine, 

Debtor. 

__________________________________________________ 

IN RE: 

Michelle Lynn Omine, 

Debtor. 

__________________________________________________ 

FLORIDA DEPARTMENT OF REVENUE, 

Plaintiff-Appellant, 

versus 

GREGG TAKEFUMI OMINE, 

MICHELE LYNN OMINE, 

Defendants-Appellees. 
 Honorable Richard Mills, United States District Judge for the Central District of *

Illinois, sitting by designation.

2

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 11, 2007)

Before BIRCH and BLACK, Circuit Judges, and MILLS, District Judge. *

BIRCH, Circuit Judge:

The Florida Department of Revenue (“the Florida DOR”) appeals the district

court’s order affirming an order of the bankruptcy court awarding damages after a

determination that the Florida DOR violated the automatic stay. We consider

whether the district court erred in upholding the bankruptcy court’s discharge of

the support obligation, affirming the bankruptcy court’s holding that the Florida

DOR violated the automatic stay, and ordering damages. We AFFIRM the district

court’s determination that the Florida DOR could not assert sovereign immunity,

REVERSE and VACATE the award of damages, and REMAND to the district

court for proceedings consistent with this opinion.
 References to “Omine” refer to Gregg Omine, whose income the Florida DOR 1

attempted to garnish post-confirmation, whereas references to “the Omines” refer to the debtors,

Gregg and Michele, collectively.

3

I. BACKGROUND

Gregg and Michele Omine filed for Chapter 13 bankruptcy protection in

2001. The Florida DOR then filed a proof of claim seeking to recover public

assistance money Hawaii paid to Gregg Omine’s former wife and children, who

resided there. This Hawaii debt was included among those to be paid in the

Omines’ Chapter 13 plan. The Omines filed a motion for contempt and sanctions,

contending that the Florida DOR had continued debt-collection efforts after the

filing of the bankruptcy petition, in violation of the automatic stay. The Omines

withdrew the motion in January 2002 after the Florida DOR assured them that no

further actions would be taken against them, but that assurance proved illusory. 

The following year, Gregg Omine’s employer received a letter from the

Florida DOR directing the employer to garnish Omine’s wages in connection with

the Hawaii debt. After counsel for both sides conferred, the Florida DOR agreed 1

to cease this garnishment, but then, a week later, Omine received a letter

threatening him with various penalties if he failed to pay the Hawaii debt. Again,

after the parties’ counsel conferred, the collection efforts were halted, albeit only

temporarily.
4

The Florida DOR soon directed Omine’s employer to begin garnishing

Omine’s wages again to pay the Hawaii debt, and counsel for each side again

conferred and resolved to halt the collection effort. A few days later the Omines

received a notice that their 2002 tax refund had been offset against the Hawaii

debt. The Omines then filed a motion for sanctions that alleged the Florida DOR

repeatedly violated the automatic stay.

The bankruptcy court found that the Florida DOR had willfully violated the

automatic stay by directing Omine’s employer to begin garnishing his wages on

two separate occasions and by sending the Omines the collection notice. The

bankruptcy judge discharged the remainder of the Hawaii debt and awarded the

Omines $1,000 in actual damages, plus $1,600 in attorney’s fees and costs. 

The Florida DOR appealed, arguing that the bankruptcy judge erred in

holding that the Florida DOR’s actions violated the automatic stay, by awarding

attorney’s fees without sufficient evidentiary support, and by awarding punitive

damages against a governmental unit. The Florida DOR asserted that Omine’s

post-petition income was not property of the estate; that sending debt-collection

letters was not an action against estate property; that 11 U.S.C. § 362(b)(2) created

an exception permitting the Florida DOR to collect a support obligation; and that
5

the collection efforts resulted from computer glitches and were therefore not

willful.

On 3 November 2003, the district court found that the Florida DOR violated

the automatic stay and the damages were actual, not punitive. The court, however,

vacated the attorney’s fees award and remanded to the bankruptcy court to provide

an evidentiary basis for it. The district court also remanded the case to the

bankruptcy court for the determination as to whether the debt was in the nature of

support, and therefore nondischargeable. The district court considered the Florida

DOR’s “property of the estate” argument, but found that “Omine’s income, which

the [Florida DOR] attempted to garnish post-confirmation, is essential to the

Debtors’ ability to make plan payments and therefore is estate property to which

the [Florida DOR] is not entitled.” R1, 2-4 at 6. 

The Florida DOR appealed the 2003 order, and we affirmed the district

court’s order in a 2004 unpublished opinion. We declined to address the Florida

DOR’s “property of the estate” argument, finding that it was not raised before the

bankruptcy court, but otherwise affirmed the district court’s order finding that the

Florida DOR violated the automatic stay and remanding the case to the bankruptcy

court. 
6

Before the bankruptcy court decided the remanded issues, the Omines filed

new motions for sanctions on additional alleged violations of the automatic stay for

conduct similar to the Florida DOR’s earlier transgressions. Specifically, the

Omines alleged that the Florida DOR had sent another notice of past-due support

to the Omines in August 2003 and another collection letter in October 2004

regarding the Hawaii debt. With new motions filed against the Florida DOR at the

bankruptcy court level, the Florida DOR raised many of the same issues it raised

regarding the first collection letters, including the “property of the estate”

argument, which we held was not raised properly the last time the parties were at

the bankruptcy court. The bankruptcy court addressed both the remanded issues

and the new motions in the same 2005 order. 

The 2005 bankruptcy court order awarded $12,740 in fees and $175.45 in

costs. The bankruptcy court also concluded that the Hawaii debt was “not in the

nature of support and, therefore, [was] dischargeable.” R1, 1-3 at 2. The order

then addressed the two additional new motions for sanctions that alleged that the

Florida DOR had sent a notice of past-due support to the Omines and a collection

letter. The bankruptcy court found that both letters constituted willful violations of

the automatic stay and awarded $1045.12 in actual damages, $2,000 in sanctions,

and $885 in attorney’s fees. The bankruptcy court disposed of the Florida DOR’s
7

“property of the estate” argument by agreeing with the district court’s analysis in

its 2003 order.

The Florida DOR again appealed to the district court. Regarding

dischargeability, the district court held that the pertinent issue was whether, under

federal law, the Hawaii debt was in the nature of support, not whether Hawaii’s

state laws consider it as such. Based on the lack of evidence provided by the

Florida DOR that the Hawaii debt was in the nature of support and Omine’s

testimony that the Hawaii debt was not in the nature of support, the district court

affirmed the bankruptcy court’s determination that the Hawaii debt was not in the

nature of support and was therefore dischargeable. 

The district court also held, pursuant to the Supreme Court’s decision in

Central Virginia Community College v. Katz, 546 U.S. 356, 126 S. Ct. 990 (2006),

that actions to force a creditor to honor the automatic stay are the types of

proceedings necessary to effectuate the Court’s in rem jurisdiction and, therefore,

the Florida DOR could not assert sovereign immunity. The district court then

turned to the Florida DOR’s challenge to the bankruptcy court’s failure to apply

the limitations set forth in 11 U.S.C. § 106(a)(3), which prohibits punitive damages

and limits attorney’s fees and costs. The district court noted that we held that §

106(a) was an unconstitutional attempt to abrogate state sovereign immunity in In
8

re Crow, 394 F.3d 918, 921-24 (11th Cir. 2004) (per curiam). The district court

then held that even if § 106(a)(3) were viable after In re Crow, Congress would not

have intended it to be applicable in a case such as this–where the Florida DOR

filed a proof of claim, waiving sovereign immunity–as opposed to situations where

the government was dragged into court via abrogation of their sovereign immunity. 

Finally, the court rejected the Florida DOR’s argument that the bankruptcy

court erred by failing to find that the Florida DOR’s debt collection efforts met the

requirements for the exception in 11 U.S.C. § 362(b)(2)(B), which states that the

automatic stay does not bar the collection of a domestic support obligation from

property that is not property of the estate. The Florida DOR asserted that upon the

filing of the Omines’ petition, all Omine’s future earnings and other assets became

property of the estate, but upon confirmation of the Chapter 13 plan all assets

beyond the amounts needed to make the plan payments re-vested in Omine. The

district court rejected this argument, reasoning that the Hawaii debt was not in the

nature of support, but then went on to conclude that the Florida DOR’s “property

of the estate” argument was meritless because the collection letters were not

limited as to their target. In other words, the notice of past-due support that the

Florida DOR sent threatened Omine with repercussions if he did not pay the entire

Hawaii debt, not just whatever fraction might be payable from assets not
9

committed to the plan. Also, because the claim against the Florida DOR arose out

of its efforts to collect on the debt under its proof of claim, the district court agreed

with the bankruptcy court’s finding that this claim satisfied the “same transaction

or occurrence” language of § 106(b). As a result, the district court affirmed the

bankruptcy court’s order. This appeal followed.

II. DISCUSSION

A. Standard of review 

We review issues presenting a question of law de novo. See In re Thomas,

883 F.2d 991, 994 (11th Cir. 1989). Any error as to a finding of fact is reviewed

using a clearly erroneous standard. Id.

B. Res Judicata

As detailed in the background sections, the parties have litigated earlier

violations of the automatic stay previously, culminating in our 2004 opinion that

affirmed the district court’s order upholding the bankruptcy court’s determination

that actions by the Florida DOR violated the automatic stay. The case is now

before us, in part, on an appeal from the bankruptcy court’s determination that

additional similar actions by the Florida DOR taken while the first case was on

appeal also constitute a violation of the automatic stay, and, in part, on an appeal of

the issues originally remanded to the bankruptcy court from the first case. 
10

A party seeking to invoke the doctrine of res judicata must establish its

propriety by satisfying four initial elements: “(1) the prior decision must have been

rendered by a court of competent jurisdiction; (2) there must have been a final

judgment on the merits; (3) both cases must involve the same parties or their

privies; and (4) both cases must involve the same causes of action.” In re Piper

Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001). The Omines assert that the

district court noted that the Florida DOR argued in its first appeal to the district

court that it did not seek collection from property of the estate but we declined to

hear that argument, stating that it had not been raised before the bankruptcy court. 

Although in our 2004 opinion we affirmed the Florida DOR’s violation of the

automatic stay regarding the letters at issue in the Omines’ initial motion for

sanctions, the parties are now before us from an appeal of not only the remanded

issues, but also an appeal of two subsequent motions for sanctions filed against the

Florida DOR for additional collection actions that the bankruptcy court held also

violated the automatic stay. 

“Under res judicata . . . a final judgment on the merits bars the parties to a

prior action from re-litigating a cause of action that was or could have been raised

in that action.” Id. Here, however, the new motions for sanctions could not have

been raised in the first case because the transgressions complained of by the
 Although referenced in oral argument, the Omines failed to brief, and therefore waived, 2

whether collateral estoppel could still bar our review of whether the automatic stay was violated. 

See Farrow v. West, 320 F.3d 1235, 1242 n.10 (11th Cir. 2003) (deeming waived an argument

made only in “passing reference” and not argued on the merits).

11

Omines in the new motions for sanctions had not yet occurred. See Apotex, Inc. v.

FDA, 393 F.3d 210, 218 (D.C. Cir. 2004) (“Res judicata does not bar parties from

bringing claims based on material facts that were not in existence when they

brought the original suit.”). Since the factual allegations underlying the two 2

additional motions for sanctions are distinct allegations of new violations of the

automatic stay, both cases do not involve “the same causes of action.” See In re

Piper, 244 F.3d at 1296. 

C. Subordination of Sovereign Immunity 

Both parties attempt to define the contours of the Supreme Court’s Katz

decision, issued only days before the district court’s hearing. In Katz, the trustee

commenced proceedings in bankruptcy court to recover alleged preferential

transfers made to several institutions of higher education prior to the debtor’s

bankruptcy filing. 546 U.S. at 356, 126 S. Ct. at 994-95. The institutions of higher

education filed motions to dismiss, claiming sovereign immunity. Id. at ___, 126

S. Ct. at 995. The Supreme Court granted certiorari to consider “whether

Congress’ attempt to abrogate state sovereign immunity in 11 U.S.C. § 106(a) is
12

valid.” Id. (footnote omitted). Instead, the Court recast the issue and stated that

“[t]he relevant question is not whether Congress has ‘abrogated’ States’ immunity

in proceedings to recover preferential transfers. See 11 U.S.C. § 106(a). The

question, rather, is whether Congress’s determination that States should be

amenable to such proceedings is within the scope of its power [under the

Bankruptcy Clause].” Id. at ___, 126 S. Ct. at 1005 (footnote omitted). The

Supreme Court concluded that Congress’s determination is within such power,

explaining “that States agreed in the plan of the Convention not to assert any

sovereign immunity defense they might have had in proceedings brought pursuant

to ‘Laws on the subject of Bankruptcies.’” Id. at ___, 126 S. Ct. at 1004. In other

words, Congress’s power, “either [to] treat States in the same way as other

creditors . . . or exempt them from [the] operation of [bankruptcy] laws . . . arises

from the Bankruptcy Clause itself; the relevant ‘abrogation’ is the one effected in

the plan of the Convention, not by statute.” Id. at ___, 126 S. Ct. at 1005.

Katz held that 11 U.S.C. § 106(a)’s statutory abrogation of state sovereign

immunity was unnecessary to authorize the Bankruptcy Court’s jurisdiction over

the preference avoidance proceedings at issue, and recognized that historically

courts adjudicating disputes concerning bankrupts’ estates had the power to issue

ancillary orders to enforce its in rem jurisdiction, including granting in personam
13

relief. Id. at ___, 126 S. Ct. at 995, 1000-01. While the Supreme Court clarified

that it did “not mean to suggest that every law labeled a ‘bankruptcy’ law could,

consistent with the Bankruptcy Clause, properly impinge upon state sovereign

immunity,” it did not delineate, other than authorizing the Bankruptcy Court’s

jurisdiction over the preference avoidance proceedings at issue in Katz, where or

how that line would be drawn. Id. at ___ n.10, 126 S. Ct. at 1005 n.10. The action

by the bankruptcy court in this case now launches us into the remaining gray area

as to what power provided by the bankruptcy code cannot be used against the

State.

The Florida DOR argues that Katz recognized a waiver of sovereign

immunity limited to core bankruptcy issues, including the determination of

discharge and the marshaling of estate assets, but did not extend to allow public

funds held by a state treasury to be at risk to benefit an individual. The Omines

essentially argue that Katz’s “ancillary order” theory is broad enough to preclude

the Florida DOR from asserting immunity as a defense to any proceeding grounded

on a provision of the Bankruptcy Code or that affects property of the debtor estate. 

See id. at ___, 126 S. Ct. at 1000. 

Courts have long recognized that “[t]he automatic stay is fundamental to the

reorganization process . . . .” Small Bus. Admin. v. Rinehart, 887 F.2d 165, 168
14

(8th Cir. 1989) (citations omitted). Basic bankruptcy doctrine posits that a

bankruptcy court’s actions in protecting the automatic stay stems from the need to

prevent abusive debt-collection practices. The bankruptcy processes of proof,

allowance, and distribution are all fundamentally about the adjudication of interests

claimed in a res and are all inextricably intertwined. As the Katz court

acknowledged, “[c]ritical features of every bankruptcy proceeding are the exercise

of exclusive jurisdiction over all of the debtor’s property, the equitable distribution

of that property among the debtor’s creditors, and the ultimate discharge that gives

the debtor a ‘fresh start’ . . . .” 546 U.S. at ___, 126 S. Ct. at 996. Katz made clear

that, “[i]n ratifying the Bankruptcy Clause, the States acquiesced in a subordination

of whatever sovereign immunity they might otherwise have asserted in proceedings

necessary to effectuate the in rem jurisdiction of the bankruptcy courts.” Id., 126

S. Ct. at 1005. A bankruptcy court’s authority to issue compulsory orders to

facilitate the administration and distribution of the res flows from that jurisdiction

and, as such, does not implicate a State’s sovereignty in the same way as other

kinds of jurisdiction, even where the orders take the form of money damage awards

against a State. While motions for contempt and seeking sanctions that include

attorney’s fees and costs for violating the automatic stay may resemble money

damage lawsuits in form, it is their function that is critical, and their function is to
 Black’s Law Dictionary defines “ancillary” as “supplementary.” See Richard Loeb, 3

State Sovereign Immunity: Bankruptcy Is Special, 14 AM. BANKR. INST. L. REV. 201, 230-31

15

facilitate the in rem proceedings that form the foundation of bankruptcy. See In re

Burke, 146 F.3d 1313, 1319 (11th Cir. 1998) (“We conclude that the substance of

the Headricks’ action [alleging that the Georgia Department of Revenue violated

the discharge injunction by sending a demand letter for unpaid state income taxes]

is a motion to enforce the bankruptcy court’s automatic stay order.”).

As a result, we agree with the district court that, pursuant to Katz, actions to

force a creditor to honor the automatic stay are the types of “proceedings necessary

to effectuate the in rem jurisdiction of the bankruptcy court[],” and that, therefore,

the Florida DOR may not assert sovereign immunity here. See 546 U.S. at ___,

126 S. Ct. at 1005. And while the Florida DOR insists that the Katz decision

should be read narrowly, the Court’s broad language makes clear that “the

jurisdiction of courts adjudicating rights in the bankrupt estate include[s] the power

to issue compulsory orders to facilitate the administration and distribution of the

res.” Id. at ___, 126 S. Ct. at 996. In fact, in holding that the States could not

assert their sovereign immunity to defeat preference recovery proceedings, the

Court in Katz did not limit its decision by singling out any other specific types of

ancillary bankruptcy proceedings that remain subject to the States’ Eleventh

Amendment immunity. We hold that the bankruptcy court’s ancillary order to 3
(2006) (discussing the broad scope of Katz).

16

enforce an automatic stay, which is one of the fundamental debtor protections

provided by the bankruptcy laws, operates free and clear of the Florida DOR’s

claim of sovereign immunity. 

It is well settled that a panel of this court may depart from circuit precedent

based on an intervening opinion of the Supreme Court that undermines the prior

precedent. United States v. Dennis, 786 F.2d 1029, 1049 (11th Cir. 1986). As a

result of the Supreme Court’s opinion in Katz, it is necessary to point out that our

pre-Katz reasoning of In re Crow, 394 F.3d at 922, invalidating § 106(a), in part,

on the basis that Congress may not abrogate state sovereign immunity by

legislation passed pursuant to its Article I powers, is no longer good law. See 546

U.S. at ___, 126 S. Ct. at 996 (acknowledging that statements in Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 72, 116 S. Ct. 1114, 1132 (1996), reflected an

erroneous assumption that its holding that “Article I cannot be used to circumvent

the constitutional limitations placed upon federal jurisdiction,” would apply to the

Bankruptcy Clause).

Moreover, as we shall discuss, even without Katz’s pronouncement

regarding state abrogation of sovereign immunity under the Bankruptcy Clause, the
 In resolving the issues in this case, we find it necessary to address arguments regarding 4

both the Florida DOR’s subordination and waiver of sovereign immunity. First, in Katz, one

party, the Virginia Military Institute (“VMI”), like the Florida DOR, also filed proof of claim. 

Respondent Katz made this point in his response to the Petitioner’s writ for certiorari when

urging the Court to deny certiorari on the basis that “Virginia’s sovereign immunity in this

bankruptcy case has been waived, and . . . [t]hus, this case does not present the question on

which Petitioners seek certiorari. Whether Congress can abrogate Virginia’s immunity is not at

issue because that immunity has been waived here.” Respondent’s Brief in Opposition at 4,

Katz, 546 U.S. 346, 126 S. Ct. 990; see also Transcript of Oral Argument at 23 (discussing

VMI’s waiver). Despite the proof of claim filed on behalf of one of the petitioners in the Katz

case, the Supreme Court still granted certiorari and answered the question of abrogation under

the Bankruptcy Clause. Second, we find it necessary to undertake an analysis of the Katz case

because of its implications for our caselaw regarding § 106(a), which the parties put in dispute

regarding the limitations set forth in subsection (a)(3).

17

Florida DOR filed a proof of claim in this case, which raises issues of waiver of

sovereign immunity. 

4

D. Waiver of Sovereign Immunity 

“[B]y filing a proof of claim in [a] debtors’ . . . bankruptcy proceedings, [a]

State waive[s] its sovereign immunity for purposes of the adjudication of those

claims.” In re Burke, 146 F.3d 1313, 1319 (11th Cir. 1998). A State’s waiver of

sovereign immunity must be express and unequivocal, and generally courts have

set out three elements to analyze in determining if the State waived sovereign

immunity by participating in the bankruptcy case. In re Straight, 143 F.3d 1387,

1390 (10th Cir. 1998). The first element limits the waiver to cases where a

governmental unit files a proof of claim. Id. The second element requires that the

claim against the governmental unit must be property of the estate. Id. The third

element requires that the claim arises out of the same transaction or occurrence. Id.
18

The parties agree that the first element, the governmental unit filing a proof of

claim, has been met. The parties disagree as to the second and third elements. 

The second element requires us to determine whether the claim against the

Florida DOR is property of the estate. The Florida DOR argues that any waiver of

sovereign immunity recognized by the filing of a proof of claim is limited to

actions related to the claim held by the bankruptcy estate and does not extend to

the instant action brought by the debtor. It asserts that upon confirmation of the

Chapter 13 plan, all assets beyond the amounts needed to make the plan payments

were not property of the estate because they had re-vested in the debtor, and,

therefore, it did not violate the automatic stay by seeking to garnish those wages. 

The automatic stay does not bar “collection of alimony, maintenance, or

support from property that is not property of the estate.” 11 U.S.C. § 362(b)(2)(B). 

“[P]roperty necessary for the execution of the plan . . . remain[s] property of the

estate” upon confirmation of a Chapter 13 plan. Telfair v. First Union Mortgage

Corp., 216 F.3d 1333, 1340 (11th Cir. 2000) (adopting the “estate transformation

approach”). The Florida DOR’s letters at issue were not limited as to their target,

that is, the letters sought collection as to Omine’s post-petition earnings, not just

whatever fraction of Omine’s income that might be payable from assets not
19

committed to the plan. Accordingly, we agree that Omine’s income is essential to

the Omines’ ability to make plan payments and therefore is estate property.

The third element requires that the claim arise out of the same transaction or

occurrence. The district court agreed with the bankruptcy court that because the

claim against the Florida DOR arose out of the Florida DOR’s efforts to collect on

the debt underlying its proof of claim, the “same transaction or occurrence”

requirement was met. Our ruling in In re Burke supports this determination and, as

a result, the district court’s conclusion was proper. See 146 F.3d at 1318 n.10

(concluding “that the debtors’ actions for violation of the automatic stay and

discharge injunction ‘arise out of the same transaction or occurrence’ as the State’s

proofs of claim”).

E. Violation of the Automatic Stay

The Florida DOR’s remaining argument regarding the district court’s

affirmance of the bankruptcy court’s determination that the Florida DOR violated

the automatic stay is that the district court improperly shifted the burden of

showing a violation of the automatic stay to the creditor, instead of the debtor. 

Multiple bankruptcy courts have held that the “[p]laintiff [/debtor] bears the burden

of providing that she is entitled to damages under section 362(h).” See, e.g., In re

Lord, 270 B.R. 787, 794 (Bkrtcy. M.D. Ga. 1998) (citing similar holdings). The
20

Florida DOR argues that the district court improperly shifted the burden from the

debtor to the Florida DOR in holding that the Florida “DOR failed to show that its

actions were taken against property that was not property of the estate.” R1, 23 at

12. 

While the wording of the district court’s second order appears to suggest the

burden was improperly shifted, in its first order in the prior case–undertaking an

analysis of the Florida DOR’s identical “property of the estate” argument–the

district court concluded, without any improper shifting of the burden, that

“Omine’s income, which the D.O.R. attempted to garnish post-confirmation, is

essential to the Debtors’ ability to make plan payments and therefore is estate

property to which the D.O.R. is not entitled.” R1, 2-4 at 5-6. Furthermore, the

bankruptcy court, without improperly shifting the burden, concluded that the

Florida DOR violated the automatic stay when it found that the “[d]ebtors’ income

is considered essential to their ability to make plan payments and, therefore,

remains estate property.” R1, 1-3 at 8 (citing Telfair, 216 F.3d at 1340). We agree

with the bankruptcy court’s analysis, and, therefore, affirm the district court’s

ultimate holding based on the correct analysis used by the bankruptcy court.

F. Award Limitations in 11 U.S.C. § 106(a)(3)
21

The Florida DOR also asserts that the limitations found in § 106(a)(3)

should apply to the bankruptcy court’s order awarding a money recovery and that

the district court ignored the plain language of the statute. The relevant text of 11

U.S.C. § 106(a) states:

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 this title.

. . . 

(3) The court may issue against a governmental unit an order, process,

or judgment under such sections or the Federal Rules of Bankruptcy

Procedure, including an order or judgment awarding a money

recovery, but not including an award of punitive damages. Such 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 

the Equal Access to Justice Act (“EAJA”)].

The bankruptcy court found that the provisions and limitations of EAJA

referenced in § 106(a)(3) apply only in circumstances of forced abrogation of

sovereign immunity protection, not in situations such as this, wherein the state

agency consents to the bankruptcy court’s jurisdiction through the filing of a proof

of claim as detailed in § 106(b). The bankruptcy court reasoned that “[i]f Congress

had intended the limitation of the EAJA to apply to other sections of the

Bankruptcy Code, it would not have placed the reference to the EAJA solely under
22

Section 106(a) . . . . No limitations imposed by the EAJA are extended to . . . [the]

Florida DOR, by Section 106(b). Therefore, the Court must follow the normal

rules in awarding fees and costs.” R1, 1-3 at 5. The district court largely agreed,

adding that it was persuaded by the structure and history of the section that

Congress intended for governments that filed proofs of claim to be treated like

ordinary creditors in regard to those claims, as they had been prior to the

restrictions added in the current § 106(a). 

We agree with the Florida DOR that based on the plain text of 11 U.S.C. §

106(a)(3), the award limitations found in § 106(a)(3) are applicable in this case.

Section 106(a)(3) clearly states that “[t]he court may issue against a governmental

unit an order . . . under such sections.” The phrase “such sections” in § 106(a)(3)

unambiguously refers to the list of sections in § 106(a)(1), which includes an order

pursuant to § 362, the section that addresses the automatic stay, and § 105, the

section that addresses the power of the court to issue orders necessary to carry out

the provisions of the Bankruptcy Code. A plain reading of § 106(a)(3) requires

that “such order or judgment for costs or fees under this title” shall be consistent

with the provisions and limitations of 28 U.S.C. § 2412(d)(2)(A) and may not

include an award of punitive damages. 
23

The dissent concludes that because the “statutory abrogation scheme” is

unnecessary, the award limitations found in subsection (a)(3) are necessarily

inapplicable. We disagree. Two initial points help contextualize our conclusion:

1) in Katz, the Supreme Court did not declare § 106 unconstitutional, but rather,

held only that statutory abrogation is unnecessary in light of the “‘abrogation . . .

effected in the plan of the Convention,” 546 U.S. at ___, 126 S. Ct. at 1005; and 2)

Katz reaffirmed Congress’s power “either [to] treat States in the same way as other

creditors insofar as concerns ‘Laws on the subject of Bankruptcies’ or exempt them

from operation of such laws.” Id. at ___, 126 S. Ct. at 1005. In resolving the

applicability of § 106(a)(3) under these undisputed premises, the question, postKatz, is: even though § 106(a)’s statutory abrogation framework is unnecessary, is

all of § 106(a) necessarily inapplicable? That is, do the award limitations imposed

in subsection (a)(3) remain? 

The dissent posits that a contextual reading of the statutory scheme

ineluctably renders § 106(a)(3)’s award limitations inapplicable. But it does not

necessarily follow, based on a plain reading of the text, that subsection (a)(3) is

devoid of any meaning and inapplicable now that subsection (a)(1) is unnecessary

to abrogate state sovereign immunity here, or that enforcing subsection (a)(3) after

Katz is against Congress’s intent–to the contrary, it is entirely consistent with such
24

intent. See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2483

(2005) (holding that when the statute’s language is plain, the sole function of the

courts, at least where the disposition required by the text is not absurd, is to enforce

it according to its terms). 

The issue of Congressional intent is unusual in the context of this case

because Katz dramatically altered the assumptions under which Congress (and

even the Supreme Court) had been operating with respect to state sovereign

immunity and the Bankruptcy Code. That is, until Katz, it was not clear that “the

States acquiesced in a subordination of whatever sovereign immunity they might

otherwise have asserted in proceedings necessary to effectuate the in rem

jurisdiction of the bankruptcy courts.” 546 U.S. at ___, 126 S. Ct. at 1005. In fact,

as Justice Thomas notes in his Katz dissent, a myriad of cases, including Hoffman

v. Connecticut Department of Income Maintenance, 492 U.S. 96, 109 S. Ct. 2818

(1989) (which preceded and prompted the 1994 Bankruptcy Reform Act

Amendments to the current § 106) and Seminole Tribe, 517 U.S. at 72-73, 116 S.

Ct. 1132-33, indicated otherwise. See id. at ___, 126 S. Ct. at 1007-08 (Thomas,

J., dissenting) (arguing that Supreme Court precedent is replete with language

barring abrogation of state sovereign immunity under various clauses in § 8 of

Article I, including the Bankruptcy Clause).
25

The legislative history of the current § 106 makes clear that § 106’s present

statutory abrogation framework was created in response to the Supreme Court’s

rulings “that the States and Federal Government are not deemed to have waived

their sovereign immunity by virtue of Congress enacting former § 106(c).” See H.

Comm. on the Judiciary, Bankruptcy Reform Act of 1994, H. Rep. No. 103-835, at

42 (1994), reprinted in 1994 U.S.C.C.A.N. 1881, 3350-51 (stating that § 106

“would effectively overrule two Supreme Court cases [including Hoffman] that

have held that the States and Federal Government are not deemed to have waived

their sovereign immunity by virtue of enacting section 106(c)”). The backdrop to

the creation of the current § 106 was the Supreme Court’s decision in Hoffman. 

See id. Hoffman reminded Congress that “to abrogate the States’ Eleventh

Amendment immunity from suit in federal court . . . Congress must make its

intention ‘unmistakably clear in the language of the statute.’” 492 U.S. at 101, 109

S. Ct. at 2822 (citations omitted). The Hoffman plurality refrained from analyzing

whether Congress had the power under Article I to abrogate the States’ sovereign

immunity, id., 492 U.S. at 104, 109 S. Ct. at 2824 (“Since we hold that Congress

did not abrogate Eleventh Amendment immunity by enacting § 106(c), we need

not address whether it had the authority to do so under its bankruptcy power”), and

two Justices, each concurring separately, explicitly stated their view that Congress
 Justice Scalia’s reasoning in his Hoffman concurrence prevailed in Seminole Tribe,

5

wherein both the majority and dissenting opinions “reflected an assumption that the holding . . .

would apply to the Bankruptcy Clause.” See Katz, 546 U.S. at ___, 126 S. Ct. at 996.

 Even Justice Marshall, writing for the dissent, would have reversed the Second Circuit’s 6

ruling “[b]ecause Congress clearly expressed its intent to authorize a bankruptcy court to issue a

money judgment against a State . . . and because Congress has the authority under the

Bankruptcy Clause to abrogate the States’ Eleventh Amendment immunity,” not because the

States’ had subordinated their sovereign immunity under the plan of the Convention. See

Hoffman, 492 U.S. at 106, 109 S. Ct. at 2825 (Marshall, J., dissenting).

26

did not have the power to abrogate state sovereign immunity by enacting a statute

under Article I. Id.,492 U.S. at 105, 109 S. Ct. 2824-25 (Scalia, J., concurring;

O’Connor, concurring) (concurring “on the ground that [Congress] had no power

to [abrogate state sovereign immunity under its] . . . Article I [Bankruptcy Clause]

powers”).5

In Hoffman, no Justice even intimated that the States had subordinated their

sovereign immunity in the manner described in Katz. In light of Hoffman, it was 6

entirely reasonable for Congress to believe that Supreme Court precedent

“suggested” that Congress make its intent to waive the States’ sovereign immunity

“unmistakenly clear,” and establish the statutory abrogation framework that is the

current § 106. See 140 Cong. Rec. H10766 (daily ed. Aug. 17, 1994) (statement of

Rep. Brooks) (analyzing the purposes behind § 106’s enactment and noting that the

Supreme Court “suggested” that “§ 106(a)(1) list[] those sections of title 11 with

respect to which sovereign immunity is abrogated”). As a corollary, it was also
27

natural for Congress, then, to place its limitations on awards (subsection (a)(3)),

into the framework they believed the Supreme Court had “suggested.” See id. 

As a result, even putting aside our conclusion that the plain text alone

dictates the application of the award limitations in subsection (a)(3), in light of the

jurisprudential understanding of state sovereign immunity at the time of § 106’s

drafting, we find it difficult to conclude that Congress intended to include such

award limitations only when the abrogation was statutory but exclude such

limitations if it was later revealed that the “relevant “‘abrogation’ [turned out to be]

the one effected in the plan of the Convention[.]” See Katz, 546 U.S. at ___, 126

S. Ct. at 1005. Katz clarified the “relevant ‘abrogation[.]’” See id. It did not

undermine Congress’s ability to limit awards against the States.

Since the plain text of the language is applicable, we are loathe to ignore

award limitations that are within Congress’s power to enact and refuse to apply

them when the framework that the award limitations were placed in was rendered,

not unconstitutional, but rather, only unnecessary. Given that the result is not only

not “absurd,” but aligned with Congress’s intent, it is difficult to escape the

application of a plain reading of § 106(a)(3) that applies its award limitations to a

bankruptcy court order issued pursuant to §§ 105 or 362(h). Although §

106(a)(1)’s abrogation was unnecessary now that the Court has clarified that the
28

States acquiesced in a subordination of whatever sovereign immunity they had

through the Constitutional Convention, we do not read Katz to render § 106(a)(3)’s

limitations unconstitutional or inapplicable.

Because we disagree about the applicability of § 106 post-Katz, we disagree

with the dissent’s alternative basis for affirming the bankruptcy court’s award of

punitive damages and fees in excess of the award limitations referenced in §

106(a)(3) as well. The dissent would alternatively affirm the awards based on the

fact that the Florida DOR filed of a proof of claim here, hence waiving its

sovereign immunity. Although not precedential, we agree with the reasoning in In

re Washington and In re Flynn–that § 106(a)(3) limits awards even against a

governmental unit that filed a proof of claim. See 184 B.R. 172, 175 (S.D. Ga.

1995) (reversing awards against a governmental unit that filed a proof of claim

because of the limitations imposed in subsection (a)(3)); 185 B.R. 89, 93-94 (S.D.

Ga. 1995) (same). Moreover, the limitations in subsection (a)(3) apply to orders

issued pursuant to § 105. See Jove Eng’g, Inc. v. I.R.S., 92 F.3d 1539, 1559 (11th

Cir. 1996) (“[T]he plain meaning of [§ 106(a)(3)] 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.”).
29

As a result, the attorney’s fees and costs award imposed against the Florida

DOR is vacated and remanded for a determination of attorney’s fees and costs

consistent with the provisions and limitations of section 2412(d)(2)(A) as

referenced in § 106(a)(3). Furthermore, we vacate the additional sanction award of

$2000 as invalid in light of the limitations in § 106(a)(3) regarding “punitive

damages.”

G. Debt Dischargeability

11 U.S.C. § 523(a)(5) disallows discharge of a debt: 

to a spouse, former spouse, or child of the debtor, for alimony to,

maintenance for, or support of such spouse or child, in connection

with a separation agreement, divorce decree or other order of a court

of record, . . . but not to the extent that -- . . . 

(B) such a debt includes a liability designated as alimony,

maintenance, or support, unless such liability is actually in the nature

of alimony, maintenance, or support.

We have held that federal law, not state law, governs a dischargeability of

domestic obligations determination. See In re Harrell, 754 F.2d 902, 904-05 (11th

Cir. 1985). “A debt is in the nature of support,” and therefore nondischargeable,

“if at the time of its creation the parties intended the obligation to function as

support . . . .” Cummings v. Cummings, 244 F.3d 1263, 1265 (11th Cir. 2001). 

“[T]he party seeking to hold the debt nondischargeable has the burden of proving
 In a recognition that federal, not state law, governs a dischargeability of domestic

7

obligations determination, the Florida DOR also cites 42 U.S.C. § 656(b), that, it claims, dictates

the state law classification be followed. 42 U.S.C. § 656(b), does not resolve the dispute,

however, because it requires the bankruptcy court to make the factual determination as to

whether the debt is “in the nature of support.” 

30

by a preponderance of the evidence that the parties intended the obligation as

support . . . .” Id. (citation and internal quotations omitted).

The Florida DOR, which argued that the debt was nondischargeable,

presented no evidence to the bankruptcy court that the Hawaii debt was in the

nature of support. The Florida DOR also asserts that the testimony of the debtor

clearly showed the monies owed were for support of his wife and children paid by

the State of Hawaii. Omine testified that the Hawaii debt was not in the nature of

support. The Florida DOR, however, presented no evidence as to the intent of the

parties. Instead, it argues that we should not disregard Hawaiian law that provides

that the welfare payments made in cases such as this one are support obligations

and non-dischargeable. Though “a court cannot rely solely on the label used by 7

the parties,” see id., intent cannot be imputed or proven with the introduction of a

state statute on appeal. In light of Omine’s testimony that supported a

dischargeability determination and the lack of evidence presented by the Florida

DOR, the district court correctly affirmed the bankruptcy court’s finding that the

Hawaii debt was not in the nature of support, and was therefore dischargeable. 
31

III. CONCLUSION

The district court properly upheld the bankruptcy court’s discharge of the

support obligation and properly affirmed the bankruptcy court’s determination that

the Florida DOR violated the automatic stay and, furthermore, that the Florida

DOR was not protected by sovereign immunity. As a result, we AFFIRM the

district court’s order affirming the bankruptcy court’s determination that the

Florida DOR was not immune from the Omines’ suit for its violation of the

automatic stay. The district court erred, however, in affirming the bankruptcy

court’s determination that the award limitations set forth in 11 U.S.C. § 106(a)(3)

did not apply. As a result, we REVERSE and VACATE the award of attorney’s

fees and costs as inconsistent with the limitations of § 106(a)(3) and REVERSE

and VACATE the $2000 awarded as sanctions, and REMAND to the district court

for proceedings consistent with this opinion.
BLACK, Circuit Judge, concurring in part and dissenting in part:

I agree with all portions of the Court’s opinion except Section F. I

respectfully dissent because I conclude 11 U.S.C. § 106(a)(3) does not apply to

limit the bankruptcy court’s award. Section 106(a)(3) would apply only if the

bankruptcy court entered judgment pursuant to the statutory abrogation of state

sovereign immunity embodied in § 106(a). In this case, we do not rely on § 106(a)

to affirm the judgment against the Florida DOR. Instead, we rely on the states’

consent to subordinate their sovereign immunity at the plan of convention and,

alternatively, on Florida’s waiver of sovereign immunity by filing a proof of claim. 

In either case, the limitations in § 106(a)(3) that the 1994 Congress enacted as part

of its statutory abrogation scheme in § 106(a)(1) through (a)(4) do not apply. 

 A. Abrogation of State Sovereign Immunity

State sovereign immunity, a concept embodied in the Eleventh Amendment,

is an immunity from suit. See Blatchford v. Native Vill. of Noatak, 501 U.S. 775,

779, 111 S. Ct. 2578, 2581 (1991). However, there are certain well-established

situations in which states are amenable to suit. First, Congress may abrogate state

sovereign immunity if it unequivocally expresses an intent to abrogate state

immunity and acts pursuant to a valid exercise of power. Green v. Mansour, 474

U.S. 64, 68, 106 S. Ct. 423, 425-26 (1985). Second, a state may waive its
The relevant text of § 106(a) is as follows: 1

(a) Notwithstanding an assertion of sovereign immunity, sovereign immunity

is abrogated as to a governmental unit to the extent set forth in this section

with respect to the following:

(1) Sections 105, 106, . . . 362, . . . .

(2) The court may hear and determine any issue arising with respect to

the application of such sections to governmental units.

(3) The court may issue against a governmental unit an order, process,

or judgment under such sections or the Federal Rules of

Bankruptcy Procedure, including an order or judgment awarding a

money recovery, but not including an award of punitive damages. 

Such 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.

(4) The enforcement of any such order, process, or judgment against any

governmental unit shall be consistent with appropriate nonbankruptcy law

applicable to such governmental unit and, in the case of a money

judgment against the United States, shall be paid as if it is a judgment

rendered by a district court of the United States.

(5) 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.

33

sovereign immunity by consenting to suit in federal court, either expressly or in the

“plan of the convention.” Blatchford, 501 U.S. at 779, 111 S. Ct. at 2581.

In 11 U.S.C. § 106(a), Congress purported to abrogate state sovereign

immunity, to a limited extent, in proceedings brought under certain enumerated

sections of the Bankruptcy Code. See 11 U.S.C. § 106(a)(1)-(4). Subsections

(a)(1) through (a)(4) together establish Congress’s abrogation scheme, with each

subsection adding an additional, necessary component to the scheme. Subsection 1

(a)(1) lists the specific sections of the Bankruptcy Code to which the abrogation

scheme applies. Subsection (a)(2) abrogates sovereign immunity so as to allow a
34

bankruptcy court to hear and determine any issue in proceedings applying the

enumerated sections to governmental units. Subsection (a)(3) abrogates sovereign

immunity so as to allow a bankruptcy court to issue an order or judgment against a

governmental unit, including a state agency, in such proceedings. Although

subsection (a)(3) permits a bankruptcy court to issue an order awarding a money

recovery, the subsection also contains two limitations: first, it does not permit an

award of punitive damages and second, if the order or judgment is for costs and

fees, it requires that the order be consistent with the provisions and limitations of

28 U.S.C. § 2412(d)(2)(A). Finally, subsection (a)(4) abrogates sovereign

immunity so as to allow a bankruptcy court to enforce any such order or judgment

it issues against a governmental unit. As a whole, subsections (a)(1) through (a)(4)

comprise Congress’s statutory abrogation scheme.

 When Congress enacted § 106(a) in 1994, the common perception was that

Congress could validly abrogate state sovereign immunity pursuant to its

enumerated powers under Article I of the Constitution. See Pennsylvania v. Union

Gas Co., 491 U.S. 1, 14-19, 109 S. Ct. 2273, 2281-84 (1989) (holding Congress

may abrogate state sovereign immunity when legislating pursuant to its Commerce

Clause power under Article I of the Constitution as long as it clearly expresses its

intent to do so). This perception of Congress’s Article I powers changed in 1996
35

when the Supreme Court overruled Union Gas. In Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996), the Supreme Court held that

Congress could not abrogate state sovereign immunity pursuant to its Article I

powers, but only pursuant to § 5 of the Fourteenth Amendment. Id. at 45, 116 S.

Ct. at 1118. While the Supreme Court did not address § 106(a) in Seminole Tribe,

its holding implicitly rendered § 106(a) an unconstitutional abrogation of sovereign

immunity because Congress enacted § 106(a) pursuant to its Article I bankruptcy

power. See In re Crow, 394 F.3d 918, 923 (11th Cir. 2004). In 2004, this Court

addressed the constitutionality of § 106(a) in In re Crow and held that, in light of

Seminole Tribe, Congress’s attempt to abrogate state sovereign immunity in in

personam bankruptcy cases was invalid. Id. at 921, 924. 

In 2006, when presented with an opportunity to address whether § 106(a)

was a valid abrogation of state sovereign immunity, the Supreme Court did not

answer the question. See Cent. Va. Cmty Coll. v. Katz, 546 U.S. 356, ___, 126 S.

Ct. 990, 995 (2006). Instead, the Supreme Court held § 106(a) was “not

necessary” to authorize a suit against a state in certain bankruptcy proceedings. 

See id. at ___, 126 S. Ct. at 995, 1000-05 (holding Congress’s attempted

abrogation of sovereign immunity in § 106(a) was unnecessary to authorize a

bankruptcy court’s in personam jurisdiction over ancillary orders necessary to
36

effectuate its in rem jurisdiction). The Court explained that the statutory

abrogation was unnecessary because the “States agreed in the plan of the

Convention not to assert any sovereign immunity defense they might have had in

proceedings brought pursuant to ‘Laws on the subject of Bankruptcies.’” Id. at ___,

126 S. Ct at 1004. 

Consequently, after Katz, the entire statutory scheme in § 106(a)(1) through

(a)(4) is unnecessary and inapplicable to suits against a state in proceedings

necessary to effectuate a bankruptcy court’s in rem jurisdiction. In particular, Katz

renders § 106(a)(3), which abrogates state sovereign immunity so as to allow a

bankruptcy court to issue an order against a state with some limitations,

unnecessary and inapplicable in such bankruptcy proceedings. Section 106(a)(3)

has nothing to abrogate or limit because, according to Katz, bankruptcy courts have

always had the power to enter a money judgment against states in such

proceedings. 

After Katz, any other interpretation of § 106(a) is unpersuasive. For

instance, if § 106(a)(1) is sufficient in and of itself to abrogate sovereign immunity

(without regard to § 106(a)(2)-(a)(4)), it would render § 106(a)(2), the first

sentence of § 106(a)(3), and § 106(a)(4) meaningless. Section 106(a)(2), which

permits a bankruptcy court to hear and determine issues against a state, would have
 The majority suggests that by reading the statute as a whole, I give it a “contextual 2

reading” and ignore the plain meaning of § 106(a)(3). I admit, unlike the majority, I do not read

the second sentence of § 106(a)(3) in isolation. Instead, I consider a plain reading of subsection

(a)(3) to include consideration of the entire statute. In so doing, I follow the guidance of the

Supreme Court. See King v. St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S. Ct. 570, 574 (1991)

(“[W]e do nothing more, of course, than follow the cardinal rule that a statute is to be read as a

whole . . . since the meaning of statutory language, plain or not, depends on context.”). My

interpretation, therefore, is informed by the plain meaning of the text in relation to the statute as

a whole or, in other words, by its context.

37

no purpose because a state would already be amenable to suit pursuant to

§ 106(a)(1)’s “abrogation” of sovereign immunity. Likewise, the first sentence of

§ 106(a)(3), which permits a bankruptcy court to issue money judgments against a

state, would also have no purpose because the states would already be amenable to

money judgments pursuant to § 106(a)(1)’s “abrogation.” Finally, § 106(a)(4),

which permits a bankruptcy court to enforce a judgment against a state, would also

have no purpose because a state would be amenable to enforcement pursuant to

§ 106(a)(1)’s “abrogation.” Section 106(a) only has meaning if it is read as a

statutory scheme of abrogation, effected through subsections 106(a)(1), (a)(2),

(a)(3), and (a)(4). Thus, after Katz, § 106(a), in its entirety, is inapplicable because

there is no sovereign immunity for its subsections to abrogate.

Therefore, a plain reading of the statutory scheme indicates that any 2

limitations in subsections (a)(1) through (a)(4) – such as those in subsection (a)(3)

regarding punitive damages and attorney’s fees – apply to an award against a
38

governmental unit only where the statutory abrogation of state sovereign immunity

created the bankruptcy court’s jurisdiction to enter the award. It is ultimately

irrelevant whether, in enacting § 106(a)(3), the 1994 Congress actually intended

that the limitations in subsection (a)(3) apply to all awards issued against a state,

and not only awards issued pursuant to the statutory abrogation scheme in

§ 106(a)(1) through (a)(4). The fact remains that the 1994 Congress specifically

placed the limitations in the text of § 106(a), and the limitations appear nowhere

else in the Bankruptcy Code. Of course, Congress may now exercise its plenary

power over the uniform laws of bankruptcy to limit all awards against a state in

bankruptcy proceedings, but it has yet to do so. 

In the instant case, the limitation in § 106(a)(3) does not apply to the

bankruptcy court’s award because, as the majority explains, § 106(a)’s statutory

abrogation of sovereign immunity did not create the bankruptcy court’s jurisdiction

to issue a judgment against the Florida DOR. Therefore, I would affirm the

bankruptcy court’s award of punitive damages and its determination of attorney’s

fees.

B. Waiver of State Sovereign Immunity

The majority also held the Florida DOR waived its sovereign immunity in

this case by filing a proof of claim. Even if we affirmed the judgment against the
39

Florida DOR based on its waiver of sovereign immunity, rather than on Katz, I

would likewise affirm the bankruptcy court’s award of punitive damages and

determination of attorney’s fees. 

Where a state waives sovereign immunity by filing a proof of claim, the

scope of the waiver is limited to the adjudication of that claim. In Re Burke, 146

F.3d 1313, 1319 (11th Cir. 1998). Our case law has not provided any limitations

on an award issued against a state where the state has waived sovereign immunity

by filing a proof of claim. The claim in this case was the Florida DOR’s violation

of the automatic stay. “[A]n individual injured by any willful violation of a stay

. . . shall recover actual damages, including costs and attorneys’ fees, and, in

appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h)

(now § 362(k)(1)) (emphasis added). Further, the bankruptcy court entered its

order pursuant to 11 U.S.C. § 105(a), which grants the court power to “issue any

order, process, or judgment that is necessary or appropriate to carry out the

provisions of this title.” Section 105 does not contain limitations on an award of

punitive damages or attorney’s fees. Therefore, even if we relied on the Florida

DOR’s waiver of sovereign immunity to affirm the judgment against it, there are
 I note that the cases the majority cites for this issue, Jove Eng’g, Inc. v. I.R.S., 92 F.3d 3

1539 (11th Cir. 1996), In re Washington, 184 B.R. 172 (S.D. Ga. 1995), and In re Flynn, 185

B.R. 89 (S.D. Ga. 1995), have limited persuasive value. In these cases, debtors sought relief

against the Internal Revenue Service, a federal “governmental unit,” and the courts specifically

relied on 11 U.S.C. § 106 to find a waiver of federal sovereign immunity. By contrast, the

instant case deals with the waiver of state sovereign immunity pursuant to In Re Burke, 146 F.3d

1313, 1319 (11th Cir. 1998). We specifically do not rely on § 106 to find a waiver of state

sovereign immunity. Because this case does not require I answer the question, I express no

opinion on whether the limitations in the Equal Access to Justice Act apply to federal waivers of

sovereign immunity pursuant to § 106. 

40

no limitations on the bankruptcy court’s award of punitive damages and

determination of attorney’s fees. 

3

For the foregoing reasons, I respectfully dissent in Section F of the majority

opinion, and I concur in all other respects.