* Of the District of New Hampshire, sitting by designation.

United States Court of Appeals

For the First Circuit

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No. 00-2255

IN RE: ROBERT L. GOSSELIN, 

Debtor.

____________________

 ROBERT L. GOSSELIN,

Plaintiff, Appellant,

v.

COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF REVENUE,

Defendant, Appellee.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

____________________

Before

Boudin, Chief Judge,

Lynch, Circuit Judge,

and DiClerico,* District Judge.

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Robert F. Casey, Jr. for appellant.
Jeffrey S. Ogilvie, Litigation Bureau, Massachusetts Department

of Revenue, with whom Thomas Reilly, Attorney General, was on brief

for appellee.

____________________

January 9, 2002

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1 In February 1999, the bankruptcy court entered an order

discharging Gosselin's debts. 

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LYNCH, Circuit Judge. This is an appeal brought by

Robert Gosselin, a Chapter 7 debtor, from a district court

decision that the Eleventh Amendment bars his adversary action

against the Commonwealth of Massachusetts. We affirm, but we do

not adopt the district court's reasoning, nor do we reach the

constitutionality of 11 U.S.C. § 106(a), a Bankruptcy Code

provision which explicitly abrogates the states' sovereign

immunity with respect to the bankruptcy court's ability to

declare state tax debts dischargeable. 

I.

In 1998 Gosselin filed a petition for bankruptcy under

Chapter 7 of the Bankruptcy Code.1 11 U.S.C. §§ 701-784 (2000).

The Commonwealth of Massachusetts, as is common in "no asset"

cases, did not file a proof of claim or otherwise participate in

the original Chapter 7 proceeding. Shortly after initiating his

Chapter 7 petition, Gosselin brought an adversary action against

the Commonwealth in the United States Bankruptcy Court to obtain

a specific ruling that certain past due taxes to the

Commonwealth were dischargeable. The Commonwealth moved to
2 The Eleventh Amendment states:

The Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another state .

. . .

U.S. Const. amend XI.

3 11 U.S.C. § 106 states, in relevant part:

(a) Notwithstanding an assertion of sovereign immunity, sovereign

immunity is abrogated as to a governmental unit to the extent set

forth in this section with respect to the following:

(1) Sections . . . 523, 524 [and fifty-eight other

sections] . . . of this title.

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

respect to the application of such sections to governmental

units.

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

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dismiss the proceeding, asserting its Eleventh Amendment

sovereign immunity against being sued in the courts of the

United States without its consent.2

The Commonwealth later argued that, under

§ 523(a)(1)(C), Gosselin's tax debts were not dischargeable

because he willfully attempted to evade or defeat the tax. But,

the Commonwealth argued, the Eleventh Amendment barred the

bankruptcy court from entertaining the substance of Gosselin's

claim, despite § 106(a)'s authorization of suit in federal court

and purported abrogation of state sovereign immunity with

respect to § 523 (and fifty-nine other provisions of the Code).3
order, process, or judgment under such sections or the

Federal Rules of Bankruptcy Procedure . . . .

The Code defines "governmental unit" to include states. 11 U.S.C. §

101(27) (2000).

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The Commonwealth claimed that § 106(a) was an invalid abrogation

of its sovereign immunity. The bankruptcy court denied the

Commonwealth's motion to dismiss, and later ruled on summary

judgment that the state taxes were discharged. The Commonwealth

appealed and the district court reversed the bankruptcy court

and held that Congress, being constrained by the Eleventh

Amendment, had exceeded its power by enacting § 106(a). United

States Dep't of Treasury v. Gosselin, 252 B.R. 854, 858-59 (D.

Mass. 2000). The district court, therefore, reversed the

bankruptcy court's grant of summary judgment and reversed the

bankruptcy court's denial of the Commonwealth's motion to

dismiss. Id. at 859.

II.

Our review of the district court's order is de novo.

Parella v. Retirement Bd. of the R.I. Employees' Ret. Sys., 173

F.3d 46, 53 (1st Cir. 1999). We affirm, but without adopting

the district court's reasoning or reaching the constitutionality

of § 106(a). We do so because, on appeal, Gosselin's brief has
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presented not a single colorable argument for why his suit

against the Commonwealth should be allowed to go forward. Other

than stating, as the issue presented for review, the question of

whether the Eleventh Amendment prohibits a debtor from bringing

an adversary proceeding against the Commonwealth to have a state

tax debt declared dischargeable, Gosselin's only argument on

appeal is that the state has waived its immunity by statute.

The argument is raised for the first time on appeal; it is

frivolous, and we decline to consider it. Garcia-Ayala v. Lederle

Parenterals, Inc., 212 F.3d 638, 645 (1st Cir. 2000) (holding that

failure to brief an argument constitutes waiver); Piazza v. Aponte

Roque, 909 F.2d 35, 37 (1st Cir. 1990) ("Except in extraordinary

circumstances . . . a court of appeals will not consider an issue

raised for the first time at oral argument."); United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (applying "the settled

appellate rule that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived"); see also Fed. R. App. P. 28(a). 

Therefore, we affirm the district court's judgment that

Gosselin's claim should be dismissed. However, we need not, and

do not, adopt the district court's reasoning. We are loathe to

address the constitutionality of a statute in the absence of
4 Because this is a suit questioning the constitutionality of

a federal statute and the United States is not a party, the party

raising the constitutional question was obligated to notify the Clerk

of this court. Fed. R. App. P. 44. Because neither party gave proper

notice, this court did so. See 28 U.S.C. § 2403(a) (1994). The United

States, after considering the question for some time, has informed us

that it does not wish to participate in this matter.

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adequate briefing by the parties, and the United States, by

declining our invitation to file a brief, has chosen to shed no

additional light on the matter.4 

We consider the scope of our opinion to be extremely

limited given that we affirm only because Gosselin has, in

essence, defaulted by failing to present any colorable argument

on appeal. Accordingly, this opinion would have no preclusive

or precedential effect on a case in which the Commonwealth were

to seek to collect its tax debts and Gosselin were to defend on

the basis of his general discharge in bankruptcy. Similarly,

our holding here would not be determinative of any case, brought

under Ex parte Young, 209 U.S. 123 (1908), in which Gosselin or

anyone else attempted to prevent a state official from

unlawfully collecting a discharged tax debt. The issues that

would be presented by such cases are distinct.

Affirmed.