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



# United States Court of Appeals For the First Circuit

____________________ No. 00-2255 IN RE: ROBERT L. GOSSELIN, Debtor.

____________________ ROBERT L. GOSSELIN, Plaintiff, Appellant,

v. COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF REVENUE,

Defendant, Appellee.

____________________ 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 .

____________________ 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

____________________1 In February 1999, the bankruptcy court entered an order

discharging Gosselin's debts. -2-

LYNCH, Circuit Judge . This is an appeal brought by Robert Gosselin, a Chapter 7 debtor, from a district court decisionthat the Eleventh Amendment bars his adversary action against the Commonwealth of Massachusetts. We affirm, but we do
n ot adopt the district court's reasoning, nor do we reach the
c onstitutionality of 11 U.S.C. § 106(a), a Bankruptcy Code provisionwhich explicitly abrogates the states' sovereign immunity

with respect to the bankruptcy court's ability to declare state tax debts dischargeable. I. In1998 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 Commonwealthwere dischargeable. The Commonwealth moved to2 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) Sectio ns . . . 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 -3- dismiss the proceeding, asserting its Eleventh Amendment sovereignimmunity 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). 3order, 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). -4- 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
a ppealed 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-5-

presented not a single colorable argument for why his suit against the Commonwealth should be allowed to go forward. Other thanstating, as the issue presented for review, the question of whether the Eleventh Amendment prohibits a debtor from bringing
anadversary proceeding against the Commonwealth to have a state taxdebt 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 sho uld 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 of4 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. -6- 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
onappeal. 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 Exparte 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 .