From Fictionalism to Functionalism in State Sovereign Immunity: The Bankruptcy Discharge as Statutory Ex Parte Young Relief After Hood

Abstract

In Tennessee Student Assistance Corp. v. Hood, Supreme Court resolved an issue of tremendous significance to functional efficacy of federal bankruptcy relief, holding states have no constitutional sovereign immunity in dischargeability (and by implication, general discharge) proceedings in federal bankruptcy court. The Hood Court reasoned that a proceeding initiated by a debtor to determine dischargeability of a student loan debt [owing to a State] is not a suit against State for purposes of Eleventh Amendment['s] embodiment of states' constitutional sovereign immunity from suit, because the bankruptcy court has in rem jurisdiction over matter. Likewise, Court opined States, whether or not they choose to participate in proceeding, are bound by a bankruptcy court's discharge order no less than other creditors, as the exercise of its in rem jurisdiction to discharge a debt does not infringe state sovereignty.The holding in Hood is a very limited one, by virtue of both Court's express directions and logic of Court's opinion, which (as Court itself implicitly acknowledged) cannot sensibly extend even to all aspects of discharge of state claims. Most significantly, Hood's in rem exception to state sovereign immunity in bankruptcy will not countenance enforcement of discharge injunction against states. Indeed, without an enforceable discharge injunction, Hood decision is virtually meaningless — which is where Ex parte Young comes into play.The Ex parte Young corollary to states' constitutional sovereign immunity permits a federal court to award prospective declaratory and injunctive relief against state officials in their official capacities (irrespective of immunity of state itself from such relief), ordering state officials to conform their future conduct to requirements of federal law. In an earlier article, I advanced a very simple and (in retrospect) obvious, yet largely overlooked proposition: a federal bankruptcy court's discharge order, in and of itself, is a permissible Ex parte Young order. A general discharge order, as well as any individualized dischargeability determination, is a declaratory and injunctive decree directly restrains state officials from any future collection efforts on behalf of a state would contravene federal bankruptcy law. A state official knowingly violates a debtor's bankruptcy discharge, therefore, has violated a valid Ex parte Young injunction and is subject to contempt sanctions of federal bankruptcy court from which discharge order issued.Hood's use of principles of in rem jurisdiction to justify discharge and dischargeability determinations is an exercise in forced, formalistic, fictional reasoning bears only most tenuous (and in case of dischargeability determinations, no meaningful) relationship to jurisdictional principles invoked. And relevance of these in rem jurisdictional principles to state sovereignty concerns embedded in Eleventh Amendment remains unexplained (by Court) and, therefore, wholly speculative. The holding in Hood evinces Court's general desire to preserve a perceived essence of federal bankruptcy process by exempting it from states' sovereign immunity. The principles of in rem jurisdiction relied upon in Hood, however, are not robust enough to thoroughly assimilate essence of federal bankruptcy relief. This article, thus, suggests a more fruitful line of pursuit: function, not fiction. The functional inquiry embodied in modern Ex parte Young doctrine fully captures essence of federal bankruptcy relief and, thus, provides a medium for reconciling effective enforcement of federal bankruptcy law with states' constitutional sovereign immunity is eminently more principled and coherent than artificial legal fictions espoused by Hood Court.