In re Artiglio

Full title: In re: Carmine ARTIGLIO, Debtor. v. Carmine Artiglio, Appellee. E. Les…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 11, 2001

13 F. App'x 653 (9th Cir. 2001)

Opinion

13 Fed.Appx. 653 (9th Cir. 2001) In re: Carmine ARTIGLIO, Debtor. E. Les Sorenson, Executive Director, California State Board of Equalization, Appellant, v. Carmine Artiglio, Appellee. No. 00-56144. B.A.P. No. CC-99-01797-KMaJ. United States Court of Appeals, Ninth Circuit. July 11, 2001

Argued and Submitted May 16, 2001.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the Ninth Circuit Bankruptcy Appellate Panel, Klein, Marlar, and Jaroslovsky, Bankruptcy Judges, Presiding.

Before O'SCANNLAIN, TASHIMA, and THOMAS, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

E. Les Sorenson, Executive Director of the California State Board of Equalization ("SBE"), appeals a judgment of the Bankruptcy

Page 654.

Appellate Panel reversing the bankruptcy court's order dismissing Carmine Artiglio's adversary proceeding on sovereign immunity grounds. Artiglio brought an action against Sorenson under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), seeking a declaratory judgment from the bankruptcy court that certain state sales taxes he owed to the SBE were discharged in his Chapter 7 proceeding and seeking injunctive relief barring Sorenson from taking further action to collect such taxes. The facts and prior proceedings are known to the parties; they are not restated here except as necessary.

Sorenson contends that Artiglio's action falls within one of the exceptions to the Ex Parte Young doctrine the Supreme Court articulated in Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997), and Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Sorenson further contends that the State is the real party in interest in Artiglio's adversary proceeding, and hence that this action is barred by state sovereign immunity. Finally, Sorenson contends that the Tax Injunction Act, 28 U.S.C. § 1341, precludes the bankruptcy court from issuing the injunctive and declaratory relief Artiglio seeks here.

Sorenson's arguments are identical to the arguments we rejected in our recent decision in Goldberg v. Ellett, 254 F.3d 1135 (9th Cir.2001). Goldberg thus directly controls this appeal. Accordingly, the Bankruptcy Appellate Panel is

AFFIRMED.