                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                           REVISED OCTOBER 24, 2006
                        UNITED STATES COURT OF APPEALS                October 19, 2006
                             FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                            _______________________                       Clerk

                                  No. 03-41345
                            _______________________


             IN THE MATTER OF: SUPREME BEEF PROCESSORS, INC.,

                                                                        Debtor.

                           -------------------------

                   STEPHEN ZAYLER, Trustee of the Estate of
                        Supreme Beef Processors, Inc.,

                                                                    Appellant,

                                     versus

           DEPARTMENT OF AGRICULTURE; UNITED STATES OF AMERICA,

                                                                    Appellees.



               Appeal from the United States District Court
                     for the Eastern District of Texas
                           Docket No. 6:02-CV-570


Before JONES, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, SMITH,
WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS,
CLEMENT, PRADO, and OWEN, Circuit Judges.*

EDITH H. JONES, Chief Judge:**

              In    this   bankruptcy   case,   the   debtor,   Supreme     Beef

Processors, Inc. (“Supreme Beef”), asserts that it may pursue tort

claims against the United States Department of Agriculture (“USDA”)


      *
              Judge King is recused and did not participate in the decision.
      **
            Judge Higginbotham and Judge Owen, writing separately, concur in the
judgment only.
that would be barred by the federal government’s sovereign immunity

outside of bankruptcy. The district court dismissed Supreme Beef’s

claims,     but    a   panel     of      this       court      held    that     permissive

counterclaims against the Government may be used as a setoff

pursuant to § 106(c) of the Bankruptcy Code, 11 U.S.C. § 106(c),

which allegedly effects a waiver of the USDA’s sovereign immunity.

Upon   reconsidering     the     case      en       banc,     we    reject    the    panel’s

interpretation of § 106(c) and AFFIRM the decision of the district

court in its entirety.

                                   I.    Background

            Supreme Beef was a Texas-based company in the business of

processing,       grinding   and      selling       meat      products.       As    a   major

domestic wholesale supplier of beef products, the company had

several contracts with the USDA to support the National School

Lunch Program.

            The USDA is responsible for ensuring the safety of the

nation’s meat products, 21 U.S.C. § 608, and has delegated its

inspection    duties    to     the      Food       Safety     and    Inspection      Service

(“FSIS”).         As a general matter, the USDA bears the cost of

performing inspection services. It is, however, authorized to seek

reimbursement for overtime work at individual plants, 21 U.S.C.

§   695 and   7     U.S.C.   §   2219(a),          and   it    may    collect       fees   for

certification services.          7 U.S.C. § 1622(h).




                                               2
           In 1996, FSIS issued the Pathogen Reduction, Hazard

Analysis   and       Critical       Control       Point   Systems    (“HACCP”)      rule,

9 C.F.R. § 417, which requires meat processors to develop and

implement preventive controls to ensure product safety.                           The FSIS

maintains the power to verify whether plants’ performance plans are

eliminating common pathogens such as E. coli and Salmonella.

           Two years later, Supreme Beef implemented its first HACCP

pathogen control plan.          Unfortunately, the company failed a series

of tests administered by the FSIS over a period of months.

           Still unable to demonstrate adequate HACCP control by

October 1999, Supreme Beef filed a lawsuit on the day that the USDA

had set to suspend inspection activities at its plant.                        Removal of

USDA inspectors would be a fatal blow to the company, as it is

illegal to sell uninspected beef.                  21 U.S.C. § 606.         The district

court granted a temporary restraining order and later upheld

Supreme Beef’s contention that because the FSIS testing system was

“not solely      –    or    even     substantially”       related     to    the    plant’s

sanitary   conditions,         it    fell     outside     the   agency’s     regulatory

authority.    Supreme Beef Processors, Inc. v. U.S. Dep’t of Agric.,

113 F. Supp. 2d 1048, 1053 (N.D. Tex. 2000), aff’d, 275 F.3d 432

(5th Cir. 2001).        The decision was a Pyrrhic victory, however, as

the court refused to compel USDA to perform the National School

Lunch contracts.           Having lost its government contracts and many

other customers,           Supreme    Beef    was     forced    to   seek    Chapter    11



                                              3
bankruptcy in September 2000.        Its case was subsequently converted

to Chapter 7.

            Adding insult to the company’s injury, the USDA filed

various proofs of claim totaling $32,753 for pre-petition meat

certification services and overtime inspection work.               The trustee

filed an adversary proceeding against the Government in bankruptcy

court seeking damages for USDA’s unauthorized regulatory activity.

The reference was withdrawn, and the case proceeded in federal

district court.     The trustee asserted five claims against the USDA

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),

2671-2680.1     The USDA moved to dismiss Supreme Beef’s claims as

being barred facially by federal sovereign immunity.               See FED. R.

CIV. P. 12(b)(1) and 12(b)(6).        Citing 11 U.S.C. §§ 106(b) and (c),

Supreme Beef countered that USDA had waived its immunity by filing

bankruptcy proofs of claim.           The district court sided with the

USDA, and Supreme Beef appealed.           A panel of this court reversed

the trial court’s judgment2 and held that 11 U.S.C. § 106(c) waived

USDA’s sovereign immunity and authorized a setoff of Supreme Beef’s

permissive counterclaims.        This court ordered rehearing en banc.

                               II.   Discussion


      1
            Supreme Beef’s complaint alleged (1) tortious interference with
business relations; (2) tortious interference with existing contracts;
(3) slander; (4) business disparagement; and (5) breach of duty to perform proper
inspection.
      2
            While its ruling on § 106(c) resulted in a reversal of the district
court’s judgment, the panel upheld the trial court’s conclusion that § 106(b) did
not apply because Supreme Beef’s claims against USDA are not compulsory
counterclaims. See 11 U.S.C. § 106(b) and infra note 6.

                                       4
           This court reviews de novo a district court’s dismissal

pursuant to FED. R. CIV. P. 12(b)(1) or 12(b)(6).             LeClerc v. Webb,

419 F.3d 405, 413 (5th Cir. 2005).            A claim may not be dismissed

unless it appears certain that the plaintiff cannot prove any set

of facts that would entitle him to legal relief.              Benton v. United

States, 960 F.2d 19, 21 (5th Cir. 1992).

           The issue in this case is whether Supreme Beef stated a

viable claim for tort recovery against the USDA premised solely on

§ 106(c) of the Bankruptcy Code, which provides:

     (c)   Notwithstanding any assertion of sovereign immunity
           by a governmental unit, there shall be offset
           against a claim or interest of a governmental unit
           any claim against such governmental unit that is
           property of the estate.

11 U.S.C. § 106(c).

           Our analysis begins with the legal claim that Supreme

Beef may not pursue: an FTCA claim.          The Constitution contemplates

that, except as authorized by Congress, the federal government and

its agencies are immune from suit.              Hercules, Inc. v. United

States, 516 U.S. 417, 422, 116 S. Ct. 981, 985 (1996).                       Two

Constitutional provisions support this immunity.                 The Appropria-

tions   Clause   states   that   no   money    “shall    be   drawn   from   the

Treasury, but in Consequence of Appropriations made by Law”.

U.S. CONST. art. I, § 9, cl. 7.             Consequently, any “payment of

money from the Treasury must be authorized” by Congress.              Office of

Pers. Mgmt. v. Richmond, 496 U.S. 414, 424, 110 S. Ct. 2465, 2472

(1990).    Similarly,     the    Property     Clause    states    that,   “[t]he

                                      5
Congress shall have power to dispose of and make all needful rules

and   regulations     respecting      the    territory    or   other     property

belonging to the United States.”            U.S. CONST. art. IV, § 3, cl. 2.

“Congress has the absolute right to prescribe” the manner in which

its property is transferred.          Gibson v. Chouteau, 80 U.S. 92, 99

(1872).

            Absent an express waiver of federal immunity by Congress,

the USDA cannot be sued by Supreme Beef.          Congress provided, in the

FTCA, an exclusive vehicle for the assertion of tort claims for

damages against the federal government.           See 28 U.S.C. §§ 2679(a)-

(b)(1). The FTCA allows a plaintiff to pursue tort actions against

the federal government, and it holds the government liable as if it

were a defendant in state court, subject to strict limitations.

Relevant here are two substantive limitations that constitute a

sine qua non for a plaintiff’s recovery.3             Codified at 28 U.S.C.

§   2680,   these     exceptions     deprive    courts    of   subject     matter

jurisdiction    and    cannot   be   waived.      Hayes   v.   United     States,

899 F.2d 438, 450-51 (5th Cir. 1990).                Claims based upon “a

discretionary function or duty” of a federal agency cannot be

brought against the United States.            28 U.S.C. § 2680(a).       Because



      3
            The FTCA contains two administrative prerequisites to suit that were
arguably also not complied with and could bar Supreme Beef’s suit. These are the
requirements for exhaustion of administrative remedies and a two-year limitation
on filing suit following exhaustion. See 28 U.S.C. §§ 2401(b), 2675(a). The
district court held that § 106(c) obviated the administrative exhaustion
roadblock for Supreme Beef. See, e.g., Ashbrook v. Block, 917 F.2d 918, 923 (6th
Cir. 1990).    We need not consider that ruling here, nor has the two-year
limitation been raised.

                                        6
USDA’s implementation of a Salmonella performance standard involved

discretionary     acts,   the   FTCA   affords    no   recovery    for   claims

predicated on such actions.            Additionally, § 2680(h) excludes

recovery for claims against the United States for “libel, slander,

misrepresentation, deceit, or interference with contract rights.”

Id. § 2680(h).      Four of the company’s causes of action also ran

afoul of this limitation.        The district court correctly held, and

Supreme Beef does not dispute on appeal, that for these reasons, it

could not have asserted FTCA claims against the USDA prior to

filing bankruptcy.4

            In lieu of the FTCA, Supreme Beef contends that the

Bankruptcy Code effected an independent waiver of federal sovereign

immunity, allowing its offset of permissive counterclaims against

USDA’s proof of claim.          While the determinative provision for

Supreme Beef is 11 U.S.C. § 106(c),5 that provision is part of a

Bankruptcy Code section that deals more completely with questions



      4
            The FTCA provides the sole basis of recovery for tort claims against
the United States. That Congress chose to incorporate standards for federal
conduct that mirror applicable state standards of liability does not diminish
this exclusivity. In fact, the exclusivity is reinforced by substantive limits
on that incorporation, which are embodied, inter alia, in the discretionary
function and intentional tort exceptions to the FTCA.
      5
             Supreme Beef continues to contend that its claims are also permitted
under § 106(b), which authorizes recovery of compulsory counterclaims against a
governmental unit that has filed a proof of claim in the bankruptcy case. The
discussion hereinafter of “property of the estate” is as relevant to § 106(b) as
to § 106(c). We also find dispositive, as did the panel, the district court’s
ruling that because USDA’s claims for overtime and certification services covered
entirely different periods of time than the Salmonella HACCP tests at the company
plant, Supreme Beef’s claims based on the latter events do not arise out of the
same transactions or occurrences as those that underlie USDA’s claims.        See
Supreme Beef,391 F.3d 629, 633-35 (2004).

                                       7
of sovereign immunity.6        In searching for the best interpretation

of § 106(c), it is a “cardinal rule that a statute is to be read as

a whole,” in order not to render portions of it inconsistent or

devoid of meaning.       Wash. State Dep’t of Soc. & Health Servs. v.

Guardianship Estate of Keffeler, 537 U.S. 371, 385 n.7, 123 S. Ct.

1017, 1025 (2003) (internal quotation omitted).               Another guiding

principle is that waivers of sovereign immunity should be narrowly

construed in favor of the United States.            United States v. Nordic

Vill. Inc., 503 U.S. 30, 34-35, 112 S. Ct. 1011, 1015 (1992).

            Bankruptcy     Code   §   106   currently     consists    of   three

subsections, which provide in pertinent 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 105, 106, 107, 108, 303, 346,
                  362, 363, 364, 365, 366, 502, 503, 505,
                  506, 510, 522, 523, 524, 525, 542, 543,
                  544, 545, 546, 547, 548, 549, 550, 551,
                  552, 553, 722, 724, 726, 728, 744, 749,
                  764, 901, 922, 926, 928, 929, 944, 1107,
                  1141, 1142, 1143, 1146, 1201, 1203, 1205,
                  1206, 1227, 1231, 1301, 1303, 1305, and
                  1327 of this title. . . .

            . . . .

            (5)   Nothing in this section shall create any
                  substantive claim for relief or cause of
                  action not otherwise existing under this

      6
             The Supreme Court’s recent decision in Cent. Va. Cmty. Coll. v. Katz,
126 S. Ct. 990 (2006), declared that states waived their sovereign immunity in
bankruptcy “in the usual case” under the plan of the Constitutional Convention.
126 S. Ct. at 1000. Regardless what effect Katz has with respect to some aspects
of state or local governmental units’ encounters with bankruptcy, Katz had no
effect on this case involving federal sovereign immunity.

                                        8
                  title, the Federal Rules of Bankruptcy
                  Procedure, or nonbankruptcy law.

       (b)   A governmental unit that has filed a proof of claim
             in the case is deemed to have waived sovereign
             immunity with respect to a claim against such
             governmental unit that is property of the estate
             and that arose out of the same transaction or
             occurrence out of which the claim of such
             governmental unit arose.

       (c)   Notwithstanding any assertion of sovereign immunity
             by a governmental unit, there shall be offset
             against a claim or interest of a governmental unit
             any claim against such governmental unit that is
             property of the estate.

11 U.S.C. § 106 (a)-(c).

             When the modern Bankruptcy Code was enacted in 1978,

Congress     attempted   to    create   a   level   playing   field   between

sovereign entities and other participants in bankruptcy court by

abrogating sovereign immunity.          Subsections 106(b) and (c) have

been redesignated, but are substantively unchanged since the Code’s

inception except for the addition of the “notwithstanding” clause

to § 106(c) in 1994.        The current structure of the provisions is a

response     to   Supreme     Court   decisions     that   required   express

declarations of congressional intent to abrogate sovereign immunity

in order to satisfy to the Eleventh Amendment and federal immunity

law.   See, e.g., Hoffman v. Conn. Dep’t of Income Maint., 492 U.S.

96, 101-02, 109 S. Ct. 2818, 2823 (1989); Nordic Vill., supra, 503

U.S. at 34-35, 112 S. Ct. at 1015.             Section 106(a)(1) creates

jurisdiction in bankruptcy courts “[n]otwithstanding an assertion

of sovereign immunity” to hear certain types of administrative


                                        9
struggles in which governmental units may become embroiled in a

bankruptcy case. The list of Code sections identifies the types of

proceedings    in   which   governmental      units   may   be   sued,   e.g.,

preference and fraudulent transfer litigation (§§ 547-48), and

assessment of administrative expenses (§§ 502-03).               Not included

among these sections is § 541 of the Code, which defines “property

of the estate”.      Section 106 (a)(5) provides that no substantive

cause of action is created against governmental units beyond what

exists in bankruptcy law or in applicable non-bankruptcy law.

Sections 106(a)(3) and (4) regulate the amounts and types of

recovery in bankruptcy proceedings against governmental units.7

For this reason, and insofar as § 106(a)(5) creates no cause of

action apart from applicable non-bankruptcy law, § 106(a) clearly

distinguishes between sovereign immunity from suit and immunity

from liability. See 2 COLLIER     ON   BANKRUPTCY ¶106.05-.07,(15th ed. rev.

2004).

            Sections 106(b) and (c) are consistent with Section

106(a); they vest the bankruptcy courts with jurisdiction to hear

certain claims but do not create substantive non-bankruptcy law

that will govern a claim.       These provisions have been described by

the Supreme Court as “plainly waiving” sovereign immunity with

respect to monetary relief in two settings: compulsory counter-



      7
            Sections 106(a)(3) and (4) provide the bankruptcy court the same
capacity as a district court to award reasonable monetary damages, exclusive of
punitive damages, for costs and fees pursuant to 28 U.S.C. § 2412(d)(2)(A).

                                        10
claims to governmental claims (current § 106(b)), and permissive

counterclaims to governmental claims capped by a setoff limitation

(current § 106(c)).       Nordic Vill., 503 U.S. at 34, 112 S. Ct. at

1015.8    Importantly, in Nordic Village, the Court added that

Congress’s grant of jurisdiction to entertain such claims is wholly

distinct from the abrogation of all defenses to a claim.                  Id. at

38, 112 S. Ct. at 1017.       Put otherwise, “it cannot be assumed that

a claimant has a cause of action for damages against a government

agency   merely    because    there    has    been   a   waiver   of   sovereign

immunity.”     Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d

1024, 1033 (D.C. Cir. 2004) (citing FDIC v. Meyer, 510 U.S. 471,

483-84, 114 S. Ct. 996 (1994)).             In Meyer, the Court stated that

“[t]he   first    inquiry    is   whether    there   has   been   a    waiver   of

sovereign immunity.         If there has been such a waiver . . . the

second inquiry . . . is whether the source of substantive law upon

which the claimant relies provides an avenue for relief.”                 Meyer,

510 U.S. at 484, 114 S. Ct. 1004.            See also, U.S. Postal Serv. v.

Flamingo Indus. (USA) Ltd., 540 U.S. 736, 744, 124 S. Ct. 1321

(2004)(a federal agency’s amenability to suit “does not result in

liability if the substantive law in question is not intended to

reach the federal entity.”).          Sections 106(b) and (c), therefore,

permit the assertion of counterclaims or offsets, but they do not




      8
            At the time Nordic Village was decided, subsections (b) and (c) were
designated as §§ 106 (a) and (b), respectively.

                                       11
determine the law that substantively governs claims against the

governmental units.

            The law that governs counterclaims or offset claims is

applicable state or federal law.                   This is expressed in both

provisions by the requirement that counterclaims or offsets against

the   governmental       units    be    “property      of   the    estate.”9      The

Bankruptcy Code defines “property of the estate” as including “all

legal or equitable interests of the debtor in property as of the

commencement of the case.”             11 U.S.C. § 541(a)(1).            The Supreme

Court has emphasized that bankruptcy law is not itself a source of

property rights.         It functions to adjust pre-existing property

rights as defined by extrinsic state or federal law.                       Butner v.

United States, 440 U.S. 48, 54-55, 99 S. Ct. 914, 917-18 (1979);

see also In re Pinetree, Ltd., 876 F. 2d 34, 36 (5th Cir. 1989).

Because    counterclaims         or    offset   claims      against      governmental

entities    must    be    “property        of   the    estate,”     they    are   not

freestanding and divorced from the substantive limitations that

would be imposed outside of bankruptcy.               The FTCA, as noted, is the

exclusive    vehicle      for     claims    that      Supreme     Beef   could    have

maintained against USDA outside of bankruptcy. Literal application

of § 106(c) ultimately leads Supreme Beef to a dead end.                          The



      9
            As Collier recognizes: “Whether there is a valid and enforceable
claim or obligation in existence to be used as a setoff depends upon the
applicable state or federal substantive law and Sections 541, 1207 and 1306 of
the Bankruptcy Code.” 2 COLLIER ON BANKRUPTCY ¶ 106.07[1] (15th ed. rev. 2004)(the
latter in regard to § 106(b)).

                                           12
company may not offset any permissive counterclaim without an

underlying claim that was “property of the estate” at the date of

bankruptcy.

           Supreme Beef takes issue with this interpretation of

§ 106(c) on several grounds.     First, it contends that its claims

are “property of the estate” because they “exist” under state law,

notwithstanding the FTCA’s discretionary function and intentional

tort exceptions.      That   state   law   defines   certain   conduct   as

tortious, however, simply does not mean that a private person may

sue the U.S. Government solely under the state’s law.          The federal

government enjoys complete sovereign immunity except as it has

consented to be sued and consented to submit to liability.        Supreme

Beef’s implication that FTCA’s incorporation of state tort law can

be divorced from that statute’s express limits on liability, e.g.,

the   discretionary   function   and      intentional   tort   exceptions,

violates the rule requiring harmonious interpretation of a statute

as a whole.

           Supreme Beef also misplaces reliance on this court’s

recent en banc decision interpreting the temporal limits on the

definition of “property of the estate.”         Burgess v. Sykes (In re

Burgess), 438 F.3d 493 (5th Cir. 2006).           Both the majority and

dissenting opinions in Burgess considered cases in which there was

no dispute that the debtor had obtained a cognizable legal claim

against the federal government, a claim embodied in legislation;

the point of contention solely concerned whether the claim arose

                                     13
before or after bankruptcy.      In this case, the question is whether

Supreme Beef has any claim apart from the FTCA.

           Supreme Beef next contends that because § 106(c) allows

a trustee to assert permissive counterclaims “notwithstanding any

assertion of sovereign immunity” by a governmental unit, this

effects a waiver of substantive sovereign immunity.           We disagree.

The clause is designed to recognize the different procedural

postures in which §§ 106(b) and (c) claims arise.          Under § 106(b),

a governmental unit will have filed a proof of claim against the

debtor, e.g., for back taxes, and the unit is then “deemed to have

waived” immunity for any compulsory counterclaim the debtor can

assert that is also “property of the estate.”             In the § 106(c)

context, however, it is not necessary that the governmental unit

first file a claim, so no “deemed waiver” is appropriate.               But,

where a separate but related governmental entity has filed a claim

(e.g., two different state agencies),10 the debtor’s claim for a

capped offset may be maintained in bankruptcy court “notwith-

standing any assertion of sovereign immunity.”               This language

waives immunity from suit, not from liability.

           If “notwithstanding any assertion of sovereign immunity”

in § 106(c) means any more than a recognition of the procedural

posture of the waiver, i.e., if it waives immunity from liability,



     10
            See, e.g., In re Charter Oak Associates, 361 F.3d 760, 770-72 (2d
Cir. 2004), upholding permissive counterclaim against one state agency after
another agency filed proof of claim).

                                     14
then this would render the “property of the estate” language in

§ 106(c) superfluous as regards claims against a governmental unit.

Further, “property of the estate” would have different meanings in

§§ 106(b)and(c), functioning still as a limit on a governmental

unit’s liability in the former provision but not, according to

Supreme Beef’s interpretation, in the latter provision.                 Finally,

if § 106(c) — uniquely among its companion provisions §§ 106(a) and

(b), and contrary to the FTCA — creates causes of action against

governmental units untethered from existing extrinsic law, it

impermissibly creates “property” of the debtor that the debtor did

not have prebankruptcy.           Supreme Beef acknowledges it could not

have sued USDA prebankruptcy under the FTCA.                The Bankruptcy Code

does not grant Supreme Beef a superior right against the government

postbankruptcy.

            The argument may be made that because § 106(c) involves

capped setoff claims, such claims may not result in a judgment for

money damages against a governmental unit and thus do not implicate

sovereign immunity.         This interpretation, however, drains any

meaning from the description of the setoff as “property of the

estate.”      It   also   renders    questionable      the   “notwithstanding”

clause, which would be unnecessary if the fact of a capped offset

dissociates    the     debtor’s     claim   from     impinging    on   sovereign

immunity.

            Finally,      while    there    appear     to    be   no   decisions

interpreting § 106(c) as a freestanding waiver of substantive

                                       15
sovereign immunity, that proposition has been rejected by the Tenth

Circuit. See Franklin Sav. Corp. v. FDIC, 385 F.3d 1279 (10th Cir.

2004).     There, the plaintiff attempted to circumvent its inability

to state a timely claim under the FTCA by relying on § 106.                  The

court rejected the plaintiff’s contention that “Bankruptcy Code

§ 106 constitutes a complete waiver of sovereign immunity separate

and apart from the FTCA’s waiver of immunity, and that this waiver

permits tort claims against the United States which would otherwise

not be permitted under the discretionary function exception of FTCA

§ 2680(a).”11     Id. at 1285.        Acknowledging that the FTCA is the

exclusive remedy for tort claims against the United States, the

court held that “Bankruptcy Code § 106 does not provide a substan-

tive or     independent    basis     for   asserting   a   claim   against   the

government.”     Id. at 1286 (quoting § 106(a)(5)).           We see no reason

to deviate from the decision and reasoning of Franklin.

                              III.    Conclusion

             The foregoing holistic interpretation of § 106 means that

Supreme Beef has no claim for offset against the federal government

unless nonbankruptcy law gave it a claim that was “property of the

estate” as of the date of bankruptcy.          Any such claim, however, was

coterminous with, and doomed under, the FTCA.              The construction of


      11
            Franklin distinguished the decisions in Anderson v. FDIC, 918 F. 2d
1139 (4th Cir. 1990), and Ashbrook v. Block, 917 F. 2d 918 (6th Cir. 1990), which
held that FTCA’s procedural exhaustion requirement does not apply in a § 106
setting. Franklin’s distinction between disallowing presentment of a claim in
the first instance and disallowing an untimely filed claim sufficiently treats
this intercircuit discrepancy. Franklin, 385 F. 3d at 1290-91.

                                       16
§ 106(c) that Supreme Beef advocates would allow it to assert a

prebankruptcy claim against USDA that it could not assert outside

of bankruptcy. This result flies against the fundamental principle

that bankruptcy law is intended to divide up a debtor’s assets

according    to   the   property   rights   prescribed   by   applicable

nonbankruptcy law.      Butner, supra, 440 U.S. at 54-55, 99 S. Ct. at

917-18.

            For the foregoing reasons, the judgment of the district

court is AFFIRMED.




                                   17
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:



      This is not an easy case, and I offer no words to make it so.

Rather, in my view, the best footing for resolution lies with its

clouding uncertainty — as I will explain.           At its heart the dispute

is whether the FTCA selectively incorporates state tort law,

extinguishing the unincorporated husk, or whether the FTCA merely

waives    sovereign    immunity,     leaving    a    remedy   under    certain

conditions. To my eye, resolving that question largely decides the

case.     This is true because any claim brought under 106(c) must

have been “property of the estate”; that is, the claim must have

existed pre-petition.        There is the traditional view, sovereign

immunity destroys the remedy, not the cause of action.1               There is

the response that the revival of previously barred state tort

claims would create “property of the estate” that never existed

outside of bankruptcy.

      While this response arguably is question begging, it is not

demonstrably wrong.      Indeed, its main hurdle is the text of section

106(c) itself, which provides for an offset against the government

“notwithstanding      any   assertion    of   sovereign    immunity.”       The

argument must explain what (other than a clear waiver of immunity)

these words could possibly mean.          The proffered solution is more

clever than grounded and mirrors our approach in Meyers ex rel.



      1
            See, e.g., Pennhurst, 465 U.S. at 112 (noting that the “doctrine of
sovereign immunity and the requirement that a plaintiff state a cause of action”
should not be “confused.”).
Benzing v. Texas, which held that the State of Texas waived only

its immunity from suit, not its immunity from liability, when it

removed a case from state to federal court.2                    Likewise, the

argument continues, the clear waiver expressed in section 106(c) is

a waiver only of “forum immunity,” not of substantive immunity.

      This solution has conceptual difficulties.             As Meyers ex rel.

Benzing recognized, other circuits have held that “the federal

government's sovereign immunity, unlike that of the states, is a

defense to liability but not an immunity from suit.”3                  The two

Constitutional     Clauses    in   which    the   argument   locates   federal

sovereign immunity, the Appropriations Clause and the Property

Clause, support only immunity from liability.

      Another, perhaps the best possible source of the federal

government’s immunity from suit in its own courts is Article III’s

grant to Congress of the power to control our jurisdiction.              Early

references to federal sovereign immunity agree with this reading,

locating immunity in the silence of the Judiciary Act, not the text

of the Constitution.4



      2
            410 F.3d 236 (5th Cir. 2005).
      3
            Only the Ninth Circuit has squarely held this. The Seventh Circuit’s
holding is more nuanced than Meyers suggests. In certain sue and be sued cases,
the Supreme Court has suggested that federal immunity is an immunity from suit.
See, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 483 (1994).
      4
            Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12 (1821) (“The
universally received opinion is, that no suit can be commenced or prosecuted
against the United States; that the judiciary act does not authorize such
suits.”).

                                      19
      Whatever the answer to this contested question, neither the

Supreme   Court   nor   the     Bankruptcy   Code   “clearly    distinguishes

between [federal] sovereign immunity from suit and immunity from

liability.”       Nor    does    Collier     on   Bankruptcy    support    this

proposition, as the opinion suggests.5              So if we are to rest

decision on this useful conceptual dichotomy, we should name its

source.

      Even assuming away this conceptual problem and accepting two-

part immunity as law, we are yet at sea.          If Congress merely wanted

to provide jurisdiction over FTCA claims to the Bankruptcy courts

(waive forum immunity), it chose a most subtle means to make that

simple purpose manifest.         All other provisions waiving only forum

immunity clearly sound in venue and jurisdiction.6             And the reality

that if Congress intended this result, it likely would have amended

28 U.S.C. 1334 (the bankruptcy jurisdictional statute), not the

substantive provisions of 11 U.S.C. 106, is troubling.             Add to the

mix another reality: legislative history is no friend to the

argument that section 106 anticipates only that the same result




      5
            If anything, Colliers supports the dissent, noting in section
106.06[3], “to the extent that judgment is entered under 106(b), the limitations
on punitive damages of 106(a) do not apply.” This suggests that punitive damages
might be available under 106(b), a suggestion which rejects the incorporation of
the FTCA into 106(b) and (c).

      6
            See, e.g., 28 U.S.C. § 1346 (“the district courts . . . shall have
exclusive jurisdiction of civil actions on claims against the United States . .
. .”); 28 U.S.C.A. § 1605(a) (“A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States.”).

                                      20
prevail within Bankruptcy as would have prevailed outside of

Bankruptcy.   The Senate Report notes:

           Section     106   provides      for    a   limited     waiver    of

     sovereign immunity in Bankruptcy cases. . . . The policy

     followed here is designed to achieve approximately the

     same result that would prevail outside of bankruptcy. .

     . . There is, however, a limited change from the result

     that would prevail in the absence of bankruptcy; the

     change is two-fold and is within Congress’ power vis-a-

     vis both the federal government and the states.                 First,

     the filing of a proof of claim against the estate by a

     governmental unit is a waiver by that governmental unit

     of    sovereign    immunity     with        respect   to    compulsory

     counterclaims, as defined in the federal rules of civil

     procedure . . . . Second, the estate may offset against

     the allowed claim of a governmental unit, up to the

     amount of the governmental unit’s claim, any claim that

     the   debtor,     and   thus   the    estate,     has      against    the

     governmental unit.



This Senate report suggests that Bankruptcy does indeed provide a

cause of action for recoupment or offset that would not have been

otherwise available.

     So it is that the dissent’s argument that the waiver in

section 106 is unequivocal has purchase, but only until that waiver

                                      21
is viewed within the statutory matrix.                   For although, in the

interest of fairness, section 106 plainly exposes the government to

suit when it files a claim in Bankruptcy, it is another thing to

say   that    section   106    upsets    the      FTCA’s      detailed     statutory

provisions which expressly carve out a withholding of sovereignty.

It would be surprising if Congress intended to silently outflank

such an important remedial statute, exposing government officials

to suit for their every exercise of discretion.                  Immunity for the

exercise     of   discretion   has   been      viewed    as    essential       to   the

administration of government policy: a view that sustains the

judicially crafted federal common law of immunity for its employees

— from qualified to absolute.

      Compare this impression of the statutory matrix to the Court’s

evolving section 1983 doctrine.           In Sea Clammers, the Court held

that the “comprehensive enforcement mechanisms” found in relevant

environmental statutes implied a Congressional intent to preclude

a remedy under the more general provisions of section 1983.7                        Such

might be the case here.         Congress might have intended that the

waiver in section 106 apply only generically, to claims not covered

by some other and relatively explicit statutory scheme. Or, as the




      7
            Middlesex County Sewerage        Authority   v.   National   Sea   Clammers
Association, 453 U.S. 1, 20-21 (1981).

                                        22
majority urges, Congress might have intended that the waiver

provide only a forum.8       Nor is that the end of deep water.

      There is force in the argument that,9 because all offsets are

capped at zero recovery for the government, immunity from liability

does not attach.      No affirmative judgment against the public fisc

can issue under section 106(c).              It’s true, of course, that

practically speaking a penny saved by the debtor is a penny earned.

But if practical effect were the standard, then injunctions would

also implicate the public fisc.

      But this zero-recovery argument ultimately fails. It does not

apply to section 106(b), and would create an odd statutory scheme

under which a defendant could bring any state tort claim as an

offset under section 106(c), but could bring only FTCA actions in

recoupment under 106(b).       That scheme would sorely tax the text of

106(b) and (c), and, as I have already pointed out, frustrates the

larger congressional scheme.

      This said, all the writings collectively make plain that

ambiguity remains in the waiver of immunity.                A Congressional

waiver of immunity must be unequivocal.10           By the clear-statement

rule, resort to legislative history, which we turn to with textual

      8
            See Chrome Plate, Inc. v. District Director of Internal Revenue, 442
F.Supp. 1023 (a pre-waiver case that forced a bankruptcy trustee to bring his
valid Tucker Act counterclaim in the Court of Claims).
      9
            Recall that Congress has waived sovereign immunity from actions in
federal courts (not state courts) seeking relief other that money damages. 5
U.S.C. § 702.
      10
            Lane v. Pena, 518 U.S. 187 (1996).

                                      23
ambiguity, is foreclosed, even if it offered answers, which it does

not.   And it is the clear statement rule that closes this case.

While the argument of the dissent is strong, the clear statement

rule demands that it do more.             The majority, concurring, and

dissenting opinions search for definitive readings of the statutory

matrix and in the effort offer creative solutions that, while not

fully successful, expose ambiguity.         Other courts, in their search

for concinnity, have done the same.11        And ambiguity is resolved in

favor of the sovereign.        Either way, and with all respect, the

writings overstate their case, and move with more certainty than is

warranted.     Rather than creatively stretching for non-existent

certainty,    I   would   accept   the    uncertainty,   apply   the   clear

statement rule, and reach the same conclusion as the majority.            To

my eyes, my colleagues move beyond interstitial interpretation of

this statutory array to the making of policy choices that ought be

left to Congress.




      11
            See, e.g., Ashbrook v. Block, 917 F.2d 918, 924 (6th Cir. 1990)
(holding that section 106 repealed by implication only the FTCA's exhaustion
requirement);     In re TPI Intern. Airways, Inc., 141 B.R. 512, 518
(Bkrtcy.S.D.Ga.,1992) (holding that section 106 repeals all FTCA protections
except for the discretionary function exception); Anderson v. Federal Deposit
Ins. Corp., 918 F.2d 1139, 1144 (4th Cir. 1990) (concluding that section 106
repealed all FTCA protections).

                                     24
DENNIS, Circuit Judge, concurring:



       I join the majority opinion and write separately only

to assign additional reasons for concluding that the

state-law tort claims that Supreme Beef attempts to bring

in this case are not “property of the estate” that can be

asserted    as       a    setoff   under    section    106(c)      of   the

Bankruptcy Code.            In my view, the resolution of this

question, which turns on the proper characterization of

the Federal Tort Claims Act (the “FTCA”), is critical to

the result in this case.            Because the FTCA is something

more    than     a       mere   limited    waiver     of   the     federal

government’s         sovereign     immunity,    I     agree      with   the

majority that the waiver of sovereign immunity contained

in section 106(c) does not permit a debtor to assert in

bankruptcy state-law tort claims that would otherwise be

barred by the “substantive” exceptions to the FTCA.                     See

28 U.S.C. § 2680.

    Liability may be imposed upon the United States only

if two requirements are met:              (1) there must be a waiver

of sovereign immunity; and (2) there must be a source of

                                    25
substantive law that provides a claim for relief.                   See

FDIC v. Meyer, 510 U.S. 471, 483-84 (1994).                  The FTCA

fulfills both of those requirements, as it waives the

federal government’s immunity from suit and provides that

the United States shall be liable for the torts of its

employees under certain circumstances.          See 28 U.S.C. §§

1346(b)(1), 2674; Richards v. United States, 369 U.S. 1,

6 (1962) (“The Tort Claims Act was designed primarily to

remove the sovereign immunity of the United States from

suits in tort and, with certain specific exceptions, to

render    the   Government    liable   in    tort   as   a    private

individual would be under like circumstances.”).              For the

most part, the FTCA pegs the scope of governmental tort

liability to the content of applicable state law, but

Congress undoubtedly possesses the authority to displace

state law and place federal limits and conditions on the

federal government’s tort liability, see Richards, 369

U.S. at 7, 14, and it has exercised that authority at

various   places   in   the   FTCA.    For    example,       the   FTCA

establishes a federal statute of limitations that applies

irrespective of the relevant state limitations period, see

                                26
28 U.S.C. § 2401(b); it sets limitations on the remedies

available against the United States, see id. § 2674; it

provides that it is the exclusive remedy for tort recovery

against the United States, see id. § 2679(b)(1); and, most

importantly    for       this   case,     it   categorically   excludes

liability for many types of claims, including claims based

on a discretionary governmental function, claims arising

in a foreign country, and claims “arising out of assault,

battery,   false     imprisonment,         false   arrest,     malicious

prosecution,        abuse       of      process,    libel,      slander,

misrepresentation, deceit, or interference with contract

rights.”      Id.    §    2680.      Moreover,     in   developing   the

jurisprudence under the FTCA, the federal courts have used

a mixture of federal, state and hybrid concepts.                     See

Devlin v. United States, 352 F.3d 525, 532-34 (2d Cir.

2003) (discussing “hybrid,” “purely federal” and “purely

state-law-derived” approaches to defining different FTCA

statutory terms).

    While the rules of decision in suits brought under the

FTCA are derived principally from the law of the states,

a substantial number of purely federal and hybrid precepts

                                     27
are also integral to the body of law known as the FTCA.

Consequently, the FTCA claim for relief, which is subject

to   all    of    the     above-described       federal         principles,

limitations and more, is not exclusively a state-law claim

in any realistic sense.              Similarly, where a party is

prevented from recovering from the United States by, for

example, the FTCA’s discretionary function exception, he

does not possess a state-law cause of action that is

simply barred by the United States’ sovereign immunity;

rather, his claim is barred, or effectively preempted, by

a substantive limitation imposed by federal law.                      Thus,

although section 106(c) of the Bankruptcy Code contains a

waiver of sovereign immunity, that section cannot be read

to   dispense          with    the   substantive        principles      and

limitations that the FTCA imposes on the liability of the

United States.          To hold otherwise would require us to

construe section 106(c) as not only waiving sovereign

immunity, but also altering the essential nature of tort

claims     against      the    United      States     and   significantly

expanding    the       substantive        liability    of   the     federal

government       for    tort   claims     asserted     in   a   bankruptcy


                                     28
proceeding.   Congress presumably has the authority to

enact such sweeping substantive changes, but the current

section 106, which speaks only in terms of sovereign

immunity and expressly disclaims the creation of any

“substantive claim for relief or cause of action,” 11

U.S.C. § 106(a)(5), does not do so.   Accordingly, I join

the majority’s opinion.




                           29
PRISCILLA R. OWEN, Circuit Judge, concurring:



       I join the majority’s judgment. In my view, section 106(c)1

does       not    unambiguously      abrogate    the     federal   government’s

sovereign immunity retained by the Federal Tort Claims Act.2

       Section 106(c) provides: “Notwithstanding any assertion of

sovereign immunity by a governmental unit, there shall be offset

against a claim or interest of a governmental unit any claim

against such governmental unit that is property of the estate.”3

The “[n]otwithstanding” phrase can plausibly be read as merely

providing a forum in bankruptcy courts for claims against the

federal government that would have been cognizable in another

venue.           This construction would not override the express

reservation of sovereign immunity in the Federal Tort Claims Act

for a lengthy list of particular claims.4                 Nor would it subject

the federal government to liability under state common law or

myriad state and federal statutes as a “person” or entity without

sovereign immunity.              But a plausible argument can also be

mounted,          as   the    dissent     has     done,    that    the   phrase

       1
                 11 U.S.C. § 106(c) (2004).
       2
                 28 U.S.C. § 2680 (1994 & Supp. 2006).
       3
                 11 U.S.C. § 106(c) (2004).
       4
                 28 U.S.C. § 2680 (1994 & Supp. 2006).

                                          30
“[n]otwithstanding any assertion of sovereign immunity” means

that all sovereign immunity is swept aside in its entirety, and

therefore all state and federal causes of action that would be

viable against a private entity are viable against the federal

government.

     The Supreme Court has repeatedly held that “[w]aivers of the

Government’s sovereign immunity, to be effective, must be

unequivocally expressed,”5 and “the Government’s consent to be

sued must be construed strictly in favor of the sovereign.”6 The

Supreme Court has held that sections 106(b) and 106(c), when they

were, respectively, sections 106(a) and 106(b),7 “meet this

‘unequivocal expression’ requirement with respect to monetary

liability.”8    The Court said in this regard,

     Addressing “claim[s],” which the Code defines as
     “right[s] to payment,” § 101(4)(A), they plainly waive
     sovereign immunity with regard to monetary relief in
     two settings: compulsory counterclaims to governmental
     claims, § 106(a); and permissive counterclaims to
     governmental claims capped by a setoff limitation,
     § 106(b).   Next to these models of clarity stands


      5
            United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992)
(quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990) (quoting
United States v. Mitchell, 445 U.S. 535, 538 (1980), and United States v. King,
395 U.S. 1, 4 (1969))) (internal quotation marks omitted).

      6
            Id. at 34 (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 685
(1983)) (internal quotation marks and citation omitted).
      7
            11 U.S.C. § 106(a), (b) (1978) (amended 1994).
      8
            Nordic Village, 503 U.S. at 34.

                                     31
     [former] subsection (c).9     Though it, too, waives
     sovereign immunity, it fails to establish unambiguously
     that the waiver extends to monetary claims. It is
     susceptible of at least two interpretations that do not
     authorize monetary relief.10

I submit that while former sections 106(a) and 106(b), now

sections 106(b) and 106(c), clearly waive sovereign immunity with

respect to monetary liability, they do not unequivocally abrogate

sovereign immunity to the extent that they breathe life into

causes of action against the federal government that would not

otherwise exist. The Supreme Court was not presented with this

question in Nordic Village, and its statement that the language

in sections 106(b) and 106(c) are an “‘unequivocal expression’

. . . with respect to monetary liability” cannot be stretched to

encompass the issue before us today.

     Even when Congress has used waiver language that “should be

given a liberal—that is to say, expansive—construction,” such as




     9
            At the time of the Nordic decision, 11 U.S.C. § 106(c) (1978)
provided:

            (c) Except as provided in subsections (a) and (b) of
            this section and notwithstanding any assertion of
            sovereign immunity–
                  (1)   a provision of this title that contains
                        ‘creditor’, ‘entity’, or ‘governmental
                        unit’ applies to governmental units; and
                  (2)   a determination by the court of an
                        issue arising under such a provision
                        binds governmental units.
     10
            Nordic Village, 503 U.S. at 34.

                                     32
a sue-and-be-sued provision,11 “the interpretation of the waiver

statute was just the initial step in a two-part inquiry.”12                In

United States Postal Service v. Flamingo Industries (USA) Ltd.,13

the Supreme Court discussed the analysis employed in an earlier

case, FDIC v. Meyer:14 “[E]ven though sovereign immunity had been

waived, there was the further, separate question whether the

agency was subject to the substantive liability recognized in

Bivens.”15 In Flamingo Industries, the question was whether the

Postal Service could be liable under the Sherman Act based on the

sue-and-be-sued provision in the Postal Reorganization Act of

1970.16 The Supreme Court explained, “We ask first whether there

is a waiver of sovereign immunity for actions against the Postal

Service.    If there is, we ask the second question, which is

whether the substantive prohibitions of the Sherman Act apply to

an independent establishment of the Executive Branch of the



     11
            United States Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S.
736, 741 (2004).
     12
           Id. at 743.
     13
           Id.
     14
           510 U.S. 471 (1994).
     15
            Flamingo Indus., 540 U.S. at 743 (referring to a so-called “Bivens
action” based on Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971)).
     16
           Id. at 743-44 (construing 39 U.S.C. § 401 (1980)).

                                     33
United States.”17       The Supreme Court criticized the court of

appeals because the court of appeals “found that the Postal

Service’s immunity from suit [was] waived to the extent provided

by the statutory sue-and-be-sued clause” and, in doing so,

“conflated the two steps[, which] resulted in an erroneous

conclusion.”18 The Supreme Court explained that the substantive

law on which a claim is based must be consulted to determine if

it was intended to reach the federal entity:

    While Congress waived the immunity of the Postal
    Service, Congress did not strip it of its governmental
    status. The distinction is important. An absence of
    immunity does not result in liability if the
    substantive law in question is not intended to reach
    the federal entity. So we proceed to Meyer’s second
    step to determine if the substantive antitrust
    liability defined by the statute extends to the Postal
    Service. Under Meyer’s second step, we must look to
    the statute.19

    The “[n]otwithstanding any assertion of sovereign immunity

by a governmental unit” phrase in section 106(c) does not clearly

strip the federal government of its governmental status as

distinguished from immunity. It would seem that Congress would

more plainly state its intention to override the Federal Tort

Claims Act’s retention of sovereign immunity from the claims


     17
          Id. at 743.

     18
          Id. at 743-44.
     19
          Id. at 744.

                                  34
enumerated in 28 U.S.C. § 2680, including those based on the

exercise or performance of a discretionary function or duty, or

arising out of interference with contract rights, if that were

Congress’    intent.       The    “[n]otwithstanding”        phrase     is   an

improbable vehicle for such a sea change in the government’s

liability.    For example, the Federal Tort Claims Act expressly

retains sovereign immunity from liability for punitive damages.20

If Congress intended to strip the federal government of its

governmental status in bankruptcy court, then punitive damages

would be available under sections 106(b) and 106(c) of the

Bankruptcy Code since section 106(a) expressly provides that

punitive damages may not be awarded,21 but no similar provision is

included in either section 106(b) or 106(c).

     We cannot resort to legislative history to discern the intent

of Congress when there is ambiguity regarding waiver of sovereign

immunity.    As the Supreme Court has said, “legislative history

has no bearing on the ambiguity point. . . . [T]he ‘unequivocal


      20
            28 U.S.C. § 2674 (1994) (“The United States shall be liable,
respecting the provisions of this title relating to tort claims, in the same
manner and to the same extent as a private individual under like circumstances,
but shall not be liable for interest prior to judgment or for punitive
damages.”).
      21
            11 U.S.C. § 106(a)(3) (2004) (“The court may issue against a
governmental unit an order, process, or judgment under such [enumerated sections
of the Bankruptcy Code] or the Federal Rules of Bankruptcy Procedure, including
an order or judgment awarding a money recovery, but not including an award of
punitive damages.”).

                                      35
expression’ of elimination of sovereign immunity that we insist

upon is an expression in the statutory text. If clarity does not

exist there, it cannot be supplied by a committee report.”22

    Focusing on whether a claim against the government “is

property of the estate” is not helpful in determining whether

section 106(c) permits assertion of the claims at issue in the

case before us.23 Even assuming that a pre-petition claim that is

barred by sovereign immunity is not property of the debtor’s

estate, if section 106(c) abrogates sovereign immunity, sovereign

immunity is not a bar to the pre-petition claim; therefore, the

claim is property of the estate. Whether Supreme Beef Processors

prevails     ultimately       turns        on   the   meaning      of        the

“[n]otwithstanding” phrase in section 106(c).                 Because that

phrase is ambiguous, it does not waive the federal government’s

immunity from the claims enumerated in 28 U.S.C. § 2680.

    For these reasons, I would affirm the district court’s

judgment.




     22
            United States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992).
     23
            11 U.S.C. § 106(c) (2004).

                                      36
EDITH BROWN CLEMENT, Circuit Judge, joined by BENAVIDES, STEWART, and

PRADO, Circuit Judges, concurring in part and dissenting in part:

       I agree with the majority opinion’s dismissal of Supreme Beef’s § 106(b) claims.

However, to reach its holding that Supreme Beef cannot use § 106(c) to offset the USDA’s

claim for overtime inspection services, the majority opinion ignores the plain language of §

106(c), disregards Congress’s intent to allow offset against governmental claims, and rewrites

the definition of property of the estate. Therefore, I respectfully dissent.

       Section 106(c) of the bankruptcy code provides that, “[n]otwithstanding any assertion

of sovereign immunity by a governmental unit, there shall be offset against a claim or interest

of a governmental unit any claim against such governmental unit that is property of the

estate.” A straightforward reading of § 106(c)’s plain language shows that the only limitation

to offset is that the bankrupt’s claim be property of the estate. See 2 COLLIER             ON

BANKRUPTCY § 106.02[4] (15th ed. 2006). Because § 106(c) contains an explicit waiver of

sovereign immunity and because Supreme Beef’s offset claim is property of the estate,

Supreme Beef has the right to pursue its offset claim.

A.     11 U.S.C. § 106(c) contains an express waiver of sovereign immunity.24

        24
             The majority opinion introduces the issue of whether § 106(c)
contains an express waiver of sovereign immunity, see Maj. Op. at 7, and later
holds that § 106(c) does not effect “a waiver of substantive sovereign immunity.”
Maj. Op. at 13, 15. Presumably, “substantive sovereign immunity”—a term new to
Fifth Circuit jurisprudence—refers to the sovereign immunity bar contained in the
FTCA, rather than to the sovereign immunity waiver contained in § 106(c). It
appears that the majority opinion never specifically addresses whether § 106(c)
contains an express waiver of sovereign immunity, which is the first step
required in a waiver-of-sovereign-immunity analysis. See United States v. Nordic

                                              37
       For § 106(c) to allow Supreme Beef to offset the USDA’s $32,753 claim for overtime

inspection services, there must first be an explicit, unequivocal waiver of sovereign immunity.

United States v. Nordic Village, 503 U.S. 30, 33–34 (1992) (“Waivers of the Government’s

sovereign immunity, to be effective, must be unequivocally expressed.”) (internal quotation

omitted). Section 106(c) allows a debtor to offset a governmental claim “[n]otwithstanding

any assertion of sovereign immunity.” Congress’s waiver of sovereign immunity could not

be more explicit. The Supreme Court has stated, when discussing the predecessors to §§

106(b) and (c),25 that “they plainly waive sovereign immunity with regard to monetary relief

in two settings . . . ,” one of which involves claims “capped by a setoff limitation.” Nordic

Village, 503 U.S. at 34 (Scalia, J.). Construing § 106(c) as anything other than an explicit

waiver of sovereign immunity ignores the statute’s plain language and Congress’s intent

manifested thereby. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“We

have stated time and again that courts must presume that a legislature says in a statute what

it means and means in a statute what it says there.”) (citing United States v. Ron Pair Enters.,

Inc., 489 U.S. 235, 241–42 (1989)).

       Indeed, the waiver language in § 106(c) was added by Congress in 1994—along with

other § 106 revisions—to clarify that sovereign immunity was expressly waived. See H.R.

REP. NO. 103–835, at 42, reprinted in 1994 U.S.C.C.A.N. 3340, 3350–51. See also Elizabeth



Village, 503 U.S. 30, 33 (1992). See also FDIC v. Meyer, 510 U.S. 471, 484
(1994).
      25
            Before Congress amended § 106 in 1994, what is now §§ 106(b) and (c)
were codified at §§ 106(a) and (b).

                                              38
Gibson, Congressional Response to Hoffman and Nordic Village: Amended Section 106 and

Sovereign Immunity, 69 AM. BANKR. L.J. 311, 337 (1995) (“The insertion of the phrase

‘[n]otwithstanding any assertion of sovereign immunity’ serves merely to make explicit the

congressional intent to eliminate sovereign immunity as a defense to setoffs falling within the

terms of the provision.”) (alteration in original). The waiver language in § 106(c) is nearly

identical to the waiver language in § 106(a), which Congress unmistakably modified to

overturn the effects of the Hoffman and Nordic Village decisions. See H.R. REP. NO. 103–835,

at 42, reprinted in 1994 U.S.C.C.A.N. 3340, 3350–51; Cent. Va. Comm. College v. Katz, 546

U.S. –, 126 S. Ct. 990, 995 n. 2 (2006) (noting that Congress modified what is now 11 U.S.C.

§ 106(a) to clarify that it waives the federal government’s sovereign immunity). Therefore,

any implication that § 106(c) does not explicitly waive sovereign immunity26 not only creates

a result incompatible with Congress’s intention, but also creates inconsistency between §§

106(a) and (c), with nearly identical language leading to waiver in (a) but not in (c).

B.     Supreme Beef’s claim is property of the estate.

       Since § 106(c) contains an express waiver of sovereign immunity, this court must turn

to the only remaining offset requirement in § 106(c). As the majority correctly notes, for

Supreme Beef to offset the USDA’s claim, its claim must be property of the estate as required

in § 106(c). See Maj. Op. at 11–12. Property of the estate is defined as “all legal or equitable



        26
            The majority opinion implies as much when it states that “[t]he
[‘notwithstanding any assertion of sovereign immunity’] clause is designed to
recognize the different procedural postures in which §§ 106(b) and (c) claims
arise.” See Maj. Op. at 13.

                                              39
interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541. In

analyzing whether Supreme Beef’s claim against the USDA meets this definition, this court’s

recent decision in Burgess v. Sikes (In re Burgess), 438 F.3d 493 (5th Cir. 2006) (en banc),

is instructive.27 Burgess was a farmer who suffered a crop loss prior to filing for bankruptcy.

Id. at 495. After Burgess filed his bankruptcy petition and after he was discharged from

bankruptcy, Congress enacted legislation that entitled him to a relief payment. Id. The trustee

argued that the payment was property of the estate, while Burgess argued for sole possession.

See id.

          In resolving the dispute, the court first rejected the trustee’s argument that crop loss

together with potential relief legislation constituted property of the estate. Id. at 503. It held

that, because Burgess had “only a mere hope that crop-disaster-relief legislation would be

enacted” when he filed his bankruptcy petition, Burgess “had no interest, contingent or

otherwise, in the disaster-relief payment when he filed” that petition. Id. The court next

considered the trustee’s argument that the crop loss itself was property of the estate and

concluded that Burgess had no legal prepetition claim because “[h]is crops were damaged by



          27
            The majority opinion states that Burgess is inapposite because,
unlike in Burgess, the question here is “whether Supreme Beef has any claim apart
from the FTCA.” Maj. Op. at 12–13. However, since § 106(c) contains an express
waiver of sovereign immunity, resolution of Supreme Beef’s appeal necessarily
turns on whether its claim is property of the estate, which is the sole
requirement to setoff in § 106(c). It is proper to consider this circuit’s
latest treatment of the property-of-the-estate definition. When discussing
whether Supreme Beef’s claim is property of the estate, the majority opinion does
little more than quote the definition of property of the estate from the
bankruptcy code and state that offset claims “are not freestanding and divorced
from the substantive limitations that would be imposed outside of bankruptcy.”
See Maj. Op. at 11–12.

                                                 40
nature” rather than “at the hands of an individual or entity giving rise to a legal claim for

reimbursement.” Id. at 505–06.

       From the Burgess court’s analysis emerges a two-step property-of-the-estate inquiry.

First, there must be a prepetition loss. Second, the claimant must have a prepetition right to

recover that loss.28 Supreme Beef’s claim satisfies both steps. The loss here is the injury

caused by the USDA inspectors, and Supreme Beef has a right to recover the loss pursuant

to substantive Texas state law, assuming it proves the necessary facts after any remand. See,

e.g., Burch v. Coca-Cola Co., 119 F.3d 305, 323–24 (5th Cir. 1997) (analyzing defamation

claims under Texas law). Since Supreme Beef’s claim satisfies these two steps, Supreme

Beef’s claim is property of the estate, and Supreme Beef has met the lone requirement to

pursue an offset claim under § 106(c).

       The majority opinion focuses on the fact that the FTCA’s discretionary function

exception, along with other FTCA provisions, would stand as a sovereign immunity bar to

Supreme Beef’s recovery outside of bankruptcy. In the majority opinion’s view, because

sovereign immunity would bar Supreme Beef’s claim if brought through the FTCA outside

of bankruptcy, its claim is not property of the estate.29 This analysis improperly fails to


        28
            The Eleventh Circuit has recently followed Burgess in resolving a
crop-loss property-of-the-estate dispute. See Bracewell v. Kelley (In re
Bracewell), 454 F.3d 1234, 1237–40 (11th Cir. 2006).
      29
             To the extent that the majority’s position is drawn from §
106(a)(5)’s general statement regarding creation of substantive rights, that
section must be read harmoniously with the more specific § 106(c). See Gozlon-
Peretz v. United States, 498 U.S. 395, 407 (1991) (“A specific provision controls
over one of more general application.”). See also Carmona v. Andrews, 357 F.3d
535, 538 n.4 (5th Cir. 2004) (same). So long as Supreme Beef meets the lone
requirement specifically listed in § 106(c), it is entitled to offset the USDA’s

                                             41
distinguish between a right and a remedy and construes property of the estate in a manner that

is inconsistent with Fifth Circuit and Supreme Court precedent.

       The FTCA provides both a limited waiver of sovereign immunity and federal court

jurisdiction for tort claims brought by individuals against the United States. See 28 U.S.C. §§

1346(b), 2674. FTCA’s focus is on the remedy; what the FTCA does not do is provide the

substantive law from which the right to recover arises. The state law does that. Both the text

of the FTCA and the Supreme Court’s analysis of that text reveal that the FTCA is merely a

procedural vehicle through which state law claims are brought. See 28 U.S.C. § 1346(b)(1)

(noting that the federal government can be sued in federal court “for injury or loss of property

. . . under circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission occurred”)

(internal quotation omitted and emphasis added). See also Meyer, 510 U.S. at 477–78 (noting

that the Supreme Court “ha[s] consistently held . . . [that the reference to] ‘law of the place’

means law of the State—the source of substantive liability under the FTCA”) (emphasis

added); United States v. Brown, 348 U.S. 110, 112 (1954) (“[T]he effect of the Tort Claims

Act is to waive immunity from recognized causes of action.”) (internal quotation omitted and

emphasis added). Supreme Beef’s claims against the USDA include claims for, among other

things, slander and libel. These causes of action are creatures of Texas state law, which

provides a right for Supreme Beef to recover. This right to recover from the USDA, under




claim.

                                              42
Burgess, is property of the estate irrespective of whether the FTCA provides a procedural

remedy for that right.

       The majority’s holding that the mere presence of a sovereign immunity bar in the

FTCA prevents the existence of property of the estate cannot be reconciled with this court’s

en banc opinion in Burgess. As stated there, “sovereign immunity is not a bar to the existence

of a prepetition cause of action for bankruptcy purposes.” Burgess, 438 F.3d at 504 (emphasis

added). Put otherwise, the presence of a sovereign immunity bar, here the FTCA’s

discretionary function and other exceptions, does not mean that no right to recover exists. The

Burgess court drew this distinction citing to Supreme Court precedent. See 438 F.3d at

503–05 (citing Williams v. Heard, 140 U.S. 529 (1891), and Milnor v. Metz, 41 U.S. 221

(1842), and emphasizing that both decisions distinguish between the existence of a right and

the ability to enforce that right)). This distinction should not be conflated.30

       The majority’s holding effectively requires two express sovereign immunity waivers

for a bankrupt to offset a governmental claim: one express waiver in the bankruptcy code and


      30
            Because sovereign immunity, under Burgess, is inapposite to the
property-of-the-estate inquiry and because § 106(c) contains an unequivocal
waiver of sovereign immunity, a recent Tenth Circuit panel’s opinion cited by the
majority opinion is unpersuasive. See Maj. Op. at 15 (citing Franklin Savings
Corp. v. United States (In re Franklin Savings Corp.), 385 F.3d 1279, 1287–89
(10th Cir. 2004) (holding that § 106 does not operate to waive the procedural
requirements of the FTCA)). Adopting the Tenth Circuit approach also would create
incoherence with Fifth Circuit precedent, specifically W. Tex. Mktg. Corp. v.
Kellogg (In re W. Tex. Mktg. Corp.), 54 F.3d 1194 (5th Cir. 1995). In Kellogg,
a panel of this court held that the waiver of sovereign immunity in § 106(a)
operates to waive sovereign immunity with respect to administrative filing
requirements in the Internal Revenue Code. See id. at 1198–99 n.10. Endorsing the
Franklin analysis would create confusion as to which prerequisites in non-
bankruptcy law are waived by an explicit sovereign immunity waiver. The better
approach is to look to the plain language of the bankruptcy code’s sovereign
immunity waiver for its limitations.

                                               43
one in the FTCA. The Supreme Court requires one. See Nordic Village, 503 U.S. at 33–34.

It is incongruous to add an additional prerequisite considering that Congress did not include

this requirement in § 106(c) (or in the definition of property of the estate) and considering that

sovereign immunity is less of a concern—not more, as the majority’s holding implies—in

bankruptcy situations. Cf. Katz, 126 S. Ct. at 995.

       Moreover, where the claim against the government is only for offset, as Supreme

Beef’s is, sovereign immunity concerns are even further diminished because Supreme Beef

cannot affirmatively recover from government coffers. Congress implicitly recognized this

lessened concern; § 106(c) contains fewer limitations on the waiver than do §§ 106(a) and (b).

In § 106(a), Congress limited the sovereign immunity waiver to situations covered by

enumerated sections of the bankruptcy code and in § 106(b) limited waiver to situations in

which the claim against the government is property of the estate and arises out of the same

“transaction or occurrence” as the government’s claim. Section 106(c) does have its own

limitation, but it is a less restrictive one than §§ 106(a) or (b): “[T]here shall be offset . . .

[for] any claim that is property of the estate.”31 It is not unreasonable to think that Congress

provided a limitation in § 106(c) that is less restrictive than those in §§ 106(a) or (b) because

a bankrupt claiming offset cannot affirmatively recover from the government.

C.     Conclusion



        31
            The Supreme Court has recognized the textual limitations to sovereign
immunity waivers in § 106. See Hoffman v. Conn. Dep’t of Income Maint., 492 U.S.
96, 101–02 (1989) (noting that the predecessors to §§ 106(b) and (c) “carefully
limit[]the waiver of sovereign immunity”).

                                               44
       Since Congress explicitly waived sovereign immunity and Supreme Beef’s claim is

property of the estate, I would hold that Supreme Beef can pursue its claim for offset against

the USDA’s $32,753 claim for overtime inspection services. I respectfully dissent from the

majority’s holding that Supreme Beef cannot offset the government’s claim under § 106(c).




                                             45
