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HORIZON BANK & TRUST CO. v. MASSACHUSETTS

No. 04-1480.

391 F.3d 48 (2004)

HORIZON BANK & TRUST CO., Plaintiff, Appellee, v. Commonwealth of MASSACHUSETTS, Department of Revenue, Defendant, Appellant, Paul Flaherty, Trustee of Custom House Associates Realty Trust; Custom House Associates Limited Partnership; Susan Manning, Trustee of Custom House Associates Realty Trust; United States of America, Internal Revenue Service; Giarrusso, Norton, Cooley, and McGlone, P.C.; and Eastern Bank, Defendants, Appellees.

United States Court of Appeals, First Circuit.

Decided December 8, 2004.

Attorney(s) appearing for the Case

Thomas A. Barnico, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, and Eileen Ryan McAuliffe, Counsel, Department of Revenue, were on brief, for defendant, appellant Commonwealth of Massachusetts, Department of Revenue.

Thomas J. Clark, Attorney, Tax Division, with whom Eileen J. O'Connor, Assistant Attorney General, and Randolph L. Hutter, Attorney, Tax Division, were on brief, for defendant, appellee United States, Internal Revenue Service.

Before LYNCH, Circuit Judge, LEVAL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

On the merits this case presents very difficult issues under the Eleventh Amendment about whether the United States, asserting a tax claim, may remove an interpleader action to federal court when an unconsenting state, which is also a party with its own tax claim, asserts its Eleventh Amendment immunity and argues that it is an indispensable party. We never reach those merits issues because the appeal is moot. The state has conceded that two...

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