     Case: 09-60831     Document: 00511095246          Page: 1    Date Filed: 04/29/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            April 29, 2010
                                     No. 09-60831
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JERRY W. DILLON, Fish Farmer; BRENDA HOLMES, Forester; MELVIN
HOLMES, Forester; ROBERT E. DILLON, et ux,

                                                   Plaintiffs - Appellants

v.

STATE OF MISSISSIPPI; HALEY REESE BARBOUR, Governor; JIM
HOOD, Attorney General of Mississippi; JOSEPH B. YOUNG; LANCE
HONEA; TERRY BOYD; JOSEPH L. BLOUNT, Tax Commissioner State of
Mississippi; MISSISSIPPI STATE TAX COMMISSION; JIM DUCKWORTH;
ED MORGAN, Tax Commissioner State of Mississippi,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:09-CV-106


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
        This is an appeal from the district court's order dismissing the case for
lack of jurisdiction. Finding no error, we AFFIRM.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-60831

      Appellants seek declaratory relief, injunctive relief, compensatory
damages, and punitive damages for the assessment of Mississippi state taxes.
Appellants claim the tax laws are being administered in a fraudulent and
racially discriminatory manner. Specifically, Appellants allege that state tax
assessors are over-valuing black farmers' homes and farms (including theirs)
while under-valuing white farmers' homes and farms. Appellants also argue
that the relevant state tax laws do not allow a sufficient period of time to appeal
any tax assessment of their property. Appellants claim that the laws and the
state officials' actions violate the First, Fourth, Fifth, Eighth and Fourteenth
Amendments to the federal Constitution.          Appellants bring their claims
pursuant to 42 U.S.C. §§ 1983, 1985 and 2000d.
      In dismissing the case, the district court held that it lacked jurisdiction to
review Appellants' claims. Specifically, the court based its decision on the
jurisdictional language of the Tax Injunction Act, 28 U.S.C. § 1341, which
prohibits district courts from "enjoin[ing], suspend[ing] or restrain[ing] the
assessment, levy or collection of any tax under State law where a plain, speedy
and efficient remedy may be had in the courts of such State." See also F ED. R.
C IV. P. 12(h)(3).
      We review a district court's dismissal of a case based on lack of subject
matter jurisdiction de novo. See Home Builders Ass'n of Miss., Inc. v. City of
Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
      Appellants argue that the district court erred by applying the Tax
Injunction Act to bar Appellants' claims.      However, Appellants' claims are
precisely the type of claims foreclosed by the Act, as demonstrated by our
precedents. See, e.g., Home Builders, 143 F.3d at 1012-13; Bland v. McHann,
463 F.2d 21, 24 (5th Cir. 1972). For example, in Home Builders, the plaintiffs
filed suit against the city pursuant to 42 U.S.C. § 1983 regarding a $700 impact
fee that the city imposed as a condition to obtaining a building permit. See

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Home Builders, 143 F.3d at 1009.         The plaintiffs sought declaratory relief,
injunctive relief, and a refund of the impact fees. See id. The plaintiffs argued
that the impact fees were "'nothing more than an improper, unlawful and
unconstitutional form of taxation or general tax.'" Id. After discussing what
constituted a "tax" under the Act, we affirmed the district court's dismissal,
holding that the plaintiffs' claims were barred by the Act. See id. at 1012-13.
Specifically, we found that Mississippi state law provided a "plain, speedy and
efficient remedy" for challenging the state's tax laws. See id. at 1012. Thus, the
federal courts had no jurisdiction.
         Similarly, in Bland, the plaintiffs brought a civil rights claim of racial
discrimination pursuant to 42 U.S.C. § 1983 against municipal officials for what
the plaintiffs alleged were discriminatory ad valorem tax assessments. See
Bland, 463 F.2d at 23. The plaintiffs sought both injunctive relief and a refund
of past taxes paid. See id. at 23 n.2. After a trial, the district court dismissed
the case, holding that the Tax Injunction Act barred relief. See id. at 23-24.
Specifically, the court held that there were adequate remedies for the plaintiffs'
claims in Mississippi state courts. See id. On appeal, we upheld the case's
dismissal pursuant to the Act but faulted the district court for allowing the case
to first go to trial. See id. at 24. In describing the breadth of claims prohibited
by the Act, we stated:
         We are convinced that both longstanding judicial policy and
         congressional restriction of federal jurisdiction in cases involving
         state tax administration make it the duty of federal courts to
         withhold relief when a state legislature has provided an adequate
         scheme whereby a taxpayer may maintain a suit to challenge a state
         tax.
Id.
Because Mississippi state law provided adequate relief for the plaintiffs' claims,
we held that the district court should have dismissed the case before reaching
the merits. See id. at 29.

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                                     No. 09-60831

       As in the cases above, Appellants seek declaratory relief, injunctive relief
and damages pursuant to 42 U.S.C. § 1983 for taxes that they claim are
unconstitutional and that are allegedly administered in a discriminatory
fashion. Neither party disputes the district court's holding that the taxes in
question are of the type contemplated under the Tax Injunction Act. In addition,
we have already held Mississippi law to provide an adequate remedy for such
claims.1 Appellants' claims are therefore indistinguishable for jurisdictional
purposes from those brought in Home Builders and Bland. Accordingly, the
district court correctly dismissed them as barred by the Act.
       Appellants further argue that the Supreme Court's decision in Hibbs v.
Winn "cleared the way" for Appellants to bring their suit in federal court. See
Hibbs, 542 U.S. 88, 124 S. Ct. 2276 (2004).               However, Hibbs is readily
distinguishable from the instant case.            In Hibbs, the plaintiff taxpayers
challenged the constitutionality of a state statute that provided tax credits to
third parties attending private religious schools. See Hibbs, 542 U.S. at 92, 124
S. Ct. at 2281. The Court noted at the outset that "Plaintiffs-respondents do not
contest their own tax liability. Nor do they seek to impede Arizona's receipt of
tax revenues." Id. Based on these facts, the Court held that the Tax Injunction
Act did not bar the plaintiffs' claims. See id. at 111-12, 124 S. Ct. at 2292. We
have therefore interpreted Hibbs to allow challenges to state tax laws in federal
court "only where (1) a third party (not the taxpayer) files suit, and (2) the suit's
success will enrich, not deplete, the government entity's coffers." Henderson v.
Stalder, 407 F.3d 351, 59 (5th Cir. 2005) (footnote omitted).
       In the instant case, Appellants are the alleged taxpayers, and they
expressly seek relief from state tax laws as applied to them. Moreover, any


       1
       The relevant state laws governing tax remedies in state court have not changed since
Home Builders. See Home Builders, 143 F.3d at 1009; MISS . CODE . ANN . § 11-13-11 (West
2010).

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consequent relief this court could fashion based on the alleged facts would
involve the "disruption of 'state tax administration' . . . specifically in relation to
'the collection of revenue.'" Hibbs, 542 U.S. at 105, 124 S. Ct. at 2288 (quoting
Cal. v. Grace Brethren Church, 457 U.S. 393, 410, 102 S. Ct. 2498 (1982)
(additional cite omitted)). Accordingly, Appellants' suit violates both prongs of
the Hibbs test.
       Finally, we note that Appellants focus much of their appellate arguments
on seeking relief pursuant to 42 U.S.C. § 2000d rather than pursuant to 42
U.S.C. § 1983, although both statues are cited in their complaint.                     As the
language of the Tax Injunction Act makes clear, the bar to federal jurisdiction
does not depend on the federal statute or constitutional provision that the tax
law allegedly violates; rather, jurisdiction depends on whether the relief sought
requires the federal court to "enjoin, suspend or restrain the assessment, levy or
collection of any tax under State law[.]" See 28 U.S.C. § 1341; see also Hibbs, 542
U.S. at 99, 124 S. Ct. at 2284 ("To determine whether this litigation falls within
[the Act's] prohibition, it is appropriate, first, to identify the relief sought."). As
stated above, Appellants expressly seek declaratory and injunctive relief from
the application of Mississippi state tax law, as well as compensatory and
punitive damages for past improper tax assessments. These are precisely the
kinds of relief barred by the Act.2 See, e.g., Home Builders, 143 F.3d at 1012-13;
Bland, 463 F.2d at 24. Accordingly, we do not reach the question of whether
Appellants could otherwise state a claim under 42 U.S.C. § 2000d.3 AFFIRMED.



       2
         Indeed, it is unclear what relief Appellants could seek based on the alleged facts that
does not fall under the Act.
       3
         Were we to reach the merits of this claim, however, we would note that 42 U.S.C.
§ 2000d bars unlawful "discrimination under any program or activity receiving Federal
financial assistance." Appellants have pointed to no case law or precedent that regards state
tax collection as a "program or activity receiving Federal financial assistance." Therefore, it
is unclear how § 2000d would even apply in this case.

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