                                                                 F I L E D
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                January 10, 2006
                             FOR THE TENTH CIRCUIT            Elisabeth A. Shumaker
                                                                  Clerk of Court

ANTHONY HEUSER; NONA
HEUSER,

               Plaintiffs-Appellants,

  v.                                               No. 05-2011
                                          (D.C. No. CIV-04-105 RB/RLP)
SAN JUAN COUNTY BOARD OF                             (D. N.M.)
COUNTY COMMISSIONERS;
MARION FARNSWORTH, in his
individual capacity; ROBERT
BATLEY, in his individual capacity;
DAVID VELASQUEZ, in his
individual capacity; AILEEN
NOURSE, in her individual capacity,

               Defendants,

        and

JERRY LARRAÑAGA, New Mexico
Taxation and Revenue Department, in
his individual capacity,

               Defendant-Appellee,

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

AMERICAN CIVIL LIBERTIES
UNION OF NEW MEXICO

               Amicus Curiae.
                           ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiffs-appellants Anthony Heuser and Nona Heuser appeal from an

order of the district court dismissing their complaint against defendant Jerry

Larrañaga based on Eleventh Amendment immunity, and alternatively, granting

Larrañaga’s motion for summary judgment based on qualified immunity. For the

reasons below, we dismiss this appeal for lack of jurisdiction.

                                  BACKGROUND

      The Heusers own property in San Juan County, New Mexico. In June 2000,

they received a notice from the San Juan County Assessor that changed the

classification of their property from agricultural to non-agricultural.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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      In January 2001, the Heusers appeared before Larrañaga and the San Juan

County Tax Protest Board (Board) to contest the reclassification. Larrañaga was

Chairman of the Board and presided at the hearing. In a written decision issued

in March 2001, the Board upheld the reclassification of the Heusers’ property.

      The Heusers disagreed with the Board’s decision, and in May 2001, they

filed an appeal in state court pursuant to New Mexico statutes. In October 2001,

the parties to the state court action stipulated to the entry of a court order that

reversed the Board’s decision and restored the Heusers’ agricultural classification

for the tax year 2000, which resulted in a forty dollar savings.

      In January 2004, the Heusers filed a complaint in the United States District

Court for the District of New Mexico pursuant to 42 U.S.C. §§ 1983 and 1988 for

alleged violations of their First, Fifth, and Fourteenth Amendment rights during

the tax hearing. Their complaint requested “money damages and equitable relief.”

Aplt. App. at 1. In particular, they sought to recover the attorney fees they

incurred in their appeal of the Board’s decision to the state court.

                     THE DISTRICT COURT PROCEEDINGS

      The theory of the Heusers’ lawsuit was that Larrañaga, a state employee,

had a vendetta against them because they had obtained a favorable summary

judgment ruling against San Juan County in an unrelated civil rights lawsuit.




                                           -3-
They argued that Larrañaga had a score to settle and that he used his position as

Chairman of the Board to decide against them. 1

      The district court granted Larrañaga’s motion to dismiss, finding that

although the Heusers sued Larrañaga in his individual capacity, their claims were

in reality a lawsuit against the state, which is immune from liability under the

Eleventh Amendment. 2 Alternatively, the court granted Larrañaga’s summary

motion on the basis of qualified immunity. 3

                                    ANALYSIS

      This court has an independent duty to examine its own jurisdiction even

when neither party has contested jurisdiction. Lopez v. Behles (In re Am. Ready

Mix, Inc.), 14 F.3d 1497, 1499 (10th Cir. 1994). Nor are we bound by a prior



1
       We note the dubious logic of this theory. The Heusers’ tax hearing was in
January 2001, and the Board’s decision was issued in March 2001. The adverse
summary judgment ruling was not issued until August 2001–several months after
the tax hearing and decision. Heuser v. Johnson , 189 F. Supp. 2d 1250 (D. N.M
2001).
2
       The American Civil Liberties Union of New Mexico has filed an amicus
brief challenging the district court’s application of the Eleventh Amendment as
contrary to our opinions in Cornforth v. University of Oklahoma Board of
Regents , 263 F.3d 1129 (10th Cir. 2001), and    Griess v. Colorado , 841 F.2d 1042
(10th Cir. 1988). Because our resolution of this case does not involve the
Eleventh Amendment we do not address this issue on appeal.
3
      The Heusers apparently resolved their claims against the San Juan County
Board of Commissioners, Marion Farnsworth, Robert Batley, David Velasquez
and Aileen Nourse, who were also named as defendants in the federal court
lawsuit.

                                         -4-
exercise of jurisdiction in a case when it was not questioned and it was passed on

sub silentio. Rice v. Office of Servicemembers’ Group Life Ins., 260 F.3d 1240,

1245 (10th Cir. 2001) (quotation omitted).

      The Tax Injunction Act, 28 U.S.C. § 1341, provides that “[t]he district

courts shall not enjoin, suspend or restrain 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.” This court has held that § 1341 is a broad prohibition

against the use of the equity powers of federal courts involving state tax matters.

Brooks v. Nance, 801 F.2d 1237, 1239 (10th Cir. 1986).

      Moreover, although 28 U.S.C. § 1341 on its face does not proscribe

jurisdiction with regard to claims for damages under 42 U.S.C. § 1983, the

principle of comity prohibits federal district courts from exercising jurisdiction

over § 1983 damage claims where the taxpayer has a plain, adequate, and

complete remedy in state court to correct any violations of their federal rights.

Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 116 (1981).

      Setting aside the fact that this court perceives no violation of the Heusers’

federal rights, the relevant inquiry is whether they had a plain, adequate, and

complete remedy under state law to correct an erroneous decision and raise any

alleged violations of their federal rights. Brooks, 801 F.2d at 1240.




                                         -5-
      Here, its undisputed that the Heusers not only had a plain, adequate, and

complete remedy to correct what they believed was an erroneous decision, but the

decision was in fact reversed. More to the point, their 42 U.S.C. § 1983 claims




                                        -6-
could have been brought in state court. Garcia-Montoya v. State Treasurer’s

Office, 16 P.3d 1084, 1088 (N.M. 2001).

      This appeal is DISMISSED.



                                                 Entered for the Court


                                                 Stephen H. Anderson
                                                 Circuit Judge




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