                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUN 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID R. SMITH,                                 No. 16-17232

                Plaintiff-Appellant,            D.C. No. 5:16-cv-02376-EJD

 v.
                                                MEMORANDUM*
COUNTY OF SANTA CRUZ; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward J. Davila, District Judge, Presiding

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      David R. Smith appeals pro se from the district court’s judgment dismissing

his 42 U.S.C. § 1983 action arising from a special assessment lien. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 (9th Cir. 2000). We vacate

and remand.

      The district court dismissed Smith’s claims as barred by the Tax Injunction

Act (“TIA”), 28 U.S.C. § 1341, based on the determination that the special

assessment lien recorded against Smith’s property was a tax under the TIA.

However, the district court did not consider all of the applicable factors in reaching

its determination, including (1) the entity that imposes the charge; (2) the parties

upon whom the charge is imposed; and (3) “whether the assessment is expended

for general public purposes, or used for the regulation or benefit of the parties upon

whom the assessment is imposed.” Bidart Bros. v. Cal. Apple Com’n, 73 F.3d 925,

931-32 (9th Cir. 1996) (setting forth three-factor test for determining whether an

assessment is a tax under the TIA). We vacate the district court’s judgment and

remand for the district court to apply the Bidart test in the first instance.

      In light of our disposition, we do not consider any other contentions raised

on appeal.

      Smith’s motion for judicial notice (Docket Entry No. 9) is denied.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




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