       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0197P (6th Cir.)
                File Name: 00a0197p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                  ;
                                   
ANDREW HEDGEPETH, CELIA
                                   
BURSON, DAVID MCCLEARY,
                                   
and GAYNELL METTS, on
                                   
                                      No. 99-5166
behalf of themselves and all
                                   
others similarly situated,          >
         Plaintiffs-Appellants,    
                                   
                                   
                                   
             v.
                                   
                                   
STATE OF TENNESSEE, STATE
OF TENNESSEE DEPARTMENT
                                   
                                   
                                   
OF SAFETY, and MIKE GREEN,

                                   
in his official capacity as

                                   
Commissioner of the State of
                                   
Tennessee Department of
                                   
Safety,
         Defendants-Appellees. 
                                  1
       Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.
      No. 97-02825—Jerome Turner, District Judge.
                Argued: March 14, 2000
           Decided and Filed: June 12, 2000



                            1
2        Hedgepeth, et al. v. State                 No. 99-5166       No. 99-5166                  Hedgepeth, et al. v. State   19
         of Tennessee, et al.                                                                          of Tennessee, et al.

Before: RYAN, MOORE, and FARRIS,* Circuit Judges.                       Because the essential character of Tennessee’s assessment
                                                                      for disabled parking placards is regulatory, I would hold the
                       _________________                              Tax Injunction Act inapplicable to the plaintiffs’ suit.
                            COUNSEL
ARGUED: Michael F. Rafferty, HARRIS, SHELTON,
DUNLAP & COBB, Memphis, Tennessee, for Appellants.
Mary M. Collier, OFFICE OF THE ATTORNEY
GENERAL, CIVIL LITIGATION & STATE SERVICES
DIVISION, Nashville, Tennessee, for Appellees.
ON BRIEF: Michael F. Rafferty, HARRIS, SHELTON,
DUNLAP & COBB, Memphis, Tennessee, Alex Saharovich,
NAHON & SAHAROVICH, Memphis, Tennessee, for
Appellants. Mary M. Collier, OFFICE OF THE ATTORNEY
GENERAL, CIVIL LITIGATION & STATE SERVICES
DIVISION, Nashville, Tennessee, for Appellees.
  FARRIS, J., delivered the opinion of the court, in which
RYAN, J., joined. MOORE, J. (pp. 15-19), delivered a
separate dissenting opinion.
                       _________________
                           OPINION
                       _________________
    FARRIS, Circuit Judge.
                        BACKGROUND
  Andrew Hedgepeth, Celia Burson, David McCleary, and
Gaynell Metts are disabled individuals who brought this
action on September 12, 1997, under the federal Americans
with Disabilities Act, 42 U.S.C. § 12101, et seq., against the
State of Tennessee, the State of Tennessee Department of


     *
    The Honorable Jerome Farris, Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
18    Hedgepeth, et al. v. State                   No. 99-5166      No. 99-5166                    Hedgepeth, et al. v. State     3
      of Tennessee, et al.                                                                             of Tennessee, et al.

   Tennessee’s assessment for disabled parking placards             Safety, and Mike Green, the Commissioner of the Tennessee
therefore has all the characteristics of a regulatory fee. First,   Department of Safety.
although Tennessee’s assessment was imposed by the
Tennessee legislature, the responsibility for administering and        The State of Tennessee charges a sum for the issuance and
collecting the assessment lies with a regulatory agency, the        renewal of disabled parking placards pursuant to the Disabled
Department of Safety. Second, the assessment is imposed on          Drivers Law of 1975, Tenn. Code Ann. § 55-21-101, et seq.
only a narrow class of persons. Finally, as I have explained,       The placards allow disabled persons equal access to public
the assessment is connected to the cost of the program, thus        and private facilities by making available various parking
suggesting a regulatory purpose.                                    accommodations. The State of Tennessee Department of
                                                                    Safety charges disabled persons (or those who provide
   At bottom, Tennessee’s assessment is analogous to a              transportation services for them) a fee of $20.50 for vehicle
license or permit fee, which is a paradigmatic regulatory fee.      registration and for a placard that is valid for two years, and
See National Cable Television Ass’n, Inc. v. United States,         $3.00 for replacement or renewal of the placard every two
415 U.S. 336, 340-41 (1974) (“Taxation is a legislative             years thereafter. Plaintiffs contend that the State’s fees are
function . . . . A fee, however, is incident to a voluntary act,    surcharges that discriminate against individuals with
e.g., a request that a public agency permit an applicant to         disabilities in violation of the ADA. The force of Plaintiffs’
practice law or medicine or construct a house or run a              contention is that a public entity may not permissibly charge
broadcast station. The public agency performing those               the disabled for measures taken to provide the
services normally may exact a fee for a grant which,                nondiscriminatory treatment required by the Act. See 42
presumably, bestows a benefit on the applicant, not shared by       U.S.C. § 12132; 28 C.F.R. § 35.130(f). The complaint seeks
other members of society.”). As with a permit fee,                  damages under the ADA, as well as declaratory and injunctive
Tennessee’s assessment is voluntary and is charged for the          relief.
privilege of obtaining a benefit. While the State may generate
some additional revenue from the program, the program                 The State moved to dismiss pursuant to Federal Rule of
confers a benefit on the disabled passenger different from that     Civil Procedure 12(b)(1) arguing that: (1) the district court
enjoyed by the general public. Cf. United States v. River Coal      did not have subject matter jurisdiction because the State’s
Co., 748 F.2d 1103, 1106 (6th Cir. 1984) (holding that mining       charges were “taxes” for purposes of the Tax Injunction Act;
reclamation fees were taxes, and so nondischargeable in             (2) the court lacked jurisdiction because the State is immune
bankruptcy, by distinguishing reclamation fees from permit          from such a lawsuit under the Eleventh Amendment; and (3)
fees: “[The reclamation fee] is imposed as an additional            Plaintiffs’ claims were barred by the statute of limitations.
charge on operators who have already received permits.
Unlike the permit fee, the reclamation fee does not confer a          The district court dismissed Plaintiffs’ complaint on
benefit on the operator different from that enjoyed by the          December 28, 1998. It determined that the State’s assessment
general public when environmental conditions are improved.          for the disabled parking placards was a tax for purposes of the
On the contrary, it is an involuntary exaction for a public         Tax Injunction Act and that Plaintiffs had a “plain, speedy,
purpose . . . .”).                                                  and efficient remedy” to contest the matter at the state level.
                                                                    Alternatively, the district court held for purposes of appellate
                                                                    review that the complaint should also be dismissed on
4        Hedgepeth, et al. v. State                       No. 99-5166        No. 99-5166                          Hedgepeth, et al. v. State         17
         of Tennessee, et al.                                                                                         of Tennessee, et al.

grounds of Eleventh
               2
                    Amendment immunity1 and the statute                      became law provided for a renewal charge of $3 bi-annually,
of limitations.                                                              rather than $5. J.A. at 57 (Irwin Dep.).
                           DISCUSSION                                          The plaintiffs argue that this form shows a correlation
                                                                             between the cost of the renewal program and the revenue
I. Whether the Federal Courts Lack Jurisdiction Over                         generated therefrom. A $5 assessment would have generated
Plaintiffs’ Complaint Pursuant to the Tax Injunction Act.                    $500,000 in revenue bi-annually and resulted in a large
                                                                             revenue surplus. However, the plaintiffs explain that the $3
    A. Standard of Review                                                    renewal charge that was eventually enacted into law generates
                                                                             only $300,000 in revenue, essentially “cover[ing] the
   We review de novo a district court's order dismissing a                   Division’s cost of administering the program.” Appellant’s
complaint for lack of subject matter jurisdiction under Fed. R.              Br. at 16. While the correlation is not exact, the fiscal note
Civ. P. 12(b)(1). See Moir v. Greater Cleveland Reg'l Transit                support form does reveal a relationship between2 the
Auth., 895 F.2d 266, 269 (6th Cir. 1990). When the                           assessment and the cost of the renewal program.              In
defendant challenges subject matter jurisdiction through a                   conjunction with the earlier version of the statute the form
motion to dismiss, the plaintiff bears the burden of                         suggests that the ultimate purpose of the assessment is to
establishing jurisdiction. See id. The district court's factual              defray the3 costs of administering the disabled parking placard
findings made in resolving a motion to dismiss are reviewed                  program.
for clear error while its application of the law to the facts is
reviewed de novo. See RMI Titanium Co. v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1135 (6th Cir. 1996).
                                                                                 2
    B. The Tax Injunction Act                                                      We are unfortunately presented with little information regarding the
                                                                             cost of the initial placard issuance program. The State contends that the
  The district court’s jurisdiction turns on the application of              actual cost of the placard is 45.4 cents. J.A. at 54 (Irwin Dep.). Because
                                                                             the $20.50 assessment significantly exceeds the actual cost of the placard,
the Tax Injunction Act, which provides that “[t]he district                  the State argues that the assessment is best seen as a general revenue
courts shall not enjoin, suspend or restrain the assessment,                 raising measure. The majority agrees, stating that “[t]he only evidence in
levy or collection of any tax under State law where a plain,                 the record regarding any costs associated with the State’s disabled parking
speedy and efficient remedy may be had in the courts of such                 program is the actual cost of the disabled parking placard.” Ante, at p. 10.
State.” 28 U.S.C. § 1341. The purposes of the Act are “to                    However, the actual cost of the placard is not the only cost associated
                                                                             with the regulatory program, as is evidenced by the fiscal note support
                                                                             form.
     1                                                                           3
      Although the district court dismissed the action under Fed. R. Civ.          The majority believes that the fiscal note support form does not
P. 12(b)(1), the court addressed the State’s contention regarding Eleventh   support an inference that the monies collected from the renewal program
Amendment immunity for purposes of appellate review. However, we             help to defray the program’s cost, explaining that we do not know the
hold this issue in abeyance pending the disposition of three other cases,    reasons why the Tennessee legislature decided to reduce the amount of
and thus decline to discuss Eleventh Amendment immunity here.                the assessment from $5 to $3. The legislature’s rationale for reducing the
     2                                                                       amount of the assessment is, however, immaterial. The important fact is
     In light of our determination regarding the Tax Injunction Act, we      that, as enacted, the amount of revenue collected from the program
do not reach the issue of the applicable statute of limitations for claims   roughly parallels the cost of the program’s administration, which is
brought under Title II of the ADA.                                           suggestive of a regulatory purpose.
16       Hedgepeth, et al. v. State                        No. 99-5166        No. 99-5166                         Hedgepeth, et al. v. State           5
         of Tennessee, et al.                                                                                         of Tennessee, et al.

   In the instant case, there is a connection between the                     promote comity and to afford states the broadest
assessment and the costs of the regulatory scheme. First, the                 independence, consistent with the federal constitution, in the
evolution of the statutory provision at issue shows that the                  administration of their affairs, particularly revenue raising.”
charge for parking placards is connected to cost. The current                 Wright v. McClain, 835 F.2d 143, 144 (6th Cir. 1987).
language reads: “If the applicant is eligible for a disabled
license plate, the placard shall be furnished without charge.                    To date, there are two federal circuit courts that have
If the applicant has not applied for vehicle registration, then               addressed the precise issue of whether assessments imposed
the cost of the placard shall be the same as the regular fee for              for disabled  parking placards constitute taxes or fees under
passenger motor vehicles, as provided in § 55-4-111.” TENN.                   the TIA.3 See Hexom v. Oregon Dep’t of Transp., 177 F.3d
CODE ANN. § 55-21-103 (1998). However, as first enacted,                      1134 (9th Cir. 1999); Marcus v. Kansas, Dep’t of Revenue,
the Disabled Drivers Law of 1975 did not specify an amount                    170 F.3d 1305 (10th Cir. 1999). The Ninth Circuit in Hexom
to be charged for placards, but provided that “[t]he actual cost              held that the $4.00 fee was not designed to raise revenue. See
of the placard shall be paid by the handicapped driver.”                      Hexom, 177 F.3d at 1139. Rather, the fee was designed to
TENN. CODE ANN. § 55-21-103 (1980 Replacement). The fact                      pay for the costs of a special program, and thus was not a tax
that the early version of the provision tied the assessment to                for purposes of the TIA and did not preclude federal court
cost suggests     that the purpose of the assessment is                       jurisdiction. See id. The Tenth Circuit also concluded that
regulatory.1                                                                  the $5.25 assessment was not a tax because it was “expressly
                                                                              tied to the administrative costs of a specific regulatory scheme
  Additionally, the plaintiffs point to a fiscal note support                 and, therefore, its essential character [was] regulatory.”
form that was prepared by the Division of Title and                           Marcus, 170 F.3d at 1312.
Registration to comment on the fiscal effect of Senate Bill
No. 1831. The bill proposed that the Disabled Drivers Law
be amended to provide for the renewal of permanent placards
every two years for a fee of $5. J.A. at 56-57 (Irwin Dep.); 85
(Fiscal Note Support Form). The Division of Title and
Registration estimated the fiscal impact of the bill to be
                                                                                  3
$204,100 bi-annually. J.A. at 86 (Fiscal Note Support Form).                        At least three district courts have also confronted the issue. While
With a charge of $5 per placard, it was estimated that the bill               the courts are split in their determination, it appears that one of the
would generate $500,000 in revenue during that same time                      guiding factors is the cost of the assessment, and whether the cost is
period. J.A. at 86 (Fiscal Note Support Form). The bill that                  nominal or exacts a greater amount for general revenue raising purposes.
                                                                              See Thrope v. Ohio, 19 F. Supp. 2d 816, 823 (S.D. Ohio 1998) (“the
                                                                              [$5.00] placard surcharge is not a ‘tax’ for purposes of the Tax Injunction
                                                                              Act, because it is charged only to the applicants for a placard and
     1                                                                        designed to cover the regulatory costs of administering the program”);
      The majority disagrees with this reasoning; it states that, because     Lussier v. Florida, Dep’t of Highway Safety & Motor Vehicles, 972 F.
disabled passengers must pay the same amount for a placard that all           Supp. 1412, 1420-21 (M.D. Fla. 1997) (finding that $13.50 of the $15.00
persons must pay to register their vehicles, “[d]isabled persons are merely   disabled person parking permit fee was not used to defray administration
being taxed in the same way that non-disabled persons are being taxed.”       expense and was, therefore, a tax within the meaning of the TIA); Rendon
Ante, at p. 10 n.5. The majority’s conclusion rests on the premise that the   v. Florida, 930 F. Supp. 601, 604-05 (S.D. Fla. 1996) (finding disabled
“regular fee for passenger motor vehicles,” TENN. CODE ANN. § 55-21-          parking permit fee to be a tax where the $15.00 surcharge was not
103 (1998), is a tax within the meaning of the Tax Injunction Act, which      assessed for regulatory reason and bore no relationship to cost of
is not at all clear.                                                          regulatory program).
6        Hedgepeth, et al. v. State                        No. 99-5166         No. 99-5166                    Hedgepeth, et al. v. State     15
         of Tennessee, et al.                                                                                     of Tennessee, et al.

      1.    Whether Tennessee’s Assessment is a Fee or a Tax                                        ________________
   The issue is whether the State’s $20.50 assessment for                                               DISSENT
disabled parking placards and $3.00 assessment for renewal                                          ________________
or replacement is a tax or a regulatory fee. If the assessment
is a tax, then the Act applies and operates to bar federal                       KAREN NELSON MOORE, Circuit Judge, dissenting.
jurisdiction unless the   state fails to provide a plain, speedy               The State of Tennessee charges disabled passengers an
and efficient remedy.4 See Wright, 835 F.2d at 144-45. “It is                  assessment for the privilege of obtaining a disabled parking
elemental . . . that the label given an assessment by state law                placard. Unlike the majority, I believe that, regardless of
is not dispositive of whether the assessment is a ‘tax under                   where the monies are deposited, Tennessee’s assessment
state law.’ Rather, the definition of the term ‘tax’ is a                      clearly constitutes a regulatory fee rather than a tax. I
question of federal law, and the issue here is whether the                     therefore conclude that the Tax Injunction Act presents no bar
assessment is a tax within the meaning of that term as                         to federal court jurisdiction, and I respectfully dissent from
employed by Congress in the Tax Injunction Act.” Id. at 144                    the majority’s holding to the contrary.
(citations omitted).
                                                                                  The majority reasons that Tennessee’s assessment is a tax
  The leading decision is San Juan Cellular Telephone Co. v.                   because, pursuant to Tennessee’s statutory scheme, the
Public Service Commission of Puerto Rico, 967 F.2d 683 (1st                    monies collected from the issuance of disabled parking
Cir. 1992). The court explained that,                                          placards are deposited into general state funds rather than into
                                                                               a special fund earmarked for the administration of the placard
    [t]he classic “tax” is imposed by a legislature upon many,                 program. This heavy reliance on the disposition of the funds
    or all, citizens. It raises money, contributed to a general                obscures the principal inquiry, which “centers on function,
    fund, and spent for the benefit of the entire community.                   requiring an analysis of the purpose and ultimate use of the
    The classic “regulatory fee” is imposed by an agency                       assessment.” Collins Holding Corp. v. Jasper County, 123
    upon those subject to its regulation. It may serve                         F.3d 797, 800 (4th Cir. 1997). It is true that the assessments
    regulatory purposes directly by, for example, deliberately                 at issue are deposited into a variety of state funds that benefit
    discouraging particular conduct by making it more                          the public generally. However, the fact that the assessments
    expensive. Or, it may serve such purposes indirectly by,                   are commingled with other monies in a general fund for
    for example, raising money placed in a special fund to                     public benefit does not lead inexorably to the conclusion that
    help defray the agency’s regulation-related expenses.                      the dominant purpose of the statute is revenue raising.
                                                                               “Rather than a question solely of where the money goes, the
Id. at 685 (citations omitted).                                                issue is why the money is taken.” Hager v. City of West
                                                                               Peoria, 84 F.3d 865, 870-71 (7th Cir. 1996); see also Hexom
                                                                               v. Oregon Dep’t of Transp., 177 F.3d 1134, 1138 (9th Cir.
     4
      The TIA has also been broadly interpreted to bar suits for
                                                                               1999) (“The question, in the long run, is not simply where the
declaratory relief, injunctive relief, as well as monetary relief when there   money is deposited at some point; it is what the purpose or
is an adequate remedy in state court. See California v. Grace Brethren         use of the assessment truly is.”).
Church, 457 U.S. 393, 408-10, 102 S. Ct. 2498, 2507-09 (1982); National
Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582,
586-88, 115 S. Ct. 2351, 2354-55 (1995).
14   Hedgepeth, et al. v. State                  No. 99-5166      No. 99-5166                   Hedgepeth, et al. v. State        7
     of Tennessee, et al.                                                                           of Tennessee, et al.

   On appeal, Plaintiffs argue that the district court’s             The Sixth Circuit has adopted the First Circuit’s approach
conclusion is at odds with the plain, unambiguous language        in determining whether an assessment is a “tax,” utilizing the
of § 9-8-307(a)(2)(A). They contend that their action             often cited three-factor test: “(1) the entity that imposes the
unquestionably arises out of the issuance of a permit or          assessment; (2) the parties upon whom the assessment is
license. Although we agree that the language is ambiguous         imposed; and (3) whether the assessment is expended for
and subject to the interpretation adopted by Plaintiffs, we       general public purposes, or used for the regulation or benefit
conclude that the proper interpretation of the statute does not   of the parties upon whom the assessment is imposed.”
preclude Plaintiffs from bringing this action before the Claims   American Landfill, Inc. v. Stark/Tuscaranwas/Wayne Joint
Commission.                                                       Solid Waste Management Dist., 166 F.3d 835, 837 (6th Cir.
                                                                  1999) (quoting Bidart Bros. v. California Apple Comm’n, 73
  The jurisdiction of the Claims Commission to entertain          F.3d 925, 931 (9th Cir. 1996)); see San Juan Cellular Tel.
claims against the State must be determined from the              Co., 967 F.2d at 685. Additionally, if “the assessment falls
language of Tennessee Code Annotated § 9-8-307 in its             near the middle of the spectrum between a regulatory fee and
entirety. The primary rule of statutory construction is to        a classic tax, the predominant factor is the revenue’s ultimate
ascertain and give effect to the legislative intent. See First    use. When the ultimate use is to provide a general public
American Nat’l Bank-Eastern v. Federal Deposit Ins. Corp,         benefit, the assessment is likely a tax, while an assessment
782 F.2d 633, 636 (6th Cir. 1986). In ascertaining this intent,   that provides a more narrow benefit to the regulated
we look to the general purpose to be accomplished by the          companies is likely a fee.” American Landfill, Inc., 166 F.3d
legislation. See id. Section 9-8-307(a)(3) states, “[i]t is the   at 838 (citations omitted). Fees can serve regulatory purposes
intent of the general assembly that the jurisdiction of the       as distinguished from general public purposes in two ways:
claims commission be liberally construed to implement the         either by discouraging particular conduct through the device
remedial purposes of this legislation.” Following the statute’s   of making it more costly, or by generating income ear marked
mandate, we construe jurisdiction liberally and resolve that      to cover the cost of the regulation. See San Juan Cellular Tel.
the collection of taxes charged for the disabled parking          Co., 967 F.2d at 685.
placards can be adequately challenged before the Claims
Commission with a subsequent appeal to the Tennessee state          The record demonstrates that the State’s assessment is a tax
courts. The district court properly determined that it was        rather than a fee. Under the statutory scheme imposed by the
without subject matter jurisdiction.                              Tennessee legislature, the $20.50 disabled placard assessment
                                                                  and the $3.00 renewal assessment are apportioned into the
                      CONCLUSION                                  State’s highway fund, the general fund, the police pay
                                                                  supplement fund, and the trooper safety fund. See Tenn.
  The State’s assessment against disabled persons for the         Code Ann. §§ 55-4-103, 55-4-111, 55-6-107, 55-21-103.
parking placards is a tax for purposes of the Tax Injunction      Specifically, the assessment is allocated as follows:
Act. We conclude that the Plaintiffs had a plain, speedy and
efficient remedy before the Claims Commission. The district         1.   The $20.50 placard fee collected by county clerks
court properly dismissed the action for lack of subject matter           and remitted to the Title and Registration Division
jurisdiction.                                                            of the Tennessee Department of Safety or remitted
                                                                         directly to the division by applicants is deposited in
  AFFIRMED.
8        Hedgepeth, et al. v. State                 No. 99-5166    No. 99-5166                    Hedgepeth, et al. v. State    13
         of Tennessee, et al.                                                                         of Tennessee, et al.

          the State of Tennessee Treasury and is allocated in      several types of claims that may be brought before the Claims
          the following manner:                                    Commission, while Tennessee Code Annotated § 9-8-
                                                                   307(a)(2) limits the type of claims that may be brought. The
          (A) There is $18.75 registration tax provided by         limiting provision provides:
              Tenn. Code Ann. §§ 55-21-103(b)(2)(A)(i) and
              55-4-111(a)(1). Of this $18.75 the first $1.00 is      No item enumerated in this subsection shall be
              paid into the state treasury and credited to the       interpreted to allow any claim against the state on
              police pay supplement fund. Of the $17.75              account of the acts or omissions of persons, partnerships,
              remainder, ninety-eight percent (98%) is               corporations or other entities licensed or regulated by
              distributed to the general highway fund and two        agencies of the state, notwithstanding any negligence
              percent (2%) to the general fund. This                 committed by the state in the course of performing
              distribution is made pursuant to Tenn. Code            licensing or regulatory activities. No item enumerated in
              Ann. § 55-6-107, which directs the proceeds of         this subsection shall be interpreted to allow any claims
              any tax collected under Title 55, chapter 4 to be      against the state arising out of or resulting from:
              used for the general public benefit in highway
              and improvement projects and in retirement of            (A) The issuance, denial, suspension or revocation of,
              state debt.                                            or by the failure or refusal to issue, deny, suspend or
          (B) The $0.75 reflectorization fee collected               revoke, any permit, license, certificate, approval, order or
              pursuant to Tenn. Code Ann. § 55-4-103(f)(2)           similar authorization . . . .
              is sent to the General Fund earmarked for use in
              the salary supplement for law enforcement            Tenn. Code. Ann. § 9-8-307(a)(2).
              members of the Department of Safety.
          (C) The $1.00 reflectorization fee provided by              The district court agreed with the State’s interpretation of
              Tenn. Code Ann. § 55-4-103(f)(1) is allocated        the statute, and concluded that Plaintiffs had a plain, speedy
              to the General Fund.                                 and efficient remedy. It ruled that “Defendants [were] correct
                                                                   that plaintiffs [were] not making a claim on account of the
    2.    The $3.00 fee charged upon renewal of an expired         acts of any such entity,” and “[t]hus, the first sentence of
          placard pursuant to Tenn. Code Ann. § 55-21-             Tennessee Code Annotated § 9-8-307(a)(2) [did] not preclude
          103(f)(1) is allocated to the Highway Fund and the       plaintiffs from bringing their claim before the
          General Fund in the same manner as the $17.75            Commissioner.” Additionally, the district court stated that the
          registration tax.                                        language of § 9-8-307(a)(2)(A), which precludes claims
                                                                   against the state “arising out of or resulting from . . . [t]he
   The State’s assessments are allocated in a manner that make     issuance . . . of . . . any . . . license,” did not preclude
it clear the ultimate purpose of the assessments is to benefit     Plaintiffs’ claim because they were not seeking damages
the general public of the State of Tennessee. As such, the         based on the issuance of a license. Rather, Plaintiffs’ claim
assessment must constitute a tax under the TIA. See                was based on the State’s practice of charging disabled
American Landfill, Inc., 166 F.3d at 839-40 (“The revenue’s        individuals for a parking placard which allegedly violated the
ultimate use as a benefit shared by the public and not just the    ADA.
waste disposal facilities dictates that the assessment here is a
12       Hedgepeth, et al. v. State                    No. 99-5166       No. 99-5166                     Hedgepeth, et al. v. State      9
         of Tennessee, et al.                                                                                of Tennessee, et al.

purpose was unrelated to the costs associated with the                   tax.”). The State’s highway fund, the general fund, the police
disabled placard program; and finally, the assessment was a              pay supplement fund, and the trooper safety fund “relate
tax within the meaning of the TIA.                                       directly to the general welfare of the citizens of Tennessee
                                                                         and the assessments to fund them are no less general revenue
     2.     Whether Plaintiffs Have a Plain, Speedy and                  raising levies simply because they are dedicated to a particular
            Efficient Remedy Under State Law                             aspect of the commonwealth.” Wright, 835 F.2d at 145.
  Although the assertion of federal jurisdiction may interfere             There is simply no evidence to support Plaintiffs’
with state tax assessment and collection, such jurisdiction will         contention that the funds collected from the placards are paid
nonetheless exist if the state fails to provide a “plain, speedy         into a special fund to benefit the regulated entities or to defray
and efficient remedy” in state courts. 28 U.S.C. § 1341. The             the cost of regulation. Plaintiffs, however, have submitted a
plain, speedy and efficient remedy contemplated by the TIA               1994 “Fiscal Note Support Form” to infer the legitimacy of
merely requires that the state provide certain minimal                   their contention. This document provides that the fiscal
procedural protections against illegal tax collection. See               impact of a proposed amendment to the Disabled Drivers Law
Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 512, 101 S. Ct.            changing the term “handicapped” to “disabled” pursuant to
1221, 1229 (1981). The state need only provide a full hearing            the ADA and charging a renewal fee of $5.00 per placard
at which a taxpayer may present and secure a judicial                    every two years would be $204,000 bi-annually with an
determination at which he or she may raise any and all                   estimated revenue of $500,000. The Disabled Drivers Law
constitutional objections to the tax. See id. Furthermore, we            was ultimately amended to provide for a renewal fee of $3.00
have concluded that “[s]tate procedures that call for an appeal          bi-annually. See Tenn. Code Ann. § 55-21-103(f)(1). The
to a state court from an administrative decision meet these              argument, asserted by Plaintiffs and adopted by the dissent,
minimal criteria.” Northwest Airlines, Inc. v. Tennessee State           that the revenue generated by a $3.00 bi-annual assessment
Bd. of Equalization, 11 F.3d 70, 72 (6th Cir. 1993).                     ($300,000) supports a relationship between the assessment
                                                                         and the cost of the renewal program ($204,000), is
   Whether the State of Tennessee provides a “plain, speedy              speculation. See infra pp. 16-17. We do not know the
and efficient remedy” in state courts depends on the                     reasons why the legislature decided to reduce the $5.00
interpretation of the Tennessee statute which both allows and            amount to the $3.00 amount; what we do know is that the
limits monetary claims brought before the Claims                         renewal amount charged is ultimately used to support the
Commission. See Tenn. Code Ann. § 9-8-307. This statute                  highway fund and the general fund. See supra p. 8.
provides that the Tennessee Claims Commission has
exclusive jurisdiction over a claim “for the  recovery of taxes             Plaintiffs’ further contention that the revenues generated by
collected or administered by the state.”7 Tenn. Code Ann.                these assessments do not affect the State’s budget in “any
§ 9-8-307(a)(1)(O). Tennessee, however, has not declared                 material way” also finds no support in the record. As we
itself subject to suit in all actions to recover taxes. Rather,          recently explained, the TIA “makes no exception for
Tennessee Code Annotated § 9-8-307(a)(1) sets out a list of              challenges to taxes which constitute a small portion of a
                                                                         state’s revenue sources rather than a large portion.” American
                                                                         Landfill, Inc., 166 F.3d at 840.
     7
      The decision of the Claims Commission is appealable to the state
court of Tennessee. See Stewart Title Guar. Co. v. McReynolds, 886
S.W. 2d 233, 237-38 (Tenn. Ct. App. 1994).
10       Hedgepeth, et al. v. State                        No. 99-5166         No. 99-5166                        Hedgepeth, et al. v. State        11
         of Tennessee, et al.                                                                                         of Tennessee, et al.

  The only evidence in the record regarding any costs                          the privilege of parking in handicapped parking spaces.”
associated with the State’s disabled parking program is the                    This contention, however, fails to address the district court’s
actual cost of the disabled parking placard. The Director of                   conclusion that the instant circumstance is inapposite to that
the State of Tennessee Department of Safety, Title and                         of Collins Holding Corp. v. Jasper County, 123 F.3d 797, 800
Registration Division testified that the cost of the permanent                 (4th Cir. 1997) (stating the proposition that when “the
placard was 45.4 cents ($0.454) and the disabled license plate                 assessment covers only a narrow class of persons and is paid
was $1.32. While we do not dispute that there must be other                    into a special fund to benefit regulated entities or defray the
administrative costs associated with the program, we do not                    cost of regulation, it sounds like a fee.”). Plaintiffs have
know the source or the amount of those administrative costs.                   successfully shown that only a narrow class of persons is
Plaintiffs have simply failed to demonstrate that the $20.50 is                charged with the assessment, but they plainly fail to present
some approximation      of the costs associated with the                       any facts to show that the assessments are “paid into a special
program.5 See Thrope, 19 F. Supp. 2d at 823. The                               fund to benefit   regulated entities or defray the cost of
substantial difference between the actual cost of the                          regulation.”6 Id.
permanent placard or license plate and the amount that must
be paid to obtain one supports a conclusion that the                              Using the three-factor inquiry outlined in San Juan Cellular
assessment is for general revenue raising purposes. See id.                    Telephone Co. and adopted by this circuit leads to the same
                                                                               conclusion. Both the first and third factors weigh heavily in
  Plaintiffs contend on appeal that “the State’s targeting of a                favor of the State. Not only did the State of Tennessee
narrow class is expressly prohibited by Congress in the ADA,                   authorize and legislate that the assessments be charged against
and it overlooks the fact that the charge is in the nature of a                disabled persons, but they also provided the manner in which
privilege fee in that the charge for the parking placard is for                they were to be allocated to benefit the general public.
                                                                               Although the second factor, the parties upon whom the
                                                                               assessment is imposed, weighs in favor of the Plaintiffs, the
     5                                                                         district court properly determined that “[s]tanding alone, the
      Tennessee derives the $20.50 for the disabled parking placard and
vehicle registration from the amount charged for the registration of all       fact that an assessment targets only a narrow class of people
Class C passenger motor vehicles. See Tenn. Code. Ann. § 55-21-                is not enough to characterize the assessment as a fee. See
103(b)(2)(A)(i) (“If the applicant has not applied for vehicle registration,   Wright, 835 F.2d at 144-45 (holding that fees charged to
then the cost of the placard shall be the same as the regular fee for          parolees were taxes for purposes of the TIA).”
passenger motor vehicles, as provided in § 55-4-111.”). The dissent
reasons that the original enactment of the Disabled Drivers Law of 1975,         Based on the evidence in the record, the district court
which provided that the actual cost of the placard be paid by the disabled
driver, tied the amount assessed to the costs of the program, and thus         properly concluded that the ultimate purpose of the State’s
suggests that the purpose of the assessment was regulatory. See infra          assessment was for general revenue raising purposes; such
p. 16. This reasoning, however, does not overcome the insurmountable
fact that the current version of Tennessee Code Annotated § 55-21-
103(b)(2)(A)(i) requires disabled persons who receive disabled parking             6
placards upon registration to pay the same approximate amount required               The dissent would rather focus the inquiry on “why the money is
of non-disabled persons to register their vehicle. Further, the collected      taken” instead of “where the money goes.” Infra p. 15. Although such
monies from the disabled persons are distributed in the same way as non-       inquiry is entirely appropriate, the answer inexorably leads us to the
disabled persons. See Tenn. Code Ann. §§ 55-4-111(a)(2), 55-6-107(a).          evidence in the record which shows us that the money is taken to benefit
Disabled persons are merely being taxed in the same way that non-              the general welfare, and not to defray the specific costs of the disabled
disabled persons are being taxed.                                              parking placard program.
