Cohen v. Connell

58 F. App'x 362

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2003
• Docket: No. 02-16248; D.C. No. CV-01-01587-EJG/JFM
• Status: Published

Opinion

MEMORANDUM

**

California resident Michael Cohen appeals pro se from the district court’s judgment dismissing his action alleging that the California State Controller’s enforcement of California’s estate tax violates his constitutional rights guaranteed by the Fifth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo questions of Eleventh Amendment immunity, Hill v. Blind Indus. & Servs. of Maryland, 179 F.3d 754, 756 (9th Cir. 1999), and we vacate the district court’s order and remand.

The district court erred by dismissing the entire action under the Eleventh Amendment. At least some of Cohen’s claims appear to seek prospective declaratory and injunctive relief against a state official for alleged violation of federal law, and thereby fall under the Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), exception to Eleventh Amendment immunity. See Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045-46 (9th Cir.2000) (finding no Eleventh Amendment bar to an Indian Tribe’s federal action against state officials seeking a declaratory judgment that certain California sales and use taxes violate federal law); Goldberg v. Ellett (In re Ellett), 254 F.3d 1135, 1143-44 (9th Cir.2001) (holding that the Eleventh Amendment does not bar an action to prohibit a state official from violating federal bankruptcy law by collecting the taxes at issue).

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.