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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 13-10566 ________________________
D.C. Docket No. 0:12-cv-62238-JIC
SEMINOLE TRIBE OF FLORIDA,
Plaintiff–Appellant, versus
STATE OF FLORIDA DEPARTMENT OF REVENUE, MARSHALL STRANBURG, in his official capacity as the Interim Executive Director and Deputy Executive Director of the Florida Department of Revenue,
Defendants–Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida _______________________
(May 5, 2014)
Before PRYOR and JORDAN, Circuit Judges, and FRIEDMAN, ∗ District Judge.
PRYOR, Circuit Judge:
∗ Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation. Case: 13-10566 Date Filed: 05/05/2014 Page: 2 of 34
This appeal requires us to decide whether the sovereign immunity of Florida,
as confirmed by the Eleventh Amendment, U.S. Const. Amend. XI, bars a federal
complaint by an Indian tribe against the Florida Department of Revenue and its
Executive Director for a declaratory judgment that the tribe is exempt from paying
a Florida tax on fuel and for an injunction requiring a refund of taxes paid. The
Seminole Tribe of Florida contends that a Florida tax on motor and diesel fuel
purchased off tribal lands violates the Indian Commerce Clause, U.S. Const. Art. I,
§ 8, cl. 3, the Indian sovereignty doctrine, and the Equal Protection Clause, U.S.
Const. Amend. XIV, § 1. After a state court rejected a complaint by the Tribe
about fuel taxes paid between 2004 and 2006, the Tribe filed a federal complaint
about taxes paid between 2009 and 2012. The district court dismissed the federal
complaint based on a judicial doctrine that bars federal district courts from
reviewing state court judgments, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.
Ct. 149 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303
(1983), and, alternatively, based on the Tax Injunction Act, 28 U.S.C. § 1341. But
we need not decide the correctness of those rulings because we conclude that the
Department and its Director enjoy sovereign immunity from this suit. We
AFFIRM the dismissal of the complaint filed by the Tribe.
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I. BACKGROUND
The Seminole Tribe of Florida is a federally recognized Indian tribe. See
Indian Entities Recognized & Eligible to Receive Services from the United States
Bureau of Indian Affairs, 78 Fed. Reg. 26,384, 26,387 (May 6, 2013); Indian
Reorganization Act of June 18, 1934, § 16, ch. 576, 48 Stat. 984, 987 (codified as
amended at 25 U.S.C. § 476). Like any other entity in Florida, the Tribe pays a
state tax on the purchase of fuel. See Fla. Stat. § 206.01 et seq. The State, counties,
and municipalities use revenues from that tax to construct and repair transportation
facilities, roads, bridges, and paths. See, e.g., Fla. Const. Art. 12, § 9(c)(5); Fla.
Stat. §§ 206.60(1)(b)(1), 206.605(1), (2). For administrative convenience, the State
precollects the tax from suppliers of fuel before the suppliers sell the fuel to
consumers. See Fla. Stat. § 206.41(4)(a), (6). The cost of the tax is then passed on
to the consumer of the fuel when the consumer purchases fuel at a retail gas
station. Even though the Department precollects the tax from a supplier before the
fuel is sold to the ultimate consumer, Florida law provides that the “legal incidence
of the tax” is “on the ultimate consumer.” Id. § 206.41(4)(a).
Florida law exempts some consumers, but not the Tribe, from the fuel tax. If
a consumer is exempt from the tax, then the consumer may obtain a refund from
the Department for the amount of fuel taxes the consumer has paid. Id.
§ 206.41(4), (5). For example, the Department refunds any fuel taxes paid by a
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municipality for fuel used in a municipal vehicle, and the municipality uses that
refund for the construction and maintenance of roadways within its borders. Id.
§ 206.41(4)(d). Likewise, any consumer who uses fuel for agricultural,
aquacultural, commercial fishing, or commercial aviation purposes is exempt from
the tax and eligible for a refund from the Department. Id. § 206.41(4)(c).
Florida law does not exempt the Tribe from the fuel tax, and the Department
has refused to refund taxes the Tribe paid when it purchased fuel at gas stations
located off tribal lands. The Tribe argues that, because it maintains its own
roadways, it is entitled to a refund for taxes paid for fuel expended on tribal lands
by vehicles carrying out essential government services, regardless of where the
Tribe purchased the fuel. The Department argues that the Tribe does not actually
use the fuel on tribal lands because Florida law defines the “use” of fuel as
occurring when consumers fill the fuel tanks in their vehicles. Id. § 206.01(24)
(defining “use” as “the placing of motor or diesel fuel into any receptacle on a
motor vehicle from which fuel is supplied for the propulsion thereof”).
The Tribe has twice sued the Department about whether the Tribe is exempt
from the fuel tax. The Tribe filed the first suit in a state court and the second in a
federal court. Both times the Tribe lost.
The Tribe first sued the Department in a Florida court for a refund of fuel
taxes paid between January 1, 2004, and February 28, 2006. The Tribe also sought
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a declaratory judgment that the fuel expended on tribal lands was exempt from the
tax. A Florida court of appeals held that the tax did not violate the Indian
Commerce Clause because the State levied the tax at gas stations located off tribal
lands. Fla. Dep’t of Revenue v. Seminole Tribe of Fla., 65 So. 3d 1094, 1097 (Fla.
4th Dist. Ct. App. 2011), review denied, 86 So. 3d 1114 (Fla. 2012).
The Tribe then filed a federal complaint that contested liability for
$393,247.30 in fuel taxes paid by the Tribe between June 7, 2009, and March 31,
2012. The Tribe sought both declaratory judgments and an injunction in the
following six counts of its complaint: first, a declaratory judgment that the Tribe is
exempt from the fuel tax because the tax, levied on fuel expended on tribal lands,
violates the Indian Commerce Clause, U.S. Const. Art. I, § 8, cl. 3; second, a
declaratory judgment that the Tribe is exempt from the fuel tax because the tax,
levied on fuel used to provide essential government services, violates the Indian
Commerce Clause and the Indian sovereignty doctrine; third, a declaratory
judgment that the Tribe is entitled to a refund under the Equal Protection Clause,
U.S. Const. Amend. XIV, § 1, because Florida exempts fuel used in vehicles
operated by municipal or county governments from the tax, but not fuel used in
vehicles operated by the Tribe that perform essential government services; fourth,
a declaratory judgment that the Tribe is entitled to a refund under the Equal
Protection Clause because Florida exempts other groups that do not use state
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roadways, but does not exempt the Tribe even though it uses fuel on its roadways
on tribal lands; fifth, a declaratory judgment that the Tribe is entitled to a refund
under the Equal Protection Clause because Florida uses the tax revenues for the
construction and maintenance of roadways, and the Tribe constructs and maintains
its own roadways on its tribal lands; sixth, an injunction barring the Department
from refusing to refund the taxes paid for fuel that the Tribe used on its land to
perform essential government services.
The district court dismissed the complaint for lack of subject-matter
jurisdiction. The district court ruled that the decisions in Rooker v. Fidelity Trust
Co., 263 U.S. 413, 44 S. Ct. 149 (1923), and District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462, 103 S. Ct. 1303 (1983), barred the Tribe from
relitigating its earlier complaint filed in Florida court. The district court also ruled,
in the alternative, that the Tax Injunction Act, 28 U.S.C. § 1341, barred the
complaint. The district court did not address whether sovereign immunity or res
judicata barred the complaint even though the Department and its Director raised
those defenses too.
II. STANDARD OF REVIEW
We review the dismissal of a complaint de novo. Federated Mut. Ins. Co. v.
McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003).
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III. DISCUSSION
The Tribe challenges both grounds upon which the district court dismissed
its complaint, but we need not decide those issues if we affirm the dismissal on the
alternative ground that sovereign immunity bars the complaint. The Tribe argues
that its federal complaint did not seek to overturn a previous state court judgment
because the previous state judgment involved taxes paid between 2004 and 2006
and the later federal complaint challenged taxes paid between 2009 and 2012. Cf.
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293, 125 S. Ct.
1517, 1527 (2005) (“If a federal plaintiff presents some independent claim, albeit
one that denies a legal conclusion that a state court has reached[,] . . . then there is
jurisdiction and state law determines whether the defendant prevails under
principles of preclusion.” (internal quotation marks omitted)). The Tribe also
argues that the Tax Injunction Act, 28 U.S.C. § 1341, did not bar its complaint
because another federal statute, 28 U.S.C. § 1362, as interpreted in Moe v.
Confederated Salish & Kootenai Tribes of the Flatheads Reservation, allows the
Tribe to challenge the state tax. 425 U.S. 463, 473–75, 96 S. Ct. 1634, 1641–42
(1976) (“Here the United States could have made the same attack on the State’s
assertion of taxing power as was in fact made by the Tribe.”). But we may affirm
the dismissal of a complaint on any ground supported by the record even if that
ground was not considered by the district court, Powers v. United States, 996 F.2d
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1121, 1123–24 (11th Cir. 1993), and state sovereign immunity is a threshold issue
that we must decide before requiring a state department and its officers to answer a
complaint against them. See Bouchard Transp. Co. v. Fla. Dep’t of Envtl. Prot., 91
F.3d 1445, 1448–49 (11th Cir. 1996).
Although the Eleventh Amendment “is neither a source of nor a limitation
on states’ sovereign immunity from suit,” the Amendment recognizes that states
ordinarily enjoy sovereign immunity from suits in federal court. Stroud v.
McIntosh, 722 F.3d 1294, 1298 (11th Cir. 2013). By its terms, the Amendment
provides that “[t]he Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” The third Congress swiftly proposed and the states then ratified the
Amendment after the Supreme Court decided, in Chisholm v. Georgia, that a
citizen of South Carolina could sue the State of Georgia in a federal court. 2 U.S.
(2 Dall.) 419, 420, 479 (1793), superseded by constitutional amendment, U.S.
Const. Amend. XI. Chisholm “created such a shock of surprise throughout the
country that, at the first meeting of congress thereafter, the eleventh amendment to
the constitution was almost unanimously proposed” to override the decision. Hans
v. Louisiana, 134 U.S. 1, 11, 10 S. Ct. 504, 505 (1890).
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We understand the Eleventh Amendment in the light of this history and “not
so much for what it says, but for the presupposition which it confirms.” Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S. Ct. 1114, 1122 (1996) (internal
quotation mark and alteration omitted). That presupposition is two-fold: each state
is a separate sovereign, and each state, as a sovereign, cannot be haled into a
federal court without its consent. Id. Any contrary understanding of state sovereign
immunity “is an attempt to strain the constitution and the law to a construction
never imagined or dreamed of.” Hans, 134 U.S. at 15, 10 S. Ct. at 507.
In its complaint, the Tribe seeks declaratory judgments that it is exempt from
the fuel tax under the Indian Commerce Clause, the Indian sovereignty doctrine,
and the Equal Protection Clause and an injunction that would bar the Department
and its Director from refusing to issue refunds of fuel taxes the Tribe has paid, but
the sovereign immunity of Florida bars this complaint. Although Congress has the
exclusive authority to regulate the internal affairs of Indian tribes, state sovereign
immunity “is not so ephemeral as to dissipate when the subject of the suit is an
area . . . under the exclusive control of the Federal Government.” Seminole Tribe,
517 U.S. at 72, 116 S. Ct. at 1131. The sovereign immunity of Florida extends to
both the Department and its Director. We discuss the immunity of each defendant
in turn.
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An Indian tribe can sue a state and its departments in federal court only if
Congress has validly abrogated the immunity of the state or if the state has waived
its immunity, but neither of those conditions has occurred here. Congress has not
abrogated the sovereign immunity of Florida from suits by Indian tribes for money
damages or for injunctive or declaratory relief. See Idaho v. Coeur d’Alene Tribe of
Idaho, 521 U.S. 261, 269, 117 S. Ct. 2028, 2034 (1997) (ruling that sovereign
immunity of Idaho barred suit for injunctive and declaratory relief); Seminole
Tribe, 517 U.S. at 72, 116 S. Ct. at 1131 (ruling that the Indian Commerce Clause
did not empower Congress to abrogate the sovereign immunity of Florida);
Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 788, 111 S. Ct. 2578, 2585–86
(1991) (holding that a federal statute, 28 U.S.C. § 1362, providing federal
jurisdiction for suits by Indian tribes, did not abrogate state sovereign immunity for
suits for money damages). And Florida has not waived its sovereign immunity
from this federal suit. Without a valid abrogation by Congress, Florida, “an
unconsenting State,” is immune from suit “regardless of the nature of the relief
sought.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct.
900, 908 (1984) (internal quotation mark omitted).
The Tribe also cannot circumvent the sovereign immunity of Florida by
suing the Director of the Department based on the decision in Ex parte Young, 209
U.S. 123, 28 S. Ct. 441 (1908). To be sure, a federal court has jurisdiction to
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entertain suits against individual officers of a state “who threaten and are about to
commence proceedings, either of a civil or criminal nature, to enforce . . . an
unconstitutional act, violating the Federal Constitution.” Id. at 155–56, 28 S. Ct. at
452; see also Va. Office for Prot. & Advocacy v. Stewart, ___ U.S. ___, 131 S. Ct.
1632, 1638 (2011) (“[W]hen a federal court commands a state official to do
nothing more than refrain from violating federal law, he is not the State for
sovereign-immunity purposes.”). But the Tribe cannot wiggle into this exception
through creative pleading. See Coeur d’ Alene, 521 U.S. at 270, 117 S. Ct. at 2034
(“The real interests served by the Eleventh Amendment are not to be sacrificed to
elementary mechanics of captions and pleading.”). When the Tribe names an
individual officer as a defendant in its complaint, we must ask whether the suit is
“in essence one for the recovery of money from the state.” Ford Motor Co. v.
Dep’t of Treasury of Ind., 323 U.S. 459, 464, 65 S. Ct. 347, 350 (1945), overruled
in part, Lapides v. Bd. of Regents, 535 U.S. 613, 622–23, 122 S. Ct. 1640, 1645–46
(2002) (holding that a state might waive its sovereign immunity when it removes a
case to federal court and overruling Ford Motor Co. only insofar as it is
inconsistent with the waiver rule in Lapides). If it is, then “the state is the real,
substantial party in interest and is entitled to invoke its sovereign immunity from
suit even though individual officers are nominal defendants.” Id.
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The Department, not the Director, is the “real, substantial party in interest”
in this suit. Id. In Ford Motor Company, the Supreme Court explained that a suit
for a tax refund that named individual officers as defendants was in fact a suit
against the state and barred by sovereign immunity. Id. at 463, 65 S. Ct. at 350.
Indiana law required a taxpayer to initiate an action against the “department” for
taxes illegally exacted, and any judgment obtained from that action would be
satisfied by “funds in the state treasury.” Id. (internal quotation marks omitted)
(quoting Ind. Stat. Ann. § 64-2614(b) (1943)). The Supreme Court ruled that the
Indiana statute “clearly provide[d] for a[n] action against the state, as opposed to
one against the collecting official individually,” and the federal suit “therefore
constitute[d] an action against the state, not against the collecting official as an
individual.” Id. In the same manner that Ford joined the members of the Indiana
Department of the Treasury in Ford Motor Company, the Tribe has joined the
Director of the Department as a “representative[] of the state, not as [an]
individual[] against whom a personal judgment is sought.” Id. at 463–64, 65 S. Ct.
at 350. Its “claim is for a ‘refund,’ not for the imposition of personal liability on
individual defendants for sums illegally exacted.” Id. at 464, 65 S. Ct. at 350.
Moreover, the relief that the Tribe seeks is equitable in name only. This suit
is not to enjoin an individual officer from committing a violation of federal law; it
is instead a suit for monetary relief to be financed by the Florida fisc. See Va.
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Office for Prot. & Advocacy, 131 S. Ct. at 1639 (“Ex parte Young cannot be used
to obtain an injunction requiring the payment of funds from the State’s treasury.”).
A declaratory ruling that the Tribe is exempt from the tax would amount to a
judgment that the Tribe is entitled to a refund under Florida law. See Fla. Stat.
§ 206.41(4), (5). The tax is precollected from suppliers of fuel, so every consumer
must pay the tax at the pump, and any exempt consumer may then collect a refund
after-the-fact. Id. § 206.41(5). And a judgment “[e]njoining the Department and its
Executive Director’s continued and prospective refusal to refund the Fuel Tax,” as
the Tribe demands in its complaint, would amount to a money judgment against
Florida. The Tribe seeks a refund paid by the State, not from the director’s pocket.
See Edelman v. Jordan, 415 U.S. 651, 668, 94 S. Ct. 1347, 1358 (1974). We
cannot declare the Tribe exempt from the fuel tax, nor can we enjoin the
Department and its individual officer to pay the Tribe a refund. Granting either
form of relief would be tantamount to a judgment that Florida must pay the Tribe
cash from state coffers. State sovereign immunity forecloses that relief.
We reject our dissenting colleague’s contention that sovereign immunity
does not bar a declaratory judgment exempting the Tribe from the tax, which he
argues is somehow different from a declaratory judgment and an injunction
requiring a refund of the tax. Either form of relief is equivalent to “a retroactive
award which requires the payment of funds from the state treasury.” Edelman, 415
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U.S. at 677, 94 S. Ct. at 1362. As the Tribe alleges in its complaint, the Florida
statute “provides exemptions from the Fuel Tax,” and “[a]ny consumer who pre-
pays the Fuel Tax at the pump and then uses the fuel for an exempt purpose is
entitled to a refund of the Fuel Tax.” The right to an exemption is the right to a
refund under Florida law, and sovereign immunity bars that relief because it is
compensatory in nature and because Florida is the real, substantial party in interest.
Our dissenting colleague argues that the relief the Tribe seeks is prospective,
but he fails to explain how that relief is anything other than an award of damages
even if it could conceivably be described as prospective in nature. The doctrine of
sovereign immunity requires us to ask more than whether relief is “prospective” or
“retrospective.” “Prospective” relief will not overcome the sovereign immunity of
a state when that relief is an award of money damages camouflaged as an
injunction or a declaratory judgment. The Tribe labels the relief it seeks as a
declaratory judgment, but that label does not end our inquiry. In Edelman, the
Supreme Court rejected the argument that Ex parte Young allows “any form of
relief[,] . . . no matter how closely it may in practice resemble a money judgment
payable out of the state treasury, so long as the relief may be labeled ‘equitable’ in
nature.” 415 U.S. at 666–67, 94 S. Ct. at 1357; see also Papasan v. Allain, 478
U.S. 265, 279, 106 S. Ct. 2932, 2941 (1986) (“[W]e look to the substance rather
than to the form of the relief sought.”). When, as in this appeal, prospective relief
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is the “functional equivalent of money damages,” Ex parte Young does not apply.
Summit Med. Assoc., P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999); see also
Va. Office for Prot. & Advocacy, 131 S. Ct. at 1643 (Kennedy, J., concurring)
(highlighting that the Supreme Court in Edelman “applied the [Ex parte Young]
exception to an affirmative prospective order but not to equitable restitution, for
the latter was too similar to an award of damages against the State”). A declaratory
judgment exempting the Tribe from the tax is the functional equivalent of ordering
recurring payments of money damages. The Tribe points to no other way around
the alleged constitutional violation other than a recurring refund paid to the Tribe
from the Department after it precollects the tax from the fuel suppliers.
The injunctive relief sought in the decisions upon which the dissent relies is
materially different from the compensatory relief the Tribe seeks here. When a
Tribe challenges the assessment of a tax by a tax collector, the Tribe might sue to
enjoin the tax collector from collecting the illegally assessed tax. That suit asks
only that the tax collector not come upon the Tribe’s land to collect the tax, and
everyone’s money stays in everyone’s pockets. In that suit, “no award of any
money need be made from the state treasury. Instead, money which state officials
would otherwise collect from the [plaintiffs], in violation of federal law, will be
protected from collection.” CSX Transp. Inc. v. Bd. of Pub. Works of W. Va., 138
F.3d 537, 542 (4th Cir. 1998); see id. (“The Railroads have not lost any money: the
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money allegedly illegally assessed is still safely in their pockets.”). But in this suit,
the Tribe will already have paid a fuel supplier, who is not a party to this suit, for
the taxes that the supplier paid to the Department. The declaratory judgment that
the Tribe seeks would demand that the tax collector award the Tribe money from
state coffers equaling the amount of fuel taxes that the Department would already
have collected from the supplier. Whether the tribe labels the relief it seeks as an
“exemption” or a “refund,” that relief is compensatory and is not allowed under Ex
parte Young. See Papasan, 478 U.S. at 280–81, 106 S. Ct. at 2942 (“We discern no
substantive difference between not-yet-extinguished liability for a past breach of
trust and the continuing obligation to meet trust responsibilities asserted by the
petitioners. In both cases, the trustee is required, because of the past loss of the
trust corpus, to use its own resources to take the place of the corpus or the lost
income from the corpus.”); Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426
(1985) (“But compensatory or deterrence interests are insufficient to overcome the
dictates of the Eleventh Amendment.”).
To be sure, some prospective relief against individual officers allowed by Ex
parte Young may cost states money, but we must ask whether the expenditure of
state funds is a necessary result of compliance with an injunction or a declaratory
judgment or whether the expenditure is instead the “goal in itself.” Lucky v. Harris,
860 F.2d 1012, 1014–15 (11th Cir. 1988); see also Edelman, 415 U.S. at 667–68,
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94 S. Ct. at 1358 (permitting prospective injunctive relief with “an ancillary effect
on the state treasury” (emphasis added)). In Milliken v. Bradley, for example, the
Supreme Court ruled that a federal court could require a state to institute school
programs to eliminate the vestiges of racial segregation even though the
establishment of those programs would cost the state money. 433 U.S. 267, 289–
90, 97 S. Ct. 2749, 2762 (1977). But the Supreme Court distinguished the relief
allowed in Milliken from relief involving “individual citizens’ conducting a raid on
the state treasury for an accrued monetary liability.” Id. at 290 n.22, 97 S. Ct. at
2762 n.22. Here, the expenditure of state funds is the goal in itself. A raid on the
state treasury is precisely what is at stake in this appeal because an exemption from
the tax entitles the taxpayer to a refund of the tax. The only relief the Tribe has
requested is a declaratory judgment entitling it to a check made out from the
Florida fisc whether today or in the future.
Our dissenting colleague also faults us for crafting a “precollection
exception” to Ex parte Young, but we have not created such an exception. We have
instead considered the structure of the Florida tax scheme to determine whether the
real, substantial party in interest is the individual officer or the State. Our
dissenting colleague cites no authority for his contention that states cannot legislate
their way around Ex parte Young, and Ford Motor Company stands for the
opposite proposition. See Ford Motor Co., 323 U.S. at 463, 65 S. Ct. at 350 (“This
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section [of the Indiana statute] clearly provides for a[n] action against the state, as
opposed to one against the collecting official individually.”). For the reasons stated
above, Florida is the real, substantial party in interest to this suit because of the
manner in which Florida has structured the collection of its fuel tax. The Tribe has
never challenged the precollection of the fuel tax; instead, the Tribe has always
contended that it should be exempt from the tax and, therefore, entitled to a refund
of taxes already paid or taxes to be paid in the future. Such a suit will always be “in
essence one for the recovery of money from the state” and is necessarily a suit
against the State. Id. at 463–64, 65 S. Ct. at 350. And the authorities both our
dissenting colleague and the Tribe rely upon do not convince us otherwise; none of
those decisions involved a precollected tax that the state would have to refund. In
Agua Caliente Band of Cahuilla Indians v. Hardin, for example, a tribe sought a
declaratory judgment that federal law preempted a sales and use tax imposed on
tribal lands and an injunction against state officers from collecting the tax before
the tribe paid it. 223 F.3d 1041, 1043–44 (9th Cir. 2000); see also Muscogee
(Creek) Nation v. Pruitt, 669 F.3d 1159, 1162–68 (10th Cir. 2012) (involving a
challenge to a tobacco tax that required placement of tax stamps on tobacco
products and payment of funds into state escrow fund); Sac & Fox Nation of
Missouri v. Pierce, 213 F.3d 566, 569–70 (10th Cir. 2000) (involving a declaratory
judgment that federal law preempted the state tax on fuel distributed to retail
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stations on tribal lands and an injunction barring the collection of the tax); CSX
Transp. Inc., 138 F.3d at 542 (“The district court further erred in holding that the
injunction was retrospective because it sought a refund or credit . . . [t]he Railroads
seek nothing of the kind.”). Unlike the tax regimes in those appeals, the only relief
available to the Tribe under Florida law is a refund of taxes it will already have
paid, and state sovereign immunity bars that relief. See Ford Motor Co., 323 U.S.
at 463–64, 65 S. Ct. at 350.
We must also address our dissenting colleague’s speculation about the
different methods Florida could employ to stop precollecting the tax from the
Tribe, which we reject for three reasons. First, we are not free to rewrite the
Florida statutes so that the Tribe may circumvent the sovereign immunity of
Florida and sue its individual officers. See Seminole Tribe, 517 U.S. at 75–76, 116
S. Ct. at 1133. Any future change to the collection of fuel taxes in Florida is a
matter of public policy to be debated by the Florida legislature, perhaps at the
urging of the Tribe, but not a matter of law to be decided by a federal court in a
lawsuit filed by the Tribe. Second, our dissenting colleague’s hypothetical tax-free
fuel rate, coupons, or vouchers are overly broad and impractical. The Tribe alleges
that only a portion of the fuel it purchases is exempt from the tax, not all of it.
Perhaps the dissent envisions that the fuel supplier would make two separate sales
to the Tribe, one sale of taxed fuel and one sale of tax-exempt fuel used for
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essential government services. His speculation unrealistically assumes that either
the Tribe or the fuel supplier would be able to project the amount of tax-exempt
fuel the Tribe would use down to a one-hundredth of a gallon. That unrealistic
assumption illuminates why a federal court is wholly unsuited to instruct a state
legislature about how best to collect fuel taxes. Third and most importantly, the
Tribe never asked for such an unworkable form of relief.
Finally, our dissenting colleague frets that the Tribe cannot access a federal
court to vindicate its alleged constitutional claim, but he fails to consider that the
Tribe has the opportunity to seek review from the Supreme Court of the United
States should the Tribe challenge the tax in state court as it has done before.
Compare McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, Dep’t of
Bus. Regulation of Fla., 496 U.S. 18, 27, 110 S. Ct. 2238, 2245 (1990) (“We have
repeatedly and without question accepted jurisdiction to review issues of federal
law arising in suits brought against States in state court; indeed, we frequently have
entertained cases analogous to this one, where a taxpayer who had brought a
refund action in state court against the State asked us to reverse an adverse state
judicial decision premised upon federal law.” (footnote omitted)), with Reich v.
Collins, 513 U.S. 106, 109–10, 115 S. Ct. 547, 549 (1994) (“[T]he sovereign
immunity States enjoy in federal court, under the Eleventh Amendment, does
generally bar tax refund claims from being brought in that forum.”). We see no
20 Case: 13-10566 Date Filed: 05/05/2014 Page: 21 of 34
reason to stretch the bounds of Ex parte Young to allow the Tribe to sue the
Department and its individual officers in federal court when, after the passage of
the Tax Injunction Act, 28 U.S.C. § 1341, non-Indian taxpayers must challenge
taxes in state court.
When the Founders “split the atom of sovereignty,” U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 838, 115 S. Ct. 1842, 1872 (1995) (Kennedy, J.,
concurring), each state retained the right “not to be amenable to the suit of an
individual without its consent.” The Federalist No. 81, at 487–88 (C. Rossiter ed.
1961) (Hamilton). Florida has not consented to this suit, and we cannot adjudicate
whether Florida must grant the Tribe an exemption from the fuel tax or pay the
Tribe a refund from its fisc.
IV. CONCLUSION
We AFFIRM the dismissal of the complaint filed by the Seminole Tribe of
Florida.
21 Case: 13-10566 Date Filed: 05/05/2014 Page: 22 of 34
JORDAN, Circuit Judge, concurring in part and dissenting in part:
I join the majority’s opinion with respect to the dismissal of Counts III-VI,
which expressly seek injunctive relief in the form of refunds to the Tribe of
Florida’s already-collected fuel taxes, but respectfully dissent from the dismissal of
Counts I and II, which seek a declaratory judgment against Florida officials that
the future imposition of certain fuel taxes violates the Constitution.
I
“[S]overeign immunity . . . generally bar[s] tax refund claims from being
brought in [federal court].” Reich v. Collins, 513 U.S. 106, 110 (1994). Because
Counts III-VI of the Tribe’s complaint seek “the recovery of money from the
[S]tate” through refunds, I concur with the majority that “the [S]tate is the real,
substantial party in interest and is entitled to invoke its sovereign immunity from
suit even though individual officials are nominal defendants.” Ford Motor Co. v.
Dep’t of Treasury of Ind., 323 U.S. 459, 464 (1945) (holding that a taxpayer’s suit
against state treasury officials for “a refund of gross income taxes paid” was an
action against the state and barred by the Eleventh Amendment). See also DeKalb
Cnty. Sch. Dist. v. Schrenko, 109 F.3d 680, 691 (11th Cir. 1997) (“[I]t is obvious
that this is, in reality, a suit against the State itself. The only action the defendants
are required to take to comply with the district court’s injunction is to pay from the
state treasury the additional funds specified by the district court.”).
22 Case: 13-10566 Date Filed: 05/05/2014 Page: 23 of 34
I do not, however, agree that the Eleventh Amendment bars Counts I and II
as against the Department of Revenue’s interim executive director and deputy
executive director under Ex parte Young, 209 U.S. 123 (1908). Significantly,
Counts I and II do not ask for refunds, but rather seek only a declaration that fuel
purchased by the Tribe for use on tribal land or in the provision of essential
governmental services is exempt from the fuel tax under the Indian Commerce
Clause, U.S. Const. Art. I, § 8, cl. 3. Such relief, in my opinion, is permitted under
Ex parte Young, which generally allows suits for declaratory and prospective relief
against state officials in charge of administering or enforcing unconstitutional laws.
See Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011).1
A
Though it may be an “expedient ‘fiction,’” Ex parte Young is “necessary to
ensure the supremacy of federal law.” Cent. Va. Cmty. College v. Katz, 546 U.S.
356, 378 n.14 (2006) (citation omitted). Accordingly, “[i]n determining whether
the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court
need only conduct a ‘straightforward inquiry into whether [the] complaint alleges
an ongoing violation of federal law and seeks relief properly characterized as
1 The Florida officials who have been sued here are proper defendants under Ex parte Young, as they, “by virtue of [their] offices, ha[ve] some connection with the unconstitutional act or conduct complained of.” Luckey v. Harris, 860 F.2d 1012, 1015-16 (11th Cir. 1988) (internal quotation marks and citation omitted) (second alteration in original). They are, in the words of Women’s Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003), “responsible for” the enforcement of the fuel tax. 23 Case: 13-10566 Date Filed: 05/05/2014 Page: 24 of 34
prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645
(2002) (citation omitted and alteration in original).
Counts I and II satisfy this straightforward inquiry. They allege an ongoing
violation of federal law, i.e., that Florida’s fuel tax violates (and will continue to
violate) the Indian Commerce Clause as applied to fuel purchased by the Tribe for
use on tribal land or in the provision of essential governmental services. See
Complaint, D.E. 1 at ¶¶ 30, 37. And they seek, at least in part, a declaration that
fuel which has yet to be purchased or taxed is not subject to the tax when it is used
by the Tribe on tribal land or in the provision of essential governmental services.
See id. at ¶¶ 33, 38. Such “relief [is] properly characterized as prospective.”
Verizon Md., 535 U.S. at 645 (internal quotation marks omitted).
The majority relies heavily on Ford Motor Co., but that case is easily
distinguishable. First, the taxpayer there expressly sought a “refund of gross
income taxes paid.” 323 U.S. at 460. Second, the taxpayer sued under a state
statute which provided for an action against the state itself. See id. at 462-63.
Here, as noted earlier, Counts I and II seek only a declaratory judgment that the
future imposition and collection of Florida’s fuel tax would be unconstitutional,
and, in Counts I and II, the Tribe sued the interim executive director and deputy
executive director pursuant to Ex parte Young.
24 Case: 13-10566 Date Filed: 05/05/2014 Page: 25 of 34
As the Supreme Court and various circuits have recognized, the Eleventh
Amendment does not bar prospective challenges to allegedly unconstitutional state
taxes when such suits are “brought against state officers in their official capacity
and not against the State in its own name.” Blatchford v. Native Village of Noatak,
501 U.S. 775, 785 & n.3 (1991) (“Absent [the Tax Injunction Act], state taxes
could constitutionally be enjoined.”). See also Muscogee (Creek) Nation v. Pruitt,
669 F.3d 1159, 1168 (10th Cir. 2012) (holding that the Eleventh Amendment did
not bar claims for prospective declaratory and injunctive relief in a suit challenging
Oklahoma statutes that taxed and regulated the sale of cigarettes and other tobacco
products); Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1049
(9th Cir. 2000) (holding that the Eleventh Amendment did not bar an Indian tribe
from seeking a declaratory judgment precluding the imposition of California’s
sales and use tax on purchases of food and beverages by non-tribal members at a
tribal resort on reservation land); CSX Transp., Inc. v. Bd. of Pub. Works of the
State of W. Va., 138 F.3d 537, 541 (4th Cir. 1998) (“An injunction against the
future collection of illegal taxes, even those that already have been assessed, is
prospective, and therefore available under the Ex parte Young doctrine.”). The
only distinction here is that Florida precollects its fuel tax from suppliers for mere
“administrative convenience,” Fla. Stat. § 206.41(4)(a), but that is a distinction
without a difference, and the majority’s opinion therefore creates a circuit split.
25 Case: 13-10566 Date Filed: 05/05/2014 Page: 26 of 34
Florida’s choice to precollect the challenged fuel tax now and in the future
does not somehow transform the Tribe’s requested declaratory relief from
permissibly prospective to impermissibly retrospective. Retrospective relief is
backward-looking, and seeks to remedy harm “resulting from a past breach of a
legal duty on the part of the defendant state officials.” Edelman v. Jordan, 415
U.S. 651, 668 (1974) (emphasis added). To illustrate, the Supreme Court held in
Edelman that a judgment requiring the state to pay wrongfully withheld welfare
benefits amounted to a “retroactive award of monetary relief” because it
“require[d] payment of state funds, not as a necessary consequence of compliance
in the future with a substantive federal-question determination, but as a form of
compensation to those whose applications were [incorrectly] processed” before the
plaintiffs had filed suit. Id. By contrast, the alleged harm here does not arise from
the past breach of a legal duty; it results from the future and continuing imposition
of an allegedly unconstitutional tax on fuel that has yet to be purchased or taxed.
See, e.g., CSX Transp., 138 F.3d at 542 (rejecting argument “that an injunction
against the future collection of illegal taxes is retrospective and unavailable merely
because the state has already decided how much tax to collect, even though the
money is still safely in the taxpayer’s pocket”).
26 Case: 13-10566 Date Filed: 05/05/2014 Page: 27 of 34
B
Were the Tribe to prevail in its constitutional challenge—a matter on which
I do not express any views—the district court would issue a declaratory judgment
that the fuel tax could not be applied to future purchases of fuel by the Tribe for
use on tribal land and in the provision of essential governmental services. The
majority believes that such a judgment would be tantamount to an order requiring
Florida to issue refunds. But it is difficult to understand, linguistically or
otherwise, how asking to stop something that is going to continue indefinitely into
the future can be legally characterized as a retrospective demand for payment of
money already in the State’s treasury. There are obviously fuel taxes that Florida
has not yet precollected, not even from suppliers, and for such unassessed future
taxes (say, for example, taxes that will be precollected in May of 2015, a year from
now) any declaratory relief necessarily has to be prospective. How can a taxpayer
possibly seek or get a refund—defined as a “sum repaid,” 2 Shorter Oxford
English Dictionary 2510 (5th ed. 2002), or “[t]he return of money to a person who
overpaid,” Black’s Law Dictionary 1394 (9th ed. 2009)—for a tax that has not yet
been paid by anyone?
Likewise, it is impossible to characterize a judgment which declares the
future imposition and collection of taxes unconstitutional as an award of damages.
“Traditional money damages are payable to compensate for the harm of past
27 Case: 13-10566 Date Filed: 05/05/2014 Page: 28 of 34
conduct, which subsists whether future harm is threatened or not.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 211 n.5 (2000)
(Scalia, J., dissenting) (emphasis added). See also F.T.C. v. Leshin, 719 F.3d 1227,
1232 (11th Cir. 2013) (“The most common combination of equitable and legal
remedies, for instance, is a district court’s grant of both an injunction that prevents
future harm along with an award of damages that compensates for past harm.”).
The Florida officials sued here could choose to abide by any adverse
declaratory judgment by providing any form of relief that would cure the
unconstitutional application of the fuel tax. Cf. McKesson Corp. v. Div. of
Alcoholic Beverages & Tobacco, 496 U.S. 18, 51 (1990) (“When a State penalizes
taxpayers for failure to remit their taxes in a timely fashion, thus requiring them to
pay first before obtaining review of the tax’s validity, federal due process
principles long recognized by our cases require the State’s postdeprivation
procedure to provide a ‘clear and certain remedy[ ]’ for the deprivation of tax
moneys in an unconstitutional manner.”) (citation omitted). For example, the
Florida officials could comply with a declaratory judgment by eliminating or
modifying, in whole or in part, the procedure for the precollection of fuel taxes
with respect to future purchases of fuel by the Tribe; they could require gas
stations to charge members of the Tribe a different, tax-exempt price on fuel
purchased for use on tribal lands or in the provision of essential governmental
28 Case: 13-10566 Date Filed: 05/05/2014 Page: 29 of 34
services; or they could issue coupons or vouchers—which could later be
reconciled—entitling the Tribe to a discount of the purchase price.
If the Florida officials refused to abide by a declaratory judgment and
continued enforcing (and collecting) the fuel tax from the Tribe in an
unconstitutional manner, the district court could enforce its judgment through
contempt proceedings, as happened in Ex parte Young itself, see 209 U.S. at 159-
60 (upholding lower court’s order of contempt, which committed a state attorney
general to federal custody for violating a federal injunction barring enforcement of
state law held to be unconstitutional), or through financial penalties, as explained
in Hutto v. Finney, 437 U.S. 678, 690 (1978) (“In exercising their prospective
powers under Ex parte Young and Edelman . . . , federal courts are not reduced to
issuing injunctions against state officers and hoping for compliance. Once issued,
an injunction may be enforced. Many of the court’s most effective enforcement
weapons include financial penalties.”) (citations omitted).
Should the State decide not to change its precollection scheme as to future
taxes and wish to avoid contempt proceedings or the imposition of financial
penalties, then it is likely that the Florida officials would have to issue refunds to
the Tribe in order to comply with any declaratory judgment exempting the Tribe
from the fuel tax in the future. But in that scenario the issuance of refunds would
be the result of a choice made by Florida, see Quern v. Jordan, 440 U.S. 332, 347
29 Case: 13-10566 Date Filed: 05/05/2014 Page: 30 of 34
(1979), and the existence of an Eleventh Amendment bar does not depend on the
mere difficulty (or expense) of compliance with a prospective federal decree. See
Milliken v. Bradley, 433 U.S. 267, 289 (1977) (“[Ex parte Young] permits federal
courts to enjoin state officials to conform their conduct to requirements of federal
law, notwithstanding a direct and substantial impact on the state treasury.”). 2
C
The majority’s opinion, as I read it, apparently would allow a state to shield
the enforcement of any tax, no matter how constitutionally untenable, from
challenge in federal court simply by enacting a precollection procedure. But there
is no “precollection exception” to Ex parte Young, and the supremacy of federal
law does not rest on the type of tax scheme that Florida has designed. States
cannot legislate their way around Ex parte Young, and in other contexts the
Supreme Court has made clear that the supremacy of federal law is not dependent
on the ingenuity of obstacles created by state law. See Haywood v. Drown, 556
U.S. 729, 739 (2009) (“A [state] jurisdictional rule cannot be used as a device to
2 I note, as well, that the Supreme Court has not hesitated to enforce a lower court’s mandamus order requiring county auditors and county treasurers, who were employed by the state, to levy a tax to pay a federal judgment even though those officials were not permitted to impose such a tax under state law. See Graham v. Folson, 200 U.S. 248, 254-55 (1906) (rejecting argument that the mandamus relief was effectively relief against the state itself). If forcing such officials to impose a tax prohibited by state law is not constitutionally problematic, requiring Florida officials to exempt the Tribe from the fuel tax in the future isn’t either. See also Milliken, 433 U.S. at 289 (affirming a district court order requiring the state to pay half of a court-ordered desegregation plan even though the Ex parte Young defendants were only state enforcement officials). 30 Case: 13-10566 Date Filed: 05/05/2014 Page: 31 of 34
undermine federal law, no matter how evenhanded it may appear.”); Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000) (“We will find
preemption . . . where ‘under the circumstances of [a] particular case, [the
challenged state law] stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.’”) (quoting Hines v. Davidowitz, 312
U.S. 52, 67 (1941)) (second and third alterations in original).
“Remedies designed to end a continuing violation of federal law are
necessary to vindicate the federal interest in assuring the supremacy of that law.”
Green v. Mansour, 474 U.S. 64, 68 (1985). The Tribe’s requested declaratory
relief in Counts I and II fulfills this function because it seeks to “ensure that the
state [fuel] tax be applied [in the future] by [Florida] officials in a manner
consistent with federal law.” Agua Caliente, 223 F.3d at 1049. As a result, I do
not believe that Counts I and II are barred by the Eleventh Amendment.
II
Because the majority affirms across the board on Eleventh Amendment
grounds, it does not reach the Tribe’s arguments that the district court erred in
dismissing the complaint under the Tax Injunction Act (TIA), 28 U.S.C. § 1341,
and the Rooker-Feldman doctrine, based on Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
31 Case: 13-10566 Date Filed: 05/05/2014 Page: 32 of 34
(1983). Because I would allow Counts I and II to proceed under Ex parte Young, I
write to briefly explain why neither of these other jurisdictional barriers applies.
Although the TIA generally prohibits federal courts from “enjoin[ing],
suspend[ing] or restrain[ing] the . . . collection of any tax under State law,” 28
U.S.C. § 1341, it does not apply to Indian tribes “seeking to enjoin the enforcement
of a state tax law” in a suit brought under 28 U.S.C. § 1362. See Moe v.
Confederated Salish & Kootenai Tribes, 425 U.S. 463, 474-75 (1976). See also
Blatchford, 501 U.S. at 785 (explaining that “Moe held § 1362 to eliminate [the
TIA’s] application to tribal suits”). The district court’s contrary conclusion, based
on its determination that “the applicability of the TIA in this case hinges on the
locus of the fuel tax,” D.E. 27 at 9, in my view conflates the merits of the Tribe’s
claims with the jurisdictional inquiry demanded by the intersection of the TIA and
§ 1362. Whether (or not) the TIA applies does not depend on whether the Tribe
will succeed on its claims. I would therefore reverse the district court’s dismissal
of the Tribe’s claims under the TIA.
I would also set aside the district court’s dismissal of the Tribe’s claims
under the Rooker-Feldman doctrine. “The Rooker-Feldman doctrine is . . .
confined to . . . cases brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court proceedings commenced
and inviting district court review and rejection of those judgments.” Exxon Mobil
32 Case: 13-10566 Date Filed: 05/05/2014 Page: 33 of 34
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). See also Brown v.
R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1330 (11th Cir. 2010) (“The doctrine
bars the losing party in state court ‘from seeking what in substance would be
appellate review of the state judgment in a United States district court, based on the
losing party’s claim that the state judgment itself violates the loser’s federal
rights.’”) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)). It “does
not otherwise override or supplant preclusion doctrine.” Exxon Mobil, 544 U.S. at
284. See also Bates v. Harvey, 518 F.3d 1233, 1240 (11th Cir. 2008) (“The
Rooker-Feldman doctrine is distinct from issue preclusion. . . .”).
The district court dismissed the Tribe’s claims because the Fourth District,
in Florida Department of Revenue v. Seminole Tribe of Florida, 65 So. 3d 1094
(Fla. 4th DCA 2011) (“Seminole Tribe I”), had “addressed precisely the same
issues contained in the claims in the instant suit.” D.E. 27 at 6. In so ruling, the
district court “expanded Rooker-Feldman’s jurisdictional bar to include federal
actions that simply raise claims previously litigated in state court.” Exxon Mobil,
544 U.S. at 287 n.2. See also id. at 293 (Rooker-Feldman does not “stop a district
court from exercising subject-matter jurisdiction simply because a party attempts
to litigate in federal court a matter previously litigated in state court”).
33 Case: 13-10566 Date Filed: 05/05/2014 Page: 34 of 34
III
In our constitutional scheme, sovereign immunity “works only because of
the exceptions to it,” and the “most important of these” is “the suit against an
officer” under Ex parte Young. John T. Noonan, Narrowing the Nation’s Power:
The Supreme Court Sides with the States 85 (2002). The Eleventh Amendment, in
my mind, does not bar Counts I and II of the Tribe’s complaint under Ex parte
Young. I would therefore set aside the dismissal of these Counts, and remand for
the district court to determine whether the Fourth District’s judgment in Seminole
Tribe I is entitled to preclusive effect under Florida law, and/or whether Counts I
and II should be dismissed for failure to state a claim. See Appellees’ Br. at 17-22,
33-39.