Levin v. Commerce Energy, Inc.
560 U.S. ___ (2010)

Annotate this Case

THOMAS, J., CONCURRING IN JUDGMENT
LEVIN V. COMMERCE ENERGY, INC.
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 09-223

RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO, PETITIONER v. COMMERCE ENERGY, INC., et al.

on writ of certiorari to the united states court of appeals for the sixth circuit

[June 1, 2010]

   Justice Thomas, with whom Justice Scalia joins, concurring in the judgment.

   Although I, too, remain skeptical of the Court’s decision in Hibbs v. Winn, 542 U. S. 88 (2004), see ante, at 1 (Kennedy, J., concurring), I agree that it is not necessary for us to revisit that decision to hold that this case belongs in state court. As the Court rightly concludes, Hibbs permits not just the application of comity principles to the litigation here, but also application of the Tax Injunction Act (TIA or Act), 28 U. S. C. §1341. See ante, at 17. I concur only in the judgment because where, as here, the same analysis supports both jurisdictional and nonjurisdictional grounds for dismissal (the TIA imposes a jurisdictional bar, see, e.g., Hibbs, supra, at 104), the “proper course” under our precedents is to dismiss for lack of jurisdiction. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U. S. 422, 435 (2007).

   Congress enacted the TIA’s prohibition on federal jurisdiction over certain cases involving state tax issues because federal courts had proved unable to exercise jurisdiction over such cases in the restrained manner that comity requires. See ante, at 7. As the Court explains, Congress’ decision to prohibit federal jurisdiction over cases within the Act’s scope did not disturb that jurisdiction, or the comity principles that guide its exercise, in cases outside the Act’s purview. See ante, at 78; 1217. I therefore agree with the Court that nothing in the Act or in Hibbs affects the application of comity principles to cases not covered by the Act. I disagree that this conclusion moots the need for us to decide “whether the TIA would itself block th[is] suit.” Ante, at 16.

   The Court posits that because comity is available as a ground for dismissal even where the Act is not, the Act’s application to this case is irrelevant if comity would also support sending the case to state court. See ante, at 1617. The Court rests this analysis on our recent holding in Sinochem that a court may dismiss a case on a nonmerits ground such as comity without first resolving an accompanying jurisdictional issue. See ante, at 1617 (citing 549 U. S., at 425). The Court’s reliance on Sinochem is misplaced, however, because it confuses the fact that a court may do that with whether, and when, it should. As Sinochem itself explains, courts should not dismiss cases on nonjurisdictional grounds where “jurisdiction … ‘involve[s] no arduous inquiry’ ” and deciding it would not substantially undermine “judicial economy.” 549 U. S., at 436 (quoting Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 587588 (1999)). In such circumstances, Sinochem reiterates the settled rule that “the proper course” is to dismiss for lack of jurisdiction. 549 U. S., at 436. That is the proper course here.

   The TIA prohibits federal courts from exercising jurisdiction over any action that would “suspend or restrain the assessment, levy or collection of [a] tax under State law.” §1341. As the Court appears to agree, see ante, at 17, n. 13, this is such a case even under the crabbed construction of the Act in Hibbs, which the Court accurately describes as holding only that the Act does “not preclude a federal challenge by a third party who object[s] to a tax credit received by others, but in no way object[s] to her own liability under any revenue-raising tax provision,” ante, at 1415 (emphasizing that the “plaintiffs in Hibbs were outsiders to the tax expenditure, ‘third parties’ whose own tax liability was not a relevant factor”). This is not such a case, because the respondents here are in no sense “outsiders” to the revenue-raising state-tax regime they ask the federal courts to restrain. Ibid.; see also Hibbs, supra, at 104. Respondents compete with entities who receive tax exemptions under that regime in providing services whose cost is affected by the exemptions. Respondents thus do object to their own liability in a very real and economically significant way: The liability the state tax regime imposes on them but not on their competitors makes it more difficult for respondents to match or beat their competitors’ prices. The fact that they raise this objection through the expedient of contesting their competitors’ exemptions is plainly not enough to qualify them as Hibbs-like “outsiders” to the state revenue-raising scheme they wish to enjoin. If it were, application of the Act’s jurisdictional bar would depend on little more than a pleading game. The Act would bar a federal suit challenging a state tax scheme that requires the challenger to pay more taxes than his competitor if the challenger styles the suit as an objection to his own tax liability, but would not bar the suit if he styles it as an objection to the competitor’s exemption.

   Because the Court appears to agree that even Hibbs does not endorse such a narrow view of the Act’s jurisdictional bar, see ante, at 1415, 17, n. 13, the “proper course” is to dismiss this suit under the statute and not reach the comity principles that the Court correctly holds independently support the same result, Sinochem, supra, at 436. Here, unlike in Sinochem, there is no economy to deciding the case on the nonjurisdictional ground: The same analysis that supports dismissal for comity reasons subjects this case to the Act’s jurisdictional prohibition, even as construed in Hibbs. Compare ante, at 5–17, with Sinochem, supra, at 435–436 (approving dismissal of a suit on forum non conveniens grounds because dismissal on personal jurisdiction grounds would have required the “expense and delay” of a minitrial on forum contacts). Given this, I see only one explanation for the Court’s decision to dismiss on a “prudential” ground (comity), ante, at 1617, rather than a mandatory one (jurisdiction): The Court wishes to leave the door open to doing in future cases what it did in Hibbs, namely, retain federal jurisdiction over constitutional claims that the Court simply does not believe Congress should have entrusted to state judges under the Act, see 542 U. S., at 113–128 (Kennedy, J., dissenting).

   That is not a legitimate approach to this important area of the law, see ibid., and the Court’s assertion that our civil rights precedents require it does not withstand scrutiny. If it is indeed true (which it may have been in the civil rights cases) that federal jurisdiction is necessary to ensure a fair forum in which to litigate an allegedly unconstitutional state tax scheme, the Act itself permits federal courts to retain jurisdiction on the ground that “a plain, speedy and efficient remedy” cannot be had in state court. §1341. But where, as here and in Hibbs, such a remedy can be had in state court, the Court should apply the Act as written. See 542 U. S., at 113–128 (Kennedy, J., dissenting).

   Because I believe the Act forbids the approach to federal jurisdiction over state tax issues that the Court adopted in Hibbs, I would not decide this case in a way that leaves the door open to it even if the Court could find a doorstop that accords with, rather than upends, the settled principle that judges presented with multiple nonmerits grounds for dismissal should dismiss on jurisdictional grounds first. But the tension the Court’s decision creates with this settled principle should be enough to convince even those who do not share my view of the TIA that the proper course here is to dismiss this case for lack of jurisdiction because Hibbs’ construction of the Act applies at most to the type of true third-party suit that Hibbs describes, and thus does not save this case from the statute’s jurisdictional bar.

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