Kadva Patidar 42 Gam Samaj v. County of Riverside, a municipal corporation

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KADVA PATIDAR 42 GAM SAMAJ,
Plaintiff-Appellant,
v.
COUNTY OF RIVERSIDE, a municipal
corporation,
Defendant-Appellee.
No. 17-56771
D.C. No.
5:17-cv-00902-PSG-SP
Central District of California,
Riverside
ORDER
Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,* Judge.
The memorandum filed on April 24, 2019, is withdrawn and replaced with
the memorandum filed concurrently with this order.
With this new memorandum, the petition for panel rehearing is DENIED.
The full court has been advised of the petition for rehearing en banc and no
judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35. The petition for rehearing en banc is DENIED. No further petitions for
rehearing will be entertained.
* The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
FILED
JUL 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KADVA PATIDAR 42 GAM SAMAJ,
Plaintiff-Appellant,
v.
COUNTY OF RIVERSIDE, a municipal
corporation,
Defendant-Appellee.
No. 17-56771
D.C. No.
5:17-cv-00902-PSG-SP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted April 8, 2019**
Pasadena, California
Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,*** Judge.
Kadva Patidar 42 Gam Samaj (“Samaj”) appeals the district court’s order
granting the County of Riverside’s motion to dismiss with prejudice. We review
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
FILED
JUL 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
de novo a district court’s dismissal for lack of subject matter jurisdiction. Jerron
West, Inc. v. Cal. State Bd. of Equalization, 129 F.3d 1334, 1337 (9th Cir. 1997).
We review “for abuse of discretion the district court’s denial of leave to amend.”
AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012).
The Tax Injunction Act (“TIA”) precludes federal district court jurisdiction
where, as here, a taxpayer seeks to enjoin state or local tax collection and that
taxpayer has a “plain, speedy and efficient remedy” in state court.1 28 U.S.C.
§ 1341. The TIA’s prohibition on federal court jurisdiction includes cases where
the state or local tax is alleged to violate the federal constitution. See Jerron West,
Inc., 129 F.3d at 1336–37. California’s administrative and judicial process for
resolving tax claims meets the “plain, speedy and efficient remedy” requirement of
the TIA, even though California requires taxpayers to pay first and then challenge
the tax. California v. Grace Brethren Church, 457 U.S. 393, 416–17 (1982).
Samaj’s alleged “inability to pay the tax does not avoid the jurisdictional bar” of
the TIA. Wood v. Sargeant, 694 F.2d 1159, 1160 (9th Cir. 1982). Further, the
principle of comity has long prevented federal courts from rendering declaratory
judgments or injunctions, or hearing a damages action brought under section 1983,
to redress an allegedly unconstitutional state tax system. See Fair Assessment in
1 Samaj’s argument that the tax was a penalty or fee instead of a tax was not raised
before the district court and was therefore waived. See Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999).

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3
Real Estate Ass’n v. McNary, 454 U.S. 100, 107 (1980).
Samaj contends that by stripping the district court of its ability to entertain
First Amendment challenges to state taxes, the TIA amounts to a law prohibiting
the free exercise of religion. We disagree. “Congress may withhold from any
court of its creation jurisdiction of any of the enumerated controversies,” for
“[c]ourts created by statute can have no jurisdiction but such as the statute
confers.” Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850); see also Lockerty v.
Phillips, 319 U.S. 182, 187 (1943).2 The Constitution does not obligate Congress
to create a district court, much less vest it with jurisdiction to hear Samaj’s claim.
Although a more difficult question would be presented if Samaj were altogether
precluded from suing to enjoin an allegedly unconstitutional tax, that is not the
case here. The TIA only withdraws federal jurisdiction where the party has a
“plain, speedy, and efficient remedy” under state law. Because we conclude the
remedy under California law is adequate, Samaj may bring its claim in state court
and ultimately to the Supreme Court.
Samaj claims that a tax assessed by Riverside County violated its First
Amendment and Fourteenth Amendment rights under section 1983. This is
precisely the type of case that “Congress wrote the [TIA] to address” because
2 Moreover, implicit in the Supreme Court’s pronouncement that the TIA prohibits
First Amendment challenges to state taxes is a recognition that the TIA is
constitutional. See Grace Brethren Church, 457 U.S. at 416–18.

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4
Samaj seeks a federal-court order enabling it to avoid paying local taxes. Hibbs v.
Winn, 542 U.S. 88, 107 (2004). The district court correctly held that it did not
have subject matter jurisdiction.
Because a dismissal for lack of subject matter jurisdiction does not go to the
merits of the case, it is without prejudice. Wages v. IRS, 915 F.2d 1230, 1234 (9th
Cir. 1990). Although the district court did not specify whether dismissal was with
or without prejudice, we construe it to be without prejudice. Further, because the
district court correctly held that it lacked subject matter jurisdiction, it did not
abuse its discretion by denying Samaj leave to amend the complaint as any
amendment would have been futile. See Bonin v. Calderon, 59 F.3d 815, 845 (9th
Cir. 1995).
AFFIRMED.

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