Rocafort, et al v. Mendez-Torres, et al

Filing 920100222

Opinion

var gAgent = navigator.userAgent.toLowerCase()
var gWindows = ( (gAgent.indexOf( "win" ) != -1 ) || ( gAgent.indexOf( "16bit" ) != -1 ) )
var gIE = ( gAgent.indexOf( "msie" ) != -1 )
var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )
var floatwnd = 0

var WPFootnote1 = ' Of the Tenth Circuit, sitting by designation.\
'

var WPFootnote2 = ' Though both Plaintiff Rocafort and Plaintiff-Appellant PSP\
sued in federal court and later in the Commonwealth courts, for\
simplicity’s sake we refer only to PSP.\
'

var WPFootnote3 = ' PSP also suggested at oral argument that it lacked a plain,\
speedy, and efficient remedy in the Commonwealth Courts because\
such an action is time barred. First, we note we have no way of\
knowing if the Commonwealth courts have determined PSP’s suit is\
time barred because the parties’ addendum does not indicate any\
Commonwealth court has ruled on the issue yet. Second, because PSP\
raised this argument for the first time at oral argument, we refuse\
to consider it. See Nieves-Vega v. Ortiz-Quiñones, 443 F.3d 134,\
138 (1st Cir. 2006); Surprenant v. Rivas, 424 F.3d 5, 16 (1st Cir.\
2005).\
'

var WPFootnote4 = ' At oral argument, Plaintiff stated that PSP would have to\
pay the imposed tax in order to request injunctive or declaratory\
relief in the Commonwealth courts. Defendant’s counsel took\
contradictory positions on the matter. The addendum submitted by\
the parties does not clarify this confusion, nor does it establish\
whether PSP has already paid the tax or posted a bond as part of\
the litigation in the Commonwealth courts. Although, seemingly if\
PSP had paid the tax prior to filing suit in the Commonwealth\
courts, Defendant would have released the shipment, and PSP would\
not have requested the Commonwealth court to order Defendant to\
release the shipment but would have instead requested a tax refund. \
Since PSP did request the release of the shipment in the suit\
before the Commonwealth trial court, PSP, in theory, has not yet\
been made to pay the tax. But for reasons discussed herein the\
answer to those questions does not affect our plain, speedy, and\
efficient remedy analysis in this case. We, therefore, take PSP’s\
claim in its briefs and at oral argument that it must first pay the\
tax to challenge it in the Commonwealth courts as true.\
'

var WPFootnote5 = ' From what we can discover, 13 L.P.R.A. § 261 has only been\
altered once since 1954. In 2003, “Superior Court” was changed to\
“Court of First Instance.” See P.R. Laws Ann. tit. 13 § 261\
(LexisNexis 2006). Otherwise, the text of the statute has remained\
the same.\
'

var WPFootnote6 = ' We note, however, some sister circuits have indicated that\
while generally a state refund procedure constitutes a plain,\
speedy, and efficient remedy, requiring a taxpayer to pay an\
exorbitant or effectively punitive tax in order to challenge it may\
present “such a heavy burden that to decline [federal] equitable\
relief would be to deny judicial review altogether.” H.W. Denton\
v. City of Carrollton, Georgia, 235 F.2d 481, 485 (5th Cir. 1956);\
see also Capitol Indus.-EMI, Inc. v. Bennett, 681 F.2d 1107, 1114\
n. 20 (9th Cir. 1982)(explaining that a state refund action may not\
constitute an adequate remedy in special circumstances, such as\
when a taxpayer is unable to pay a proposed assessment); Sterling\
Shoe Co. v. Norberg, 411 F. Supp. 128, 131 (D.R.I. 1976) (noting\
that “it is settled law that prepayment as a prerequisite to\
judicial review does not prevent application of” the TIA, but that\
“[t]here is a qualification, however, where there is a factual\
showing . . . that prepayment in order to secure judicial review\
‘poses such a heavy burden that to deny equitable relief is to deny\
judicial review entirely’” (quoting Denton, 235 F.2d at 485)). PSP\
has never contended it is unable to pay the “six dollars and\
fifteen cents” excise tax allegedly imposed by Puerto Rico upon its\
shipment of little cigars. As a result, we have no reason to\
believe that special circumstances of the nature other circuits\
have discussed exist here to justify jurisdiction.\
'

function WPShow( WPid, WPtext )
{
if( bInlineFloats )
eval( "document.all." + WPid + ".style.visibility = 'visible'" );
else
{
if( floatwnd == 0 || floatwnd.closed )
floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" );
floatwnd.document.open( "text/html", "replace" );
floatwnd.document.write( "\r\n" );
floatwnd.document.write( " p { margin-top:0px; margin-bottom:1px; } \r\n" );
floatwnd.document.write( "\r\n" );
floatwnd.document.write( WPtext );
floatwnd.document.write( 'Close');
floatwnd.document.write( "