Sherman Pegross v. Oakland County Treasurer, et al

Filing

OPINION filed : we VACATE the entry of summary judgment and order the cause DISMISSED for lack of subject matter jurisdiction; not for publication. Deborah L. Cook, Circuit Judge; Richard Allen Griffin, Circuit Judge and Walter H. Rice, Authoring, U.S. District Judge for the Southern District of Ohio, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0866n.06
Case No. 13-2453
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
SHERMAN PEGROSS, aka Rosenblum and
Frankel Investment Company,
Plaintiff-Appellant,
v.
OAKLAND COUNTY TREASURER;
ANDREW MEISNER; OAKLAND,
COUNTY OF,
Defendants-Appellees.

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Nov 18, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

BEFORE: COOK and GRIFFIN, Circuit Judges; RICE, District Judge*
RICE, District Judge.

Attempting to prevent the Oakland County Treasurer from

collecting tax revenue by auctioning off foreclosed properties that he did not own instead of
accepting redemption payments from him, Sherman Pegross filed suit in federal court. He
sought an injunction to prevent the sale of the properties, a declaratory judgment stating that the
Oakland County Treasurer’s refusal to accept his payments violated his constitutional rights, and
compensatory and punitive damages based on alleged violations of 42 U.S.C. § 1983. However,
where adequate state remedies exist, the Tax Injunction Act (“TIA”), 28 U.S.C. § 1341, and
*

The Honorable Walter H. Rice, United States District Judge for the Southern District of
Ohio, sitting by designation.

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principles of comity deprive federal courts of jurisdiction to provide the remedies that Pegross
sought. Federal question jurisdiction requires that a federal court “must look to see whether the
alleged claim actually ‘arises under’ the Constitution or federal statutes and is not made solely
for the purpose of obtaining jurisdiction,” regardless of the labels that a plaintiff applies to his
claims. Bush v. State Indus., Inc., 599 F.2d 780, 784 (6th Cir. 1979). Pegross’ mere citations to
42 U.S.C. § 1983 or the Fourteenth Amendment could not create federal court jurisdiction, as the
claims he alleged were barred by principles of comity and the TIA. See, e.g., Schneider Transp.,
Inc. v. Cattanach, 657 F.2d 128, 131 (7th Cir. 1981) (“It is well settled that allegations of
deprivations of constitutional rights do not render the [TIA] inapplicable.”); Mandel v.
Hutchinson, 494 F.2d 364, 366 (9th Cir. 1974) (holding that “[t]he jurisdictional bar of” the TIA
could not be overcome by mounting a constitutional challenge to the state’s tax collection
scheme brought under § 1983). Because it lacked jurisdiction over Pegross’ claims, the district
court should have dismissed them from the outset. Accordingly, we VACATE the order of the
district court and REMAND the case to the district court with instructions to DISMISS for lack
of jurisdiction.
I.
On July 12, 2012, Sherman Pegross d/b/a Rosenblum & Frankel Investment Co.
(“Pegross”) filed a complaint and a motion for a preliminary injunction in the United States
District Court for the Eastern District of Michigan against Andrew Meisner, the treasurer of
Oakland County, Michigan (“County Treasurer”), alleging violations under 42 U.S.C. § 1983 of
his Fourteenth Amendment equal protection and due process rights. (R. 1 & 2.) Pegross alleged
that he had “negotiated private deals” with the owners of four properties that were facing
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foreclosure and sale at auction to satisfy delinquent tax obligations. (R. 1 at 3.) Then, allegedly
as “the designated agent acting on behalf of owners and/or with the owners’ full authorization,”
Pegross entered into redemption agreements with the County Treasurer, whereby he would pay a
portion of the delinquent taxes in exchange for the postponement of the foreclosure sales and the
implementation of payment plans to satisfy the tax obligations.

(Id. at 12.)

The County

Treasurer eventually determined that Pegross had no ownership interest in the properties, refused
to accept any more payments from him, and scheduled the properties for auction. (Id. at 2, 4-7.)
Pegross claimed that, by refusing to accept payments from him, the County Treasurer rescinded
the agreements in violation of his due process and equal protection rights. (Id. at 9-13.)
Pegross amended the complaint on July 18, 2012, naming as additional defendants the
Oakland County Treasurer’s Office and Oakland County (collectively, with the County
Treasurer, the “County Defendants”). (R. 4.) He also added state law claims for breach of
contract, promissory estoppel, negligent and intentional infliction of emotional distress, and a
violation of Mich. Comp. Laws § 440.2209, a provision of the state’s Uniform Commercial
Code. (Id. at 13-15.) Pegross sought a declaratory judgment stating that his rights under the
U.S. Constitution and Michigan law had been violated, injunctive relief preventing the sale of
any of the properties, and compensatory and punitive damages. (Id. at 15.)
On July 19, 2012, Pegross moved the district court for a temporary restraining order,
seeking an injunction preventing the sale of two of the properties that the County Treasurer had
scheduled for August 2012. (R. 8.) The district court denied injunctive relief on August 3, 2012.
(R. 13). According to the district court, Pegross had not demonstrated a strong likelihood of
success on the merits because there was no evidence that he had any interest in the properties,
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and, even if he did, the district court held that the Tax Injunction Act (“TIA”), 28 U.S.C. § 1341,
barred his claims because there was an adequate remedy in state court for the alleged injuries.
(Id. at 2-3.) The district court also held that Pegross failed to demonstrate irreparable harm
because the TIA precluded his constitutional claims, which were the only source of nonmonetary injury alleged that might amount to irreparable harm. (Id. at 3-4.)
Pegross moved the district court for reconsideration of its decision on August 9, 2012.
(R. 15.) The next day, Pegross filed a motion for an emergency hearing, clearly panicked by
looming tax foreclosure sales that had been scheduled for August 20 and 21. (R. 16.) Pegross
then sought a writ of mandamus and a stay of the tax foreclosure proceedings from this court,
which denied both requests on August 17, 2012. (R. 19.)
Litigation continued in the district court. On March 27, 2013, the County Defendants
filed a motion to compel after Pegross failed to respond to their discovery requests. (R. 24.)
After a hearing, the motion was granted on May 1, 2013, and Pegross was ordered to provide
responses to interrogatories, documents, and supplemental answers to his initial disclosures. (R.
28.)
On May 17, 2013, Pegross moved for voluntary dismissal without prejudice under Fed.
R. Civ. P. 41, stating “I am currently overwhelmed by this case and I can no longer defend
myself against the [w]ealthy Oakland County attorneys in my current capacity.” (R. 29.) The
County Defendants opposed the motion, responding that they would be prejudiced by a dismissal
without prejudice because of the effort they had expended to defend the case. (R. 30.) Citing the
prejudice that dismissal would cause and Pegross’ failure “to diligently prosecute this matter, as

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demonstrated by his failure to cooperate in discovery,” the district court denied the motion on
July 3, 2013. (R. 32.)
The County Defendants moved the district court for summary judgment on July 31, 2013.
(R. 34.) They submitted dozens of exhibits to support their contention that Pegross owned no
legally recognized interest in the properties in question, and that he or his agents had
misrepresented themselves to induce the County Treasurer to enter into the redemption
agreements.
The County Defendants made a barrage of arguments in support of summary judgment.
First, the Oakland County Treasurer’s Office was merely a department of the county, and was
therefore not a legal entity subject to suit. (Id. at 21.) Second, the County Treasurer was entitled
to summary judgment on Pegross’ § 1983 claims because there were no facts that showed, or
even alleged, that he acted outside the scope of his authority to encourage or participate in
unconstitutional behavior, as required to attach supervisor liability. (Id. at 22-25.) Third, the
County Treasurer was entitled to qualified immunity because Pegross failed to allege that he had
taken any action outside the scope of his authority in an unconstitutional manner. (Id. at 25.)
Fourth, Michigan law provided the County Treasurer with absolute immunity from Pegross’ state
law tort claims. (Id. at 26.)
The County Defendants also addressed Pegross’ federal and state claims against Oakland
County with a number of arguments. (Id. at 26-29.) First, Pegross’ failure to state what policy
or custom caused his alleged constitutional violations was fatal to his § 1983 claim because
municipality liability hinges on the existence of a policy or custom that causes a constitutional
violation. (Id.) Second, the county was immune from liability under Michigan’s Governmental
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Immunity Act, Mich. Comp. Laws § 691.1407(1), which grants absolute immunity from tort
liability to a governmental agency “engaged in the exercise or discharge of a governmental
function.” (Id. at 29-30.) Third, Pegross’ claim invoking Michigan’s Uniform Commercial
Code could not apply to the alleged rescission of the payment agreements because the statute
only applied to the sale of goods. (Id. at 30.)
Finally, the County Defendants argued that res judicata and the Tax Injunction Act barred
Pegross’ claims. (Id. at 31-34.) Res judicata applied because Pegross’ purported interest in the
properties had been litigated in state court. (Id. at 32-33.) Furthermore, the TIA prevented
Pegross from challenging the County Treasurer’s authority to assess and collect taxes under state
law, which provided adequate remedies to aggrieved taxpayers. (Id. at 33-34.) In the view of
the County Defendants, Pegross’ misrepresentation amounted to fraud and a justifiable reason to
void any contracts he had entered into, which entitled them to judgment as a matter of law on his
breach of contract/promissory estoppel claim. (Id. at 34-35.)
Pegross responded on August 26, 2013. (R. 36). He argued that the County Treasurer
was “using his power as a high ranking member of the Oakland County Government to
discriminate against Plaintiff based solely on his race and criminal background,” and that the
County Treasurer had allowed other property owners to redeem their property while “deny[ing]
Plaintiff the same courtesy.” (Id. at 3.) He also claimed that the County Treasurer had breached
the payment agreements based on his race and criminal background, in violation of his due
process and equal protection rights. (Id. at 4.) Pegross asserted that he had had a right to notice
and a hearing before the County Treasurer rescinded the contracts, and argued that the County
Defendants did not have proper evidence to support their accusations of misrepresentation. (Id.
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at 5.) According to Pegross, the County Treasurer had the burden to “ensure” that Pegross’
representations were accurate before accepting his payments. (Id.)
The district court granted the motion for summary judgment on October 11, 2013. (R.
38.) The court first held that the Oakland County Treasurer’s Office was not a legal entity
subject to suit. (Id. at 3.) The court granted summary judgment on the federal claims against the
County Treasurer, finding that “the record is devoid of facts that [he] condoned unconstitutional
conduct” against Pegross. (Id. at 4-5.) The district court also rejected the contention that the
County Treasurer had discriminated against Pegross because of his race or criminal background,
as the argument had only been raised in response to summary judgment and no evidence in the
record supported the assertion. (Id. at 4 n. 2.) The County Treasurer was also granted absolute
immunity on Pegross’ state law tort claims under Mich. Comp. Laws § 691.1407(5). (Id. at 5.)
The court further stated that, apart from statutory immunity, the County Defendants were entitled
to summary judgment on the breach of contract claim because Pegross had presented no
evidence that he had any interest in the properties, which supported the argument that the
contracts were voidable. (Id. at 5-6.) Finally, the court agreed that Oakland County was entitled
to summary judgment on Pegross’ federal and state claims, because Pegross had not identified
any policy or custom that had caused a constitutional violation, and Mich. Comp. Laws
§ 691.1407(1) provided immunity to the county from the state claims. (Id. at 6-7.)
Pegross filed a timely notice of appeal on October 23, 2013. (R. 40.) On appeal, Pegross
made the same arguments that he had made to the district court when responding to Defendants’
Motion for Summary Judgment. (Doc. #24.) In Appellees’ Brief, the County Defendants noted
that Pegross failed to cite any legal authority to support his claims or identify any evidence to
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support his allegations, and argued that the district court correctly granted summary judgment in
their favor for the reasons set forth in its decision. (Id. at 18-24.)
After reviewing the parties’ briefs, we requested additional briefing by the parties to
address whether, in light of the Tax Injunction Act, 28 U.S.C. § 1341, the district court had
jurisdiction over Pegross’ claims. Both parties replied by filing letter briefs on August 25, 2014.
In Pegross’ letter brief, he argued that the TIA did not divest the district court of
jurisdiction over his case. According to Pegross, federal courts have “interpreted and applied the
TIA only to those cases where the state taxpayer sought federal-court orders enabling them to
avoid paying state taxes,” and the statute would therefore “be applied over-broadly” if held to bar
his claims. (Doc. #35 at 1-2.) Pegross distinguished his claims from challenges to tax collection
barred by the TIA on the grounds that he was “not only not challenging the levy of the taxes nor
requesting the suspension or restraining of taxes; but in fact, he [was] in favor of the levy and
collection of the taxes in relation to these properties, and wishe[d] only to pay them.” (Id. at 3.)
In their letter brief, the County Defendants argued that Pegross’ claims were barred by
the TIA because Michigan law provided him with the “plain, speedy and efficient remedy” the
act requires. (Doc. 36.) They pointed out that Pegross was given the opportunity to litigate his
claims in state court, but that he failed to pursue them in a timely manner, thereby waiving his
right to object to the tax foreclosure proceedings. (Id. at 2.) They also argued that Pegross failed
to even allege that the state remedies were inadequate when he claimed that the foreclosure was
unconstitutional. (Id.)

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II.
Under the TIA, “[t]he district courts shall not enjoin, suspend or restrain the assessment,
levy or collection of any tax under State law where a plain, speedy and efficient remedy may be
had in the courts of such State.” 28 U.S.C. § 1341. The TIA creates a jurisdictional barrier to
the federal courts for claims of declaratory or injunctive relief brought by a party aggrieved by a
state’s administration of its taxing authority. Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 522
(1981) (stating that the TIA “was first and foremost a vehicle to limit drastically federal district
court jurisdiction to interfere with so important a local concern as the collection of taxes”);
California v. Grace Brethren Church, 457 U.S. 393, 396, 408 (1982) (holding that the TIA
“deprived the District Court of jurisdiction to hear” a First Amendment challenge to state and
federal taxation regimes, and extending TIA’s prohibition on injunctive relief to declaratory
judgments); Colonial Pipeline Co. v. Morgan, 474 F.3d 211, 218 (6th Cir. 2007) (quoting Grace
Brethren and stating that “a district court does not have jurisdiction over state and local tax
matters where a ‘plain, speedy and efficient remedy’ is available in state court”). Here, the
Oakland County Treasurer was going to sell the properties to collect unpaid property taxes, and
Pegross requested an injunction from the district court to halt their sale. Any such injunction
would have operated to “enjoin, restrain or suspend” the County Treasurer’s collection of the
unpaid property taxes, raising the specter of the TIA’s jurisdictional bar. The same was true of
Pegross’ request for a declaratory judgment that declared the County Treasurer’s actions illegal,
as the TIA “prohibits declaratory as well as injunctive relief.” Grace Brethren Church, 457 U.S.
at 411.

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Nor did Pegross’ invocation of 42 U.S.C. § 1983 provide any basis for the district court
to hear his claims. The doctrine of comity, which is “more embracive than the TIA,” forbids
suits for damages under 42 U.S.C. § 1983 brought to remedy allegedly unconstitutional state tax
assessment or collection. Levin v. Commerce Energy, Inc., 560 U.S. 413, 424 (2010) (citing Fair
Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100 (1981)). In Fair Assessment, the
Supreme Court held that:
taxpayers are barred by the principle of comity from asserting § 1983 actions
against the validity of state tax systems in federal courts. Such taxpayers must
seek protection of their federal rights by state remedies, provided of course that
those remedies are plain, adequate, and complete, and may ultimately seek review
of the state decisions in this Court.
454 U.S. at 116.
There is “no significant difference . . . between remedies which are ‘plain, adequate, and
complete,’” such as would be barred by principles of comity, “and those which are ‘plain, speedy
and efficient,’ within the meaning of [the TIA].” Id. at n.8. “In both cases the standard
‘require[s] a state court remedy that meets certain minimal procedural criteria.’” Chippewa
Trading Co. v. Cox, 365 F.3d 538, 542 (6th Cir. 2004) (quoting Rosewell, 450 U.S. at 512)
(alteration and emphasis in original). A remedy need only “provide[] the taxpayer with a ‘full
hearing and judicial determination’ at which she may raise any and all constitutional objections
to the tax.” See Rosewell, 450 U.S. at 514. Thus, the ability of the district court to hear Pegross’
claims depended upon the lack of an adequate remedy in the state courts. Here, however,
Michigan state courts provided such remedies.
For example, under Michigan law, any owner or holder of a legal interest in a property on
which delinquent taxes are owed is entitled to notice of foreclosure.
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Mich. Comp. Law

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§ 211.78f. The notice must contain a “statement of the person’s rights of redemption” and state
the deadline for initiating the redemption process. Id. § 211.78f(h). Although Pegross’ claims
all involved actions of the County Treasurer that occurred after the initiation of the redemption
process, Michigan law allowed the state court to extend the redemption period for equitable
reasons. Id. § 211.78k(4). Pegross also filed several quiet title actions, thereby availing himself
of existing state remedies that might have established his legal interest in the properties he
sought to redeem.1
The Seventh Circuit upheld the dismissal of a similar case in Wright v. Pappas, 256 F.3d
635 (7th Cir. 2001). In Wright, the Seventh Circuit held that the TIA and principles of comity
barred a plaintiff from bringing a § 1983 claim against a county treasurer based on allegations of
race discrimination. Id. at 637-38. The plaintiff purchased a number of tax liens on foreclosed
properties at auction, then came to believe that the county treasurer had misrepresented their
value because of the plaintiff’s race. Id. at 636. The plaintiff filed suit under § 1983 and
demanded a refund as relief. Id. The Seventh Circuit upheld the district court’s decision to
dismiss the lawsuit because the TIA deprived the federal court of jurisdiction to “enjoin, suspend
or restrain the assessment, levy or collection” of state taxes. See id. at 636-38. Of particular

1

In an unpublished opinion, we held that the TIA barred a claim under 42 U.S.C. § 1983 by a
Michigan resident whose failure to record a property deed with his name on it prevented him
from receiving a notice of foreclosure from the county treasurer. Johnson v. Michigan Dep’t.
Treasury, 211 F.3d 1269, 2000 WL 571916, (6th Cir. 2000) (unpublished table decision). The
plaintiff “had a remedy under state law in the form of redemption, of which he failed to take
advantage. He could also have sought relief in the state courts, but did not.” Id. at *2. The fact
that Pegross attempted to find relief in the state courts, through multiple actions to quiet title and
emergency appeals to the state appellate court, but did not prevail, does not make his claims
more worthy of a federal court hearing than those in Johnson. Neither case challenges the
adequacy of Michigan’s remedies for aggrieved taxpayers.
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relevance to Pegross’ appeal is the Seventh Circuit’s observation that a lien sale qualifies as
“collection” under the TIA:
A lien sale is a mode of tax collection; and so an action to enjoin it, or declare it
illegal, or rescind it, or perhaps even just obtain damages on the ground of its
illegality, would be barred by the [TIA] or, in the case of the damages suit, by the
free-standing principle of comity.
Id. at 637. The property sales that Pegross sought to prevent served the same purpose: the
collection of taxes. See Mich. Comp. Law § 211.78a(1) (stating that “all property returned for
delinquent taxes . . . is subject to forfeiture, foreclosure, and sale for the enforcement and
collection of the delinquent taxes”). An injunction would have interfered with the County
Treasurer’s ability to collect the delinquent taxes owed on the properties, but, as in Wright, is
impermissible under the TIA and principles of comity.
The district court did recognize that Pegross’ claims were “barred by the Tax Injunction
Act” when it overruled his motion for preliminary injunction and motion for a temporary
restraining order, but only for the purpose of determining that Pegross was unlikely to prevail on
the merits of his claims. (R. 13 at 2.) A more searching jurisdictional inquiry should have
followed. See, e.g., Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d
459, 465 (6th Cir. 2009) (“[F]ederal courts have a duty to consider their subject matter
jurisdiction in regard to every case and may raise the issue sua sponte.”). Instead, Pegross and
the County Defendants continued to litigate the case for another year, during which time he
ignored discovery requests until his intransigence forced them to file a motion to compel.
Meanwhile, quiet title actions were heard in state court, and the properties were sold at auction.
Those state proceedings were Pegross’ real opportunity to obtain an adequate remedy for his
claims, not the lawsuit he filed in district court.
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Pegross’ assertion that barring his claims under the TIA would be an overbroad
application of the statute because courts have “interpreted and applied the TIA only to those
cases where the state taxpayer sought federal-court orders enabling them to avoid paying state
taxes” is without merit.

Courts broadly construe the statutory language describing “the

assessment, levy or collection of any tax under State law” to include actions beyond those filed
by recalcitrant taxpayers. See Wright v. McClain, 835 F.2d 143, 144 (6th Cir. 1987) (stating that
the TIA “afford[s] states the broadest independence, consistent with the federal constitution, in
the administration of their affairs, particularly revenue raising”). The Seventh Circuit’s decision
in Wright v. Pappas, 256 F.3d 635 (7th Cir. 2001), discussed previously, demonstrates this, as
the court there held that a foreclosure sale by a county treasurer fell within the definition of tax
“collection” under the TIA. Furthermore, Pegross has not argued, much less demonstrated, that
he was deprived of the opportunity to obtain a “plain, speedy and efficient remedy” in Michigan
state court, a prerequisite to overcoming the jurisdictional bar of the TIA. Fair Assessment,
454 U.S. at 116. His attempts to obtain relief in that forum may have been fruitless, but that fact
does not reflect on the adequacy of the remedy that Michigan law provides to its taxpayers.
III.
Because the Tax Injunction Act, 28 U.S.C. § 1341, and principles of comity barred
Pegross’ claims from federal court, we vacate the entry of summary judgment and order the
cause dismissed for lack of subject matter jurisdiction.

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