Henderson v. Stalder, 03-30699.

Citation407 F.3d 351
Decision Date13 April 2005
Docket NumberNo. 03-30699.,03-30699.
PartiesRussell J. HENDERSON; et al., Plaintiffs, Doreen Keeler; Planned Parenthood of Louisiana, Inc., Plaintiffs-Appellees, v. Richard STALDER, etc.; et al., Defendants, Richard Stalder, Secretary, Department of Public Safety and Corrections; John Kennedy, State Treasurer, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Simon Lawrence Heller (argued), Center for Reproductive Law & Policy, New York City, William E. Rittenberg, Rittenberg & Samuel, New Orleans, LA, for Plaintiffs-Appellees.

Roy A. Mongrue, Jr., Asst. Atty. Gen. (argued), Baton Rouge, LA, for Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, JONES and PRADO, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This appeal concerns whether Louisiana's prestige license plate program facially discriminates against pro-choice views in contravention of the First Amendment. The program diverts excess charges over handling and ordinary registration fees for the plates to organizations endorsed by the legislature. Because of this feature of the program, we conclude that we lack jurisdiction over the case because of the Tax Injunction Act, 28 U.S.C. § 1341.

I. BACKGROUND
A. The First Appeal

This case is on appeal for the second time. The plaintiffs originally filed suit seeking to have LA.REV.STAT. ANN. § 47:463.61, which authorized the adoption of a "Choose Life" prestige license plate, declared unconstitutional. The district court found Louisiana's prestige license plate program created a forum for speech that was not viewpoint neutral, granted both declaratory and injunctive relief, and certified the case for interlocutory appellate review. See Henderson v. Stalder ("Henderson I"), 112 F.Supp.2d 589 (E.D.La.2000).

On appeal, this court, sua sponte, concluded that the plaintiffs lacked standing. See Henderson v. Stalder, 287 F.3d 374 (5th Cir.2002). See also, Women's Emergency Network v. Bush, 323 F.3d 937 (11th Cir.2003) (rejecting challenge to Florida "Choose Life" plate for lack of standing). The court thus "REVERSED, VACATED, and REMANDED" the case "for an entry of dismissal." Henderson, 287 F.3d at 382. On petition for rehearing, however, the court slightly amended its decision by issuing an order, which reads in part: "The petition for rehearing is DENIED. The case is remanded to the district court with instructions to dismiss the case for lack of standing unless the plaintiff Keeler amends her petition within a reasonable time to challenge the state's overall policy and practice of issuing specialty license plates." Henderson v. Stalder, 57 Fed. Appx. 213, 2003 WL 151183 (5th Cir. Jan.9, 2003) (unpublished order) (emphasis added). The district court vacated the previous judgment and allowed Keeler to amend her complaint.

B. Remand

The Third Amended Complaint named individuals Henderson, Keeler, Loewy, and LaMothe, and organizations (National Council of Jewish Women and Planned Parenthood of Louisiana) as plaintiffs, and each attempted to establish standing. See Henderson v. Stalder ("Henderson II"), 265 F.Supp.2d 699, 707 (E.D.La.2003). Importantly, the Third Amended Complaint "raise[d] a First Amendment facial challenge to the entire overall policy and practice under which Louisiana makes available certain specially designed license plates for the expression of certain views by Louisiana vehicle owners." Id. The Third Amended Complaint also raised new Establishment Clause claims.

The defendants moved to dismiss on several grounds, and the plaintiffs responded with a motion for partial summary judgment contesting the constitutionality of the license plate program.

The district court first determined that the Fifth Circuit's mandate did not prevent each of the plaintiffs from attempting to reassert standing. See id. at 708-09. Nevertheless, the district court dismissed all the plaintiffs, save Keeler and PPL, for lack of standing based on the reasoning the Fifth Circuit provided. See id. at 709-10.1 As to Keeler, the court concluded that she sufficiently amended her complaint to present a viable facial challenge to the overall program. The district court also concluded that the amendments to Keeler's complaint cured the redressability problems that were fatal to PPL's funding claim. Furthermore, the district court dispatched the defendants' argument that the Tax Injunction Act barred the challenge. See id. at 720 n. 12.

On the merits of Keeler's First Amendment claim, the court again accepted Keeler's argument that the license plate program created a "forum" that permitted only some groups to express their chosen viewpoint. Relying on the Fourth Circuit's decision in Sons of Confederate Veterans, Inc. v. Commissioner, Virginia Dept. of Motor Vehicles ("SCV"), 288 F.3d 610 (4th Cir.2002), reh'g en banc denied, 305 F.3d 241 (4th Cir.2002), the district court held that Louisiana's prestige license plate program effectuated unconstitutional viewpoint discrimination and enjoined its enforcement.2 The court refused to stay the enforcement of its ruling. This appeal ensued.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo, applying the same standards as did the district court. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.1995) (en banc).

III. DISCUSSION

The defendants raise three principal arguments on appeal: (1) the district court exceeded the scope of its mandate by allowing PPL to amend its claim; (2) the Tax Injunction Act bars the suit in its entirety; and (3) the prestige license plate program does not violate the First Amendment. For reasons that will be obvious, we do not reach the merits of the case.

A. PPL's Standing

The defendants rightly contend that the district court exceeded the scope of this court's mandate by permitting PPL to seek to file a complaint on remand. "[T]he mandate rule compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court." United States v. Lee, 358 F.3d 315, 321 (5th Cir.2004) (citing United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)).

The district court failed to abide by this rule. "Where, as here, further proceedings in the district court are specified in the mandate of the Court of Appeals, the district court is limited to holding such as are directed." Crowe v. Smith, 261 F.3d 558, 562 (5th Cir.2001) (citations and quotations omitted). This court's order permitting Keeler to amend her complaint must be read in light of the original decision in which the case was remanded only for "entry of dismissal." Henderson, 287 F.3d at 382. This court narrowly altered that ruling on rehearing to permit Keeler to add a facial challenge to the entire program — a claim that was absent from her original complaint. This narrow amendment to the Henderson ruling was not an invitation for Keeler to add new claims or rationales for PPL's standing. The appellate court might have explored other avenues by which PPL could establish standing, and might have included remand instructions to that end, but we did neither. Judicial economy considerations — the district court's justification for its decision — are insufficient to overcome the appellate court's express ruling. PPL is therefore dismissed from the suit.

B. Tax Injunction Act

The defendants next contend that the Tax Injunction Act ("TIA") bars Keeler's First Amendment challenge to the prestige license plate program. The TIA prohibits a federal court from "enjoining, suspending or restraining 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. Keeler's goal in this suit, and the remedy ordered by the district court, in fact enjoined the state's collection of revenue for its entire specialty license plate program. Nevertheless, the TIA would not deprive federal courts of jurisdiction if (a) the "fees" charged by the state are not taxes for purposes of TIA, or if (b) Hibbs v. Winn, 542 U.S. 88, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) can be read to encompass this suit. Although reasonable minds can differ on both questions, we are persuaded that the additional amounts that the state collects for specialty plates — above handling and ordinary vehicle registration fees — are indeed taxes rather than regulatory fees. Further Hibbs's interpretation of the TIA does not contemplate or authorize a suit whose object is to diminish the flow of state revenues. The TIA deprives the federal courts of jurisdiction over Keeler's claim.

A review of the program's operation will illuminate further discussion. Under Louisiana Law, the Secretary of the Department of Public Safety and Corrections ("Secretary" and "DPS") is charged with the task of issuing license plates for private passenger vehicles. See LA.REV.STAT. ANN. § 47:463(A)(3)(a). This legislation also permits the Secretary to issue "special prestige license plates" if the Legislature so authorizes and certain administrative requirements are satisfied. Id. A few rudimentary administrative requirements apply to all prestige plates.3

Other varying preconditions are included in the specific legislation authorizing the individual prestige license plates. For instance, there are monetary differences. More than half of the specialty plates are distributed in exchange for additional charges above the handling charge, and in many cases, like that of the "Choose Life" plates, the charges so collected are distributed to organizations as determined by the legislature. See Henderson I, 112 F.Supp.2d at 592 (explaining that proceeds from "Choose Life" plates will be distributed to organizations that counsel women to place their children up for adoption). When such an additional charge is required, however, the amount varies from statut...

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1 books & journal articles
  • The First Amendment and specialty license plates: the "Choose Life" controversy.
    • United States
    • Missouri Law Review Vol. 73 No. 4, September 2008
    • 22 September 2008
    ...128 S. Ct. 884 (2008); ACLU of Tenn. v. Bredesen, 441 F.3d 370 (6th Cir. 2006), cert. denied, 548 U.S. 906 (2006); Henderson v. Stalder, 407 F.3d 351 (5th Cir. 2005), cert. denied sub nom. Keeler v. Stalder, 548 U.S. 904 (2006); Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786 (4th Ci......

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