Jefferson Cty., Alabama v Acker

Citation527 U.S. 423,119 S.Ct. 2069,144 L.Ed.2d 408
Decision Date21 June 1999
Docket Number9810
PartiesSUPREME COURT OF THE UNITED STATES 119 S.Ct. 2069JEFFERSON COUNTY, ALABAMA, PETITIONER v. WILLIAM M. ACKER, Jr., SENIOR JUDGE, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ALABAMA, and U. W. CLEMON, JUDGE, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ALABAMA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [
CourtUnited States Supreme Court

WILLIAM M. ACKER, Jr., SENIOR JUDGE, UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF

ALABAMA, and U. W. CLEMON, JUDGE, UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF
ALABAMA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[June 21, 1999]

Justice Ginsburg delivered the opinion of the Court.*

Jefferson County, Alabama, imposes an occupational tax on persons working within the county who are not otherwise required to pay a license fee under state law. The controversy before us stems from proceedings the county commenced to collect the tax from two federal judges who hold court in the county. Preliminarily, the parties dispute whether, as the federal judges assert, the collection proceedings may be removed to, and adjudicated in, federal court. On the merits, the judges maintain that they are shielded from payment of the tax by the intergovernmental tax immunity doctrine, while the county urges that the doctrine does not apply unless the tax discriminates against an officeholder because of the source of his pay or compensation.

We hold that the case was properly removed under the federal officer removal statute, 28 U.S.C. § 1442(a)(3), and that the Tax Injunction Act, §1341, does not bar federal-court adjudication. We further conclude that Jefferson County's tax operates as a nondiscriminatory tax on the judges' compensation, to which the Public Salary Tax Act of 1939, 4 U.S.C. § 111 consents.

I
A

Alabama counties, as entities created by the State, can impose no tax absent state authorization. See Estes v. Gadsden, 266 Ala. 166, 170, 94 So. 2d 744, 747 (1957). Alabama, the parties to this litigation agree, has not authorized its counties to levy an income tax. See Jefferson County v. Acker, 850 F. Supp. 1536, 1537-1538, n. 2 (ND Ala. 1994); McPheeter v. Auburn, 288 Ala. 286, 292, 259 So. 2d 833, 837 (1972); Estes, 266 Ala., at 171-172, 94 So. 2d, at 748-750.1 In 1967, Alabama authorized its counties to levy a "license or privilege tax" upon persons who do not pay any other license tax to either the State or county. 1967 Ala. Acts 406, §3. As stated in the authorization, a county may impose the tax "upon any person for engaging in any business" for which a license or privilege tax is not required by either the State of Alabama or the county under the laws of the State of Alabama. §4.

Pursuant to Alabama's authorization, Jefferson County, in 1987, enacted Ordinance Number 1120, "establish[ing] a license or privilege tax on persons engaged in any vocation, occupation, calling or profession in [the] County who is not required by law to pay any license or privilege tax to either the State of Alabama or the County." Ordinance No. 1120, preamble (1987) (Ordinance or Ordinance No. 1120). The Ordinance declares it "unlawful ... to engage in" a covered occupation without paying the tax. §2. Included among those subject to the tax are "hold[ers] of any kind of office or position either by election or appointment, by any federal, state, county or city officer or employee where the services of such official or employee are rendered within Jefferson County." §1(C). The fee is measured by one-half percent of the "gross receipts" of the person subject to the tax. §2. "[G]ross receipts" is defined as having "the same meaning" as "compensation," and includes "all salaries, wages, commissions, [and] bonuses." §1(F). Ordinance No. 1120 thus implements the taxing authority accorded counties by the Alabama Legislature. The State's permission left no room for a local tax on compensation of a different name or order.

B

Respondents William M. Acker, Jr., and U. W. Clemon are United States District Judges for the Northern District of Alabama. Both maintain their principal office in Jefferson County, and both resist payment of the county's "license or privilege tax" on the ground that it violates the intergovernmental tax immunity doctrine. The county instituted a collection suit in Alabama small claims court against each of the judges, which each removed to the Federal District Court under the federal officer removal statute, 28 U.S.C. § 1442 (1994 ed. and Supp. III). After denying the county's motions to remand, the federal court consolidated the cases, and eventually granted summary judgment for respondents; the court held Jefferson County's tax unconstitutional under the intergovernmental tax immunity doctrine to the extent that the tax reached the compensation of federal judges. See Jefferson County, 850 F. Supp., at 1537, 1545-1546.2

A panel of the United States Court of Appeals for the Eleventh Circuit initially reversed the District Court's judgment, Jefferson County v. Acker, 61 F.3d 848 (1995), but the Circuit, sitting en banc, affirmed the District Court's disposition, Jefferson County v. Acker, 92 F.3d 1561, 1576 (1996). We granted Jefferson County's initial petition for certiorari and remanded the case for further consideration of the question whether the Tax Injunction Act, 28 U.S.C. § 1341 deprived the District Court of jurisdiction to adjudicate the matter. Jefferson County v. Acker, 520 U.S. 1261 (1997). On remand, the Eleventh Circuit adhered to its prior en banc decision. See 137 F.3d 1314, 1324 (1997) (en banc). We again granted certiorari to consider both the threshold Tax Injunction Act issue and the merits of the case. 525 U.S. __ (1998). We take up as well an anterior question raised by the Solicitor General: Was removal from state court to federal court unauthorized by the federal officer removal statute?

II

The federal officer removal provision at issue states:

"(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

. . . . .

"(3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties." 28 U.S.C. § 1442 (1994 ed. and Supp. III).3

It is the general rule that an action may be removed from state court to federal court only if a federal district court would have original jurisdiction over the claim in suit. See 28 U.S.C. § 1441(a). To remove a case as one falling within federal-question jurisdiction, the federal question ordinarily must appear on the face of a properly pleaded complaint; an anticipated or actual federal defense generally does not qualify a case for removal. See Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908). Suits against federal officers are exceptional in this regard. Under the federal officer removal statute, suits against federal officers may be removed despite the nonfederal cast of the complaint; the federal question element is met if the defense depends on federal law.

To qualify for removal, an officer of the federal courts must both raise a colorable federal defense, see Mesa v. California, 489 U.S. 121, 139 (1989), and establish that the suit is "for a[n] act under color of office," 28 U.S.C. § 1442(a)(3) (emphasis added). To satisfy the latter requirement, the officer must show a nexus, a " 'causal connection' between the charged conduct and asserted official authority." Willingham v. Morgan, 395 U.S. 402, 409 (1969) (quoting Maryland v. Soper (No. 1), 270 U.S. 9, 33 (1926)).

In construing the colorable federal defense requirement, we have rejected a "narrow, grudging interpretation" of the statute, recognizing that "one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court." 395 U.S., at 407. We therefore do not require the officer virtually to "win his case before he can have it removed." Ibid. Here, the judges argued, and the Eleventh Circuit held, that Jefferson County's tax falls on "the performance of federal judicial duties in Jefferson County" and "risk[s] interfering with the operation of the federal judiciary" in violation of the intergovernmental tax immunity doctrine; that argument, although we ultimately reject it, see infra, at 10-18, presents a colorable federal defense. Jefferson County, 92 F.3d, at 1572. There is no dispute on this point. See post, at 5 (Scalia, J., concurring in part and dissenting in part).

We next consider whether the judges have shown that the county's tax collection suits are "for a[n] act under color of office." 28 U.S.C. § 1442(a)(3) (emphasis added). The essence of the judges' colorable defense is that Jefferson County's Ordinance expressly declares it "unlawful" for them to "engage in [their] occupation" without paying the tax, Ordinance No. 1120, §2, and thus subjects them to an impermissible licensing scheme. The judges accordingly see Jefferson County's enforcement actions as suits "for" their having "engage[d] in [their] occupation." The Solicitor General, in contrast, argues that there is no causal connection between the suits and the judges' official acts because "[t]he tax ... was imposed only upon [the judges] personally and not upon the United States or upon any instrumentality of the United States." Brief for United States as Amicus Curiae 20. To choose between those readings of the Ordinance is to decide the merits of this case. Just as requiring a "clearly sustainable defense" rather than a colorable defense would defeat the purpose of the removal statute, Willingham, 395 U.S., at 407, so would demanding an airtight case on the merits in order to show the required causal connection. Accordingly, we credit the judges' theory of the case for purposes of both elements of our jurisdictional inquiry and conclude that the judges have made an adequate threshold showing that the suit is "for a[n] act under color of office." 28 U.S.C. § 1442(a)(3).

Justice Scalia maintains that the county's...

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