Edwin J. Jolly and Helene N. Jolly v. State of New Mexico and Taxation & Revenue Department, State of New Mexico

28 F.3d 113 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Edwin J. JOLLY and Helene N. Jolly, Plaintiffs-Appellants, v. STATE of New Mexico and Taxation & Revenue Department, State of New Mexico, Defendants-Appellees. No. 94-2080. United States Court of Appeals, Tenth Circuit. June 20, 1994. ORDER AND JUDGMENT1 Before MOORE, ANDERSON, and KELLY, Circuit Judges. [1] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument. [2] The plaintiffs-appellants sued the State of New Mexico essentially seeking a refund of state taxes which they claim are due to them as federal retirees, but alleging various constitutional violations. The district court granted the State's motion to dismiss the action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The district court cited, among other things, the prohibitions of the Tax Injunction Act, the inapplicability of 42 U.S.C.1983 as a source of authority to sue a state, Will v. Michigan Department of State Police, 491 U.S. 58 (1989), and the bar of the Eleventh Amendment. [3] The judgment of the district court is AFFIRMED, substantially for the reasons set forth in its order filed March 11, 1994. Footnotes [1] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470