Henke v. City of Newburgh

SUMMARY ORDER Plaintiff-appellant George A. Henke, Jr., proceeding pro se, appeals from the District Court’s dismissal of his complaint, pursuant to the Tax Injunction Act (“TIA”). See 28 U.S.C. § 1841. In his complaint, Henke asserted, inter alia, violations of the First Amendment of the United States Constitution and sought declaratory and injunctive relief. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. This Couit í'eviews de novo a district court’s conclusion that it lacked subject matter jurisdiction. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Id. The TIA provides that “[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; see Long Island Lighting Co. v. Town of Brookhaven, 889 F.2d 428, 431 (2d Cir.1989) (“[T]he Tax Injunction Act ... prevents federal courts from giving injunctive relief or declaratory relief, as long as there is a plain, speedy and efficient remedy in state court....” (internal citations omitted)). Before the TIA may be invoked to bar district court jurisdiction, two conditions must exist: (1) “the surcharges must constitute taxes,” and (2) “the state remedies available to plaintiff[ ] must be plain, speedy and efficient.” Hattem v. Schwarzenegger, 449 F.3d 423, 427 (2d Cir.2006) (internal quotation marks omitted). After an independent review of the record and relevant case law, we conclude that Henke’s arguments are without merit. Substantially for the reasons stated by the District Court in its Memorandum and Order dated April 30, 2012, we conclude that Henke’s claims were properly dismissed pursuant to the TIA. Accordingly, the May 8, 2012 judgment of the District Court is AFFIRMED.