Levin v. Commerce Energy, Inc. , 130 S. Ct. 2323 ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LEVIN, TAX COMMISSIONER OF OHIO v. COMMERCE
ENERGY, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 09–223. Argued March 22, 2010—Decided June 1, 2010
Historically, all Ohio natural gas consumers purchased gas from a local
distribution company (LDC), the public utility serving their geo
graphic area. Today, however, consumers in Ohio’s major metropoli
tan areas can alternatively contract with independent marketers
(IMs) that compete with LDCs for retail sales of natural gas. Re
spondents, mainly IMs offering to sell natural gas to Ohio consumers,
sued petitioner Ohio Tax Commissioner (Commissioner) in federal
court, alleging discriminatory taxation of IMs and their patrons in
violation of the Commerce and Equal Protection Clauses. They
sought declaratory and injunctive relief invalidating three tax ex
emptions Ohio grants exclusively to LDCs. The court initially held
that respondents’ suit was not blocked by the Tax Injunction Act
(TIA), which prohibits lower federal courts from restraining “the as
sessment, 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. Nevertheless, the court dismissed the suit based
on the more embracive comity doctrine, which restrains federal
courts from entertaining claims that risk disrupting state tax ad
ministration, see Fair Assessment in Real Estate Assn., Inc. v.
McNary, 454 U. S. 100. The Sixth Circuit agreed with the District
Court’s TIA holding, but reversed the court’s comity ruling, and re
manded for adjudication of the merits. A footnote in Hibbs v. Winn,
542 U. S. 88, 107, n. 9, the Court of Appeals believed, foreclosed an
expansive reading of this Court’s comity precedents. The footnote
stated that the Court “has relied upon ‘principles of comity’ to pre
clude original federal-court jurisdiction only when plaintiffs have
sought district-court aid in order to arrest or countermand state tax
2 LEVIN v. COMMERCE ENERGY, INC.
Syllabus
collection.” Respondents challenged only a few limited exemptions,
the Sixth Circuit observed, therefore their success on the merits
would not significantly intrude upon Ohio’s administration of its tax
system.
Held: Under the comity doctrine, a taxpayer’s complaint of allegedly
discriminatory state taxation, even when framed as a request to in
crease a competitor’s tax burden, must proceed originally in state
court. Pp. 5–17.
(a) The comity doctrine reflects a proper respect for the States and
their institutions. E.g., Fair Assessment, 454 U. S., at 112. Comity’s
constraint has particular force when lower federal courts are asked to
pass on the constitutionality of state taxation of commercial activity.
States rely chiefly on taxation to fund their governments’ operations,
therefore their tax-enforcement methods should not be interfered
with absent strong cause. See Dows v. Chicago, 11 Wall. 108, 110.
The TIA was enacted specifically to constrain the issuance of federal
injunctions in state-tax cases, see Fair Assessment, 454 U. S., at 129,
and is best understood as but a partial codification of the federal re
luctance to interfere with state taxation, National Private Truck
Council, Inc. v. Oklahoma Tax Comm’n, 515 U. S. 582, 590. Pp. 5–8.
(b) Hibbs does not restrict comity’s compass. Plaintiffs in Hibbs
were Arizona taxpayers who challenged, as violative of the Estab
lishment Clause, a tax credit that allegedly served to support paro
chial schools. Their federal-court suit for declaratory and injunctive
relief did not implicate in any way their own tax liability, and the re
lief they sought would not deplete the State’s treasury. Rejecting
Arizona’s plea that the TIA barred the suit, the Court found that the
case was “not rationally distinguishable” from pathmarking civil
rights controversies in which federal courts had entertained chal
lenges to state tax credits without conceiving of the TIA as a jurisdic
tional barrier. 542 U. S., at 93–94, 110–112. The Court also dis
patched Arizona’s comity argument in the footnote that moved the
Sixth Circuit here to reverse the District Court’s comity-based dis
missal. Id., at 107, n. 9. Neither Hibbs nor any other decision of this
Court, however, has considered the comity doctrine’s application to
cases of the kind presented here. Pp. 8–10.
(c) Respondents contend that state action “selects [them] out for
discriminatory treatment by subjecting [them] to taxes not imposed
on others of the same class.” Hillsborough v. Cromwell, 326 U. S.
620, 623. When economic legislation does not employ classifications
subject to heightened scrutiny or impinge on fundamental rights,
courts generally view constitutional challenges with the skepticism
due respect for legislative choices demands. See, e.g., Hodel v. Indi
ana, 452 U. S. 314, 331–332. And “in taxation, even more than in
Cite as: 560 U. S. ____ (2010) 3
Syllabus
other fields, legislatures possess the greatest freedom in classifica
tion.” Madden v. Kentucky, 309 U. S. 83, 88. Of key importance,
when unlawful discrimination infects tax classifications or other leg
islative prescriptions, the Constitution simply calls for equal treat
ment. How equality is accomplished—by extension or invalidation of
the unequally distributed benefit or burden, or some other measure—
is a matter on which the Constitution is silent. See, e.g., Heckler v.
Mathews, 465 U. S. 728, 740. On finding unlawful discrimination,
courts may attempt, within the bounds of their institutional compe
tence, to implement what the legislature would have willed had it
been apprised of the constitutional infirmity. E.g., id., at 739, n. 5.
With the State’s legislative prerogative firmly in mind, this Court,
upon finding impermissible discrimination in a State’s tax measure,
generally remands the case, leaving the interim remedial choice to
state courts. See, e.g., McKesson Corp. v. Division of Alcoholic Bever
ages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18,
39–40. If lower federal courts were to consider the merits of suits al
leging uneven state tax burdens, however, recourse to state court for
the interim remedial determination would be unavailable, for federal
tribunals lack authority to remand to state court an action initiated
in federal court. Federal judges, moreover, are bound by the TIA,
which generally precludes relief that would diminish state revenues,
even if such relief is the remedy least disruptive of the state legisla
ture’s design. These limitations on the remedial competence of lower
federal courts counsel that they refrain from taking up cases of this
genre, so long as state courts are equipped fairly to adjudicate them.
Pp. 10–13.
(d) Comity considerations warrant dismissal of respondents’ suit.
If Ohio’s scheme is unconstitutional, the Ohio courts are better posi
tioned to determine—unless and until the Ohio Legislature weighs
in—how to comply with the mandate of equal treatment. See Davis
v. Michigan Dept. of Treasury, 489 U. S. 803, 817–818. The unelabo
rated comity footnote in Hibbs does not counsel otherwise. Hardly a
run-of-the-mine tax case, Hibbs was essentially an attack on the allo
cation of state resources for allegedly unconstitutional purposes.
Plaintiffs there were third parties whose own tax liability was not a
relevant factor. Here, by contrast, the very premise of respondents’
suit is that they are taxed differently from LDCs. The Hibbs footnote
is most sensibly read to affirm that, just as that case was a poor fit
under the TIA, so it was a poor fit for comity. Respondents’ argu
ment that this case is fit for federal-court adjudication because of the
simplicity of the relief sought is unavailing. Even if their claims had
merit, respondents would not be entitled to their preferred remedy.
In Hibbs, however, if the District Court found the Arizona tax credit
4 LEVIN v. COMMERCE ENERGY, INC.
Syllabus
impermissible under the Establishment Clause, only one remedy
would redress the plaintiffs’ grievance: invalidation of the tax credit
at issue. Pp. 13–15.
(e) In sum, a confluence of factors in this case, absent in Hibbs,
leads to the conclusion that the comity doctrine controls here. First,
respondents seek federal-court review of commercial matters over
which Ohio enjoys wide regulatory latitude; their suit does not in
volve any fundamental right or classification that attracts heightened
judicial scrutiny. Second, while respondents portray themselves as
third-party challengers to an allegedly unconstitutional tax scheme,
they are in fact seeking federal-court aid in an endeavor to improve
their competitive position. Third, the Ohio courts are better posi
tioned than their federal counterparts to correct any violation be
cause they are more familiar with state legislative preferences and
because the TIA does not constrain their remedial options. Individu
ally, these considerations may not compel forbearance by federal dis
trict courts; in combination, however, they demand deference to the
state adjudicative process. Pp. 15–16.
(f) The Sixth Circuit’s concern that application of the comity doc
trine here would render the TIA effectively superfluous overlooks
Congress’ aim, in enacting the TIA, to secure the comity doctrine
against diminishment. Comity, moreover, is a prudential doctrine.
“If the State voluntarily chooses to submit to a federal forum, princi
ples of comity do not demand that the federal court force the case
back into the State’s own system.” Ohio Bureau of Employment
Servs. v. Hodory, 431 U. S. 471, 480. P. 16.
(g) In light of the foregoing, the Court need not decide whether the
TIA would itself block this suit. Pp. 16–17.
554 F. 3d 1094, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, BREYER, and SOTOMAYOR, JJ., joined.
KENNEDY, J., filed a concurring opinion. THOMAS, J., filed an opinion
concurring in the judgment, in which SCALIA, J., joined. ALITO, J., filed
an opinion concurring in the judgment.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–223
_________________
RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO,
PETITIONER v. COMMERCE ENERGY, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 1, 2010]
JUSTICE GINSBURG delivered the opinion of the Court.
This case presents the question whether a federal dis­
trict court may entertain a complaint of allegedly dis­
criminatory state taxation, framed as a request to increase
a commercial competitor’s tax burden. Relevant to our
inquiry is the Tax Injunction Act (TIA or Act), 28 U. S. C.
§1341, which prohibits lower federal courts from restrain­
ing “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.” More embracive than
the TIA, the comity doctrine applicable in state taxation
cases restrains federal courts from entertaining claims for
relief that risk disrupting state tax administration. See
Fair Assessment in Real Estate Assn., Inc. v. McNary, 454
U. S. 100 (1981). The comity doctrine, we hold, requires
that a claim of the kind here presented proceed originally
in state court. In so ruling, we distinguish Hibbs v. Winn,
542 U. S. 88 (2004), in which the Court held that neither
the TIA nor the comity doctrine barred a federal district
court from adjudicating an Establishment Clause chal­
lenge to a state tax credit that allegedly funneled public
2 LEVIN v. COMMERCE ENERGY, INC.
Opinion of the Court
funds to parochial schools.
I
A
Historically, all natural gas consumers in Ohio pur­
chased gas from the public utility, known as a local distri­
bution company (LDC), serving their geographic area. In
addition to selling gas as a commodity, LDCs own and
operate networks of distribution pipelines to transport and
deliver gas to consumers. LDCs offer customers a single,
bundled product comprising both gas and delivery.
Today, consumers in Ohio’s major metropolitan areas
can alternatively contract with an independent marketer
(IM) that competes with LDCs for retail sales of natural
gas. IMs do not own or operate distribution pipelines;
they use LDCs’ pipelines. When a customer goes with an
IM, therefore, she purchases two “unbundled” products:
gas (from the IM) and delivery (from the LDC).
Ohio treats LDCs and IMs differently for tax purposes.
Relevant here, Ohio affords LDCs three tax exemptions
that IMs do not receive. First, LDCs’ natural gas sales are
exempt from sales and use taxes. Ohio Rev. Code Ann.
§5739.02(B)(7) (Lexis Supp. 2010); §§5739.021(E), .023(G),
.026(F) (Lexis 2008); §§5741.02(C), .021(A), .022(A),
.023(A) (Lexis 2008). LDCs owe instead a gross receipts
excise tax, §5727.24, which is lower than the sales and use
taxes IMs must collect. Second, LDCs are not subject to
the commercial activities tax imposed on IMs’ taxable
gross receipts. §§5751.01(E)(2), .02 (Lexis Supp. 2010).
Finally, Ohio law excludes inter-LDC natural gas sales
from the gross receipts tax, which IMs must pay when
they purchase gas from LDCs. §5727.33(B)(4) (Lexis
2008).
B
Plaintiffs-respondents Commerce Energy, Inc., a Cali­
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
fornia corporation, and Interstate Gas Supply, Inc., an
Ohio company, are IMs that market and sell natural gas
to Ohio consumers. Plaintiff-respondent Gregory Slone is
an Ohio citizen who has purchased natural gas from In­
terstate Gas Supply since 1999. Alleging discriminatory
taxation of IMs and their patrons in violation of the Com­
merce and Equal Protection Clauses, Complaint ¶¶35–39,
App. 11–13, respondents sued Richard A. Levin, Tax
Commissioner of Ohio (Commissioner), in the U. S. Dis­
trict Court for the Southern District of Ohio. Invoking
that court’s federal-question jurisdiction under 28 U. S. C.
§1331, Complaint ¶6, App. 3, respondents sought declara­
tory and injunctive relief invalidating the three tax ex­
emptions LDCs enjoy and ordering the Commissioner to
stop “recognizing and/or enforcing” the exemptions. Id., at
20–21. Respondents named the Commissioner as sole
defendant; they did not extend the litigation to include the
LDCs whose tax burden their suit aimed to increase.1
The District Court granted the Commissioner’s motion
to dismiss the complaint. The TIA did not block the suit,
the District Court initially held, because respondents, like
the plaintiffs in Hibbs, were “third-parties challenging the
constitutionality of [another’s] tax benefit,” and their
requested relief “would not disrupt the flow of tax reve­
nue” to the State. App. to Pet. for Cert. 24a.
Nevertheless, the District Court “decline[d] to exercise
jurisdiction” as a matter of comity. Id., at 32a. Ohio’s
Legislature, the District Court observed, chose to provide
the challenged tax exemptions to LDCs. Respondents
requested relief that would “requir[e] Ohio to collect taxes
which its legislature has not seen fit to impose.” Ibid.——————
1 In moving to dismiss the complaint, the Commissioner urged, inter
alia, that the LDCs were parties necessary to a just adjudication. See
Fed. Rule Civ. Proc. 19. Ruling for the Commissioner on comity
grounds, the District Court did not reach the question whether the
LDCs were indispensable parties. App. to Pet. for Cert. 21a, 32a–33a.
4 LEVIN v. COMMERCE ENERGY, INC.
Opinion of the Court
(internal quotation marks omitted). Such relief, the court
said, would draw federal judges into “a particularly inap­
propriate involvement in a state’s management of its fiscal
operations.” Ibid. (internal quotation marks omitted). A
state court, the District Court recognized, could extend the
exemptions to IMs, but the TIA proscribed this revenue­
reducing relief in federal court. “Where there would be
two possible remedies,” the Court concluded, a federal
court should not “impose its own judgment on the state
legislature mandating which remedy is appropriate.” Ibid.The U. S. Court of Appeals for the Sixth Circuit re­
versed. 554 F. 3d 1094 (2009). While agreeing that the
TIA did not bar respondents’ suit, the Sixth Circuit re­
jected the District Court’s comity ruling. A footnote in
Hibbs, the Court of Appeals believed, foreclosed the Dis­
trict Court’s “expansive reading” of this Court’s comity
precedents. 554 F. 3d, at 1098. The footnote stated that
the Court “has relied upon ‘principles of comity’ to pre­
clude original federal-court jurisdiction only when plain­
tiffs have sought district-court aid in order to arrest or
countermand state tax collection.” Hibbs, 542 U. S., at
107, n. 9 (citation omitted). A broad view of the comity
cases, the Sixth Circuit feared, would render the TIA
“effectively superfluous,” and would “sub silentio overrule
a series of important cases” presenting challenges to state
tax measures. 554 F. 3d, at 1099, 1102 (citing Milliken v.
Bradley, 433 U. S. 267 (1977); Mueller v. Allen, 463 U. S.
388 (1983)); 554 F. 3d, at 1099–1100.
In so ruling, the Sixth Circuit agreed with the Seventh
and Ninth Circuits, which had similarly read Hibbs to rein
in the comity doctrine, see Levy v. Pappas, 510 F. 3d 755(CA7 2007); Wilbur v. Locke, 423 F. 3d 1101 (CA9 2005),
and it disagreed with the Fourth Circuit, which had con­
cluded that Hibbs left comity doctrine untouched, see
DIRECTV, Inc. v. Tolson, 513 F. 3d 119 (2008). Noting
that respondents “challenge[d] only a few limited exemp­
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
tions,” and satisfied, therefore, that “[respondents’] suc­
cess would not significantly intrude upon traditional
matters of state taxation,” the Sixth Circuit remanded the
case for adjudication of the merits. 554 F. 3d, at 1102.
After unsuccessfully moving for rehearing en banc, App.
to Pet. for Cert. 1a–2a, the Commissioner petitioned for
certiorari. By then, the First Circuit had joined the Sixth,
Seventh, and Ninth Circuits in holding that Hibbs sharply
limited the scope of the comity bar. Coors Brewing Co. v.
Méndez-Torres, 562 F. 3d 3 (2009). We granted the Com­
missioner’s petition, 558 U. S. ___ (2009), to resolve the
disagreement among the Circuits.
II
A
Comity considerations, the Commissioner dominantly
urges, preclude the exercise of lower federal-court adjudi­
catory authority over this controversy, given that an ade­
quate state-court forum is available to hear and decide
respondents’ constitutional claims. We agree.
The comity doctrine counsels lower federal courts to
resist engagement in certain cases falling within their
jurisdiction. The doctrine reflects
“a proper respect for state functions, a recognition of
the fact that the entire country is made up of a Union
of separate state governments, and a continuance of
the belief that the National Government will fare best
if the States and their institutions are left free to per­
form their separate functions in separate ways.” Fair
Assessment, 454 U. S., at 112 (quoting Younger v.
Harris, 401 U. S. 37, 44 (1971)).
Comity’s constraint has particular force when lower fed­
eral courts are asked to pass on the constitutionality of
state taxation of commercial activity. For “[i]t is upon
taxation that the several States chiefly rely to obtain the
6 LEVIN v. COMMERCE ENERGY, INC.
Opinion of the Court
means to carry on their respective governments, and it is
of the utmost importance to all of them that the modes
adopted to enforce the taxes levied should be interfered
with as little as possible.” Dows v. Chicago, 11 Wall. 108,
110 (1871).
“An examination of [our] decisions,” this Court wrote
more than a century ago, “shows that a proper reluctance
to interfere by prevention with the fiscal operations of the
state governments has caused [us] to refrain from so doing
in all cases where the Federal rights of the persons could
otherwise be preserved unimpaired.” Boise Artesian Hot
& Cold Water Co. v. Boise City, 213 U. S. 276, 282 (1909).
Accord Matthews v. Rodgers, 284 U. S. 521, 525–526
(1932) (So long as the state remedy was “plain, adequate,
and complete,” the “scrupulous regard for the rightful
independence of state governments which should at all
times actuate the federal courts, and a proper reluctance
to interfere by injunction with their fiscal operations,
require that such relief should be denied in every case
where the asserted federal right may be preserved without
it.”).2
——————
2 Justice Brennan cogently explained, in practical terms, “the special
reasons justifying the policy of federal noninterference with state tax
collection”:
“The procedures for mass assessment and collection of state taxes and
for administration and adjudication of taxpayers’ disputes with tax
officials are generally complex and necessarily designed to operate
according to established rules. State tax agencies are organized to
discharge their responsibilities in accordance with the state procedures.
If federal declaratory relief were available to test state tax assess­
ments, state tax administration might be thrown into disarray, and
taxpayers might escape the ordinary procedural requirements imposed
by state law. During the pendency of the federal suit the collection of
revenue under the challenged law might be obstructed, with consequent
damage to the State’s budget, and perhaps a shift to the State of the
risk of taxpayer insolvency. Moreover, federal constitutional issues are
likely to turn on questions of state tax law, which, like issues of state
regulatory law, are more properly heard in the state courts.” Perez v.
Cite as: 560 U. S. ____ (2010) 7
Opinion of the Court
Statutes conferring federal jurisdiction, we have repeat­
edly cautioned, should be read with sensitivity to “federal­
state relations” and “wise judicial administration.”
Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 716 (1996)
(internal quotation marks omitted). But by 1937, in state
tax cases, the federal courts had moved in a different
direction: they “had become free and easy with injunc­
tions.” Fair Assessment, 454 U. S., at 129 (Brennan, J.,
concurring in judgment) (internal quotation marks omit­
ted).3 Congress passed the TIA to reverse this trend. Id.,at 109–110 (opinion of the Court).
Our post-Act decisions, however, confirm the continuing
sway of comity considerations, independent of the Act.
Plaintiffs in Great Lakes Dredge & Dock Co. v. Huffman,
319 U. S. 293 (1943), for example, sought a federal judg­
ment declaring Louisiana’s unemployment compensation
tax unconstitutional. Writing six years after the TIA’s
passage, we emphasized the Act’s animating concerns: A
“federal court of equity,” we reminded, “may in an appro­
priate case refuse to give its special protection to private
rights when the exercise of its jurisdiction would be preju­
dicial to the public interest, [and] should stay its hand in
the public interest when it reasonably appears that pri­
vate interests will not suffer.” Id., at 297–298 (citations
omitted). In enacting the TIA, we noted, “Congress recog­
——————
Ledesma, 401 U. S. 82, 128, n. 17 (1971) (opinion concurring in part and
dissenting in part).
3 Two features of federal equity practice accounted for the courts’
willingness to grant injunctive relief. First, the Court had held that,
although “equity jurisdiction does not lie where there exists an ade­
quate legal remedy[,] . . . the ‘adequate legal remedy’ must be one
cognizable in federal court.” Fair Assessment, 454 U. S., at 129, n. 15(Brennan, J., concurring in judgment) (emphasis in original). Second,
federal courts, “construing strictly the requirement that the remedy
available at law be ‘plain, adequate and complete,’ had frequently
concluded that the procedures provided by the State were not ade­
quate.” Ibid. (citation omitted).
8 LEVIN v. COMMERCE ENERGY, INC.
Opinion of the Court
nized and gave sanction to this practice.” Id., at 298. We
could not have thought Congress intended to cabin the
comity doctrine, for we went on to instruct dismissal in
Great Lakes on comity grounds without deciding whether
the Act reached declaratory judgment actions. Id., at 299,
301–302.4
Decades later, in Fair Assessment, we ruled, based on
comity concerns, that 42 U. S. C. §1983 does not permit
federal courts to award damages in state taxation cases
when state law provides an adequate remedy. 454 U. S.,
at 116. We clarified in Fair Assessment that “the principle
of comity which predated the Act was not restricted by its
passage.” Id., at 110. And in National Private Truck
Council, Inc. v. Oklahoma Tax Comm’n, 515 U. S. 582, 590
(1995), we said, explicitly, that “the [TIA] may be best
understood as but a partial codification of the federal
reluctance to interfere with state taxation.”
B
Although our precedents affirm that the comity doctrine
is more embracive than the TIA, several Courts of Ap­
peals, including the Sixth Circuit in the instant case, have
comprehended Hibbs to restrict comity’s compass. See
supra, at 4–5. Hibbs, however, has a more modest reach.
Plaintiffs in Hibbs were Arizona taxpayers who chal­
lenged a state law authorizing tax credits for payments to
organizations that disbursed scholarship grants to chil­
dren attending private schools. 542 U. S., at 94–96.
These organizations could fund attendance at institutions
that provided religious instruction or gave admissions
preference on the basis of religious affiliation. Id., at 95.
Ranking the credit program as state subsidization of
religion, incompatible with the Establishment Clause,
——————
4 We later held that the Act indeed does proscribe suits for declara­
tory relief that would thwart state tax collection. California v. Grace
Brethren Church, 457 U. S. 393, 411 (1982).
Cite as: 560 U. S. ____ (2010) 9
Opinion of the Court
plaintiffs sought declaratory and injunctive relief and an
order requiring the organizations to pay sums still in their
possession into the State’s general fund. Id., at 96.
The Director of Arizona’s Department of Revenue sought
to escape suit in federal court by invoking the TIA. We
held that the litigation fell outside the TIA’s governance.
Our prior decisions holding suits blocked by the TIA, we
noted, were tied to the Act’s “state-revenue-protective
moorings.” Id., at 106. The Act, we explained, “re­
strain[ed] state taxpayers from instituting federal actions
to contest their [own] liability for state taxes,” id., at 108,
suits that, if successful, would deplete state coffers. But
“third parties” like the Hibbs plaintiffs, we concluded,
were not impeded by the TIA “from pursuing constitu­
tional challenges to tax benefits in a federal forum.” Ibid.
The case, we stressed, was “not rationally distinguishable”
from a procession of pathmarking civil-rights controver­
sies in which federal courts had entertained challenges to
state tax credits without conceiving of the TIA as a juris­
dictional barrier. Id., at 93–94, 110–112. See, e.g., Griffin
v. School Bd. of Prince Edward Cty., 377 U. S. 218 (1964)
(involving, inter alia, tax credits for contributions to pri­
vate segregated schools).
Arizona’s Revenue Director also invoked comity as cause
for dismissing the action. We dispatched the Director’s
comity argument in a spare footnote that moved the Sixth
Circuit here to reverse the District Court’s comity-based
dismissal. As earlier set out, see supra, at 4, the footnote
stated: “[T]his Court has relied upon ‘principles of comity’
to preclude original federal-court jurisdiction only when
plaintiffs have sought district-court aid in order to arrest
or countermand state tax collection.” 542 U. S., at 107,
n. 9 (citation omitted) (citing Fair Assessment, 454 U. S.,
at 107–108; Great Lakes, 319 U. S., at 296–299).
Relying heavily on our footnote in Hibbs, respondents
urge that “comity should no more bar this action than it
10 LEVIN v. COMMERCE ENERGY, INC.
Opinion of the Court
did the action in Hibbs.” Brief for Respondents 42. As we
explain below, however, the two cases differ markedly in
ways bearing on the comity calculus. We have had no
prior occasion to consider, under the comity doctrine, a
taxpayer’s complaint about allegedly discriminatory state
taxation framed as a request to increase a competitor’s tax
burden. Now squarely presented with the question, we
hold that comity precludes the exercise of original federal­
court jurisdiction in cases of the kind presented here.
III
A
Respondents complain that they are taxed unevenly in
comparison to LDCs and their customers. Under either an
equal protection or dormant Commerce Clause theory,
respondents’ root objection is the same: State action,
respondents contend, “selects [them] out for discrimina­
tory treatment by subjecting [them] to taxes not imposed
on others of the same class.” Hillsborough v. Cromwell,
326 U. S. 620, 623 (1946) (equal protection); see Dennis v.
Higgins, 498 U. S. 439, 447–448 (1991) (dormant Com­
merce Clause).
When economic legislation does not employ classifica­
tions subject to heightened scrutiny or impinge on funda­
mental rights,5 courts generally view constitutional chal­
lenges with the skepticism due respect for legislative
choices demands. See, e.g., Hodel v. Indiana, 452 U. S.
314, 331–332 (1981); Williamson v. Lee Optical of Okla.,
Inc., 348 U. S. 483, 488–489 (1955). And “in taxation,
even more than in other fields, legislatures possess the
greatest freedom in classification.” Madden v. Kentucky,
——————
5 Cf., e.g., Loving v. Virginia, 388 U. S. 1 (1967); United States v. Vir­
ginia, 518 U. S. 515 (1996). On the federal courts’ role in safeguarding
human rights, see, e.g., Zwickler v. Koota, 389 U. S. 241, 245–248
(1967); McNeese v. Board of Ed. for Community Unit School Dist. 187,
373 U. S. 668, 672–674, and n. 6 (1963).
Cite as: 560 U. S. ____ (2010) 11
Opinion of the Court
309 U. S. 83, 88 (1940).
Of key importance, when unlawful discrimination in­
fects tax classifications or other legislative prescriptions,
the Constitution simply calls for equal treatment. How
equality is accomplished—by extension or invalidation of
the unequally distributed benefit or burden, or some other
measure—is a matter on which the Constitution is silent.
See Heckler v. Mathews, 465 U. S. 728, 740 (1984)
(“[W]hen the right invoked is that to equal treatment, the
appropriate remedy is a mandate of equal treatment, a
result that can be accomplished” in more than one way.
(quoting Iowa-Des Moines Nat. Bank v. Bennett, 284 U. S.
239, 247 (1931); internal quotation marks omitted)).
On finding unlawful discrimination, we have affirmed,
courts may attempt, within the bounds of their institu­
tional competence, to implement what the legislature
would have willed had it been apprised of the constitu­
tional infirmity. Mathews, 465 U. S., at 739, n. 5; Califano
v. Westcott, 443 U. S. 76, 92–93 (1979); see Stanton v.
Stanton, 421 U. S. 7, 17–18 (1975) (how State eliminates
unconstitutional discrimination “plainly is an issue of
state law”); cf. United States v. Booker, 543 U. S. 220, 246
(2005) (“legislative intent” determines cure for constitu­
tional violation). The relief the complaining party re­
quests does not circumscribe this inquiry. See Westcott,
443 U. S., at 96, n. 2 (Powell, J., concurring in part and
dissenting in part) (“This issue should turn on the intent
of [the legislature], not the interests of the parties.”). With
the State’s legislative prerogative firmly in mind, this
Court, upon finding impermissible discrimination in a
State’s allocation of benefits or burdens, generally re­
mands the case, leaving the remedial choice in the hands
of state authorities. See, e.g., Wengler v. Druggists Mut.
Ins. Co., 446 U. S. 142, 152–153 (1980); Orr v. Orr, 440
U. S. 268, 283–284 (1979); Stanton, 421 U. S., at 17–18;
Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535,
12 LEVIN v. COMMERCE ENERGY, INC.
Opinion of the Court
543 (1942). But see, e.g., Levy v. Louisiana, 391 U. S. 68(1968).
In particular, when this Court—on review of a state
high court’s decision—finds a tax measure constitutionally
infirm, “it has been our practice,” for reasons of “federal­
state comity,” “to abstain from deciding the remedial
effects of such a holding.” American Trucking Assns., Inc.
v. Smith, 496 U. S. 167, 176 (1990) (plurality opinion).6 A
“State found to have imposed an impermissibly discrimi­
natory tax retains flexibility in responding to this deter­
mination.” McKesson Corp. v. Division of Alcoholic Bever­
ages and Tobacco, Fla. Dept. of Business Regulation, 496
U. S. 18, 39–40 (1990). Our remand leaves the interim
solution in state-court hands, subject to subsequent defini­
tive disposition by the State’s legislature.
If lower federal courts were to give audience to the
merits of suits alleging uneven state tax burdens, how­
ever, recourse to state court for the interim remedial
determination would be unavailable. That is so because
federal tribunals lack authority to remand to the state
court system an action initiated in federal court. Federal
judges, moreover, are bound by the TIA; absent certain
exceptions, see, e.g., Department of Employment v. United
States, 385 U. S. 355, 357–358 (1966), the Act precludes
relief that would diminish state revenues, even if such
relief is the remedy least disruptive of the state legisla­
ture’s design.7 These limitations on the remedial compe­
——————
6 See, e.g., Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 100–102
(1993); McKesson Corp. v. Division of Alcoholic Beverages and Tobacco,
Fla. Dept. of Business Regulation, 496 U. S. 18, 51–52 (1990); Davis v.
Michigan Dept. of Treasury, 489 U. S. 803, 818 (1989); American
Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 297–298 (1987); Tyler
Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S.
232, 252–253 (1987); Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 276–
277 (1984); Exxon Corp. v. Eagerton, 462 U. S. 176, 196–197 (1983);
Louis K. Liggett Co. v. Lee, 288 U. S. 517, 540–541 (1933).
7 State courts also have greater leeway to avoid constitutional hold­
Cite as: 560 U. S. ____ (2010) 13
Opinion of the Court
tence of lower federal courts counsel that they refrain from
taking up cases of this genre, so long as state courts are
equipped fairly to adjudicate them.8
B
Comity considerations, as the District Court deter­
mined, warrant dismissal of respondents’ suit. Assuming,
arguendo, that respondents could prevail on the merits of
the suit,9 the most obvious way to achieve parity would be
to reduce respondents’ tax liability. Respondents did not
seek such relief, for the TIA stands in the way of any
decree that would “enjoin . . . collection of [a] tax under
State law.” 28 U. S. C. §1341.10 A more ambitious solu­
tion would reshape the relevant provisions of Ohio’s tax
code. Were a federal court to essay such relief, however,
the court would engage in the very interference in state
taxation the comity doctrine aims to avoid. Cf. State
Railroad Tax Cases, 92 U. S. 575, 614–615 (1876). Re­
spondents’ requested remedy, an order invalidating the
exemptions enjoyed by LDCs, App. 20–21, may be far from
——————
ings by adopting “narrowing constructions that might obviate the
constitutional problem and intelligently mediate federal constitutional
concerns and state interests.” Moore v. Sims, 442 U. S. 415, 429–430
(1979).
8 Any substantial federal question, of course, “could be reviewed when
the case [comes to this Court] through the hierarchy of state courts.”
McNeese, 373 U. S., at 673.
9 But see General Motors Corp. v. Tracy, 519 U. S. 278, 279–280
(1997) (determining, at a time IMs could not compete with LDCs for the
Ohio residential “captive” market, that IMs and LDCs were not “simi­
larly situated”; and rejecting industrial IM customer’s dormant Com­
merce Clause and equal protection challenges to LDCs’ exemption from
sales and use taxes).
10 Previous language restricting the district courts’ “jurisdiction” was
removed in the 1948 revision of Title 28. Compare 28 U. S. C. §41(1)
(1940 ed.) with §1341, 62 Stat. 932. This Court and others have con­
tinued to regard the Act as jurisdictional. See, e.g., post, at 1 (THOMAS,
J., concurring in judgment).
14 LEVIN v. COMMERCE ENERGY, INC.
Opinion of the Court
what the Ohio Legislature would have willed. See supra,
at 11. In short, if the Ohio scheme is indeed unconstitu­
tional, surely the Ohio courts are better positioned to
determine—unless and until the Ohio Legislature weighs
in—how to comply with the mandate of equal treatment.
See Davis v. Michigan Dept. of Treasury, 489 U. S. 803,
817–818 (1989).11
As earlier noted, our unelaborated footnote on comity in
Hibbs, see supra, at 9, led the Sixth Circuit to conclude
that we had diminished the force of that doctrine and
made it inapplicable here. We intended no such conse­
quential ruling. Hibbs was hardly a run-of-the-mine tax
case. It was essentially an attack on the allocation of state
resources for allegedly unconstitutional purposes. In
Hibbs, the charge was state aid in alleged violation of the
Establishment Clause; in other cases of the same genre,
the attack was on state allocations to maintain racially
segregated schools. See Hibbs, 542 U. S., at 93–94, 110–
112. The plaintiffs in Hibbs were outsiders to the tax
expenditure, “third parties” whose own tax liability was
not a relevant factor. In this case, by contrast, the very
premise of respondents’ suit is that they are taxed differ­
ently from LDCs. Unlike the Hibbs plaintiffs, respondents
do object to their own tax situation, measured by the
allegedly more favorable treatment accorded LDCs.
Hibbs held that the TIA did not preclude a federal chal­
lenge by a third party who objected to a tax credit received
——————
11 Respondents note that “[o]nce the district court grants the minimal
relief requested—to disallow the exemptions—it will be up to the Ohio
General Assembly to balance its own interests and determine how best
to recast the tax laws, within constitutional restraints.” Brief for
Respondents 41. But the legislature may not be convened on the spot,
and the blunt interim relief respondents ask the District Court to
decree “may [immediately] derange the operations of government, and
thereby cause serious detriment to the public.” Dows v. Chicago, 11
Wall. 108, 110 (1871).
Cite as: 560 U. S. ____ (2010) 15
Opinion of the Court
by others, but in no way objected to her own liability
under any revenue-raising tax provision. In context, we
clarify, the Hibbs footnote comment on comity is most
sensibly read to affirm that, just as the case was a poor fit
under the TIA, so it was a poor fit for comity. The Court,
in other words, did not deploy the footnote to recast the
comity doctrine; it intended the note to convey only that
the Establishment Clause-grounded case cleared both the
TIA and comity hurdles.
Respondents steadfastly maintain that this case is fit for
federal-court adjudication because of the simplicity of the
relief they seek, i.e., invalidation of exemptions accorded
the LDCs. But as we just explained, even if respondents’
Commerce Clause and equal protection claims had merit,
respondents would have no entitlement to their preferred
remedy. See supra, at 11. In Hibbs, however, if the Dis­
trict Court found the Arizona tax credit impermissible
under the Establishment Clause, only one remedy would
redress the plaintiffs’ grievance: invalidation of the credit,
which inevitably would increase the State’s tax receipts.
Notably, redress in state court similarly would be limited
to an order ending the allegedly impermissible state sup­
port for parochial schools.12 Because state courts would
have no greater leeway than federal courts to cure the
alleged violation, nothing would be lost in the currency of
comity or state autonomy by permitting the Hibbs suit to
proceed in a federal forum.
Comity, in sum, serves to ensure that “the National
Government, anxious though it may be to vindicate and
protect federal rights and federal interests, always en­
deavors to do so in ways that will not unduly interfere
——————
12 No refund suit (or other taxpayer mechanism) was open to the
plaintiffs in Hibbs, who were financially disinterested “third parties”;
they did not, therefore, improperly bypass any state procedure. Re­
spondents here, however, could have asserted their federal rights by
seeking a reduction in their tax bill in an Ohio refund suit.
16 LEVIN v. COMMERCE ENERGY, INC.
Opinion of the Court
with the legitimate activities of the States.” Younger, 401
U. S., at 44. A confluence of factors in this case, absent in
Hibbs, leads us to conclude that the comity doctrine con­
trols here. First, respondents seek federal-court review of
commercial matters over which Ohio enjoys wide regula­
tory latitude; their suit does not involve any fundamental
right or classification that attracts heightened judicial
scrutiny. Second, while respondents portray themselves
as third-party challengers to an allegedly unconstitutional
tax scheme, they are in fact seeking federal-court aid in an
endeavor to improve their competitive position. Third, the
Ohio courts are better positioned than their federal coun­
terparts to correct any violation because they are more
familiar with state legislative preferences and because the
TIA does not constrain their remedial options. Individu­
ally, these considerations may not compel forbearance on
the part of federal district courts; in combination, how­
ever, they demand deference to the state adjudicative
process.
C
The Sixth Circuit expressed concern that application of
the comity doctrine here would render the TIA “effectively
superfluous.” 554 F. 3d, at 1099; see id., at 1102. This
concern overlooks Congress’ point in enacting the TIA.
The Act was passed to plug two large loopholes courts had
opened in applying the comity doctrine. See supra, at 7,
and n. 3. By closing these loopholes, Congress secured the
doctrine against diminishment. Comity, we further note,
is a prudential doctrine. “If the State voluntarily chooses
to submit to a federal forum, principles of comity do not
demand that the federal court force the case back into the
State’s own system.” Ohio Bureau of Employment Servs.
v. Hodory, 431 U. S. 471, 480 (1977).
Cite as: 560 U. S. ____ (2010) 17
Opinion of the Court
IV
Because we conclude that the comity doctrine justifies
dismissal of respondents’ federal-court action, we need not
decide whether the TIA would itself block the suit. See
Great Lakes, 319 U. S., at 299, 301 (reserving judgment on
TIA’s application where comity precluded suit). See also
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549
U. S. 422, 431 (2007) (federal court has flexibility to choose
among threshold grounds for dismissal).13
* * *
For the reasons stated, the Sixth Circuit’s judgment is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
——————
13 The District Court and Court of Appeals concluded that our deci­
sion in Hibbs placed the controversy outside the TIA’s domain. That
conclusion, we note, bears reassessment in light of this opinion’s
discussion of the significant differences between Hibbs and this case.
Cite as: 560 U. S. ____ (2010) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–223
_________________
RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO,
PETITIONER v. COMMERCE ENERGY, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 1, 2010]
JUSTICE KENNEDY, concurring.
The Court’s rationale in Hibbs v. Winn, 542 U. S. 88(2004), seems to me still doubtful. Nothing in the Court’s
opinion today expands Hibbs’ holding further, however,
and on that understanding I join the opinion of the Court.
Cite as: 560 U. S. ____ (2010) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–223
_________________
RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO,
PETITIONER v. COMMERCE ENERGY, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 1, 2010]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
concurring in the judgment.
Although I, too, remain skeptical of the Court’s decision
in Hibbs v. Winn, 542 U. S. 88 (2004), see ante, at 1
(KENNEDY, J., concurring), I agree that it is not necessary
for us to revisit that decision to hold that this case belongs
in state court. As the Court rightly concludes, Hibbs
permits not just the application of comity principles to the
litigation here, but also application of the Tax Injunction
Act (TIA or Act), 28 U. S. C. §1341. See ante, at 17. I
concur only in the judgment because where, as here, the
same analysis supports both jurisdictional and nonjuris
dictional grounds for dismissal (the TIA imposes a juris
dictional bar, see, e.g., Hibbs, supra, at 104), the “proper
course” under our precedents is to dismiss for lack of
jurisdiction. Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U. S. 422, 435 (2007).
Congress enacted the TIA’s prohibition on federal juris
diction over certain cases involving state tax issues be
cause federal courts had proved unable to exercise juris
diction over such cases in the restrained manner that
comity requires. See ante, at 7. As the Court explains,
Congress’ decision to prohibit federal jurisdiction over
cases within the Act’s scope did not disturb that jurisdic
tion, or the comity principles that guide its exercise, in
2 LEVIN v. COMMERCE ENERGY, INC.
THOMAS, J., concurring in judgment
cases outside the Act’s purview. See ante, at 7−8; 12−17. I
therefore agree with the Court that nothing in the Act or
in Hibbs affects the application of comity principles to
cases not covered by the Act. I disagree that this conclu
sion moots the need for us to decide “whether the TIA
would itself block th[is] suit.” Ante, at 16.
The Court posits that because comity is available as a
ground for dismissal even where the Act is not, the Act’s
application to this case is irrelevant if comity would also
support sending the case to state court. See ante, at
16−17. The Court rests this analysis on our recent holding
in Sinochem that a court may dismiss a case on a nonmer
its ground such as comity without first resolving an ac
companying jurisdictional issue. See ante, at 16−17 (citing
549 U. S., at 425). The Court’s reliance on Sinochem is
misplaced, however, because it confuses the fact that a
court may do that with whether, and when, it should. As
Sinochem itself explains, courts should not dismiss cases
on nonjurisdictional grounds where “jurisdiction . . . ‘in
volve[s] no arduous inquiry’ ” and deciding it would not
substantially undermine “judicial economy.” 549 U. S., at
436 (quoting Ruhrgas AG v. Marathon Oil Co., 526 U. S.
574, 587−588 (1999)). In such circumstances, Sinochem
reiterates the settled rule that “the proper course” is to
dismiss for lack of jurisdiction. 549 U. S., at 436. That is
the proper course here.
The TIA prohibits federal courts from exercising juris
diction over any action that would “suspend or restrain the
assessment, levy or collection of [a] tax under State law.”
§1341. As the Court appears to agree, see ante, at 17,
n. 13, this is such a case even under the crabbed construc
tion of the Act in Hibbs, which the Court accurately de
scribes as holding only that the Act does “not preclude a
federal challenge by a third party who object[s] to a tax
credit received by others, but in no way object[s] to her
own liability under any revenue-raising tax provision,”
Cite as: 560 U. S. ____ (2010) 3
THOMAS, J., concurring in judgment
ante, at 14−15 (emphasizing that the “plaintiffs in Hibbs
were outsiders to the tax expenditure, ‘third parties’
whose own tax liability was not a relevant factor”). This is
not such a case, because the respondents here are in no
sense “outsiders” to the revenue-raising state-tax regime
they ask the federal courts to restrain. Ibid.; see also
Hibbs, supra, at 104. Respondents compete with entities
who receive tax exemptions under that regime in provid
ing services whose cost is affected by the exemptions.
Respondents thus do object to their own liability in a very
real and economically significant way: The liability the
state tax regime imposes on them but not on their com
petitors makes it more difficult for respondents to match
or beat their competitors’ prices. The fact that they raise
this objection through the expedient of contesting their
competitors’ exemptions is plainly not enough to qualify
them as Hibbs-like “outsiders” to the state revenue-raising
scheme they wish to enjoin. If it were, application of the
Act’s jurisdictional bar would depend on little more than a
pleading game. The Act would bar a federal suit challeng
ing a state tax scheme that requires the challenger to pay
more taxes than his competitor if the challenger styles the
suit as an objection to his own tax liability, but would not
bar the suit if he styles it as an objection to the competi
tor’s exemption.
Because the Court appears to agree that even Hibbs
does not endorse such a narrow view of the Act’s jurisdic
tional bar, see ante, at 14−15, 17, n. 13, the “proper
course” is to dismiss this suit under the statute and not
reach the comity principles that the Court correctly holds
independently support the same result, Sinochem, supra,
at 436. Here, unlike in Sinochem, there is no economy to
deciding the case on the nonjurisdictional ground: The
same analysis that supports dismissal for comity reasons
subjects this case to the Act’s jurisdictional prohibition,
even as construed in Hibbs. Compare ante, at 5–17, with
4 LEVIN v. COMMERCE ENERGY, INC.
THOMAS, J., concurring in judgment
Sinochem, supra, at 435–436 (approving dismissal of a
suit on forum non conveniens grounds because dismissal
on personal jurisdiction grounds would have required the
“expense and delay” of a minitrial on forum contacts).
Given this, I see only one explanation for the Court’s
decision to dismiss on a “prudential” ground (comity), ante,
at 16−17, rather than a mandatory one (jurisdiction): The
Court wishes to leave the door open to doing in future
cases what it did in Hibbs, namely, retain federal jurisdic
tion over constitutional claims that the Court simply does
not believe Congress should have entrusted to state judges
under the Act, see 542 U. S., at 113–128 (KENNEDY, J.,
dissenting).
That is not a legitimate approach to this important area
of the law, see ibid., and the Court’s assertion that our
civil rights precedents require it does not withstand scru
tiny. If it is indeed true (which it may have been in the
civil rights cases) that federal jurisdiction is necessary to
ensure a fair forum in which to litigate an allegedly un
constitutional state tax scheme, the Act itself permits
federal courts to retain jurisdiction on the ground that “a
plain, speedy and efficient remedy” cannot be had in state
court. §1341. But where, as here and in Hibbs, such a
remedy can be had in state court, the Court should apply
the Act as written. See 542 U. S., at 113–128 (KENNEDY,
J., dissenting).
Because I believe the Act forbids the approach to federal
jurisdiction over state tax issues that the Court adopted in
Hibbs, I would not decide this case in a way that leaves
the door open to it even if the Court could find a doorstop
that accords with, rather than upends, the settled princi
ple that judges presented with multiple nonmerits
grounds for dismissal should dismiss on jurisdictional
grounds first. But the tension the Court’s decision creates
with this settled principle should be enough to convince
even those who do not share my view of the TIA that the
Cite as: 560 U. S. ____ (2010) 5
THOMAS, J., concurring in judgment
proper course here is to dismiss this case for lack of juris
diction because Hibbs’ construction of the Act applies at
most to the type of true third-party suit that Hibbs de
scribes, and thus does not save this case from the statute’s
jurisdictional bar.
Cite as: 560 U. S. ____ (2010) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–223
_________________
RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO,
PETITIONER v. COMMERCE ENERGY, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 1, 2010]
JUSTICE ALITO, concurring in the judgment.
I agree with the Court that principles of comity bar the
present action. I am doubtful about the Court’s efforts to
distinguish Hibbs v. Winn, 542 U. S. 88 (2004), but
whether today’s holding undermines Hibbs’ foundations is
a question that can be left for another day.