The practice of the Justices has settled upon three conditions
that must be met before issuance of a § 2101(f) stay is
appropriate. There must be a reasonable probability that certiorari
will be granted (or probable jurisdiction noted), a significant
possibility that the judgment below will be reversed, and a
likelihood of irreparable harm (assuming the correctness of the
applicant's position) if the judgment is not stayed.
Times-Picayune Publishing Corp. v. Schulingkamp,
419 U. S. 1301,
419 U. S.
1305 (Powell, J., in chambers). In my view, all three of
these conditions are met here.
The Tax Injunction Act, 28 U.S.C. § 1341, provides:
"[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."
The Fifth Circuit's holding that this provision does not apply
to state taxes that violate ERISA is in apparent conflict with the
position taken by the Ninth Circuit.
Page 501 U. S. 1303
See Ashton v. Cory, 780 F.2d 816, 821-822 (CA9 1986)
(KENNEDY, J.).
See also General Motors Corp. v. California
Board of Equalization, 815 F.2d 1305, 1308 (CA9 1987)
(KENNEDY, J.). The question has been explicitly reserved in an
opinion of this Court.
Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U. S. 1,
463 U. S. 20 n.
21,
463 U. S. 27 n.
31 (1983). The establishment of an ERISA exception to the Tax
Injunction Act is, alone, a matter of some importance to the
States. In addition, however, the Fifth Circuit's basis for the
exception is that there can be no "plain, speedy, and efficient
remedy" in Texas courts, because ERISA forbids their consideration
of ERISA preemption challenges.
E-Systems, Inc., supra, at
1102. This means, apparently, that state courts cannot even grant
refund relief, since we have held that refund relief alone may
constitute "a plain, speedy, and efficient remedy."
See, e.g.,
California v. Grace Brethren Church, 457 U.
S. 393,
457 U. S.
413-414 (1982);
Rosewell v. LaSalle National
Bank, 450 U. S. 503,
450 U. S.
514-515 (1981). In addition, the Fifth Circuit rejected,
without explanation, applicants' objection that the Eleventh
Amendment forbade the district court from requiring a refund of the
ERISA-preempted taxes from Texas' State Treasury.
E-Systems,
Inc., supra, at 1101-1102. This is also in apparent conflict
with the views of the Ninth Circuit.
See General Motors Corp.,
supra, at 1309. In my view, these issues are of sufficient
importance that a grant of certiorari by this Court is
probable.
I also think there is a substantial possibility that the
judgment below will be reversed. The Fifth Circuit's construction
of the Tax Injunction Act and ERISA assumes that ERISA's creation
of a private cause of action to enjoin violations of ERISA, 29
U.S.C. § 1132(a)(3), and its provision that this cause of
action can be brought only in federal court,
id., §
1132(e)(1), implicitly deprive the state courts of jurisdiction to
entertain claims for monetary or equitable relief that rest upon
the invalidity (under the Supremacy Clause) of a state
Page 501 U. S. 1304
statute that violates ERISA. That is not an inevitable
implication, and perhaps not a likely one. The Fifth Circuit's
position on the Eleventh Amendment presumably rests upon the
proposition that ERISA has impliedly authorized suit against states
for monetary (as well as injunctive) relief, thus abrogating state
sovereign immunity. But ERISA makes no mention of monetary relief,
and, in any event, our cases do not favor implicit abrogation of
Eleventh Amendment immunity.
See Dellmuth v. Muth,
491 U. S. 223,
491 U. S. 230
(1989);
Atascadero State Hospital v. Scanlon, 473 U.
S. 234,
473 U. S. 242
(1985).
As to the third condition, the likelihood of irreparable harm:
in my view, the Tax Injunction Act itself reflects a congressional
judgment, with which I agree, that unlawful interference with state
tax collection always entails that likelihood. It produces in all
cases not merely the possibility of ultimate noncollection because
of the taxpayer's exhaustion of the funds, but also an interference
with the State's orderly management of its fiscal affairs.
"It is upon taxation that the several States chiefly rely to
obtain the means to carry on their respective government, 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. Any delay in the proceedings of the officers, upon whom
the duty is devolved of collecting the taxes, may derange the
operations of government, and thereby cause serious detriment to
the public."
Dows v. City of
Chicago, 11 Wall. 108,
78 U. S. 110
(1871).
See also California v. Grace Brethren Church,
supra, at
457 U. S. 410
and n. 23 and n. 23. The same may be said of the asserted Eleventh
Amendment violation: directing a priority expenditure from the
state treasury "may derange the operations of government, and
thereby cause serious detriment to the public."
The conditions that are necessary for issuance of a stay are not
necessarily sufficient. Even when they all exist, sound
Page 501 U. S. 1305
equitable discretion will deny the stay when "a decided balance
of convenience,"
Magnum Import Co., supra, at
262 U. S. 164,
does not support it. It is ultimately necessary, in other words,
"to "balance the equities" -- to explore the relative harms to
applicant and respondent, as well as the interests of the public at
large."
Rostker v. Goldberg, 448 U.
S. 1306,
448 U. S.
1308 (1980) (BRENNAN, J., in chambers) (citations
omitted). The likelihood that denying the stay will permit
irreparable harm to the applicant may not clearly exceed the
likelihood that granting it will cause irreparable harm to others.
(This depends, of course, not only upon the relative likelihood
that the merits disposition one way or the other will produce
irreparable harm, but also upon the relative likelihood that the
merits disposition one way or the other is correct.) Or the
irreparable harm threatened to the applicant, while more likely,
may be vastly less severe. The balancing seems to me quite easy in
the present case, since I am aware of no irreparable harm that
granting the stay would produce. The State's credit remains good,
and I have been advised of no emergency need for the funds already
paid under protest or for any funds that will be collected before
termination of the litigation.
The application for stay of the judgments of the Fifth Circuit
Court of Appeals is granted, pending applicants' timely filing and
this Court's disposition of a petition for certiorari.
