Matthew Josephs, Individually and on Behalf of All Otherssimilarly Situated, Plaintiff-appellant, v. Frank Zolin, an Individual; Anne Bersinger, an Individual,defendants-appellees, 110 F.3d 68 (9th Cir. 1997)

MEMORANDUM^** 

Matthew Josephs appeals the district court's dismissal for lack of subject matter jurisdiction of his 42 U.S.C. § 1983 action alleging that the smog impact fee imposed under Cal.Rev. & Tax.Code § 6262 violates his constitutional rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b) (1). See Erickson v. Desert Palace, Inc., 942 F.2d 694, 694-95 (9th Cir. 1991). We affirm.

Josephs contends that the district court erred by determining that his action was barred by the Tax Injunction Act ("Act"), 28 U.S.C. § 1341. This contention lacks merit.

The Act 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. The Act bars federal lawsuits for declaratory and injunctive relief, see California v. Grace Brethren Church, 457 U.S. 393, 411 (1982), and for damages, see Marvin F. Poer & Co. v. Counties of Alameda, 725 F.2d 1234, 1236 (9th Cir. 1984).

We conclude that the smog impact fee is a tax. Cf. Bidart Bros. v. California Apple Comm'n, 73 F.3d 925, 931-32 (9th Cir. 1996) (establishing test to determine whether an assessment is a tax). Josephs has a plain, speedy and efficient remedy in state court, because he may seek a refund through state administrative procedures, see Grace Brethren Church, 457 U.S. at 412; Cal.Rev. & Tax.Code § 6901-07; Cal.Veh.Code § 42231, or he may assert his section 1983 claims in state court, see Martinez v. State of Cal., 444 U.S. 277, 283 n. 7 (1980) (noting that state courts may entertain section 1983 claims).

Accordingly, the district court did not err by dismissing Josephs's action for lack of subject matter jurisdiction. See 28 U.S.C. § 1341; Grace Brethren Church, 457 U.S. at 412; Bidart, 73 F.3d at 931-32.

AFFIRMED.