Decision here.

Briefs here.

Lower court briefs and decision here.

For various reasons, this might be a good case for en banc review by the 11th Circuit. First, one of the three judges deciding this was from the D.C. district court, sitting by designation. Second, the decision is based on an issue not briefed (which leads to a broader research question we have about federal Indian law generally–how often this happens). Third, and perhaps most importantly, the Court’s analysis of Ex Parte Young an issue of broader, national, concern.

The Court’s issues with equitable relief, and characterizing the relief should the Tribe win as a continued “damages” against the state because of the state’s collection regime is strange.

A declaratory judgment exempting the Tribe from the tax is the functional equivalent of ordering recurring payments of money damages. The Tribe points to no other way around the alleged constitutional violation other than a recurring refund paid to the Tribe from the Department after it precollects the tax from the fuel suppliers.

***

Unlike the tax regimes in those appeals, the only relief available to the Tribe under Florida law is a refund of taxes it will already have paid, and state sovereign immunity bars that relief. See Ford Motor Co., 323 U.S. at 463–64, 65 S. Ct. at 350.

As Judge Jordan in the dissent writes:

The majority’s opinion, as I read it, apparently would allow a state to shield the enforcement of any tax, no matter how constitutionally untenable, from challenge in federal court simply by enacting a precollection procedure.