NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID R. SMITH, No. 16-17232
Plaintiff-Appellant, D.C. No. 5:16-cv-02376-EJD
v.
MEMORANDUM*
COUNTY OF SANTA CRUZ; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
David R. Smith appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action arising from a special assessment lien. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 (9th Cir. 2000). We vacate
and remand.
The district court dismissed Smith’s claims as barred by the Tax Injunction
Act (“TIA”), 28 U.S.C. § 1341, based on the determination that the special
assessment lien recorded against Smith’s property was a tax under the TIA.
However, the district court did not consider all of the applicable factors in reaching
its determination, including (1) the entity that imposes the charge; (2) the parties
upon whom the charge is imposed; and (3) “whether the assessment is expended
for general public purposes, or used for the regulation or benefit of the parties upon
whom the assessment is imposed.” Bidart Bros. v. Cal. Apple Com’n, 73 F.3d 925,
931-32 (9th Cir. 1996) (setting forth three-factor test for determining whether an
assessment is a tax under the TIA). We vacate the district court’s judgment and
remand for the district court to apply the Bidart test in the first instance.
In light of our disposition, we do not consider any other contentions raised
on appeal.
Smith’s motion for judicial notice (Docket Entry No. 9) is denied.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
2 16-17232