Pleasures of San Patricio, Inc. v. Méndez-Torres

United States Court of Appeals
For the First Circuit

No. 08-2388

PLEASURES OF SAN PATRICIO, INC.,

Plaintiff, Appellant,

IVÁN R. ROCAFORT,

Plaintiff,

v.

JUAN C. MÉNDEZ-TORRES;
DEPARTAMENTO DE HACIENDA DE PUERTO RICO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Baldock,* and Howard, Circuit Judges.

Frank E. Guerra-Pujol, for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, Commonwealth of Puerto Rico, with whom Irene
S. Soroeta-Kodesh, Solicitor General, Leticia Casalduc-Rabell,
Deputy Solicitor General, and Zaira Z. Girón-Anadón, Deputy
Solicitor General, were on brief for appellees.

February 22, 2010

*
Of the Tenth Circuit, sitting by designation.
 BALDOCK, Circuit Judge. Plaintiff Iván Rocafort is the

president and primary shareholder of Plaintiff-Appellant Pleasures

of San Patricio, Inc. (PSP), a tobacco and wine shop in Puerto

Rico.1 PSP regularly imports and sells little cigars made in the

mainland United States and is the exclusive distributor of Cheyenne

Little Cigars in Puerto Rico. The United States Department of the

Treasury has classified little cigars as a different tobacco

product from cigarettes. Section 2009 of the 1994 Puerto Rico

Internal Revenue Code imposes an excise tax on cigarettes but not

on little cigars. Prior to 2007, PSP had never been required to

pay Puerto Rico’s cigarette excise tax on its imported little

cigars. In 2007, PSP ordered $40,000 worth of Cheyenne Little

Cigars from a manufacturer in North Carolina. Defendant Secretary

of the Puerto Rico Department of the Treasury, Juan Méndez-Torres,

for the first time refused to release PSP’s shipment of Cheyenne

Little Cigars until PSP paid the cigarette excise tax. PSP alleges

Defendant acted pursuant to Circular Letter of Internal Revenue No.

05-08 dated August 17, 2005 (Circular Letter) which PSP claims

imposes Puerto Rico’s cigarette tax only on little cigars produced

in the United States.

In October 2007, PSP filed suit in Puerto Rico federal

district court requesting "the immediate release of [PSP’s]

1
Though both Plaintiff Rocafort and Plaintiff-Appellant PSP
sued in federal court and later in the Commonwealth courts, for
simplicity’s sake we refer only to PSP.

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shipment of Cheyenne Little Cigars . . .,” “a permanent injunction

against the selective and discriminatory imposition of the

cigarette excise [tax] upon Cheyenne Little Cigars” and a

declaration “that the excise tax of the 1994 Internal Revenue Code

of Puerto Rico Section 2009 [is] not applicable to Cheyenne Little

Cigars.” PSP asserted Defendant’s application of the cigarette

excise tax solely to mainland-made little cigars constitutes

unconstitutional interference with and discrimination against

interstate commerce, in violation of the Commerce Clause, Article

I, Section 8 of the United States Constitution.

The district court granted Defendant’s motion to dismiss

for lack of jurisdiction in August 2008. The district court

concluded the Butler Act, 48 U.S.C. § 872, prevented it from

hearing the suit because the Act prohibits the filing of suits in

federal courts “‘for the purpose of restraining the assessment or

collection of any tax imposed by the laws of Puerto Rico.’"

Pleasures of San Patricio, Inc. v. Méndez-Torres, 2008 WL 4191251,

at *1 (D.P.R. Aug. 29, 2008) (quoting 48 U.S.C. § 872). The court

was "firmly convinced that this is a prototypical Butler Act case

as [PSP] is explicitly challenging the validity of a tax and

[Defendant]’s authority to assess it." Id. Consequently, the

district court declared it did not have jurisdiction to entertain

the suit. Id. at *2. PSP’s timely appeal to our Court followed.

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 At oral argument, counsel for both parties revealed that

while this appeal was pending, PSP filed an action in a

Commonwealth of Puerto Rico trial court and received a partial

summary judgment, which was at that time on appeal to the

Commonwealth appellate court. We, therefore, ordered both parties

to file English translations of the proceedings and associated

complaints, pleadings, motions and briefs in PSP’s related case

before the Commonwealth trial and appellate courts. Defendant

responded to our order by filing 436 pages in no apparent order

without a uniform page numbering system (some page numbers are

handwritten, others are typed in various fonts and sizes, and some

placed over the page’s text). Defendant evidently thought it

appropriate to divide the documents into six parts but failed to

label any of these six parts. Defendant provides an “Addendum

Index” which does not appear to correspond to what it actually

filed. Looking at the first page and last page of each part, Part

II allegedly contains pages 36 through 235; Part III allegedly

contains pages 236 through 260; Part IV allegedly contains pages 54

through 123; Part V allegedly contains pages 124 through 226; and

Part VI allegedly contains pages 180 through 226. As for pages 260

through 436, we are left to assume they are somewhere in those six

parts; although, we have only been able to locate pages numbered

through 338 scattered throughout the six parts because many of the

pages lack page numbers altogether.

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 Under 28 U.S.C. § 1291, we review the district court’s

final order of dismissal for lack of jurisdiction de novo. Murphy

v. United States, 45 F.3d 520, 522 (1st Cir. 1995). In light of

the proceedings in the Commonwealth courts, we suspect this case

is moot. The parties’ inadequate compliance with our order,

however, prevents us from definitively reaching a conclusion as to

mootness. Regardless, we can definitively conclude based upon the

submissions that we lack subject matter jurisdiction pursuant to

the Butler Act because Commonwealth of Puerto Rico courts have

provided a plain, speedy, and efficient remedy. We, consequently,

affirm the district court’s dismissal for lack of jurisdiction.

I.

From what we can decipher, PSP apparently filed a lawsuit

in the Commonwealth of Puerto Rico in February 2009, after the

federal district court dismissed the instant case, against the

Puerto Rico Department of the Treasury and Department of Justice

challenging the Circular Letter, requesting an injunction, and

demanding damages for the unlawful detention of its shipment. See

Rocafort v. Dep’t of the Treasury, No. E PE2009-0057 (Court of

First Instance, Caguas Superior Court, filed February 20, 2009).

PSP alleged Defendant Méndez-Torres implemented the Circular Letter

in contravention of Puerto Rico’s Small Business Administrative and

Regulatory Flexibility Act (SBARFA), 3 L.P.R.A. §§ 2251–2262. The

Court of First Instance granted partial summary judgment and

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entered a judgment in PSP’s favor. The court considered whether

Defendant Méndez-Torres acted in conformity with the SBARFA in

issuing the Circular Letter and, if properly issued, whether the

Circular Letter promulgates an invalid administrative

interpretation of Section 2009 of the Internal Revenue Code. PSP

does not appear to have raised Commerce Clause arguments before the

Court of First Instance. Ultimately, the court concluded Defendant

Méndez-Torres acted in contravention of the SBARFA in issuing the

Circular Letter and relied upon an invalid regulatory

interpretation in seizing the shipment of little cigars. The

court, therefore, granted PSP’s motion for partial summary judgment

and ordered the Department of the Treasury to release the shipment

immediately. Defendants then filed a petition for certiorari

before the Commonwealth of Puerto Rico Appellate Court. See

Rocafort v. Dep’t of the Treasury, No. KLCE2009-01542, Petition for

Certiorari (Appellate Court, Judicial Region of Caguas, filed

October 26, 2009). That is the last documentation we have of this

case in the Commonwealth courts. Neither party has supplemented

the record pursuant to Fed. R. App. P. 28(j) to inform us whether

the Appellate Court has granted the petition for certiorari, let

alone whether it has affirmed the Court of First Instance’s partial

summary judgment in favor of PSP. The parties have also not

informed us whether the Department of the Treasury has complied

with the Court of First Instance’s September 2009 order by

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releasing the shipment. As a result, we cannot conclusively

determine that the Commonwealth proceedings render the case before

us moot. We, therefore, proceed to determine whether the Butler

Act deprives us of subject matter jurisdiction.

II.

The Butler Act states, in relevant part: "No suit for the

purpose of restraining the assessment or collection of any tax

imposed by the laws of Puerto Rico shall be maintained in the

United States District Court for the District of Puerto Rico." 48

U.S.C. § 872. The Act is “a close analogue to the Tax Injunction

Act (‘TIA’) applicable to Puerto Rico." Coors Brewing Co. v.

Méndez-Torres, 562 F.3d 3, 13 (1st Cir. 2009). "The two statutes

employ different language (i.e. the [TIA] includes an express

exception that the Butler Act lacks), but ‘have been construed in

pari materia.’" United Parcel Serv., Inc. v. Flores-Galarza, 318

F.3d 323, 330 n.11 (1st Cir. 2003)(quoting Trailer Marine Transp.

Corp. v. Rivera Vazquez, 977 F.2d 1, 5 (1st Cir. 1992)). For this

reason, we apply the Butler Act in the same manner as the TIA.

Carrier Corp. v. Perez, 677 F.2d 162, 164 (1st Cir. 1982). The TIA

limits the jurisdiction of a federal court to entertain a suit

seeking to enjoin the levying or collection of a state tax where "a

plain, speedy and efficient remedy" exists in state court. Id. at

164; see also United Parcel Serv., 318 F.3d at 330 n.11. Two

conditions must, therefore, be satisfied before the Butler Act will

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deprive a federal court of jurisdiction: first, the suit must

attempt to restrain the assessment or collection of a Puerto Rico

tax; and second, local courts must provide the plaintiff a plain,

speedy, and efficient remedy. Carrier, 677 F.2d at 164.

A.

As to the first condition, similar to the TIA, "[n]ot

every statutory or regulatory obligation that may aid the Secretary

[of the Treasury]’s ability to collect a tax is immune from attack

in federal court by virtue of the Butler Act’s jurisdictional bar."

United Parcel Serv., 318 F.3d at 331. The Act’s jurisdictional bar

only extends to:

"[C]ases where taxpayers were repeatedly using
the federal courts to raise questions of state
or federal law going to the validity of the
particular taxes imposed upon them—not to a
case where a taxpayer contended that an
unusual sanction for non-payment of a tax
admittedly due violated his constitutional
rights . . . ."

Id. (quoting Wells v. Malloy, 510 F.2d 74, 77 (2d Cir. 1975)).

In Coors Brewing Co. v. Méndez-Torres, we further

clarified the scope of the Butler Act in the wake of the Supreme

Court’s decision in Hibbs v. Winn, 542 U.S. 88 (2004). Hibbs v.

Winn dealt with the scope of the TIA, but we concluded in Coors:

[S]ince the Butler Act is read in parallel to
the TIA, and since it similarly only restricts
the district courts from entertaining suits
“for the purpose of restraining the assessment
or collection” of taxes of Puerto Rico, we
read it, according to Hibbs, to only apply
where plaintiffs seek to challenge taxes in a

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 way that would reduce the flow of state tax
revenue.

Coors, 562 F.3d at 14. For this reason, we concluded that despite

the Butler Act the district court had jurisdiction to entertain

Coors’s suit challenging an exemption in Puerto Rico’s taxing

scheme which specified a lower tax rate for small brewers

(generally local brewers). Id. at 16. Coors sought a declaration

that the exemption was unconstitutional under the Commerce Clause

as well as an injunction prohibiting the Puerto Rico Secretary of

the Treasury from allowing any taxpayer to pay only the reduced tax

rate provided by the small brewers exemption and requiring the

Secretary to impose the higher tax rate on all brewers. Id. at 5.

Because Coors did not seek to lower the tax rate on itself, "rather

than eliminat[ing] a potential source of revenue, the relief Coors

request[ed] would simply eliminate a tax law affording preferential

tax treatment to certain taxpayers." Id. at 16. Accordingly, we

concluded that under Hibbs, Coors’s action was not barred by the

Butler Act. Id.

At first blush, PSP’s suit appears similar to the one we

determined fell beyond the scope of the Butler Act in Coors. PSP

raised a Commerce Clause objection to Defendant placing a higher

tax on mainland-made little cigars than locally-made little cigars.

Similarly, Coors raised a Commerce Clause challenge to the

Secretary’s imposing a higher tax on large brewers than on small

brewers. But, critically, the two suits differ in the relief

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requested. Coors requested an injunction requiring all brewers,

large and small, to pay the higher large-brewer tax, thereby

increasing the revenue flowing to Puerto Rico. In contrast, PSP

requested in its amended complaint that the federal district court

"order the immediate release of [PSP’s] shipment of Cheyenne Little

Cigars . . ., . . . issue a permanent injunction against the

selective and discriminatory imposition of the cigarette excise

[tax] upon Cheyenne Little Cigars, [and]. . . declare that the

excise tax of the 1994 Internal Revenue Code of Puerto Rico Section

2009 [is] not applicable to Cheyenne Little Cigars." PSP did not

request an injunction requiring Defendant to apply the cigarette

excise tax to all little cigars, including those made in Puerto

Rico. Consequently, rather than increase the revenue generated by

Puerto Rico’s tax laws, PSP’s requested relief "would reduce the

flow of [Puerto Rico] tax revenue." Coors, 562 F.3d at 14. We

must, therefore, conclude PSP’s suit does fall within the ambit of

suits barred by the Butler Act.

B.

Now that we have determined PSP’s suit is within the

scope of suits barred by the Butler Act, we must decide whether

Puerto Rico local courts provide a plain, speedy, and efficient

remedy. Carrier, 677 F.2d at 164. PSP argues in its briefs that

it lacks such a remedy for two reasons: first, Puerto Rico tax

procedure requires it to sell its little cigars at a loss; second,

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the Supreme Court of Puerto Rico does not recognize the

applicability of the Commerce Clause to Puerto Rico.2

The Supreme Court has clarified that the requirement of

a plain, speedy, and efficient remedy in state court is only a

procedural one and is, therefore, satisfied merely when “certain

procedural criteria” are met. Rosewell v. LaSalle National Bank,

450 U.S. 503, 522 (1981); Carrier, 677 F.2d at 165. A state remedy

meets these minimal procedural criteria so long as it “provides a

taxpayer with a ‘full hearing and judicial determination’ at which

she may raise all constitutional objections to the tax” and may

therefrom seek review before the Supreme Court. Rosewell, 450 U.S.

at 515 n.19.

1.

Puerto Rico law evidently requires individuals contesting

an imposed tax to pay the tax and then apply to the Secretary of

the Treasury for a refund. See 13 L.P.R.A. § 261 (“[N]o credit or

reimbursement of any tax covered by §§ 261 and 262 of this title

shall be granted unless the taxpayer shows . . . he has sustained

2
PSP also suggested at oral argument that it lacked a plain,
speedy, and efficient remedy in the Commonwealth Courts because
such an action is time barred. First, we note we have no way of
knowing if the Commonwealth courts have determined PSP’s suit is
time barred because the parties’ addendum does not indicate any
Commonwealth court has ruled on the issue yet. Second, because PSP
raised this argument for the first time at oral argument, we refuse
to consider it. See Nieves-Vega v. Ortiz-Quiñones, 443 F.3d 134,
138 (1st Cir. 2006); Surprenant v. Rivas, 424 F.3d 5, 16 (1st Cir.
2005).

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the burden of the payment of the tax.”); Carrier, 677 F.2d at 164.3

State refund actions that allow protesting taxpayers the

opportunity for state judicial review of their constitutional and

federal claims generally constitute a plain, speedy, and efficient

remedy. See California v. Grace Brethren Church, 457 U.S. 393,

416–17 (1982); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S.

293, 300 (1943). But Puerto Rico requires taxpayers not only to

pay the tax before seeking redress, but also to in fact have

suffered the economic burden of the tax. 13 L.P.R.A. § 261; see

also Venrod Corp. v. Sec’y of the Treasury of the Commw. of Puerto

Rico, 704 F. Supp. 21, 23 (D.P.R. 1989)("[N]ot only must the

plaintiff have paid the tax, but . . . it ‘must have in fact

suffered the economic burden of the tax.’" (quoting Pedro A. Pizá,

Inc. v. Tax Court, 72 P.R.R. 302, 304 (1951))). If the Secretary

3
At oral argument, Plaintiff stated that PSP would have to
pay the imposed tax in order to request injunctive or declaratory
relief in the Commonwealth courts. Defendant’s counsel took
contradictory positions on the matter. The addendum submitted by
the parties does not clarify this confusion, nor does it establish
whether PSP has already paid the tax or posted a bond as part of
the litigation in the Commonwealth courts. Although, seemingly if
PSP had paid the tax prior to filing suit in the Commonwealth
courts, Defendant would have released the shipment, and PSP would
not have requested the Commonwealth court to order Defendant to
release the shipment but would have instead requested a tax refund.
Since PSP did request the release of the shipment in the suit
before the Commonwealth trial court, PSP, in theory, has not yet
been made to pay the tax. But for reasons discussed herein the
answer to those questions does not affect our plain, speedy, and
efficient remedy analysis in this case. We, therefore, take PSP’s
claim in its briefs and at oral argument that it must first pay the
tax to challenge it in the Commonwealth courts as true.

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decides against the taxpayer, he may appeal the decision in the

local Puerto Rico courts and, thereafter, seek review of any final

Commonwealth court decision with the Supreme Court of the United

States. Carrier, 677 F.2d at 164. This means only taxpayers who

have absorbed the challenged taxes and not passed them on to their

vendees may sue for a refund in Commonwealth courts. Venrod, 704

F. Supp. at 23. Quoting Venrod, PSP asserts:

This puts [a] plaintiff in a catch-22
situation anent the state remedy: it can
either pass the burden of the tax on to the
ultimate purchaser, which will make [the taxed
product] uncompetitive, and thereby forego any
remedy for an allegedly illegal tax, or it can
absorb the tax, sell the [taxed product] at a
loss, and attempt to obtain a refund.

Id. at 24. In Venrod, the United States District Court for the

District of Puerto Rico reasoned that while we had previously

determined in Carrier that Puerto Rico’s refund procedure

constituted a plain, speedy, and efficient remedy, we did not

encounter the catch-22 scenario described. Id. As a result, the

Venrod district court proceeded to conclude "a remedy which

requires for its availability the selling of the [taxed product] at

a loss is not plain, speedy, and efficient." Id. In Carrier, we

reviewed the exact same Puerto Rico tax refund procedure under 13

L.P.R.A. § 261 that the district court in Venrod discussed; we just

did so seven years earlier.4 Carrier, 677 F.2d at 164. At that

4
From what we can discover, 13 L.P.R.A. § 261 has only been
altered once since 1954. In 2003, “Superior Court” was changed to

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time, we concluded that Section 261 provided plaintiffs challenging

Puerto Rico taxes a plain, speedy and efficient remedy. Id. The

district court in Venrod correctly noted that the Carrier court did

not expressly pass on the catch-22 scenario Section 261 creates by

requiring plaintiffs to suffer the challenged tax. Venrod, 704 F.

Supp. at 24. However, we must assume that when the Carrier court

stated it had evaluated the Puerto Rico refund procedure in Section

261, the court reviewed it in its brief entirety (only two

paragraphs long). We, therefore, have good reason to conclude we

have already passed on Section 261's burden-bearing requirement.

Moreover, we independently fail to see how requiring a

taxpayer to sell taxed goods at a loss before suing for a refund

fails to provide him an adequate remedy. First, if the taxpayer

prevails in his challenge of the tax, he obtains a refund,

reversing the detriment the tax imposed upon him. Second,

requiring a taxpayer to bear the burden of the tax does not

diminish Puerto Rico’s satisfaction of the Butler Act’s minimal

procedural requirements. Puerto Rico continues to satisfy those

minimal procedural requirements by providing a taxpayer a “full

hearing and judicial determination” of all of her constitutional

objections to the tax, with review thereafter possible before the

United States Supreme Court, regardless of its burden-bearing

“Court of First Instance.” See P.R. Laws Ann. tit. 13 § 261
(LexisNexis 2006). Otherwise, the text of the statute has remained
the same.

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requirement. Third, Congress, and later the Supreme Court when

asked to review state refund procedures, surely understood a

taxpayer might have to bear the economic burden of a tax in order

to contest it in state courts. When Congress first passed the

Butler Act’s cousin, the TIA, “Congress knew that state tax systems

commonly provided for payment of taxes under protest with

subsequent refund as their exclusive remedy.” Rosewell, 450 U.S.

at 523. Then and now, a significant portion of taxpayers are not

businesses or entities that can pass on their tax liabilities to

their consumers or employees, but instead are families and

individuals who must bear the burden of their state tax liability

rather than pass it on to someone else. Consequently, Congress and

the Court must have realized many taxpayers would have to absorb

the burden of a tax in order to contest it in state court. Thus,

on the facts presented, we must conclude Puerto Rico’s requirement

that PSP absorb the burden of the tax prior to contesting it does

not deprive PSP of a plain, speedy, and efficient remedy in Puerto

Rico courts.5

5
We note, however, some sister circuits have indicated that
while generally a state refund procedure constitutes a plain,
speedy, and efficient remedy, requiring a taxpayer to pay an
exorbitant or effectively punitive tax in order to challenge it may
present “such a heavy burden that to decline [federal] equitable
relief would be to deny judicial review altogether.” H.W. Denton
v. City of Carrollton, Georgia, 235 F.2d 481, 485 (5th Cir. 1956);
see also Capitol Indus.-EMI, Inc. v. Bennett, 681 F.2d 1107, 1114
n. 20 (9th Cir. 1982)(explaining that a state refund action may not
constitute an adequate remedy in special circumstances, such as
when a taxpayer is unable to pay a proposed assessment); Sterling

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 Furthermore, in this case, the Commonwealth courts (even

assuming contrary to logic that PSP has paid the contested tax)

have certainly provided PSP a plain, speedy, and efficient remedy.

PSP has already received a favorable partial judgment from the

Commonwealth trial court ordering Defendant to release its

shipment. Even if the Commonwealth Appellate Court reverses the

partial judgment, "[t]he Butler Act, at most, requires assurance

that a plaintiff will have an opportunity to make an argument in

[local] court, not that he will win." Id. at 165. As Defendant’s

addendum indicates, PSP has clearly had such an opportunity.

2.

We have also reviewed the Supreme Court of Puerto Rico’s

interpretation of the Commerce Clause’s application to Puerto Rico,

finding it far less definitive than PSP asserts. See Starlight

Sugar, Inc. v. Soto, 253 F.3d 137, 143 (1st Cir. 2001) (concluding

after reviewing circuit and Puerto Rico Supreme Court precedent

that the Commerce Clause in the view of Puerto Rico courts may have

“‘contours which are different’ from those when applied to the

Shoe Co. v. Norberg, 411 F. Supp. 128, 131 (D.R.I. 1976) (noting
that “it is settled law that prepayment as a prerequisite to
judicial review does not prevent application of” the TIA, but that
“[t]here is a qualification, however, where there is a factual
showing . . . that prepayment in order to secure judicial review
‘poses such a heavy burden that to deny equitable relief is to deny
judicial review entirely’” (quoting Denton, 235 F.2d at 485)). PSP
has never contended it is unable to pay the “six dollars and
fifteen cents” excise tax allegedly imposed by Puerto Rico upon its
shipment of little cigars. As a result, we have no reason to
believe that special circumstances of the nature other circuits
have discussed exist here to justify jurisdiction.

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States.” (quoting R.C.A. v. Gov’t of the Capital, 91 P.R.R. 404,

419 (P.R. 1964))); Carrier, 677 F.2d at 165 (explaining that the

position taken by the Supreme Court of Puerto Rico on the

applicability of the Commerce Clause to Puerto Rico was far more

flexible in R.C.A than the plaintiff suggested). Regardless, as we

have previously recognized, we need not address the precise

contours of Puerto Rico’s Commerce Clause jurisprudence in order to

find PSP has an adequate remedy under Puerto Rico law. Carrier,

677 F.2d at 165. Rather, we have concluded it is sufficient that

plaintiffs are “free to make a Commerce Clause-based argument in

the courts of Puerto Rico, and to pursue those arguments to the

Supreme Court of the United States if necessary.” Id. The Butler

Act only requires that local courts provide a plaintiff the

opportunity to make an argument, not that they guarantee the

plaintiff’s success. Id. Given this reasoning and the fact that

PSP has already availed itself of such an opportunity to make this

argument by challenging the tax in the Commonwealth courts (though

it evidently chose not to make Commerce Clause arguments), PSP’s

contention that the local courts do not provide a plain, speedy,

and efficient remedy is meritless.

III.

For the foregoing reasons, the judgment of the district

court is affirmed.

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