SUPREME COURT OF THE UNITED STATES

No. 95–1594

BARBARA A. DE BUONO, NEW YORK COMMIS-

SIONER OF HEALTH, et al., PETITIONERS v.

NYSA–ILA MEDICAL AND CLINICAL

SERVICES FUND, etc., et al.

on writ of certiorari to the united states court of appeals for the second circuit

[June 2, 1997]

Justice Scalia, with whom Justice Thomas joins, dissenting.

"[I]t is the duty of this court to see to it that the jurisdiction of the Circuit Court, which is defined and limited by statute, is not exceeded." Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908). Despite our obligation to examine federal-court jurisdiction even if the issue is not raised by either party, ibid., and despite the Court's explicit acknowledgement, ante, at 3, n. 5, of the possibility that jurisdiction over this case is barred by the Tax Injunction Act, 28 U. S. C. §1341, the Court proceeds to decide the merits of respondents' ERISA pre-emption challenge. The Court offers two grounds for passing over the threshold question of jurisdiction: our "settled practice of according respect to the courts of appeals' greater familiarity with issues of state law," and petitioner's "active participation in nearly four years of federal litigation with no complaint about federal jurisdiction." Ante, at 4, n. 5. In my view, neither of these factors justifies our proceeding without resolving the issue of jurisdiction.

The Tax Injunction Act bars federal-court jurisdiction over an action seeking to enjoin a state tax (such as the one at issue here) where "a plain, speedy and efficient remedy may be had in the Courts of such State." 28 U. S. C. §1341; see Arkansas v. Farm Credit Servs. of Central Ark., post, at 3 (describing the Act as a "jurisdictional rule" and "broad jurisdictional barrier"). The District Court in this case suggested that the Tax Injunction Act might not bar jurisdiction here, since New York courts might not afford respondents a "plain" remedy within the meaning of the Act. See NYSA–ILA Medical and Clinical Services Fund v. Axelrod, No. 92 Civ. 2779 (SDNY, Feb. 18, 1993), App. to Pet. for Cert. 19a. That suggestion was not, however, based upon the District Court's resolution of any "issues of state law," as today's opinion intimates, ante, at 4, n. 5; rather, it rested upon the District Court's conclusion that uncertainty over the implications of a federal statute— §502(e)(1) of ERISA, 29 U. S. C. §1132(e)(1)—might render the availability of a state court remedy not "plain." App. to Pet. for Cert. 19a. The Court of Appeals, in turn, made no mention of the jurisdictional issue, presumably because, under controlling Circuit precedent, jurisdiction was secure: The Second Circuit had previously held that state courts could not provide any remedy for ERISA-based challenges to state taxes within the meaning of the Tax Injunction Act, since "Congress has divested the state courts of jurisdiction" over ERISA claims. Travelers Ins. Co. v. Cuomo, 14 F. 3d 708, 714 (1993) (citing ERISA §502(e)(1), 29 U. S. C. §1132(e)(1)), rev'd on other grounds sub nom. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 (1995). That holding (like the District Court's discussion of the issue in this case) in no way turns on New York state law, so I am at a loss to understand the Court's invocation of "our settled practice of according respect to the courts' of appeals' greater familiarity with issues of state law," ante, at 4, n. 5, as a basis for overlooking the question whether the Tax Injunction Act bars federal-court jurisdiction.

The second factor relied upon by the Court in support of its treatment of the jurisdictional issue is that petitioner dropped the issue after the District Court failed to adopt her interpretation of the Tax Injunction Act. But the fact that petitioner has "active[ly] participat[ed] in nearly four years of federal litigation with no complaint about federal jurisdiction," ibid., cannot possibly confer upon us jurisdiction that we do not otherwise possess. It is our duty to resolve the jurisdictional question, whether or not it has been preserved by the parties. Sumner v. Mata, 449 U. S. 539, 548, n. 2 (1981); Louisville & Nashville R. Co., 211 U. S., at 152. In Sumner we confronted the identical circumstance presented here—a jurisdictional argument raised before the District Court but abandoned before the Court of Appeals—and felt the need to address the jurisdictional issue. 449 U. S., at 547, n. 2.

I have previously noted the split among the Circuits on the question whether the Tax Injunction Act deprives federal courts of jurisdiction over ERISA-based challenges to state taxes. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1302–1303 (1991) (Scalia, J., in chambers). In a prior case, we expressly left the question open, saying that "[w]e express no opinion [on] whether a party [can] sue under ERISA to enjoin or to declare invalid a state tax levy, despite the Tax Injunction Act"; we noted that the answer would depend on whether "state law provide[s] no `speedy and efficient remedy'" and on whether "Congress intended §502 of ERISA to be an exception to the Tax Injunction Act." Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 20, n. 21 (1983). Because I am uncertain of the federal courts' jurisdiction over this case, I would set the jurisdictional issue for briefing and argument, and would resolve that issue before reaching the merits of respondents' ERISA pre-emption claim. Accordingly, I respectfully dissent from today's opinion.