appellants i'd like to reserve two minutes for rebuttal the new york legislature enacted the opioid stewardship act to raise critically needed revenue to respond to the opioid crisis for two reasons plaintiff's challenge to the acts revenue raising measure should be rejected the st is that under the tax injunction act and tax comedy their request for federal judicial relief to prevent new york from collecting revenue for public purposes is jurisdictionally barred and nd even if there consider their claims the revenue raising measures here is several ball from a separate prohibition the district court struck down that prevented the cost of that assessment from being passed on to end users on the jurisdictional question the tax injunction act prevents federal judicial relief when a state imposes a revenue raising measure that is for a public purpose meaning that it is not raising money from regulated entities to fund the very program that regulates them but instead is going to benefit people outside of that program stewardship act does exactly that the money that is collected from opioid manufacturers and distributors doesn't go to benefit those companies it doesn't go to fund the department of health regulation of those companies instead it goes to different agencies to different programs and to benefit at different population of individuals it goes to a specialist fund that is dedicated to benefit people who are outside of the record namely individuals who have been harmed by the addiction crisis and who need the prevention treatment and recovery services specialize the relationship between them is the specialized funds money can be used only for the purposes that the legislature has dictated in the  statute but that doesn't remove it from the status of a tax because the purpose for which the fund is directed is the type of public purpose of the tax injunction that is meant to protect and it's a public purpose because as distinct from what this court found in travelers it doesn't provide a narrow benefit to these companies who are not the beneficial not of specific nomenclature why would you i think for the reasons that the th circuit identified in empress casino which is that legislatures are often concerned about how the money has been used and to avoid annual appropriations battles they will dedicate that money to specific purposes to ensure a reliable revenue stream and this is not a judgement unique to this particular fun the excise taxes collected from cigarettes for example goes to the health care reform act fund which in the statute in new york law is dedicated to specific purposes including treatment and support for such there susan i think that they are called excise taxes but the point here is that the use of a special fund is not disqualifying for these jurisdictional purposes so long as the purpose of that fund is a public one and the kind of specialized fund that would not be covered by the act are those where the fund used for the purposes of the very program from which the money is collected to give an example in this very context the pardon of health collects from these companies licensing fees that it uses to fund the administration quite costly administration of the program over these companies that is not what this money is being used to deal which does not use this money to regulate these companies but rather to benefit people who have been harmed by the addiction crisis outside of the regulated program and the various factors in addition to the use of the specialized fund that the district court and places here rely on to distinguish this case from attack are all immaterial given this fundamental purpose i mean the labeling courts have rejected the idea that the label of a statute is important the use of the specialized fund is not important and in particular the fact that what this is trying to do is to deal with the consequences of the plaintiff's actions also does not remove it from the status of a tax because courts have routinely recognized that sometimes the harms caused by regulated entities can be public harms they require a public policy response and so the restraint that the district court imposed here on the collection of this revenue triggers precisely the concerns that the tax injunction act and tax comedy were meant to address which is preventing new york from getting one hundred million dollars per year that the legislature found that it needed in order to address a pressing crisis to be clear plaintiffs are able if this jurisdictional bar applies to bring their claims back in state court and it's particularly appropriate for them to do so for their severability claim because severability is a question of legislative intent and supreme court found in the levin case which is a tax comedy case when the question is what the legislature would have intent what the statute what it might do in response to a potentially meritorious federal claim it is appropriate to leave that question to the legislature because it is their intent that matters here on the question of severability the reason that severability should apply here and the revenue raising measure should be seen as distinct from the past two prohibition is that the legislature enacted the statute really for two separate reasons the most important and critical one was to raise money to fill a gaping hole in the budget caused by the increased demand on the services caused by the addiction crisis and then separately they wanted to protect downstream consumers from price increases as a result of these assessments so let me ask you about that if we agree that  is for those two years purchasers are going to bear the price of these drugs and now contrary to everybody's attention that this should be punitive on these manufacturers they should pay for what they've done and they can pass it on to consumers they're not going to be paying for anything but also two dollars things for that st is this was not a punitive purpose of the statute but even if the point here was to leave the cost on the manufacturers and distributors that's a valid civil purpose it is but the nd point i want to raise is an important distinction we don't dispute the legislature wanted to an act passed through prohibition and thought at the time that it serves an important purpose but severability asked a different question with a different answer which is what the legislature have thrown the baby out with the bathwater where they have given up one hundred million dollars a year to fund programs that didn't have that money before if they'd known the passing prohibition was not available and here every indication of legislative intent is they did not find these inseparable i mean the st is that they included an express severability clause saying that if any provision of the statute is struck down every other should survive that's a sharp contrast with prior statutes like the one dealt with in mobile oil that included a anti severability pr that said everything will fall all at once as this court recognized but the nd is that in response to the additional court's ruling here the legislature looked again at the budget hole looked again at the problem with addiction services and the gap in funding for those services and they enacted they basically reenacted this statute they came in and said the same companies that are suing here will pay again and we won't reenact the past and prohibition and that's subsequent and that one confirms that what the legislature want to do here st and foremost was to make sure that the people suffering from the opioid crisis got the services that they that they desperately needed i mean to put this point another way you know even when the legislature acts for multiple purposes at the same time when it comes to severability  the more difficult question is whether the legislature thought that these things should stand or fall together and here from what the lobster did both at the time of the act meant and afterwards when they were faced with a world where there was no past to prohibition they have confirmed their desire to raise this reversal and that dismissal of all of their remaining claims against the assessment again we are not appealing from the separate part of the court's ruling on the passage prohibition but that would channel the remainder of their claims to the extent there are any to the state courts to resolve instead and get the federal courts out of this business on severability if this court were to reverse that was the only ground on which the district court struck down the assessment and we do think in that case if there is jurisdiction and severability is improper that it would return to the district court to continue further proceedings and a more that's correct wording exactly to far more to exactly would be the credo who what is it that we would be strict in the district court to do well it would be were issued for for some of the cases that are now on appeal and reversing the grant of summary judgment on severability if this court reaches that or vacating and reversing if it's on jurisdictional grounds instead that's not that's correct and they would bring their claims in state court to the extent they want to pursue them further and it's just severability because it because they brought multiple claims below that was the only one the district court ruled on if that were the basis for this court's ruling alone th would remain further proceedings below on the other on the other challenges thank you please the court michael kimberly on behalf of plaintiff happily health care distribution alliance yours with the congress did not bar federal court review of all state law efforts to raise revenue rather congress limited the t i a to taxes only leaving federal courts free to hear challenges to fees and penalties and here every relevant factor points in extremely to the conclusion and the district court's holding that the o s a assesses both regulatory fee and spin well i think it's fair to say it's not a you see it does go to the department of health the department of health is the agency that assesses the tax it's the agency that in effect administer scuse me assesses the surcharge and administers the funds once they come into the special fund they do go to offset costs incurred by the agencies because of the activities of the regulated entities  to opioid abuse news education services all of that is in addressing extra nowadays and part of it also goes to fund a prescription monitoring program which is an effort to keep on top of doctors prescriptions honor to a handful of cases that have dealt with revenues that are used in this particular went way one is they had money cases a case from the eight hundred and eighty dollars s from the supreme court which said that an assessment per person per immigrant used to offset the extra nowadays of bringing immigrants into the united states was a few not a tax because it was used for that specific purpose gen on a th circuit case where in fact it was only half of the proceeds of the fee were used to offset greenhouse gas emissions assessed against power plants in montgomery county maryland and trail a marine in the st circuit where the proceeds of the fee assessed were used to offset the externalized costs of car accidents each one dollar of those cases assessed what the courts determined were not taxes but fees although they did not go to benefit particular payers they want to offset costs inflicted by those  so if i may i should say also i think it's very important that the court take a broader view of of the analysis here there are a number of factors all of which point in favor of the district court's conclusion the assessment is not called a tax it is not collected by taxing authorities it is placed in a segregated fund not into the state's general fund is your mark for the specific purposes that we were just discussing it's a are hallmark indications that it is in fact a punitive measure and the punitive elements of the surcharge i think are relevant both to the question of whether it's a tax for purposes of the t i a and also for the severability because i'm asking about that because they knew that and they nonetheless put a very expressive severability clause in the statute so they knew that there was a possibility that this passed through or any other provision might not survive and yet they inserted that provision so how can we look behind that and say you didn't really know what you were doing when you put in that severability clause what you really intended was the whole statute would really both which are cited in our brief both of which are new york court of appeals decisions in which there was a severability clause in the new york court of appeals ultimately held nevertheless that the offending provision could not be severed so as a matter of new york law it simply is not the case that the that the suburb provision by itself dictates the outcome here and in fact when you look at the structure context if we were to agree with all this we go to the sequence and they could make that if we should sent this all to new york state to determine when we would have to deal with this issue if the court has subject and if the district court properly had subject matter jurisdictions we contend that it did i don't think it a choice about sending the question to the state courts federal courts in this circuit determine the question of severability under state law on a regular basis there's nothing unusual about that in our view that the outcome here is is relatively straightforward appeals faced with a very clear language says we will disregard it and determine that in fact the whatever the provision is is not separable yes that's the superfan coalition case and the burr really case as i as i mentioned earlier and earlier in both of those cases pending before new york city courts there were express non severability provisions in which the state court held nevertheless that the offending provision could be the provisions are the same so the provisions in those two cases are circumstances where the legislature said if any part of the statute is found to be inviolate of the law it can be severed and the new york court of appeals in both of those cases said nevertheless we will hold that it cannot be severed and we will strike the entire statute that's again why national advertising this court held construing new york law that the presence or absence of the severability clause is not dispositive of the question and just to finish that thought again looking to the text of the statute the presence of the pass through prohibition which this court and con edison said is a hallmark of a punitive measure you couple that with the structure which includes a one million dollars per incident fine for violations of the pass or prohibition an indication that the legislator the legislature really wanted this statute in force and wanted to be sure that the punitive purpose was met and that the cost could not be passed on and then you couple that with a very clear legislative history there's there's inspect e x s so i want to just pick up on the issue of the degree to language that just run his injuries lawyer brought up so in the states opening brief before this court the state made no argument that the district court's invalidation of the n t passthrough so i think that was an issue that if the state i mean in fact there was a dispute at oral argument in the district court and judge folliot asked mr farmer there on behalf of the state do you think that the law is if i just look at the claims to the to the past revision or to share payment itself and i don't have the language directly from me but i believe mr farber's answer was something like i don't think my arguments quite as good with respect to just the claims on the pastor provision that they say there's some doubt as to whether there's a page thirty one of the reply brief as to whether that cia or the comedy doctrine applies i don't think they can actually get the benefit of the argument they're making this morning that this question outright reverse at the very most given the arguments they've made in their decision not to defend the n t past revision itself at the very most that they could get here is a vacate or and a remand to judge folliot to determine the proper remedy that my clients are entitled to as a result of the invalidation of the anti pastor provision so that's the most that the state could hope to win today and i think it's important to understand that the argument that they're making that severance would somehow remedy my client's injuries is it simply makes no sense with respect to the time periods that we're looking at so we've always contended in statute that strips for the subject managers to action yes it is your honor and  claim that leads inevitably to restraining or in joining the assessment of any tax under state law and in fact i mean we think that you follows a fortune or from that decision that even if this court thinks that the on oil companies gross receipts that was derived from their sales in iraq and was unquestionably a tax law on like this law it was in the tax code the monies went to the tax commissioner sort of other than the presence of the pass through prohibition had all the usual hallmarks of a tax which isn't true of this law but unlike here there there was an anti severability clause so essentially the court knew the question knew the answer to the severability analysis before it reached the merits but so it knew if i strike down if and yet this court affirmed that decision so i mean we we actually think that this court follows or ineluctably from that decision but even if this court somehow disagrees i mean i just want to emphasize that there is no dispute or at least there wasn't until mr wooster up today we think we think that they actually can't ask for that if you read what they actually said in their office not the st time they were hearing it this is just if you actually read what they say they make no argument in their opening brief that the invalidation of the t i a of the n t pastor provision itself was problematic perhaps in our brief we could have been clear as to the problems of what they are asking for but we took them to be asking for reversal sort of on you know part and parcel of you do this and you do that but if you actually look at the arguments that they made they never argued that judge follies invalidation of the n t past regime itself was problematic and if they didn't argue that and i mean and i'm happy to have this court take a look at their arguments it's never in there the st time they raise it is in their reply severance happened our clients would have a remedy but with respect to the surcharge assessed on sales before severance happened our clients would not have a remedy because with respect to those sales of course we couldn't pass it on anyway so the clear and the reason it's not bifurcated now is because the legislature after just follow issued her decision amended the usa so that it only applies to that retroactive period that we were talking about there so i see them over my time i just want to make a couple of points and one is that as a point of clarification the statute here does not direct any of the money collected from these companies to deal which is cost of regulating them i don't because it does not go to the o h to regulating these companies in what the money is directed to are sort of two main buckets one is it goes to a separate state agency known as a way sis that provides money to run its own addiction treatment programs and to fund the state local and private providers of addiction services department it's just a separate agency it is not in the department of health it is a separate agency that run separate services for the individuals harmed by addiction generally and the open crisis specifically and the nd it does go to deal wage but not for regulating these companies but instead to run the prescription drug registry which is a registry that's used by doctors and providers to make sure that they know their patients prescription history it's not a registry that manufacturers and shooters use so for both of these purposes the what is happening is there is no conduct here and that what that word is describing here is the very public health crisis that the new york legislature has responded to not just with this statute but with any number of other efforts to provide the treatment and prevention services that need nd on the question of severability here new york law is extremely clear that there's a strong presumption of severability because of the new york court's respect for the legislature's intent here and preserving what it can of the legislature's underlying judgment the language that's used in your cases the provision that the court invalidated there was the one that authorized the agency to regulate at all like the right of the city agency was not allowed to even enter into the space of regulation of outdoor cigarette smoking and i think if something goes to such a fundamental part of a regulation then it makes sense that other pieces such as you know like requiring reports to the agency also will fall because if an agency can't regulate everything else sort of follows from that but this case is very very different again the legislature here had the primary purpose of raising money right and then the secondary purpose of making sure that after that money was raised that there wouldn't be price increases and that's a distinct and fundamentally important purpose that should be preserved  answer one question so one of your colleagues also pointed out that the what you would describe as the tax comes in the form of a fixed sum as opposed to rate and i think that it's right that farmers that sets i believe a ten billion dollars threshold collected over fourteen years and so it's sort of you know it's just a different way of assessing and collecting that money but but the nd is that it might be distinctive and unusual in the mind one dollar of tax statutes but actually confirms the thing that is important for both our jurisdictional merits arguments which is that the legislature wanted above all things to make sure that one hundred million dollars was raised every year so if anything it confirms that without legislatures goal here was to raise revenue and that  the district court below should be reversed for two reasons st ignore this court's decision and penske versus duncan that when courts are looking to see if an exception is section one thousand nine hundred and three liability exist it should look to the common law to see if there is an analogous tor about some type of across the board affirmative good fifty fence rather what we're talking about are the elements that of the claim that the plaintiff has to prove pinsky also shows that there has to be a tightness of fit between the constitutional violation alleged there was due process and then also the common law toward analogy this being adopted there was prosecution to supreme court cases also into size that point in the context of qualified immunity the verses city of independence case there the supreme court said that there was no history of cities enjoying any type of good faith community common law and therefore cities should be exposed to liability that was sure even though there was some exceptions to that where cities that common law if they're acting in a governmental capacity did enjoy a certain type of immunity but the court said that that wasn't enough for there to be an across the  board immunity likewise entire versus glover the supreme court also so the public defenders are exposed to liability now there is no good faith immunity in common law that was sure even the defense counsel a common law enjoyed a of instances where private parties has some type of affirmative good faith defense to every chaifetz or when the courts looking at these types of examples for example with due process they found an analogy to malicious prosecution in those situations if a private party was sued for damages for misusing a court process they had to prove the almost of malice and lack of probable cause which are two prongs that go to the state of mind and as the supreme court footnotes and white v malice and lack of probable cause and that brings me to my next point abuse of process has nothing to do with the st amendment's district court below relied on that as being a reason why they could say there is a good fifty fence but abuse or process is limited to court processes it's not beyond that common law it would expand to other types of processes like in this case a collective bargaining agreement with the state union were conspiring to force people to speak on behalf  political causes with which they disagreed and that really brings sure is the rub of it i mean this is a st amendment claim it's about free speech as nothing to do with misusing a court process and because of that because there's no fit this  and i'll just conclude we say it common you are expected you and here to a statute that had constitutional by the highest court that's dozens to be a controversial proposition so bubble please the court i'm scott kremlin for the union union was following state law and supreme court precedent when it received fair share fees to pay for collective bargaining the district court was therefor private party that relied on a statutorily authorized process to obtain the assistance of the government could be considered a state actor the supreme court also recognize that that could lead to an injustice and the supreme court suggested that that problem which is what the court called it should be addressed by establishing a defense and since lug the species of common law tor that is most analogous are the same species of tort that applied in wyatt and pinsky here the militias prosecution abuse of process us if the court does look for a specific common law analogy the most analogous torts would be the abuse of process malicious prosecution species of tort and plaintiffs have not suggested that