FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GILBERT P. HYATT,

Plaintiff-Appellant,

v.

BETTY T. YEE, in her official 

capacity as California Franchise Tax 

Board member and California State 

Board of Equalization member; 

DIANE L. HARKEY, in her official 

capacity as California State Board of 

Equalization member; JEROME E.

HORTON, in his official capacity as

California Franchise Tax Board 

member; MICHAEL COHEN, in his 

official capacity as California 

Franchise Tax Board member; 

GEORGE RUNNER, in his official 

capacity as California State Board of 

Equalization member; FIONA MA, in 

her official capacity as California 

State Board of Equalization member 

and Franchise Tax Board member,

Defendants-Appellees.

No. 15-15296

D.C. No.

2:14-cv-00849-

GEB-DAD

OPINION

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding
2 HYATT V. YEE

Argued and Submitted February 17, 2017

San Francisco, California

Filed September 26, 2017

Before: William A. Fletcher, Julio M. Fuentes,* and 

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Fuentes

SUMMARY**

Tax / Civil Rights

The panel affirmed the district court’s dismissal of 

plaintiff’s action, brought under 42 U.S.C. § 1983, arising 

from his contested administrative proceedings of a 

California Franchise Tax Board ruling that he owed close to 

$7.4 million in taxes, penalties and interest.

Plaintiff’s initial tax deficiency, compounding daily with 

3% interest grew to over $55 million at the time he filed his 

complaint in this case. The taxes were assessed on income 

plaintiff earned during the 1991 and 1992 tax years, during 

which plaintiff alleges he had moved from California to 

Nevada. Plaintiff alleged that he had been unconstitutionally 

 * The Honorable Julio M. Fuentes, United States Circuit Judge for 

the U.S. Court of Appeals for the Third Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
HYATT V. YEE 3

targeted and that so much time had passed in the 

administrative review of his tax claims that he could no 

longer receive due process. He asked the district court to 

enjoin California from collecting this tax bill.

The panel agreed with the district court that the Tax 

Injunction Act barred this suit because plaintiff had a plain, 

speedy and efficient remedy for his claims. The panel noted 

that a taxpayer seeking to contest his tax bill solely on the 

basis that he was not a resident of California during the 

disputed period has two options. He could either pay now 

and litigate later, or bring his claim through a protest-thenpay process, which allows him to delay paying the disputed 

tax. A taxpayer who pays now and litigates later can bring 

his claims to state court within six months, which guarantees 

an expeditious route to the state courts on the taxpayer’s 

liability. A taxpayer who initially challenges a residencybased income tax assessment through the protest-then-pay 

administrative process may elect to use the pay-then-protest 

process at any point by paying the disputed tax, thus 

guaranteeing a route to state court within six months.

The panel held that even though plaintiff in this case 

chose to challenge his tax assessment through the protestthen-pay process, he still had a plain, speedy, and efficient 

remedy available because he could pursue the pay-thenprotest process. The panel rejected plaintiff’s claim that 

requiring him to pay his accrued tax bill and switch remedies 

in order to pursue his constitutional claims would be a bait 

and switch in violation of his due process rights. The panel 

further rejected plaintiff’s claim that he does not have access 

to a speedy remedy because the Appeals Board has not 

completed his administrative appeal, pending since 2008. 

The panel held that the pay-then-protest remedy now 

provides plaintiff with a speedy remedy, even if the protest-
4 HYATT V. YEE

then-pay remedy has not. Finally, the panel rejected 

plaintiff’s claims that he would not be able to bring his 

constitutional claims in a pay-then-protest proceeding.

COUNSEL

Erwin Chemerinsky (argued), UC Irvine School of Law,

Irvine, California; Donald J. Kula and Oliver M. Gold, 

Perkins Coie LLP, Los Angeles, California; Malcolm Segal, 

Segal & Associates PC, Sacramento, California; for 

Plaintiff-Appellant.

Michael von Loewenfeldt (argued), Brady R. Dewar, and 

James M. Wagstaffe, Kerr Wagstaffe LLP, San Francisco, 

California; Seth P. Waxman (argued), Wilmer Cutler 

Pickering Hale and Dorr LLP, Washington, D.C.; Debbie 

Leonard, James Bradshaw, and Adam Hosmer-Henner, 

McDonald Carano Wilson LLP, Reno, Nevada; Cynthia J. 

Larsen, Katie DeWitt, and David W. Spencer, Orrick 

Herrington & Sutcliffe LLP, Sacramento, California; for 

Defendants-Appellees.

OPINION

FUENTES, Senior Circuit Judge:

For over 22 years, Plaintiff Gilbert Hyatt has contested 

in administrative proceedings a California Franchise Tax 

Board ruling that he owed close to $7.4 million in taxes, 

penalties, and interest. This initial deficiency, compounding 

daily with 3% interest, grew to over $55 million at the time 

he filed his complaint in this case. The taxes were assessed 

on income he earned during the 1991 and 1992 tax years, 
HYATT V. YEE 5 

during which Hyatt alleges he had moved from California to 

Nevada. Finally, while his administrative proceedings were 

still pending, Hyatt filed this suit in the district court, 

claiming that he had been unconstitutionally targeted and 

that so much time had passed in the administrative review of 

his tax claims that he can no longer receive due process. He 

asked the district court to enjoin California from collecting 

this tax bill.

Because we agree with the district court that the Tax 

Injunction Act bars it from “enjoin[ing], suspend[ing] or 

restrain[ing] the assessment, levy or collection of [this] tax 

under State law where,” as here, “a plain, speedy and 

efficient remedy may be had” in the state court, we affirm 

the judgment of the District Court. 

BACKGROUND 

California’s Statutory Tax Framework 

Under California law, a taxpayer seeking to “prevent or 

enjoin the assessment or collection of” a California 

residency-based income tax may not file suit in state court 

without first exhausting the administrative remedies set forth 

in the California Revenue and Taxation Code.1 In general, a 

California taxpayer must “pay now, litigate later.”2

However, a taxpayer seeking to contest his tax bill solely on 

the basis that he was not a resident of California during the 

disputed period has two options. The taxpayer may either 

pay now and litigate later, or may bring his claim through a 

 1 Cal. Rev. & Tax. Code § 19381.

2 Sahadi v. Scheaffer, 155 Cal. App. 4th 704, 734 (2007) (“[A] 

taxpayer may not obtain judicial review of the validity of a tax which is 

due but has not been paid.”).
6 HYATT V. YEE

protest-then-pay process, which allows him to delay paying 

the disputed tax. There is a significant difference: a taxpayer 

who pays now and litigates later can bring his claims to state 

court within six months, which guarantees an expeditious 

route to the state courts on the taxpayer’s liability. A 

taxpayer who disputes his residency through the protestthen-pay process, however, must wait until the 

administrative agencies render their decisions before filing a 

challenge in state court.

1. Postdeprivation “Pay-Then-Protest” Process

The “pay-then-protest” process3 requires the challenging 

taxpayer to make “payment of the tax,” after which the 

taxpayer can file a refund claim with the Franchise Tax 

Board (the “Tax Board”).4 If the Tax Board “fails to mail 

notice of action on [the] . . . refund claim within six months

after the claim [is] filed, the taxpayer may . . . bring an action 

[in state court] against the [Tax Board] . . . on the grounds 

set forth in the claim for the recovery of . . . [the] 

overpayment.”5 If the Tax Board acts on the challenger’s 

refund claim and denies it, a taxpayer “claiming that the tax 

computed and assessed is void . . . may bring an action [in 

state court], upon the grounds set forth in that claim for 

refund . . . for the recovery of the . . . amount paid” plus 

interest.6 These grounds need not be included in the “four 

 3 This proceeding is largely governed by California Revenue & 

Taxation Code § 19382.

4 Cal. Rev. & Tax. Code § 19382.

5 Cal. Rev. & Tax. Code § 19385 (emphasis added).

6 Cal. Rev. & Tax. Code § 19382.
HYATT V. YEE 7

corners of the initial claim,” but the Tax Board must have 

“actual notice” of them.7

2. Predeprivation “Protest-then-Pay” Process

The plaintiff in this case chose to challenge his tax 

assessment through the protest-then-pay process. A taxpayer 

who challenges an assessment through this process8 must 

“file with the [Tax Board] . . . a written protest against the 

proposed deficiency assessment, specifying in the protest the 

grounds upon which it is based.”9 If the protest is filed, the 

taxpayer may request that the Tax Board “reconsider the 

assessment of the deficiency.”10 If the protest is denied, the 

taxpayer may “appeal[ ] in writing from the action of the 

[Tax Board] ... to [the California State Board of Equalization 

(“Appeals Board”)].”11 “The [Appeals Board] . . . shall hear 

and determine the appeal,” and an unsuccessful taxpayer 

 7 J.H. McKnight Ranch, Inc. v. Franchise Tax Bd., 110 Cal. App. 

4th 978, 987 (2003) (“We see no basis for construing the statutes setting 

out the administrative exhaustion requirement so as to ignore actual 

notice the Board may have had from sources other than the four corners 

of the initial claim. The Supreme Court has at least implicitly agreed with 

this conclusion” (citing Wallace Berrie & Co. v. State Bd. of 

Equalization, 707 P.2d 204 (1985)).

8 This proceeding is largely governed by California Revenue & 

Taxation Code § 19381.

9 Cal. Rev. & Tax. Code § 19041.

10 Cal. Rev. & Tax. Code § 19044.

11 Cal. Rev. & Tax. Code § 19045.
8 HYATT V. YEE

may “file[ ] a petition for rehearing.”12 After rehearing 

before the Appeals Board, a taxpayer may seek review in a 

California state court.13

A taxpayer who initially challenges a residency-based 

income tax assessment through the protest-then-pay 

administrative process may elect to use the pay-then-protest 

process at any point by paying the disputed tax, thus 

guaranteeing a route to state court within six months.14

Factual History15

Hyatt alleges that in 1991, he moved from California to 

Nevada. Two years later, the Tax Board commenced an audit 

to determine whether Hyatt owed additional California state

income taxes for the 1991 tax year. The Tax Board initiated 

a second audit in 1996 regarding the 1992 tax year. 

Ultimately, the Tax Board determined that Hyatt owed 

 12 Cal. Rev. & Tax. Code §§ 19047–48.

13 Cal. Rev. & Tax. Code § 19381.

14 Cal. Rev. & Tax. Code § 19335.

15 Defendants brought both a facial and a factual challenge to 

jurisdiction, but the District Court decided only the facial challenge. “A 

‘facial’ attack asserts that a complaint’s allegations are themselves 

insufficient to invoke jurisdiction.” Courthouse News Serv. v. Planet, 

750 F.3d 776, 780 n.3 (9th Cir. 2014). “The district court resolves a facial 

attack as it would a motion to dismiss under Rule 12(b)(6): Accepting 

the plaintiff’s allegations as true and drawing all reasonable inferences 

in the plaintiff’s favor, the court determines whether the allegations are 

sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. 

Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). However, “a court may 

take judicial notice of matters of public record.” Lee v. City of Los 

Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal quotations and 

citations omitted).
HYATT V. YEE 9

$1.8 million for the 1991 tax year and $5.6 million for the 

1992 tax year.

Without first paying his taxes, Hyatt challenged his tax 

bill on the grounds that he did not owe these taxes because 

he was a resident of Nevada during 1991 and 1992. His Tax 

Board protest lasted 11 years. Then, in 2008, Hyatt filed an 

administrative appeal of the Tax Board’s determinations 

before the Appeals Board. That appeal has yet to be decided. 

Hyatt alleges that “the delays in completing the 

administrative process fall squarely and primarily at the feet 

of the [Tax Board].”

In April 2014, Hyatt brought this action in the district 

court against the members of the Tax Board and Appeals 

Board under 42 U.S.C. § 1983, seeking to enjoin the pending 

administrative tax review process. At the time he filed suit, 

his tax bill had ballooned to over $55 million. In his 

Complaint, Hyatt alleges violations of the due process and 

equal protection clauses of the Fourteenth Amendment, and 

alleges that he “can no longer receive a full and fair 

adjudication on the merits due to the extreme passage of time 

and resulting loss of material evidence.” He claims that 

during the long delay in the administrative process, “material 

witnesses have passed away, memories of witnesses have 

faded, and documents relevant and important to Hyatt are no 

longer available.” Because of these events, he claims that he 

cannot properly challenge the Tax Board’s allegations 

concerning his residency. Hyatt further states that during this 

administrative process, the Tax Board was out to “get” him 

and that the Tax Board singled him out for reasons not 

rationally related to any legitimate state interest.
10 HYATT V. YEE

The Tax Injunction Act

The Tax Injunction Act provides that: “The district 

courts shall not enjoin, suspend or restrain the assessment, 

levy or collection of any tax under State law where a plain, 

speedy and efficient remedy may be had in the courts of such 

State.”16 This provision “restricts the power of federal 

district courts to prevent collection or enforcement of state 

taxes.”17 The Supreme Court has “interpreted and applied 

the Tax Injunction Act as a ‘jurisdictional rule’ and a ‘broad 

jurisdictional barrier.’”18

The Tax Injunction Act was passed as “only one of 

several statutes reflecting congressional hostility to federal 

injunctions issued against state officials in the aftermath of 

[the Supreme] Court’s decision in Ex parte Young.”19 It “has 

its roots in equity practice, in principles of federalism, and 

in recognition of the imperative need of a State to administer 

its own fiscal operations.”20 It prevents federal courts from 

intruding into state tax collection, “an area which deserves 

 16 28 U.S.C. § 1341.

17 Arkansas v. Farm Credit Servs. of Cent. Arkansas, 520 U.S. 821, 

823 (1997).

18 Id. at 825 (quoting Moe v. Confederated Salish and Kootenai 

Tribes of Flathead Reservation, 425 U.S. 463, 470 (1976)). See also 

Franchise Tax Bd. of California v. Alcan Aluminium Ltd., 493 U.S. 331, 

338 (1990) (The Act “limit[s] drastically federal district court 

jurisdiction.”).

19 Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 522 n.28 (1981).

20 Tully v. Griffin, Inc., 429 U.S. 68, 73 (1976).
HYATT V. YEE 11

the utmost comity to state law and procedure.”21 This is 

because “[t]he power to tax is basic to the power of the State 

to exist.”22 Thus, “[g]iven the systemic importance of the 

federal balance, and given the basic principle that statutory 

language is to be enforced according to its terms, federal 

courts must guard against interpretations of the Tax 

Injunction Act which might defeat its purpose and text.”23

Under the Tax Injunction Act, a litigant cannot challenge 

the administration of state tax law in federal court if the state 

court provides “a plain, speedy and efficient remedy” for the 

taxpayer’s claims. This “narrow exception”24 requires only 

that a state court remedy “meet ‘certain minimal procedural 

 21 Jerron West, Inc. v. State of Cal., State Bd. of Equalization, 

129 F.3d 1334, 1338 (9th Cir. 1997) (citing Rosewell, 450 U.S. at 522 

(stating that the Act “was first and foremost a vehicle to limit drastically 

federal district court jurisdiction to interfere with so important a local 

concern as the collection of taxes”); Great Lakes Dredge & Dock Co. v. 

Huffman, 319 U.S. 293, 301 (1943) (stating that the Act “was predicated 

upon the desirability of freeing, from interference by the federal courts, 

state procedures which authorize litigation challenging a tax only after 

the tax has been paid”); Dillon v. State of Mont., 634 F.2d 463, 466 (9th 

Cir.1980) (concluding that the Act “is meant to be a broad jurisdictional 

impediment to federal court interference with the administration of state 

tax systems”)).

22 Arkansas, 520 U.S. at 826 (“The federal balance is well served 

when the several States define and elaborate their own laws through their 

own courts and administrative processes and without undue interference 

from the Federal Judiciary.”).

23 Id. at 827.

24 Redding Ford v. Cal. State Bd. of Equalization, 722 F.2d 496, 497 

(9th Cir. 1983).
12 HYATT V. YEE

criteria.’”25 Specifically, a plain, speedy, and efficient 

remedy must provide a taxpayer with “a full hearing and 

judicial determination at which [he] may raise any and all 

constitutional objections to the tax.”26

For a remedy to be “plain,” “the procedures available in 

state court must be certain.”27 A remedy is “efficient” 

“unless it imposes an ‘unusual hardship . . . requiring 

ineffectual activity or an unnecessary expenditure of time or 

energy.’”28 A remedy is “speedy” “if it does not entail a 

significantly greater delay than a corresponding federal 

procedure.”29 To satisfy these requirements, a remedy “need 

not necessarily be the best remedy available or even equal to 

or better than the remedy which might be available in the 

federal courts.”30

 25 Lowe v. Washoe Cty., 627 F.3d 1151, 1155 (9th Cir. 2010) 

(quoting Rosewell, 450 U.S. at 512).

26 Rosewell, 450 U.S. at 514.

27 May Trucking Co. v. Oregon Dep't of Transp., 388 F.3d 1261, 

1270 (9th Cir. 2004) (citing Direct Mktg. Ass'n, Inc. v. Bennett, 916 F.2d 

1451, 1453 (9th Cir.1990) (holding that a state remedy “is not plain 

within the meaning of the Tax Injunction Act . . . if there is uncertainty 

regarding its availability or effect” (internal quotation and citations 

omitted)).

28 Lowe, 627 F.3d at 1156 (quoting Rosewell, 450 U.S. at 518).

29 US W., Inc. v. Nelson, 146 F.3d 718, 725 (9th Cir. 1998) 

(interpreting the same language in a different statute).

30 Mandel v. Hutchinson, 494 F.2d 364, 367 (9th Cir. 1974) (internal 

quotations and citations removed).
HYATT V. YEE 13 

DISCUSSION

“A dismissal for lack of subject matter jurisdiction is a 

question of law reviewed de novo.”31

Hyatt appeals the district court’s decision that, because 

California’s pay-then-protest process continued to provide a 

plain, speedy and efficient remedy for Plaintiff even though 

he had decided to pursue the protest-then-pay process, the 

Tax Injunction Act stripped the court of jurisdiction to hear 

this suit.

Hyatt’s appeal raises three principal arguments for 

review:32 (1) a plain, speedy and efficient remedy is not 

available because Hyatt cannot be required to pursue the 

pay-then-protest process per California Revenue & Taxation 

Code § 19382 to have his constitutional claims heard; (2) the 

protest-then-pay method has not offered Hyatt a speedy 

remedy and the pay-then-protest remedy will not, and 

(3) Hyatt does not have a plain remedy, because it is 

uncertain whether he could bring his constitutional claims as 

part of either process.33

 31 Jerron, 129 F.3d at 1337.

32 Hyatt’s brief raises additional bases of appeal, but they can be 

more succinctly framed in these three arguments.

33 Defendants respond that even if this court finds that Hyatt’s suit 

is not barred by the Tax Injunction Act, then (1) it is barred by the general 

principles of comity; (2) we should abstain pursuant to Younger v. 

Harris, 401 U.S. 37 (1971); or (3) we should affirm dismissal under 

Federal Rule of Civil Procedure 12(b)(6) because Hyatt fails to state a 

claim. We need not reach the first two bases, because the suit is barred 
14 HYATT V. YEE

At the outset, we note that the U.S. Supreme Court and 

our court have held that, “[t]o the extent they are available, 

California’s refund procedures constitute a plain, speedy, 

and efficient remedy.”34 Moreover, the U.S. Supreme Court 

has, on several occasions, approved of pay-then-protest 

remedies as plain, speedy, and efficient.35 The issue then, is 

whether the unique circumstances of this case have 

prevented a plain, speedy, and efficient remedy from being 

available here.

 

by the Tax Injunction Act. We cannot reach the last basis, because we do 

not have jurisdiction to do so.

34 Alcan Aluminium, 493 U.S. at 338. See also Jerron, 129 F.3d at 

1339 (“The Supreme Court and this court have concluded that 

California’s tax refund remedy is generally a ‘plain, speedy and efficient’ 

remedy under the Act.”); Mandel, 494 F.2d at 367 (“We have held 

previously that the California refund procedure is a plain, speedy and 

efficient remedy.”); Aronoff v. Franchise Tax Bd. of State of Cal., 

348 F.2d 9, 11 (9th Cir. 1965) (“It has consistently been held, without a 

single instance of deviation, that the refund action provided by California 

Personal Income Tax Law is a ‘plain, speedy and efficient remedy’ such 

as to invoke the restraints of 28 U.S.C. § 1341.”).

35 See Reich v. Collins, 513 U.S. 106, 111 (1994) (“Due process, we 

should add, also allows the State to maintain an exclusively 

postdeprivation regime”); California v. Grace Brethren Church, 

457 U.S. 393, 416 (1982) (“Finally, we must keep in mind that at the 

time that it passed the Tax Injunction Act, Congress was well aware that 

refund procedures were the sole remedy in many States for unlawfully 

collected taxes.”) (citing S.Rep.No.1035, 75th Cong., 1st Sess., 1 (1937); 

H.R.Rep.No.1503, 75th Cong., 1st Sess., 2 (1937)); Rosewell, 450 U.S. 

at 512, 523 (finding that a pay-then-protest process was a speedy, 

efficient, and plain remedy under the Tax Act and relying on legislative 

reports demonstrating congressional awareness that refunds were the 

exclusive remedy in many state tax systems).
HYATT V. YEE 15 

Does The Pay-Then-Protest Process Provide a 

Sufficient Remedy Where Hyatt Chose to Use the 

Protest-then-Pay Process?

Hyatt objects to the district court’s determination that the 

pay-then-protest process can provide him with “a plain, 

speedy and efficient remedy” even though he has pursued a 

protest-then-pay process for the past 22 years. Citing Reich 

v. Collins,

36 and Newsweek v. Florida Department of 

Revenue,

37 Hyatt argues that requiring him to pay his large 

accrued tax bill and switch remedies in order to pursue his 

constitutional claims would be a “bait and switch” in 

violation of his due process rights.38

Hyatt’s reliance on Reich and Newsweek is misplaced. In 

Reich, a taxpayer sued for a refund under Georgia’s tax 

refund statute, but the Georgia courts held that the statutes 

were not applicable and thus the taxpayer had no way to seek 

a refund of his disputed tax.39 The U.S. Supreme Court, 

however, held that, while a state is entitled to provide either 

a protest-then-pay remedy, or a pay-then-protest remedy, or 

both, it may not “reconfigure its scheme, unfairly, in 

midcourse—to ‘bait and switch.’”40 Specifically, the Court 

held that a state violated federal due process when it offered 

a statutory pay-then-protest remedy, and then removed that 

 36 513 U.S. 106 (1994) (per curiam). 

37 522 U.S. 442 (1998).

38 Hyatt’s Br. at 29.

39 513 U.S. at 108–09.

40 Id. at 110–11 (emphasis added).
16 HYATT V. YEE

remedy after a taxpayer had paid his disputed taxes, so that 

he no longer had any means to challenge his tax bill.41 In 

Newsweek, where the magazine Newsweek was given no 

opportunity to seek a refund for a state tax it had already paid 

that was later found invalid, the Court reiterated this 

holding.42

In this case, Hyatt had, and still has, a plain, speedy, and 

efficient remedy available: he can pursue the pay-thenprotest process. Unlike in Reich and Newsweek, the state did 

not “bait and switch” Hyatt.43 Hyatt chose to pursue the 

protest-then-pay process knowing that it only permitted him 

to challenge his residency in California during 1991 and 

1992. Hyatt now seeks to add additional claims nullifying 

the tax, but he would have to pay his outstanding tax bill to 

do so. Of course, if Hyatt pursues this path and is successful, 

he will be refunded the entire amount of his tax bill, 

including the taxes that have accrued during the period he 

has pursued the protest-then-pay process.

 41 Id.

42 522 U.S. at 444–45 (“While Florida may be free to require 

taxpayers to litigate first and pay later, due process prevents it from 

applying this requirement to taxpayers, like Newsweek, who reasonably 

relied on the apparent availability of a postpayment refund when paying

the tax. Newsweek is entitled to a clear and certain remedy and thus it 

can use the refund procedures to adjudicate the merits of its claim.”).

43 See also Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1242 

(11th Cir. 1991) (rejecting “literal and technical attempts” to get around 

the Tax Act in a way that “would clearly conflict with the principle 

underlying the Tax Injunction Act that the federal courts should 

generally avoid interfering with the sensitive and peculiarly local 

concerns surrounding state taxation schemes.”).
HYATT V. YEE 17 

Hyatt further argues that he cannot be forced to use the 

pay-then-protest remedy to pursue his constitutional claims, 

because he would need to forego his statutory right to, if 

successful, recover the attorney’s fees that he has spent 

challenging his tax bill already.44 It is not clear that Hyatt 

would, in fact, be forced to forgo his attorney’s fees, but even 

if Hyatt must abandon some of his claims to attorney’s fees 

by pursuing the pay-then-protest process, this does not mean 

that the state has deprived him of a plain, speedy, and 

efficient remedy.45

Does Hyatt Have A Speedy Remedy? 

Hyatt notes that the Appeals Board has not completed his 

administrative appeal, pending since 2008, and that, as of the 

filing of this appeal, briefing before the Appeals Board was 

not completed and no hearing date was set.46 Hyatt alleges 

in his complaint that Defendants are responsible for this 

delay. Thus, Hyatt argues, he does not have access to a 

speedy remedy, and federal jurisdiction must lie. 

 44 Hyatt’s Br. at 29 (citing Cal. Rev. & Tax. Code § 19717 (“The 

prevailing party may be awarded a judgment for reasonable litigation 

costs incurred, in the case of any civil proceeding brought by or against 

the State of California in a court of record of this state in connection with 

the determination, collection, or refund of any tax, interest, or penalty 

under this part.”)).

45 Cf. Rosewell, 450 U.S. at 517 (holding the same with regard to 

payment of interest and stating that “There is no question that under the 

Illinois procedure, the court will hear and decide any federal claim. 

Paying interest or eliminating delay would not make the remedy any 

more ‘plain.’”).

46 Hyatt’s Br. at 24.
18 HYATT V. YEE

It would certainly be troubling if the administrative 

protest-then-pay process had been delayed for so long due to 

the fault of Defendants.47 However, we need not decide 

whether Hyatt’s protest-then-pay process has been speedy to 

date, and thus we need not consider whether Hyatt or 

Defendants caused this significant delay.48 Even if the 

protest-then-pay process has not provided Hyatt with a 

speedy remedy, at any time during this process, Hyatt could, 

and Hyatt still can, get to state court within six months if he 

brings an action through the pay-then-protest process and the 

Appeals Board does not render a final determination sooner.

The California Tax Code provides that,

 47 See Long Island Lighting Co. v. Town of Brookhaven, 889 F.2d 

428, 433 (2d Cir. 1989) (“Slightly more troublesome is [the] claim that 

the . . . proceedings, the earliest of which have lingered over ten years in 

pretrial proceedings, are simply not speedy . . . . [W]e have some 

concern over any proceeding that takes over ten years to come to trial 

. . . .”).

48 After argument in this case, we issued an order inviting “[t]he state 

parties . . . to move for judicial notice of documents that may shed light 

on the administrative and judicial proceedings that have taken place, and 

the possible reasons for delay, since the time Plaintiff-Appellant Hyatt 

first contested the California income tax liability at issue in this case.” 

See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (“[A] 

court may take judicial notice of matters of public record” (internal 

quotations and citations omitted)).

Hyatt and Defendants both did so, disputing the cause of the delay 

in this case. They offer documents from years of related litigation in 

Nevada and New York. We need not consider whether judicial notice of 

any documents addressing the cause in the delay is appropriate, as 

whether Hyatt, the Defendants, or some combination caused the delay, it 

does not affect the availability of a speedy remedy here. The pending 

judicial notice motions are denied as moot.
HYATT V. YEE 19 

[i]f the Franchise Tax Board fails to mail 

notice of action on any refund claim within 

six months after the claim was filed, the 

taxpayer may, prior to mailing of notice of 

action on the refund claim, consider the claim 

disallowed and bring an action against the 

Franchise Tax Board on the grounds set forth 

in the claim for the recovery of the whole or 

any part of the amount claimed as an 

overpayment.49

In our view, the pay-then-protest remedy now provides 

Hyatt a speedy remedy, even if the protest-then-pay remedy 

has not. 

Does Hyatt Have Access to A Plain Remedy for His 

Constitutional Claims?

Finally, Hyatt argues that it is unclear whether he would 

be able to raise his constitutional claims in a pay-then-protest 

proceeding, for two reasons.50 First, he says that Section 

19832 authorizes a taxpayer to “claim[] that the tax 

 49 See Cal. Rev. & Tax. Code § 19385.

50 Hyatt also argues that the protest-then-pay process would not 

provide him with a forum for raising these new constitutional claims, 

because that statute limits the adjudication to the issue of the taxpayer’s 

residency during the period in question. Hyatt’s Br. at 21; Franchise Tax 

Bd. v. Superior Court, 212 Cal. App. 3d 1343, 1347 (Ct. App. 1989) 

(“The statutes do not authorize the superior court to prevent or enjoin 

collection of the tax, but permit it only to determine the fact of [the 

taxpayer’s] residence in this State during the year or years set forth in the 

notice or notices of deficiency assessment” (internal quotations and 

citations omitted)). This is irrelevant, if the pay-then-protest process is 

sufficient.
20 HYATT V. YEE

computed and assessed is void” and to file a claim for 

“recovery of the whole or any part of the amount paid.”51

Hyatt argues that it is unclear whether a California court will 

find that his constitutional claims contend that “the tax 

computed and assessed is void” and thus can be heard in state 

court. Second, Hyatt argues that he may be barred from 

bringing these claims because they were not “the grounds set 

forth in the claim for refund.”52 Therefore, he argues, his 

remedy is not “plain” and this suit should not be barred.

First, as Hyatt’s own complaint makes clear, he does 

seek to void a tax. In his complaint, Hyatt seeks to “enjoin 

Defendants . . . from continuing the investigation and 

administrative proceedings against Hyatt that seek to assess 

California state income taxes, or adjudicate the assessment 

and collection of California state income taxes, against Hyatt 

for the 1991 and 1992 tax years.”53 He also seeks to “enjoin 

Defendants from continuing to assess or threaten to assess, 

or collect or threaten to collect, taxes, penalties and interest 

from Hyatt for the 1991 and 1992 tax years.”54 The district 

court correctly concluded that “[i]t is evident that Hyatt 

 51 Cal. Rev. & Tax. Code § 19382 (“Except as provided in Section 

19385, after payment of the tax and denial by the Franchise Tax Board 

of a claim for refund, any taxpayer claiming that the tax computed and 

assessed is void in whole or in part may bring an action, upon the grounds 

set forth in that claim for refund, against the Franchise Tax Board for the 

recovery of the whole or any part of the amount paid.”).

52 Id.

53 Compl. ¶ 107, ER 773–74.

54 Id.
HYATT V. YEE 21

seeks to void the tax or taxes assessed against him.”55

Moreover, California courts have found that constitutional 

claims can qualify as claims seeking to void a tax.56 It is thus 

clear that California allows such claims to be brought in the 

pay-then-protest process. Hyatt’s argument thus fails to 

show that the pay-then-protest process will not provide a 

plain remedy.

Hyatt’s second argument, that he will not be able to add 

constitutional claims that arose after the filing of his protest 

to a state court case, presents a much closer question. As 

Hyatt understands the state statutes, “if [he] pays the tax 

while his [Appeals Board] appeal is pending. . . [his] prior 

‘protests’ . . . , for the 1991 and 1992 tax years, . . . will be 

deemed to be his refund claim.”57 A problem arises because

[t]hose protests do not contain Mr. Hyatt’s 

constitutional claims as grounds for the claim 

because he filed the protest before the [Tax 

Board]’s and [Appeals Board]’s offending 

 55 ER 12. See also Black’s Law Dictionary 1805 (10th ed. 2014) 

(defining “void” as “[t]o render of no validity or effect; to annul; 

nullify.”). Hyatt seeks to nullify his tax bill.

56 Capitol Indus.-EMI, Inc. v. Bennett, 681 F.2d 1107, 1117 (9th Cir. 

1982). See, e.g., Jensen v. Franchise Tax Bd., 178 Cal. App. 4th 426, 433

(2009).

57 Reply Br. at 14–15 (citing Cal. Rev. & Tax. Code § 19335 (“If, 

with or after the filing of a protest or an appeal to the State Board of 

Equalization . . . , a taxpayer pays the tax protested before the Franchise 

Tax Board acts upon the protest, or the board upon the appeal, the 

Franchise Tax Board or board shall treat the protest or the appeal as a 

claim for refund or an appeal from the denial of a claim for refund filed 

under this article.”)).
22 HYATT V. YEE

conduct. Under Section 19382, a refund 

action is limited to the grounds set forth in the 

refund claim. Accordingly, Mr. Hyatt could 

not raise the constitutional issues in his newly 

converted Section 19382 procedure because 

his refund claims (i.e., his original protests) 

do not include the constitutional violations.58

Under our reading of the statutes, if Hyatt pays and then 

protests, the California state courts will likely allow Hyatt to 

add these constitutional claims to a state court suit 

challenging the tax. The state court may find that these are 

not the sorts of claims that a taxpayer must include in his 

initial protest or refund because they refer to conduct during 

the ongoing Tax Board and Appeals Board review, rather 

than the grounds on which the taxpayer contested the tax 

initially. Thus, the legislative purpose served by applying the 

administrative exhaustion requirement would not apply to 

these claims. Moreover, even if the California courts do 

apply the exhaustion requirement to these claims, they may 

find that the Tax Board was “on notice” of these claims, 

given the long history of litigation between these parties, 

where Hyatt may have previously raised these issues.

59 The 

Appeals Board may also permit Hyatt to amend his petition 

to add these additional grounds.60 At oral argument counsel 

for the Tax Board and the Appeals Board both represented 

 58 Id. at 15.

59 See J.H. McKnight Ranch, 110 Cal. App. 4th at 986–87.

60 See Cal. Rev. & Tax. Code § 60351.
HYATT V. YEE 23 

that the constitutional challenges raised here could be raised 

in state court.61

CONCLUSION

In light of the strong principles of comity that guide our 

interpretation of the Tax Injunction Act, we decline to enjoin 

the tax proceedings in this case. We hold that “narrow 

exception”62 to the Tax Act’s jurisdictional bar cannot be 

expanded to allow this suit, and we affirm the judgment of 

the district court.63

AFFIRMED. 

 61 Even if Hyatt is barred from bringing these constitutional claims 

in a state court proceeding, he can seek to raise the same claims in a suit 

in state court against the responsible individuals.

62 Redding Ford, 722 F.2d at 497.

63 This is particularly true in light of the fact that Hyatt’s own 

decisions contributed to the constitutional claims he seeks to now bring. 

While we do not consider whether Hyatt contributed to the delay in the 

protest-then-pay proceedings, at any point, Hyatt could have paid his tax 

bill and brought a suit in state court protesting the tax within six months.