[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 10 566

________________________ D.C. Docket No. 0:12

- cv - 62238

- JIC
SEMINOLE TRIBE OF FLORIDA, Plaintiff

– Appell ant , versus STATE OF FLORIDA DEPARTMENT OF REVENUE , MARSHALL STRANBURG , in his official capacity as the Interim Executive Director and Deputy Executive Director of the Florida Departme nt of Revenue , Defendant s

– Appell ee s .

________________________ Appeal from the United States District Court for the Southern District of Florida

_______________________ (May 5, 2014) Before PRYOR and JORDAN , Circuit Jud ges, and FRIEDMAN , ∗ District Judge. PRYOR, Circuit Judge :

∗ Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation. Case: 13-10566 Date Filed: 05/05/2014 Page: 1 of 342 This appeal requires us to decide whether the sovereign immunity of Florida, as confirmed by the Eleventh Amendment, U.S. Const. Amend. XI, bars a federal complaint by a n Indian tribe against the Florida Department of Revenue and its Executive Director for a declaratory judgment that the tribe is exempt from paying a Florida tax on fuel and for an injunction requiring a refund of taxes paid . The Seminole Tribe of Florida co ntends that a Florid a tax on motor and diesel fuel purchased off tribal lands violates the Indian Commerce Clause, U.S. Const. Art. I, § 8, cl. 3 , the Indian s overeignty d octrine, and the Equal Protection Clause , U.S. Const. Amend. XIV, § 1

. After a state court rejected a complaint by the Tribe about fuel taxes paid between 2004 and 2006, t he Tribe filed a federal complaint about taxes paid between 2009 and 2012. The district court dismissed the federal complaint based on a judicial doctrine t hat bars federal district courts from reviewing state court judgments, Rooker v. Fidelity Trust Co. , 263 U.S. 413, 44 S. Ct. 149 (1923); D.C. Court of Appeals v. Feldman , 460 U.S. 462, 103 S. Ct. 1303 (1983) , and, alternatively, based on the Tax Injunction Act, 28 U.S.C. § 1341

. But we need not decide the correctness of those rulings b ecause we conclude that the Department and its Director enjoy so vereign immunity from this suit. W e AFFIRM the dismissal of the complaint filed by the Tribe.

Case: 13-10566 Date Filed: 05/05/2014 Page: 2 of 343 I. BACKGROUND T he Seminole Tribe of Florida is a federally recognized Indian tribe. See Indian Entities Recognized & Eligible to Receive Services from the United States Bureau of Indian Affairs, 78 Fed. Reg. 26,384, 26,387 (May 6, 2013); Indian Reorganization Act of June 18, 1934, § 16, ch. 576, 48 Stat. 984, 987 (codified as amended at 25 U.S.C. § 476). Like any other entity in Florida, the T ribe pays a
state tax on the purchase of f uel. See Fla. Stat. § 206.01 et seq . The State, counties, and municipalities use revenues from th at tax to construct and repair transportation facilities, roads, bridges, and paths

. See, e.g. , Fla. Const. Art. 12, § 9(c)(5); Fla. Stat. §§ 206.60(1)(b)(1), 206.605(1) , (2). For administrative convenience, t he State precollects the tax from suppl iers of fuel before the suppliers sell the fuel to

consumer s . See Fla. Stat. § 206.41(4)(a) , (6)

. The cost of the tax is then passed on to the consumer of the fuel when the consumer purchases fuel at a retail gas station. Even though the Department precollects the tax from a supplier before the fuel is sold to the ultimate consumer, Florida law provides that the “legal incidence of the tax ” is “on the ultimate consumer.” Id. § 206.41(4)(a). Florida law exempts s ome consumers , but not th e T ribe, from the fuel tax. If a consumer is exempt from the tax , then the consumer may obtain a refund from the Department for the amount of fuel taxes the consumer has paid. Id. § 206.41(4), (5). For example, the Department refunds any fuel taxes paid by a

Case: 13-10566 Date Filed: 05/05/2014 Page: 3 of 344 municipality for fuel used in a municipal vehicle, and the municipality uses that refund for the c onstruction and maintenance of roadways within its borders

. Id. § 206.41(4)(d)

. Likewise, any con sumer who uses fuel for agricultural, aquacultural, commercial fishing, or commercial aviation purposes is exempt from the tax and eligible for a refund from the Department

. Id. § 206.41(4)(c). Florida law does not exempt the Tribe from the fuel tax, and the Department has refused to refund taxes the Tribe paid when it purchased fuel at gas station s located off tribal lands

. T he T ribe argues that, because it maintains its own roadways, it is entitled to a refund for taxes paid for fuel expended on tribal l ands by vehicles carrying out essential government services , regardless of where the Tribe purchased the fuel. The Department argues that the T ribe does not actually use the fuel on tribal lands because Florida law defines the “use” of fuel as occurring wh en consumer s fill the fuel tanks in their vehicle s . Id. § 206.01(24) (defining “use” as “the placing of motor or diesel fuel into any receptacle on a motor vehicle from which fuel is supp lied for the propulsion thereof ”). The T ribe has twice sued the Department about whether the Tribe is exempt from the fuel tax. The Tribe filed the first suit in a state court and the second in a federal court. Both times the Tribe lost. The T ribe first sued the Department in a Florida court fo r a refund of fuel taxes paid between January 1, 2004, and February 2 8 , 2006

. The T ribe also sought

Case: 13-10566 Date Filed: 05/05/2014 Page: 4 of 345 a declaratory judgment that the fuel expended on tribal land s was exempt from the
tax

. A Florida court of appeals held that the tax did not violate the Indi an Commerce Clause because the S tate levied the tax at gas stations located o ff tribal lands

. Fla. Dep’t of Re venue v. Seminole Tribe of Fla. , 65 So. 3d 1094, 1097 (Fla. 4th Dist. Ct. App. 2011) , review denied , 86 So. 3d 1114 (Fla. 2012)

. The T ribe then filed a federal complaint that contested liability for $393,247.30 in fuel taxes paid by the Tribe between June 7, 2009, and March 31, 2012. The Tribe sought both declaratory judgments and an injunction in the following six counts of its complain t : f irst, a declaratory judgment that the T ribe is exempt from the fuel tax because the t ax, levied on fuel expended on tribal land s , violates the Indian Commerce Clause, U.S. Const. Art. I, § 8, cl. 3 ; s econd, a declaratory judgment that the T ribe is exempt from the fuel tax because the tax, levied on fuel used to provide essential government services, violates the Indian Commerce Clause and the Indian s overeignty d octrine; t hird, a declaratory judgment that the Tribe is entitled to a refund under the Equal Protection Clause, U.S. Const. Amend. XIV, § 1, because Florida exempts fuel used in vehicles operated by municipal or county governments from the tax , but not fuel used in vehicles operated by the Tribe that perform essential government services ; f o urth, a declaratory judgment that the Tribe is entitled to a refund under the Equal Protection Clause because Florida exempts other groups that do not use state

Case: 13-10566 Date Filed: 05/05/2014 Page: 5 of 346 roadways , but does not exempt the T ribe even though it uses fuel on its roadways

on tribal lands ; f ifth, a declaratory judgment that the Tribe is entitled to a refund under the Equal Protection Clause because Florida uses the tax revenues for the construction and maintenance of roadways, and the T ribe constructs and maintains its own roadways on its tribal lands ; s ixth, an injunction barring the Department fro m refusing to refund the taxes paid for fuel that the T ribe used on its land to perform essential government services

. The district court dismissed the complaint for lack of subject

- matter jurisdiction . The district court ruled that the decision s in Rooker v. Fidelity Trust
Co. , 263 U.S. 413, 44 S. Ct. 149 (1923), and District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 103 S. Ct. 1303 (1983), barred the Tribe from relitigat ing its earlier complaint filed in Florida court . The district court also ruled , in the alternative, that the Tax Injunction Act, 28 U.S.C. § 1341, barred the complaint

. The district court did not address whether sovereign immunity or res judicata barred the c omplaint even though the Department and its D irector raised those defenses too. II. STANDARD OF REVIEW We review the dismissal of a complaint de novo

. Federated Mut. Ins. Co. v. McKinnon Motors, LLC , 329 F.3d 805, 807 (11th Cir. 2003).

Case: 13-10566 Date Filed: 05/05/2014 Page: 6 of 347 III. DISCUSSION The Tribe challenges both grounds upon which the district court dismissed its complain t , but we need not decide those issues if we affirm the dismissal on the alternative ground that sovereign immunity bars the complaint

. The Tribe argues that its federal complaint did not seek to overturn a previous state court judgment because the previous state judgment involv ed taxes paid between 2004 and 2006, and t he later federal complaint challenged taxes paid between 2009 and 2012. Cf. Exxon Mobil Corp. v. Saudi Ba sic Indus. Corp. , 5 44 U.S. 280, 293 , 125 S. Ct. 1517, 1527 (2005) (“ If a federal plaintiff presents some independent claim, albeit one that denies a legal conclusion that a state court has reached . . . then there is jurisdiction and state law determines w hether the defendant prevails under principles of preclusion. ” (internal quotation marks omitted) ) . The Tribe also argues that the Tax Injunction Act , 28 U.S.C. § 1341, did not bar its complaint because another federal statute, 28 U.S.C. § 1362, as interpreted in Moe v. Confederated Salish & Kootenai Tribes of the Flatheads Reservation , allows the Tribe to challenge the state tax. 425 U.S. 463, 473

– 75, 96 S. Ct. 1634, 1641

– 42 (1976) (“Here the United Sta tes cou ld have made the same attack on the State’s assertion of taxing power as was in fact made by the Tribe.”)

. But we may affirm the dismissal of a complaint on any ground supported by the record even if that ground was not considered by the district co urt, Powers v. United States , 996 F.2d

Case: 13-10566 Date Filed: 05/05/2014 Page: 7 of 348 1121, 1123

– 24 (11th Cir. 1993), and state sovereign immunity is a threshold issue that we must decide before requiring a state department and its officers to answer a complaint against them. See Bouchard Transp. Co. v . Fla. Dep’t of Evnvtl. Prot. , 91 F.3d 1445, 1448

– 48 (11th Cir. 1996). Although the Eleventh Amendment “is neither a source of nor a limitation on states’ sovereign immunity from suit , ” the Amendment recognizes that states ordinarily enjoy sovereign immuni ty from suits in federal court. Stroud v. McIntosh , 722 F.3d 1294, 1298 (11th Cir. 2013)

. By its terms, the A mendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. ” The t hird Congress swiftly proposed and the states then ratified the Amendment after the Supreme Court decided , in Chis h olm v. Georg ia , that a citizen of South Carolina could sue the State of Georgia in a federal court

. 2 U.S. (2 Dall.) 419, 420, 479 (1793), superseded by constitutional amendment , U.S. Const. Amend. XI

. Chisholm “created such a shock of surprise throughout the country that, at the first meeting of congress thereafter, the eleventh amendment to the constitution was almost unanimously proposed” to override the decision. Hans
v. Louisiana , 134 U.S. 1, 11, 10 S. Ct. 504, 505 (1890).

Case: 13-10566 Date Filed: 05/05/2014 Page: 8 of 349 W e understand the Eleventh Amendment in the light of this history and “not so much for what it says, but for the p resupposition which it confirms. ” Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 54, 116 S. Ct. 1114, 1122 (1996) (internal quotation mark and alteration omitted). That presuppositi on is two

- fold: each s tate is a separate sovereign , and each s tate , as a sovereig n, cannot be haled into a federal court without its consent. Id

. Any contrary understanding of state sovereign immunity “is an attempt to strain the constitution and the law to a construction never imagined or dreamed of.” Hans , 134 U.S. at 15, 10 S. Ct. at 507. In its complaint, the Tribe s eeks declaratory judgments t hat it i s exempt from the fuel tax under the Indian Commerce Clause, the Indian s overeignty d octrine, and the Equal Protection Clause and an injunction that would bar the Department and its D irector from refusing to issue refunds of fuel taxes the Tribe ha s paid , b ut the sovereign immunity of Florida bars this complaint

. Although Congress has the exclusive authority to regulate the internal affairs of Indian tribes, s tate sovereign immunity “is not so ephemeral as to dissipate when the subject of the suit i s an

area . . . under the exclusive control of the Federal Government.” Seminole Tribe , 517 U.S. at 72, 116 S. Ct. at 1131. The sovereign immunity of Florida extends to both the Department and its D irector. We discuss the immunity of each defendant in turn

. Case: 13-10566 Date Filed: 05/05/2014 Page: 9 of 3410 An Indian tribe can sue a state and its departments in federal court only if Congress has validly abrogated the immunity of the state or if the state has waived its immunity, but neither of those conditions has occurred here. Congress has not abrogated t he sovereign immunity of Florida from suits by Indian tribes for money damages or for injunctive or declaratory relief. See Idaho v. Coeur d’Alene Tribe of Idaho , 521 U.S. 261, 269, 117 S. Ct. 2028, 2034 (1997) ( ruling that sovereign immunity of Idaho barr ed suit for injunctive and declaratory relief); Seminole Tribe , 517 U.S. at 72, 116 S. Ct. at 1131 (ruling that the Indian Commerce Clause d id not empower Congress to abrogate the sovereign immunity of Florida); Blatchford v. Native Vill. of Noatak , 501 U. S. 775, 788, 111 S. Ct. 2578, 2585

– 86 (1991) (holding that a federal statute, 28 U.S.C. § 1362, providing federal jurisdiction for suits by Indian tribes, did not abrogate state sovereign immunity for suits for money damages). And Florida has not waived it s sovereign immunity from this federal suit. Without a valid abrogation by Congress , Florida, “an unconsenting S tate,” is immune from suit “regardless of the nature of the relief sought.” Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 100, 104 S. Ct. 900, 908 (1984) (internal quotation mark omitted)

. The Tribe also cannot circumvent the sovereign immunity of Florida by suing the D irector of the Department based on the decision in Ex parte Young , 209 U.S. 123, 28 S. Ct. 441 (1908). To be sure, a fe deral court has jurisdiction to

Case: 13-10566 Date Filed: 05/05/2014 Page: 10 of 3411 entertain suits against individual officers of a state “who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce . . . an unconstitutional act, violating the Federal Constitution.” Id. at 155

– 56, 28 S. Ct. at 452; see also Va. Office for Prot

. & Advocacy v. Stewar t, ___ U.S. ___, 131 S. Ct. 1632, 1638 (2011) (“ [W]hen a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the S tate for sovereign

- immunity purposes. ”). But the Tribe cannot wiggle into this exception through creative pleading. See Coeur d’ Alene , 521 U.S. at 270, 117 S. Ct. at 2034 (“The real interests served by the Eleventh Amendment are not to be sacrificed to el ementary mechanics of captions and pleading.”). When the Tribe names an individual officer as a defendant in its complaint, we must ask whether the suit is “in essence one for the recovery of money from the state.” Ford Motor Co. v. Dep’t of Treas ury of In d. , 32 3 U.S. 459, 464, 65 S. Ct. 347, 350 (1945) , overruled in part , Lapides v. Bd. of Regents , 535 U.S. 613, 622

– 23, 122 S. Ct. 1640 , 1645

– 46 (2002) (holding that a state might waive its sovereign immunity when it removes a case to federal court and overr uling Ford Motor Co. only insofar as it is inconsistent with the waiver rule in Lapides ) . If it is, then “the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officers are nominal defendants.” Id.

Case: 13-10566 Date Filed: 05/05/2014 Page: 11 of 3412 The Department, not the D irector, is the “real, substantial part y in interest” in this suit. Id. In Ford Motor Company , the Supreme Court explained that a suit for a tax refund that named individual officers as defendants was in fact a suit against the state and barred by sovereign immunity. Id. at 463, 65 S. Ct. at 35 0. Indiana law required a taxpayer to initiate an action against the “department” for taxes illegally exacted, and any judgment obtained from that action would be satisfied by “funds in the state treasury.” Id. (internal quotation marks omitted) (quoting I nd. Stat. Ann. § 64

- 2614(b) (1943)). The Supreme Court ruled that the Indiana statute “clearly provide[d] for a[n] action against the state, as opposed to one against the collecting official individually,” and the federal suit “therefore constitute[d] an a ction against the state, not against the collecting official as an individual.” Id. In the same manner that Ford joined the members of the Indiana Department of the Treasury in Ford Motor Company , the Tribe has joined the
D irector of the Department as a “r epresentative[] of the state, not as [an] individual[] against whom a personal judgment is sought.” Id. at 463

– 64, 65 S. Ct. at 350. Its “claim is for a ‘refund,’ not for the imposition of personal liability on individual defendants for sums illegally exac ted.” Id. at 4 64, 65 S. Ct. at 350. Moreover, the relief that the Tribe seeks is equitable in name only. This suit is not to enjoin an individual officer from committing a violation of federal law; it is instead a suit for monetary relief to be financed by the Florida fisc. See V a. Case: 13-10566 Date Filed: 05/05/2014 Page: 12 of 3413 Office fo r Prot. & Advocacy , 131 S. Ct. at 1639 (“ Ex parte Young cannot be used to obtain an injunction requiring the payment of funds from the State’s treasury.”). A declaratory ruling that the Tribe is exempt from the tax would amount to a judgment that the Tribe is entitled to a refund under Florida law. See Fla. Sta t. § 206.41(4), (5). The tax is precollected from suppliers of fuel, so every consumer must pay the tax at the pump, and any exempt consumer may then collect a refund after

- the

- fact. Id. § 206.41(5). And a judgment “[e]njoining the Department and its
Execu tive Director’s continued and prospective refusal to refund the Fuel Tax,” as the Tribe demands in its complaint, would amount to a money judgment against Florida. The Tribe seeks a refund paid by the State, not from the director’s pocket.
See Edelman v. J ordan , 415 U.S. 651, 6 6 8, 94 S. Ct. 1347, 13 58 (1974). We cannot declare the Tribe exempt from the fuel tax, nor can we enjoin the Department and its individual officer to pay the Tribe a refund. Granting either form of relief would be tantamount to a judg ment that Florida must pay the Tribe cash from state coffers. State sovereign immunity forecloses that relief. We reject our dissenting colleague’s contention that sovereign immunity does not bar a declaratory judgment exempting the Tribe from the tax , whi ch he argues is somehow different from a declaratory judgment and an injunction requiring a refund of the tax. Either form of relief is equivalent to “a retroactive award which requires the payment of funds from the state treasury.” Edelman , 415

Case: 13-10566 Date Filed: 05/05/2014 Page: 13 of 3414 U.S. at 67 7, 94 S. Ct. at 1362. As the Tribe alleges in its complaint, the Florida statute “provides exemptions from the Fuel Tax,” and “[a]ny consumer who pre

pays the Fuel Tax at the pump and then uses the fuel for an exempt purpose is entitled to a refund of the Fuel Tax.” The right to an exemption is the right to a refund under Florida law, and s overeign immunity bars that relief because it is compensatory in nature and because Florida is the real, substantial party in interest. Our dissenting colleague argues that the relief the Tribe seeks is prospective, but he fails to explain how that relief is anything other than an award of damages even if it could conceivably be described as prospective in nature

. The doctrine of sovereign immunity requires us to ask more than whether relief is “prospective” or “retrospective.” “P rospective” relief will not overcome the sovereign immunity of a state when th at relief is an award of money damages camouflage d as an inj unction or a declaratory judgment

. The Tribe labels the relief it seeks as a declaratory judgment, but that label does not end our inquiry. In Edelman , the Supreme Court rejected the argument that Ex p arte Young allow s “any form of relief [,] . . . no matte r how closely it may in practice resemble a money judgment payable out of the state treasury, so long as the relief may be labeled ‘equitable’ in nature.” 415 U.S. at 666

– 67, 94 S. Ct. at 1357 ; see also Papasan v. Allain , 478 U.S. 265, 279, 106 S. Ct. 2932, 2941 (1986) (“[W]e look to the substance rather than to the form of the relief sought.”)

. W hen , as in this appeal, prospective relief

Case: 13-10566 Date Filed: 05/05/2014 Page: 14 of 3415 is the “functional equivalent of money damages,” Ex parte Young does not apply. Summit Med. Assoc., P.C. v. Pryor , 1 80 F.3d 1325, 1337 (11th Cir. 1999) ; see also Va. Office for Prot. & Advocacy , 131 S. Ct. at 1643 (Kennedy, J., concurring) (highlighting that the Supreme Court in Edelman “ applied the [ Ex parte Young ] exception to an affirmative prospective order but not to equitable restitution, for the latter was too similar to an awa rd of damages against the State ”). A declaratory judgment exempting the Tribe from the tax is the functional equivalent of ordering recurring payment s of money damages

. T he Tribe points to no other way around the alleged constitutional violation other than a recurring refund paid to the Tribe from the Department after it precollects the tax from the fuel suppliers

. The injunctive relief sought in the decisions upon which the dissent relies is materially different from the compensatory relief the Tribe seeks here. When a Tribe challenges the assessment of a tax by a tax collector, the Tribe might sue to enjoin the tax collector from collecting the illegally assessed tax. Th at suit asks only that the tax collector not come upon the Tribe’s land to collect the tax, and everyone’s money stays in everyone’s pockets. In that suit, “no award of any money need be made from the state treasury. Instead, money which state officials

wo uld otherwise collect from the [plaintiffs], in violation of federal law, will be protected from collection.” CSX Transp. Inc. v. Bd. of Pub. Works of W. Va. , 138 F.3d 537, 542 (4th Cir. 1998) ; see id. (“The Railroads have not lost any money: the

Case: 13-10566 Date Filed: 05/05/2014 Page: 15 of 3416 money all egedly illegally assessed is still safely in their pockets.”). But in this suit, the Tribe will already have paid a fuel supplier, who is not a party to this suit, for the taxes that the supplier paid to the Department. The declaratory judgment that the Tr ibe seeks would demand that the tax collector award the Tribe money from state coffers equaling the amount of fuel taxes that the Department would already have collected from the supplier. Whether the tribe labels th e relief it seeks as an “exemption” or a “refund,” that relief is compensatory and is not allowed under Ex parte Young. See Papasan , 478 U.S. at 280

– 81, 106 S. Ct. at 2942 (“We discern no substantive difference between not

- yet

- extinguished liability for a past breach of trust and the continuing obligation to meet trust responsibilities asserted by the petitioners. In both cases, the trustee is required, because of the past loss of the trust corpus, to use its own resources to take the place of the corpus or the lost income from the corpus.”); Gre en v. Mansour , 474 U.S. 64, 68, 106 S. Ct. 423, 426 (1985) (“But compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment.”). To be sure, some prospective relief against individual officers allowed by Ex parte Young may cost states money, but we must ask whether the expenditure of state funds is a necessary result of compliance with a n injunction or a declaratory judgment or whether the expenditure is instead the “goal in itself.” Lucky v. Harris , 860 F .2d 1012, 1014

– 15 (11th Cir. 1988) ; see also Edelman , 415 U.S. at 667

– 68,

Case: 13-10566 Date Filed: 05/05/2014 Page: 16 of 3417 94 S. Ct. at 1358 (permitting prospective injunctive relief with “an ancillary effect on the state treasury” (emphasis added)) . In Milliken v. Bradley , for example, the Supreme Court ruled that a federal court could require a state to institute school programs to eliminate the vestiges of racial segregation even though the establishment of those programs would cost the state money. 433 U.S. 267, 289

– 90, 97 S. Ct. 2749, 2762 (1977). Bu t t he Supreme Court distinguished the relief allowed in Milliken from relief involving “individual citizens’ conducting a raid on the state treasury for an accrued monetary liability.” Id. at 290 n.22, 97 S. Ct. at 2762 n.22. Here, the expenditure of state funds is the goal in itself. A raid on the state treasury is precisely what is at stake in this appeal because a n exemption from the tax entitles the taxpayer to a refund of the tax . T he only relief the Tribe has requested is a declaratory judgment entitl ing it to a check made out from the Florida fisc whether today or in the future. Our dissenting colleague also faults us for crafting a “precollection exception” to Ex parte Young , but we have not created such an exception. W e have instead considered the structure of the Florida tax scheme to determine whether the real, substantial party in interest is the individual officer or the State

. Our dis senting colleague cites no authority for his contention that states cannot legislate their way a round Ex parte Young , and Ford Motor Co mpany stands for the opposite proposition. See Ford Motor Co. , 323 U.S. at 463, 65 S. Ct. at 350 (“This

Case: 13-10566 Date Filed: 05/05/2014 Page: 17 of 3418 section [of the Indiana statute] clearly provides for a[n] action against the state, as opposed to one against th e collecting official individually.”). For the reasons stated above , Florida is the real, substantial party in interest to this suit because of the manner in which Florida has structured the collection of its fuel tax. The Tribe has

never challenged the pr ecollection of the fuel tax ; instead, the Tribe has always contended that it should be exempt from the tax and , therefore , entitled to a refund of taxes already paid or taxes to be paid in the future. Such a suit will always be “in essence one for the reco very of money from the state” and is necessarily a suit against the State. Id. at 463

– 64, 65 S. Ct. at 350. And the authorit ies both our dissenting colleague and the Tribe rely upon do not convince us otherwise; none of those decisions involved a precollected tax that the state would have to refund

. I n Agua Caliente Band of Cahuilla Indians v. Hardin , for example, a tribe sought a declaratory judgment that federal law preempted a sales and use tax imposed on tribal lands and an injunction against state officers from collecting the tax before the tribe paid it. 223 F.3d 1041, 1043

– 44 (9th Cir. 2000) ; s ee also Muscogee (Creek) Nation v. Pruitt , 669 F.3d 1159, 116 2

– 68 (10th Cir. 2012) ( invo lving a challenge to a tobacco tax that required placement of tax stamps on tobacco products and payment of funds into state escrow fund ); Sac & Fox Nation of
Missouri v. Pierce , 213 F.3d 566, 569

– 70 (10th Cir. 2000) (involving a declaratory judgment that federal law preempted the state tax on fuel distributed to retail

Case: 13-10566 Date Filed: 05/05/2014 Page: 18 of 3419 stations on tribal lands and an injunction barring the collection of the tax ); CSX Transp. Inc. , 138 F.3d at 542 (“The district court further erred in holding that the injunction was retrosp ective because it sought a refund or credit . . . [t]he Railroads seek nothing of the kind.”). Unlik e the tax regimes in those appeals , the only relief available to the Tribe under Florida law is a refund of taxes it will already have paid, and state sover eign immunity bars that relief. See Ford Motor Co. , 323 U.S. at 463

– 64, 65 S. Ct. at 350.
W e must also address o ur dissenting colleague ’s speculation about the different methods Florida could employ to stop pre collecting the tax from the Tribe , which we reject for t hree reasons . First, w e are not free to rewrite the Florida statutes so that the Tribe may circumvent the sovereign immunity of Florida and sue its individual officer s . See Seminole Tribe , 517 U.S. at 75

– 76, 116
S. Ct. at 1133. Any future chang e to the collection of fuel taxes in Florida is a
matter of public policy to be debated by the Florida legislature, perhaps at the urging of the Tribe, but not a matter of law to be decided by a federal court in a lawsuit filed by the Tribe. Second, o ur di ssenting colleague ’s hypothetical tax

- free fuel rate, coupon s , or voucher s are overly broad and impractical

. The Tribe alleges that only a portion of the fuel it purchases is exempt from the tax, not all of it. Perhaps the dissent envisions that the fuel supplier w ould make two separate sales to the Tribe , one sale of tax ed fuel and one sale of tax

- exempt fuel used for

Case: 13-10566 Date Filed: 05/05/2014 Page: 19 of 3420 essential government services

. His speculation unrealis tically assumes that either the Tribe or the fuel supplier w ould be able to project the amount of tax

- exempt fuel the Tribe w ould use down to a one

- hundredth of a gallon. That unrealistic assumption illuminates why a federal court is wholly unsuited to instruct a state legislature about how best to collect fuel taxes. Third and most importantly, the Tribe never asked for such an unworkable form of relief. Finally, our dissenting colleague f rets that the Tribe cannot access a federal court to vindicate its alleged constitutional claim, but he fails to consider that the Tribe has the opportunity to seek review from the Supreme Court of the United States should the Tribe challenge the tax in state court as it has done before

. Compare McK esson Corp. v. Div. of Alcoholic Beverages & Tobacco, Dep’t of Bus. Regulation of Fla. , 496 U.S. 18, 27, 110 S. Ct. 2238, 2245 (1990) (“We have repeatedly and without question accepted jurisdiction to review issues of federal law arising in suits brought a gainst States in state court; indeed, we frequently have entertained cases analogous to this one, where a taxpayer who had brought a refund action in state court against the State asked us to reverse an adverse state judicial decision premised upon federal law.” (footnote omitted)), with Reich v. Collins , 513 U.S. 106, 109

– 10, 115 S. Ct. 547, 549 (1994) (“[T]he sovereign immunity States enjoy in federal court, under the Eleventh Amendment, does generally bar tax refund claims from being brought in that foru m.”). We see no

Case: 13-10566 Date Filed: 05/05/2014 Page: 20 of 3421 reason to stretch the bounds of Ex parte Young to allow the Tribe to sue the Department and its individual officers in federal court when, after the passage of the Tax Injunction Act, 28 U.S.C. § 1341, non

- Indian taxpayers must challenge
ta xes in state court. When t he Founders “ split the atom of sovereignty , ” U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 838, 115 S. Ct. 1842, 1872 (1995) (Kennedy, J. , concurring) , each state retained the right “not to be amenable to the suit of an indiv idual without its consent .” The Federalist No. 81, at 487

– 88 (C. Rossiter ed. 1961) (Hamilton). Florida has not consented to this suit, and we cannot adjudicate whether Florida must grant the T ribe an exemption from the fuel tax or pay the Tribe a refund from its fisc

. IV. CONCLUSION
We AFFIRM the dismissal of the complaint filed by the Seminole Tribe of Florida. Case: 13-10566 Date Filed: 05/05/2014 Page: 21 of 3422 JORDAN, Circuit Judge, concurring in part and dissenting in part: I join the majority’s opinion with respect to the dismissal of Counts III

- VI, which expressly seek injunctive relief in the form of refunds to the Tribe of Florida’s already

- collected fuel taxes, but respectfully dissent from the dismissal of Counts I and II, which seek a declaratory judgment against Florida officials that the future imposition of certain fuel taxes violates the Constitution.
I “[S]overeign immunity . . . generally bar[s] tax refund claims from being brought in [federal court].” Reich v. Collins , 513 U.S. 106, 110 (1994). Because
Counts III

- VI of the Tribe’s complaint seek “the recovery of money from the [S]tate” through refunds, I concur with the majority that “the [S]tate is the real, substantial party in interest and is entitled to in voke its sovereign immunity from suit even though individual officials are nominal defendants.” Ford Motor Co. v. Dep’t of Treasury of Ind. , 323 U.S. 459, 464 (1945) (holding that a taxpayer’s suit against state treasury officials for “a refund of gross i ncome taxes paid” was an action against the state and barred by the Eleventh Amendment). See also DeKalb Cnty. Sch. Dist. v. Schrenko , 109 F.3d 680, 691 (11th Cir. 1997) (“[I]t is obvious that this is, in reality, a suit against the State itself. The onl y action the defendants are required to take to comply with the district court’s injunction is to pay from the state treasury the additional funds specified by the district court.”).

Case: 13-10566 Date Filed: 05/05/2014 Page: 22 of 3423 I do not, however, agree that the Eleventh Amendment bars Counts I and II as against the Department of Revenue’s interim executive director and deputy executive director under Ex parte Young , 209 U.S. 123 (1908). Significantly, Counts I and II do not ask for refunds, but rather seek only a declaration that fuel purchased by th e Tribe for use on tribal land or in the provision of essential governmental services is exempt from the fuel tax under the Indian Commerce Clause, U.S. Const. Art. I, § 8, cl. 3. Such relief, in my opinion, is permitted under Ex parte Young , which genera lly allows suits for declaratory and prospective relief against state officials in charge of administering or enforcing unconstitutional laws. See Va. Office for Prot. & Advocacy v. Stewart , 131 S. Ct. 1632, 1638 (2011). 1
A Though it may be an “expedient ‘fiction,’” Ex parte Young is “necessary to ensure the supremacy of federal law.” Cent. Va. Cmty. College v. Katz , 546 U.S. 356, 378 n.14 (2006) (citation omitted). Accordingly, “[i]n determining whether the doctrine of Ex parte Young avoids an Elevent h Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

1 The Florida officials who have been sued here are proper defendants under Ex parte Young , as they, “by virtue of [their] offices, ha[ve] some connection with the unconstitutional act or conduct complained of.” Luckey v. Harris , 860 F.2d 1012, 1015

- 16 (11th Cir. 1988) (internal quotation marks and citation omitted) (second alteration in original). They are, in the words of Women’s Emergency Netw ork v. Bush , 323 F.3d 937, 949 (11th Cir. 2003), “responsible for” the enforcement of the fuel tax.

Case: 13-10566 Date Filed: 05/05/2014 Page: 23 of 3424 prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md. , 535 U.S. 635, 645 (2002) (citation omitted and alteration in original). Counts I and II satisfy this straightforward inquiry. They allege an ongoing violation of federal law, i.e., that Florida’s fuel tax violates (and will continue to violate) the Ind ian Commerce Clause as applied to fuel purchased by the Tribe for use on tribal land or in the provision of essential governmental services. See Complaint, D.E. 1 at ¶¶ 30, 37. And they seek, at least in part, a declaration that fuel which has yet to be purchased or taxed is not subject to the tax when it is used by the Tribe on tribal land or in the provision of essential governmental services. See id. at ¶¶ 33, 38. Such “relief [is] properly characterized as prospective.” Verizon Md. , 535 U.S. at 645 (internal quotation marks omitted). The majority relies heavily on Ford Motor Co. , but that case is easily distinguishable. First, the taxpayer there expressly sought a “refund of gross income taxes paid.” 323 U.S. at 460. Second, the taxpayer sued u nder a state statute which provided for an action against the state itself. See id. at 462

- 63. Here, as noted earlier, Counts I and II seek only a declaratory judgment that the future imposition and collection of Florida’s fuel tax would be unconstitutio nal, and, in Counts I and II, the Tribe sued the interim executive director and deputy executive director pursuant to Ex parte Young

.

Case: 13-10566 Date Filed: 05/05/2014 Page: 24 of 3425 As the Supreme Court and various circuits have recognized, the Eleventh Amendment does not bar prospective challenges to a llegedly unconstitutional state taxes when such suits are “brought against state officers in their official capacity and not against the State in its own name.” Blatchford v. Native Village of Noatak , 501 U.S. 775, 785 & n.3 (1991) (“Absent [the Tax Injun ction Act], state taxes could constitutionally be enjoined.”). See also Muscogee (Creek) Nation v. Pruitt , 669 F.3d 1159, 1168 (10th Cir. 2012) (holding that the Eleventh Amendment did not bar claims for prospective declaratory and injunctive relief in a suit challenging Oklahoma statutes that taxed and regulated the sale of cigarettes and other tobacco products); Agua Caliente Band of Cahuilla Indians v. Hardin , 223 F.3d 1041, 1049 (9th Cir. 2000) (holding that the Eleventh Amendment did not bar an Indian tribe from seeking a declaratory judgment precluding the imposition of California’s sales and use tax on purchases of food and beverages by non

- tribal members at a tribal resort on reservation land); CSX Transp., Inc. v. Bd. of Pub. Works of the State of W. Va. , 138 F.3d 537, 541 (4th Cir. 1998) (“An injunction against the future collection of illegal taxes, even those that already have been assessed, is prospective, and therefore available under the Ex parte Young doctrine.”). The only distinction here is that Florida precollects its fuel tax from suppliers for mere “administrative convenience,” Fla. Stat. § 206.41(4)(a), but that is a distinction without a difference, and the majority’s opinion therefore creates a circuit split.

Case: 13-10566 Date Filed: 05/05/2014 Page: 25 of 3426 Florida’s choice to precollect the challenged fuel tax now and in the future does not somehow transform the Tribe’s requested declaratory relief from permissibly prospective to impermissibly retrospective. Retrospective relief is backward

- looking, and seeks to remedy harm “resulting from a past breach of a legal duty on the part of the defendant state officials.” Edelman v. Jordan , 415 U.S. 651, 668 (1974) (emphasis added). To illustrate, the Supreme Court held in Edelman that a judgment requiring the state to pay wrongfully withheld welfare benefits amounted to a “retroactive award of monetary relief” because it “require[d] payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal

- quest ion determination, but as a form of compensation to those whose applications were [incorrectly] processed” before the plaintiffs had filed suit. Id . By contrast, the alleged harm here does not arise from the past breach of a legal duty; it results from t he future and continuing imposition of an allegedly unconstitutional tax on fuel that has yet to be purchased or taxed. See, e.g. , CSX Transp. , 138 F.3d at 542 (rejecting argument “that an injunction against the future collection of illegal taxes is retro spective and unavailable merely because the state has already decided how much tax to collect, even though the money is still safely in the taxpayer’s pocket”).

Case: 13-10566 Date Filed: 05/05/2014 Page: 26 of 3427 B Were the Tribe to prevail in its constitutional challenge

— a matter on which I do not ex press any views

— the district court would issue a declaratory judgment that the fuel tax could not be applied to future purchases of fuel by the Tribe for use on tribal land and in the provision of essential governmental services. The majority believes tha t such a judgment would be tantamount to an order requiring Florida to issue refunds. But it is difficult to understand, linguistically or otherwise, how asking to stop something that is going to continue indefinitely into the future can be legally charac terized as a retrospective demand for payment of money already in the State’s treasury. There are obviously fuel taxes that Florida has not yet precollected, not even from suppliers, and for such unassessed future taxes (say, for example, taxes that will be precollected in May of 2015, a year from now) any declaratory relief necessarily has to be prospective. How can a taxpayer possibly seek or get a refund

— defined as a “sum repaid,” 2 Shorter Oxford English Dictionary 2510 (5th ed. 2002), or “[t]he retur n of money to a person who overpaid,” Black’s Law Dictionary 1394 (9th ed. 2009)

— for a tax that has not yet been paid by anyone? Likewise, it is impossible to characterize a judgment which declares the future imposition and collection of taxes unconstitu tional as an award of damages. “Traditional money damages are payable to compensate for the harm of past

Case: 13-10566 Date Filed: 05/05/2014 Page: 27 of 3428 conduct, which subsists whether future harm is threatened or not.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 211 n.5 (2000) (Scalia, J., dissenting) (emphasis added). See also F.T.C. v. Leshin , 719 F.3d 1227, 1232 (11th Cir. 2013) (“The most common combination of equitable and legal remedies, for instance, is a district court’s grant of both an injunction that prev ents future harm along with an award of damages that compensates for past harm.”). The Florida officials sued here could choose to abide by any adverse declaratory judgment by providing any form of relief that would cure the unconstitutional application of the fuel tax. Cf. McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco , 496 U.S. 18, 51 (1990) (“When a State penalizes taxpayers for failure to remit their taxes in a timely fashion, thus requiring them to pay first before obtaining review of the tax ’s validity, federal due process principles long recognized by our cases require the State’s postdeprivation procedure to provide a ‘clear and certain remedy[ ]’ for the deprivation of tax moneys in an unconstitutional manner.”) (citation omitted). For ex ample, the Florida officials could comply with a declaratory judgment by eliminating or modifying, in whole or in part, the procedure for the precollection of fuel taxes with respect to future purchases of fuel by the Tribe; they could require gas stations to charge members of the Tribe a different, tax

- exempt price on fuel purchased for use on tribal lands or in the provision of essential governmental

Case: 13-10566 Date Filed: 05/05/2014 Page: 28 of 3429 services; or they could issue coupons or vouchers

— which could later be reconciled

— entitling the Tribe to a discount of the purchase price. If the Florida officials refused to abide by a declaratory judgment and continued enforcing (and collecting) the fuel tax from the Tribe in an unconstitutional manner, the district court could enforce its judgment through contempt proceedings, as happened in Ex parte Young itself, see 209 U.S. at 159

- 60 (upholding lower court’s order of contempt, which committed a state attorney general to federal custody for violating a federal injunction barring enforcement of state law held to be unconstitutional), or through financial penalties, as explained
in Hutto v. Finney , 437 U.S. 678, 690 (1978) (“In exercising their prospective powers under Ex parte Young and Edelman . . . , federal courts are not reduced to issuing injunctions against state officers and hoping for compliance. Once issued, an injunction may be enforced. Many of the court’s most effective enforcement weapons include financial penalties.”) (citations omitted). Should the State decide not to change its precoll ection scheme as to future taxes and wish to avoid contempt proceedings or the imposition of financial penalties, then it is likely that the Florida officials would have to issue refunds to the Tribe in order to comply with any declaratory judgment exempti ng the Tribe from the fuel tax in the future. But in that scenario the issuance of refunds would be the result of a choice made by Florida, see Quern v. Jordan , 440 U.S. 332, 347

Case: 13-10566 Date Filed: 05/05/2014 Page: 29 of 3430 (1979), and the existence of an Eleventh Amendment bar does not depend on th e mere difficulty (or expense) of compliance with a prospective federal decree. See Milliken v. Bradley , 433 U.S. 267, 289 (1977) (“[ Ex parte Young ] permits federal courts to enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury.”). 2
C The majority’s opinion, as I read it, apparently would allow a state to shield the enforcement of any tax, no matter how constitutionally untenable, from challenge in federal court simply by enacting a precollection procedure. But there is no “precollecti on exception” to Ex parte Young , and the supremacy of federal law does not rest on the type of tax scheme that Florida has designed. States cannot legislate their way around Ex parte Young , and in other contexts the Supreme Court has made clear that the s upremacy of federal law is not dependent on the ingenuity of obstacles created by state law

. See Haywood v. Drown , 556 U.S. 729, 739 (2009) (“A [state] jurisdictional rule cannot be used as a device to

2 I note, as well, that the Supreme Court has not hesitated to enforce a lower court’s mandamus order requiring county auditors and county treasurers, who w ere employed by the state, to levy a tax to pay a federal judgment even though those officials were not permitted to impose such a tax under state law. See Graham v. Folson , 200 U.S. 248, 254

- 55 (1906) (rejecting argument that the mandamus relief was effe ctively relief against the state itself). If forcing such officials to impose a tax prohibited by state law is not constitutionally problematic, requiring Florida officials to exempt the Tribe from the fuel tax in the future isn’t either. See also Millik en , 433 U.S. at 289 (affirming a district court order requiring the state to pay half of a court

- ordered desegregation plan even though the Ex parte Young defendants were only state enforcement officials).

Case: 13-10566 Date Filed: 05/05/2014 Page: 30 of 3431 undermine federal law, no matter how evenhanded it ma y appear.”); Crosby v. Nat’l Foreign Trade Council , 530 U.S. 363, 372

- 73 (2000) (“We will find preemption . . . where ‘under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of
t he full purposes and objectives of Congress.’”) (quoting Hines v. Davidowitz , 312 U.S. 52, 67 (1941)) (second and third alterations in original). “Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interes t in assuring the supremacy of that law.”
Green v. Mansour , 474 U.S. 64, 68 (1985). The Tribe’s requested declaratory relief in Counts I and II fulfills this function because it seeks to “ensure that the state [fuel] tax be applied [in the future] by [Fl orida] officials in a manner consistent with federal law.” Agua Caliente , 223 F.3d at 1049. As a result, I do not believe that Counts I and II are barred by the Eleventh Amendment.
II Because the majority affirms across the board on Eleventh Amendment
g rounds, it does not reach the Tribe’s arguments that the district court erred in dismissing the complaint under the Tax Injunction Act (TIA), 28 U.S.C. § 1341, and the Rooker

- Feldman doctrine, based on Rooker v. Fidelity Trust Co. , 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman , 460 U.S. 462

Case: 13-10566 Date Filed: 05/05/2014 Page: 31 of 3432 (1983). Because I would allow Counts I and II to proceed under Ex parte Young, I write to briefly explain why neither of these other jurisdictional barriers applies. Although the TIA general ly prohibits federal courts from “enjoin[ing], suspend[ing] or restrain[ing] the . . . collection of any tax under State law,” 28 U.S.C. § 1341, it does not apply to Indian tribes “seeking to enjoin the enforcement of a state tax law” in a suit brought und er 28 U.S.C. § 1362. See Moe v. Confederated Salish & Kootenai Tribes , 425 U.S. 463, 474

- 75 (1976). See also Blatchford , 501 U.S. at 785 (explaining that “ Moe held § 1362 to eliminate [the TIA’s] application to tribal suits”). The district court’s contr ary conclusion, based on its determination that “the applicability of the TIA in this case hinges on the locus of the fuel tax,” D.E. 27 at 9, in my view conflates the merits of the Tribe’s claims with the jurisdictional inquiry demanded by the intersectio n of the TIA and § 1362. Whether (or not) the TIA applies does not depend on whether the Tribe will succeed on its claims. I would therefore reverse the district court’s dismissal of the Tribe’s claims under the TIA. I would also set aside the district court’s dismissal of the Tribe’s claims under the Rooker

- Feldman doctrine. “The Rooker

- Feldman doctrine is

. . . confined to .

. . cases brought by state

- court losers complaining of injuries caused by state

- court judgments rendered before the district co urt proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil

Case: 13-10566 Date Filed: 05/05/2014 Page: 32 of 3433 Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 284 (2005). See also Brown v. R.J. Reynolds Tobacco Co. , 611 F.3d 1324, 1330 (11th Cir. 2010) (“T he doctrine bars the losing party in state court ‘from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party’s claim that the state judgment itself violates the loser’s federa l rights.’”) (quoting Johnson v. De Grandy , 512 U.S. 997, 1005

- 06 (1994)). It “does not otherwise override or supplant preclusion doctrine.” Exxon Mobil , 544 U.S. at 284. See also Bates v. Harvey , 518 F.3d 1233, 1240 (11th Cir. 2008) (“The Rooker

- Feldma n doctrine is distinct from issue preclusion.

. . .”). The district court dismissed the Tribe’s claims because the Fourth District,
in Florida Department of Revenue v. Seminole Tribe of Florida , 65 So. 3d 1094 (Fla. 4th DCA 2011) (“ Seminole Tribe I ”), had “addressed precisely the same issues contained in the claims in the instant suit.” D.E. 27 at 6. In so ruling, the district court “expanded Rooker

- Feldman’s jurisdictional bar to include federal actions that simply raise claims previously litigat ed in state court.” Exxon Mobil , 544 U.S. at 287 n.2. See also id. at 293 ( Rooker

- Feldman does not “stop a district court from exercising subject

- matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigat ed in state court”).

Case: 13-10566 Date Filed: 05/05/2014 Page: 33 of 3434 III In our constitutional scheme, sovereign immunity “works only because of the exceptions to it,” and the “most important of these” is “the suit against an officer” under Ex parte Young . John T. Noonan, Narrowing the Nation’s Power: The Supreme Court Sides with the States 85 (2002). The Eleventh Amendment, in my mind, does not bar Counts I and II of the Tribe’s complaint under Ex parte Young . I would therefore set aside the dismissal of these Counts, and remand for the district court to determine whether the Fourth District’s judgment in Seminole Tribe I is entitled to preclusive effect under Florida law, and/or whether Counts I and II should be dismissed for failure to state a claim. See Appellees’ Br. at 17

- 22, 33

- 39. Case: 13-10566 Date Filed: 05/05/2014 Page: 34 of 34