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Long Island Lighting Co. v. Town of Brookhaven

decided: November 8, 1989.

LONG ISLAND LIGHTING COMPANY, PLAINTIFF-APPELLANT,
v.
TOWN OF BROOKHAVEN, NEW YORK, ARTHUR MALAUSSENA, AS THE ASSESSOR FOR TOWN OF BROOKHAVEN, NEW YORK, HARRY OSTERMANN, AS THE CHAIRMAN AND DONNA JOHNSON, AUDREY STANZALIE, RAYMOND FARMER, JR., AND ROBERT REILLY, AS MEMBERS OF THE BOARD OF ASSESSMENT REVIEW FOR THE TOWN OF BROOKHAVEN, HENRIETTA ACAMPORA, AS THE SUPERVISOR OF THE TOWN OF BROOKHAVEN, F. DANIEL MOLONEY AS THE RECEIVER OF TAXES FOR THE TOWN OF BROOKHAVEN, COUNTY OF SUFFOLK, SONDRA BACHETY, AS THE PRESIDING OFFICER OF THE SUFFOLK COUNTY LEGISLATURE, ELIZABETH TAIBBI, AS THE CLERK OF THE SUFFOLK COUNTY LEGISLATURE, AND SHOREHAM-WADING RIVER CENTER SCHOOL DISTRICT, DEFENDANTS-APPELLEES



Appeal from a judgment of the Eastern District of New York, Leonard D. Wexler, Judge, dismissing for lack of jurisdiction, this § 1983 action challenging certain local tax assessments.

Oakes, Chief Judge, and Van Graafeiland and Pratt, Circuit Judges.

Author: Pratt

PRATT, Circuit Judge.

The principal issue on this appeal is whether New York's state courts provide the Long Island Lighting Company (LILCO) with a procedurally adequate remedy for resolution of its constitutional challenge to certain real property taxes assessed against the Shoreham Nuclear Power Station (Shoreham). The United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge, determined that because the available state-court remedies are procedurally adequate, the Tax Injunction Act, 28 U.S.C. § 1341, barred consideration of LILCO's claims in federal court. It therefore dismissed LILCO's complaint for lack of jurisdiction, without considering the role of comity in this controversy.

We agree that the adequacy of available state-court remedies deprived the district court of jurisdiction to hear these challenges. However, we rest our decision not only on the Tax Injunction Act, which bars federal courts from granting injunctive or declaratory relief when adequate state remedies exist, but also on the principle of comity, which bars damage relief and, indeed, any relief under 42 U.S.C. § 1983. We therefore affirm the district court's dismissal of the action.

I. BACKGROUND

Over the last twelve tax years, the Town of Brookhaven has imposed on Shoreham, an 808 megawatt nuclear generating facility located in the Brookhaven real property tax assessing unit, real property tax assessments that have resulted in real property tax levies of more than $445 million. LILCO, the sole owner of Shoreham, paid these taxes but initiated tax certiorari proceedings under New York Real Property Tax Law § 700 et seq. (article 7) for each tax year from December 1, 1976, to the present, excluding the 1979-1980 tax year, seeking refunds of alleged overpayments based on its claim that the assessments against Shoreham were excessive, unequal, and unlawful.

Contending that "incredibly obstructive litigation tactics by defendants" have kept the earliest of these tax proceedings from going to trial for more than twelve years, LILCO commenced this action under 42 U.S.C. § 1983 against Brookhaven, certain Brookhaven officials, the Shoreham-Wading River Central School District, Suffolk County, and several county officials. LILCO seeks declaratory, injunctive, and monetary relief because, it alleges, the taxes imposed on Shoreham violate the equal protection and due process clauses of the fourteenth amendment. In particular LILCO alleges that (1) Shoreham has systematically and intentionally been assessed at a higher percentage of fair market value than other property in the Brookhaven tax district based on de facto classifications of property by use and geography in violation of both New York statutory law and the equal protection clause of the fourteenth amendment, and (2) that § 720(3) of the New York Real Property Tax Law limits proof of the de facto classification, prevents LILCO from introducing evidence of the intent of the assessor and other town officials, and limits proof of the inequality of assessment of various parcels. All of this, LILCO contends, violates the due process clause of the fourteenth amendment.

Concluding that a declaratory judgment action would provide LILCO with a "plain, speedy and efficient remedy", and thus, that LILCO was precluded by the Tax Injunction Act from litigating these claims in federal court, the district court dismissed the complaint. LILCO appeals.

II. DISCUSSION

A. Appellate Jurisdiction

Preliminarily, we must determine whether we have jurisdiction to hear the appeal. LILCO appealed from an "order" of the district court dated January 25, 1989, 703 F. Supp. 241, rather than from a "judgment" entered on that order as required by Fed.R.Civ.P. 58. Defendants have not objected to LILCO's improperly perfected appeal. In fact, no judgment was entered on the order until well after the oral argument of this appeal when the district court, at this court's suggestion, directed the clerk of the court to enter an appropriate judgment. Judgment was ultimately entered on September 8, 1989. Because rule 58 requires that "every judgment shall be set forth on a separate document" and is effective only when so set forth and entered on the civil docket as provided in Fed.R.Civ.P. 79(a), see Fed.R.Civ.P. 58; Fed.R.Civ.P. 79(a); see generally Kanematsu-Gosho, Ltd. v. M/T Messiniaki Aigli, 805 F.2d 47, 48-49 (2d Cir. 1986) (per curiam), there is a preliminary question as to whether LILCO's notice of appeal, filed on February 23, 1989, six and one half months before entry of the judgment, confers jurisdiction on us to hear the appeal.

Ordinarily, an appeal may be taken only from a separate document denominated a "judgment" and entered on the civil docket. See Fed.R.Civ.P. 58; National Railroad Passenger Corp. v. City of New York, 882 F.2d 710, 713 (2d Cir. 1989). Fed. R. App. P. 4(a)(2) provides, however, that a notice of appeal filed after the announcement of a decision or order but before entry of judgment shall be treated as filed after such entry and on the day thereof. Accordingly, LILCO's notice of appeal, while technically premature because filed over six months prior to entry of judgment, shall be treated as filed on September 8, 1989, the day judgment was in fact entered. The appeal is therefore properly before us.

Moreover, if the parties consent to the appeal of an order, even without entry of a judgment, the court of appeals has jurisdiction to hear the appeal. Bankers Trust Co. v. Mallis, 435 U.S. 381, 386-87, 55 L. Ed. 2d 357, 98 S. Ct. 1117 (1978) (per curiam) (parties to appeal may waive separate judgment requirement). Consent is established where one party appeals from an order and the opposing parties do not contest appellate jurisdiction. Id. at 387-88; National Railroad Passenger Corp., 822 F.2d at 713; Finn v. Prudential-Bache Securities, Inc., 821 F.2d 581, 585 (11th Cir. 1987), cert. denied, 488 U.S. 917, 109 S. Ct. 274, 102 L. Ed. 2d 262 (1988); see also Fennell v. TLB Kent Co., 865 F.2d 498, 499 n. 1 (2d Cir. 1989); United States v. ...


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