88
OCTOBER TERM, 2003
Syllabus
HIBBS, DIRECTOR, ARIZONA DEPARTMENT OF REVENUE v. WINN et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 02–1809.
Argued January 20, 2004—Decided June 14, 2004
Plaintiffs respondents, Arizona taxpayers, filed suit in federal court against the Director of Arizona's Department of Revenue (Director) seeking to enjoin the operation of Ariz. Rev. Stat. Ann. § 43–1089 on Establishment Clause grounds. Arizona's law authorizes an income tax credit for payments to nonprofit "school tuition organizations" (STOs) that award scholarships to students in private elementary or secondary schools. Section 43–1089 provides that STOs may not designate schools that "discriminate on the basis of race, color, handicap, familial status or national origin," § 43–1089(F), but does not preclude STOs from designating schools that provide religious instruction or give religion-based admissions preferences. The District Court granted the Director's motion to dismiss on the ground that the Tax Injunction Act (TIA), 28 U. S. C. § 1341, barred the suit. The TIA prohibits lower federal courts from restraining "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." The Ninth Circuit reversed, holding that the TIA does not bar federal court actions challenging state tax credits.
Held:
1. The Court rejects respondents' contention that the Director's certiorari petition was jurisdictionally untimely under 28 U.S.C. § 2101(c) and this Court's Rule 13.3. Section 2101(c) instructs that a petition must be filed "within ninety days after the entry of . . . judgment," and this Court's Rule 13.3 elaborates on that statute's instruction. More than 90 days elapsed between the date the Ninth Circuit first entered judgment and the date the Director's petition was filed. That time lapse, respondents assert, made the filing untimely under Rule 13.3's first sentence: "[T]he time to file . . . runs from the date of entry of the judgment or order sought to be reviewed." Moreover, respondents submit, because no party petitioned for rehearing, the extended filing periods prescribed by the Rule's second sentence never came into play. This case, however, did not follow the typical course. The Ninth Circuit, on its own initiative, had recalled its mandate and ordered the parties to brief the question whether the case should be reheard en banc. That order, this Court holds, suspended the judgment's finality
