## Facts

- The City of New Orleans (the City), acting through its Board of Liquidation, City Debt (the Board), issued tax-exempt general obligation bonds (GO bonds) to fund capital improvements.
- After the GO bonds were issued, interest rates declined and the Board wanted to refinance the City’s debt, but the outstanding GO bonds were not yet redeemable.
- To achieve refinancing benefits despite the noncallable bonds, the Board used an advance refunding structure.
- In the advance refunding, the Board issued $180,000 of General Obligation Refunding Bonds, Series 1991 (the 1991 GO refunding bonds) on a tax-exempt basis.
- Proceeds of the 1991 GO refunding bonds were used to purchase U.S. Treasury securities.
- The Treasury securities were placed into escrow accounts, and escrow proceeds were used to pay debt service on the refunding bonds and to redeem the older bonds as they matured.
- The Board hired BT Alex. Brown Inc. (BT) and Smith Barney, Inc. (Smith Barney) as financial consultants; BT served as the underwriter and Smith Barney served as the escrow provider in connection with the Treasury purchases.
- In August and September 1997, the IRS sent the City letters stating it had made a preliminary determination that the 1991 GO refunding bonds might not be tax-exempt due to alleged violations of federal arbitrage rules.
- The IRS described the relevant arbitrage requirements as including that Treasuries purchased for advance refunding be acquired at fair market value and that escrow yield not exceed the interest payable on the refunding bonds.
- The IRS asserted that BT and Smith Barney marked up the prices of the Treasuries so the yield would appear lower (yield burning), and also asserted the firms shared excessive markups under a private agreement.
- The IRS determination was preliminary and subject to continued investigation and a later formal determination.
- Before the IRS issued any final determination, the City and the Board filed parallel suits seeking a declaratory judgment that BT and Smith Barney would be responsible for any adverse IRS determination and would indemnify the City and Board for all resulting consequences.
- BT and Smith Barney moved to dismiss the suits.

## Issues

1. Whether the City’s and Board’s claims for declaratory relief and indemnification—based on a preliminary, nonfinal IRS determination regarding the tax-exempt status of the 1991 GO refunding bonds—presented a ripe Article III case or controversy.

## Decision

- The court granted the defendants’ motions to dismiss.
- The court concluded the requested declarations and any indemnity obligations depended on contingent future events, including whether the IRS would issue a final adverse determination and what that determination would be based on.
- Because the IRS had only issued preliminary letters and the administrative process was ongoing, the court held the dispute lacked the immediacy and concreteness required for federal adjudication at that time.

## Legal Principles

- Federal courts may exercise jurisdiction only over an Article III “case or controversy”; claims premised on uncertain future events that may not occur are generally not justiciable.
- The Declaratory Judgment Act requires an “actual controversy” of sufficient immediacy; it does not authorize advisory opinions allocating responsibility for hypothetical future liability.
- Ripeness turns on whether the dispute is fit for judicial resolution and whether withholding review causes sufficient hardship; where liability depends on an unresolved agency process and no final outcome has occurred, the dispute is commonly treated as premature.
- Indemnity and related declaratory claims that hinge on a possible future finding of liability are typically not ripe until the underlying liability is fixed or otherwise sufficiently definite.

## Conclusion

In *City of New Orleans v. Smith Barney, Inc.*, the federal district court dismissed the City’s and Board’s declaratory-judgment and indemnity actions because the alleged harm and the requested allocation of responsibility depended on a nonfinal IRS audit position about the 1991 GO refunding bonds, leaving the dispute too contingent to satisfy the immediacy required for Article III jurisdiction and declaratory relief.


City of New Orleans v. Smith Barney, Inc., 1999 WL 288797 (1999)