In this action, Laura Darne sought declaratory and injunctive relief against the State of Wisconsin ("State"), the Secretary of the Wisconsin Department of Revenue ("Secretary") and a subordinate officer to prevent them from collecting any taxes which have been or might be assessed against her under Wisconsin Statute § 71.83(1)(a)6. That section imposes a tax penalty of 33% of the federal early withdrawal fee that is imposed on funds removed from certain qualified retirement plans. Before the district court, Ms. Darne contended that this section of the Wisconsin tax code was preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461. The district court disagreed and dismissed the case on the ground that it was barred by the Eleventh Amendment and the Tax Injunction Act of 1937 ("TIA"), 28 U.S.C. § 1341. For the reasons set forth in the following opinion, we affirm the judgment of the district court.1

* BACKGROUND

During the 1980s, Laura Darne invested funds on a tax-deferred basis through corporate retirement programs offered by her employers under ERISA. In 1993, Ms. Darne withdrew $6,844.67 from her retirement accounts; in 1994, she withdrew an additional $7,069.07. These were early withdrawals of the retirement funds. Consequently, the withdrawals were subject to a 10% early withdrawal fee under federal law. See 26 U.S.C. § 72(t)(1). Ms. Darne appropriately reported the withdrawals as income and paid the 10% fee on her federal tax returns for 1993 and 1994.

The State of Wisconsin assesses an additional tax penalty for early withdrawal of retirement funds. See Wis. Stat. § 71.83(1)(a)6. The State law penalty requires a payment of 33% of the applicable federal early withdrawal penalty to the State. Ms. Darne informed Wisconsin in a letter submitted with her 1993 state tax return that she would not pay Wisconsin's early withdrawal fee because she believed the State statute violated ERISA.2 Ms. Darne then filed, in January 1995, this action seeking declaratory and injunctive relief. She sought both a declaration that the Wisconsin tax penalty law was preempted by ERISA and an injunction against the collection of any taxes due under the law.

The Wisconsin Department of Revenue ("Department") sent Ms. Darne a notice of delinquent tax, dated February 20, 1995, prior to any action on her suit by the district court. Ms. Darne apparently did not receive this notice until February 24th, the same day that she received a letter from her bank indicating that it had complied with a "Notice of Levy" dated February 23, 1995, which the Department had sent to the bank. The bank had remitted to the Department from Ms. Darne's account $288.39, the amount due under the Wisconsin statute for the 1993 early withdrawal penalty plus interest.

The defendants filed their motion to dismiss the suit on March 18, 1995. Ms. Darne was granted leave to amend her complaint on March 28, 1995, to join Bruce Gamber, the revenue agent for the Department who issued the levy notice, and Mark Bugher, the Secretary of the Department. Ms. Darne also added vague theories of liability in the amended action, alleging that the levy of her bank account funds violated her constitutional rights under the Fourth and Fourteenth Amendments and that the levy of her funds constituted theft by Gamber. Based on these theories, Ms. Darne sought to enjoin Wisconsin from collecting the additional tax for which she would be liable as a consequence of her 1994 early withdrawal of retirement funds. She also sought declaratory relief to the same effect. Essentially, therefore, the claims before the district court included requests for retrospective monetary relief for the money taken from her bank account, prospective injunctive relief for future collection of funds under the Wisconsin statute and declaratory relief stating that the Wisconsin statute violates ERISA.

The district court, on September 22, 1995, entered an order disposing of all of Ms. Darne's claims. The court determined that the Eleventh Amendment barred the claims brought against Wisconsin and the Department because Congress had not abrogated expressly the State's immunity through ERISA and the State had not consented to the suit. The court also determined that the Eleventh Amendment barred any claims of retrospective monetary relief against the Secretary or Gamber because the relief would have to be paid from Wisconsin's treasury.

The court next concluded that the Eleventh Amendment was not a bar to Ms. Darne's claims for declaratory and injunctive relief against the Secretary and Gamber under the Ex parte Young doctrine. However, the court held that the Tax Injunction Act barred those claims. In doing so, it determined that ERISA does not preempt or supersede the TIA. The district court therefore dismissed Ms. Darne's remaining claims for injunctive and declaratory relief.

Under the Eleventh Amendment, states are generally 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, 79 L. Ed. 2d 67 (1984). The claim for monetary relief for payments already made is, of course, barred by the Supreme Court's holding in Edelman v. Jordan, 415 U.S. 651, 669, 94 S. Ct. 1347, 1358-59, 39 L. Ed. 2d 662 (1974). See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389 (1945). The claims for declaratory and injunctive relief fare no better. See Cory v. White, 457 U.S. 85, 91, 102 S. Ct. 2325, 2329, 72 L. Ed. 2d 694 (1982).

Recently, in Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir.1997), we had occasion to rehearse at some length the exceptions to a state's immunity under the Eleventh Amendment. We noted that three exceptions to the constitutional bar exist. First, suits against state officials seeking prospective equitable relief for ongoing violations of federal law are not barred by the Eleventh Amendment. Second, individuals may sue directly a state when Congress has abrogated the immunity in unequivocal terms and pursuant to a valid exercise of its own power. Finally, a suit may be brought against a state directly when a state has waived its immunity and validly consented to suit in federal court. Here, with respect to Ms. Darne's contention that she may sue the State directly, only the second of these exceptions is at issue.

The district court correctly held that the Eleventh Amendment bars Ms. Darne's claims against Wisconsin. Even if we were to assume that such an abrogation had an adequate constitutional foundation, see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 57, 71-74, 116 S. Ct. 1114, 1124, 1131-32, 134 L. Ed. 2d 252 (1996), we could not accept Ms. Darne's argument that ERISA's complete preemption provision is tantamount to an implicit abrogation of the Eleventh Amendment by Congress.

In Dellmuth v. Muth, 491 U.S. 223, 109 S. Ct. 2397, 105 L. Ed. 2d 181 (1989), the Supreme Court made very clear that we are to find a congressional abrogation of a state's immunity to suit in federal court only when that intention is both "unequivocal and textual." Id. at 230, 109 S.Ct. at 2401; accord Seminole Tribe, 517 U.S. at 55-56, 116 S.Ct. at 1123; Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S. Ct. 3142, 3147, 87 L. Ed. 2d 171 (1985); Barnes v. E-Systems, Inc., Group Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1304, 112 S. Ct. 1, 3, 115 L. Ed. 2d 1087 (1991) (Scalia, J., in chambers). Although our colleagues in the Fifth Circuit may have reached the opposite conclusion without discussion, see E-Systems, Inc. v. Pogue, 929 F.2d 1100 (5th Cir.), cert. denied, 502 U.S. 981, 112 S. Ct. 585, 116 L. Ed. 2d 610 (1991), we believe that the better view is the one reached by the Sixth Circuit in Thiokol Corp. v. Department of Treasury, 987 F.2d 376, 381-82 (6th Cir.1993). The text of ERISA simply falls short of the clarity by which we would expect Congress to abrogate such an important guarantee of state sovereignty. "While no provision expressly excludes states as potential defendants, neither does any provision expressly include states or waive their traditionally held immunity from suits in federal court." Id. at 382.

In addition to her claims for relief against the State, Ms. Darne also sought declaratory and prospective injunctive relief against the defendant tax officials. We now must address whether the Tax Injunction Act precludes the district court's granting such relief.3

Ms. Darne submits that the district court erred in determining that the TIA precluded it from entertaining these claims. She points out that the TIA prevents a district court's enjoining the collection of a state tax only if there is "a plain, speedy and efficient" remedy in a state court. In this case, she submits, there could be no such state remedy because her action was brought under ERISA. ERISA actions by beneficiaries seeking injunctive relief for violations of ERISA's terms are exclusively within the jurisdiction of the federal courts.4 Therefore, Ms. Darne contends, a suit seeking an injunction against Wisconsin's future collection of the State penalty tax and a declaration that the State tax violates ERISA can only be brought in the district court. There is no adequate remedy in State court.

Acknowledging that this circuit has not addressed this tension between ERISA and the TIA, Ms. Darne points out that three other circuits have agreed with the reasoning that no plain, speedy and efficient remedy exists in state court when a claim is brought under ERISA because ERISA actions are exclusively within the province of federal court. See Travelers Ins. Co. v. Cuomo, 14 F.3d 708, 714 (2d Cir.1993), rev'd sub nom. on other grounds, New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 115 S. Ct. 1671, 131 L. Ed. 2d 695 (1995); Thiokol, 987 F.2d at 380-81; E-Systems, 929 F.2d at 1102-03.

The Supreme Court has reserved this issue on two occasions,5 and it has divided the circuits. Section 1132(a)(3)(A) of the ERISA statute provides that a participant like Ms. Darne has the right to bring an action "to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3)(A). Subsection (e) of the same section vests exclusive jurisdiction over such civil actions in the district courts. One of the provisions "of this subchapter" is ERISA's preemption provision. See 29 U.S.C. § 1144(a). It is not at all clear, however, that Congress intended that § 1132(a) ought to be interpreted to preclude the maintenance of a refund action for state taxes in state court.

Although we have great respect for the thoughtful opinions of our colleagues in the circuits that have taken a contrary view, we believe that the reasoning of the Court of Appeals for the Ninth Circuit in Ashton v. Cory, 780 F.2d 816 (9th Cir.1986), presents a view more compatible with the congressional intent of both ERISA and the TIA. In Ashton, then-Judge, now-Justice, Kennedy reasoned that the available legislative evidence simply did not support the conclusion that Congress, in enacting ERISA, intended to create an exception to the TIA and its strong policy of protecting the ability of the states to collect revenue.

There can be no question that there is a strong federal policy, embodied both in the TIA and the antecedent equity practice, that federal courts ought not interfere with the collection of state taxes. See California v. Grace Brethren Church, 457 U.S. 393, 409-11, 102 S. Ct. 2498, 2508-09, 73 L. Ed. 2d 93 (1982); Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 102-03, 102 S. Ct. 177, 179-80, 70 L. Ed. 2d 271 (1981). Like our colleagues in the Ninth Circuit, we are not willing to infer that Congress, in enacting regulatory legislation as comprehensive as the ERISA statute, "intended impliedly to take the drastic step of carving out an exception to the Tax Injunction Act." Ashton, 780 F.2d at 822. State taxation proceedings are quite different from the common understanding of an equitable action to enforce one's rights. Given the strong policy of federal abstinence from interference in state taxation matters embodied in the TIA, we think that it is an unrealistic stretch of the language of § 1132 to hold that it encompasses state tax refund matters. See Barnes, 501 U.S. at 1303-04, 112 S.Ct. at 2-3. Although such an interpretation creates the possibility of some lack of uniformity in the interpretation of ERISA, that possibility already exists whenever ERISA preemption is raised defensively in a state action.

Even though we hold that ERISA is not an exception to the TIA, the strictures of the TIA only apply if Wisconsin otherwise provides a "plain, speedy and efficient" remedy for taxpayers seeking to challenge Wisconsin taxes. We believe that the district court was correct in its estimation that current Wisconsin tax practice does provide such a remedy. See Gray v. Morgan, 371 F.2d 172, 174 (7th Cir.1966), cert. denied, 386 U.S. 1033, 87 S. Ct. 1484, 18 L. Ed. 2d 596 (1967); Hogan v. Musolf, 163 Wis. 2d 1, 471 N.W.2d 216, 223 (1991), cert. denied, 502 U.S. 1030, 112 S. Ct. 867, 116 L. Ed. 2d 773 (1992). Consequently, Ms. Darne is barred from seeking to enjoin in federal court the collection of the Wisconsin taxes for which she is liable.

Ms. Darne's action was brought as an attempt to have a federal court enjoin the State of Wisconsin from collecting its taxes notwithstanding Wisconsin's procedures to challenge such collection. That action cannot be entertained in federal court in light of the principles of federalism embodied in the Eleventh Amendment and the Tax Injunction Act of 1937.6 Accordingly, the judgment of the district court is affirmed.

AFFIRMED.