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Fontenot v. McCraw

United States Court of Appeals, Fifth Circuit

January 23, 2015

BERTHA M. FONTENOT, Individually and on Behalf of Those Similarly Situated; DAVID MILLER; SANTA ZAMARRON, Plaintiffs - Appellees
v.
STEVE MCCRAW, in his official capacity as Director of the Texas Department of Public Safety; SUSAN COMBS, in her official capacity as Texas Comptroller of Public Accounts, Defendants - Appellants

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Texas.

For BERTHA M. FONTENOT, Individually and on Behalf of Those Similarly Situated, DAVID MILLER, SANTA ZAMARRON, Plaintiffs - Appellees: Richard Eugene Norman, Esq., Ronald Martin Weber, Jr., Esq., Crowley Norman, L.L.P., Houston, TX; Thomas K. Brown, Brown Law Firm, L.L.L.P., Houston, TX; Justin Joseph Presnal, Esq., Fisher, Boyd, Johnson & Huguenard, L.L.P., Houston, TX.

For STEVE MCCRAW, in his official capacity as Director of the Texas Department of Public Safety, SUSAN COMBS, in her official capacity as Texas Comptroller of Public Accounts, Defendants - Appellants: Bill L. Davis, Assistant Attorney General, Office of the Attorney General, Office of the Solicitor General, Austin, TX; Angela Veronica Colmenero, Esq., Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX.

Before JOLLY and JONES, Circuit Judges, and GODBEY[*], District Judge.

OPINION

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EDITH H. JONES, Circuit Judge:

The claims in this proposed class action arose from the wrongful assessment of surcharges under the Texas Driver Responsibility Program. The City of Houston misreported the charges against plaintiffs (and members of the class they seek to represent) to the State, and the State overcharged them as a result. Defendant-Appellant Steve McCraw, Director of the Texas Department of Public Safety, appeals the district court's partial denial of his motion to dismiss the case against him for want of jurisdiction.[1] Because this case suffers from a number of jurisdictional defects, we VACATE the order of the district court and REMAND with instructions to dismiss.

I.

The conflict here stems from the confusion of two laws, both of which can fairly be characterized as prohibiting " driving without a license." The first, more serious offense requires motorists to be licensed to drive. Tex. Transp. Code Ann. § 521.021.[2] A driver who violates this law is unlicensed -- he is not permitted to operate motor vehicles on Texas roads. The other law requires a driver to have his

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license with him while driving and to produce it on demand of a peace officer. Id. § 521.025.[3] A driver who violates this law is a licensed driver who simply failed to produce appropriate documentation.

The Texas Driver Responsibility Program requires the Department of Public Safety (" DPS" ) to assess a $100 surcharge " for conviction of driving without valid license." Tex. Transp. Code Ann. § 708.104. This provision refers explicitly to unlicensed driving under § 521.021; no surcharge is imposed for a violation of the less serious offense.[4] DPS relies on third party reports to ascertain the identities of drivers who have violated sections of the code. Using the third party information, the Department collects the surcharges once a year for three years and remits them to the Comptroller. Transp. Code § 708.156; Tex. Health & Safety Code § 780.002(a).

Plaintiff-Appellee Bertha Fontenot brought this § 1983 suit against the City of Houston and two private vendors, alleging that the City reported to DPS her conviction for failure to produce a license as a conviction for unlicensed driving and thereby wrongfully subjected her to surcharges. Fontenot's first amended complaint added David Miller and Santa Zamarron as plaintiffs and joined Appellant McCraw and State Comptroller Combs as defendants in their official capacities. The plaintiffs alleged that McCraw's assessment and collection of surcharges was ultra vires and violated due process under the Texas and U.S. Constitutions. Plaintiffs sought declaratory relief, an order enjoining the maintenance of incorrect records, and a refund of the illegal surcharges. The first amended complaint also contained class action allegations, but plaintiffs did not immediately seek certification of the class. The City admits that it erroneously reported tens of thousands of failure-to-produce convictions as unlicensed driving convictions, and it is undisputed that DPS relied on the City's erroneous reports when it assessed surcharges.

Combs and McCraw moved to dismiss the claims against them, arguing that: (1) the state law claims and request for surcharge refunds are barred bye state sovereign immunity, (2) plaintiffs lack standing to seek prospective injunctive relief, and (3) the amended complaint fails to state a claim. They noted that the State was developing a method to refund the erroneously assessed surcharges. The district court granted the motion to dismiss with respect to the state law claims against McCraw and all claims against Comptroller Combs, who merely received the funds. The court, however, ultimately denied the motion to dismiss the federal claims against Appellant McCraw. The court acknowledged that state sovereign immunity would prevent an order directing state officials to pay retrospective money damages under the doctrine of Ex Parte Young. The court nonetheless opined that if the

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plaintiffs were " to prevail and the Court were to grant declaratory relief, that grant would necessarily precipitate refund of the plaintiffs' money." It concluded that " it would be an anomaly for this Court to enter an order that [McCraw's] action is unconstitutional, while permitting Texas to keep the fruits of that unlawful behavior." The court also rejected the argument that the plaintiffs lacked standing, reasoning that the DPS's maintenance of a public record reflecting an improper conviction constituted a " continuing, present adverse effect." McCraw timely appealed.

Before us on appeal are the claims of the three plaintiffs against Appellant McCraw.[5] The claims are of two types: a " record correction claim" demanding that the State expunge from plaintiffs' driving records any reference to the more serious offense, and a " refund claim" calling for the return of surcharges already paid. Appellant launches a multifaceted jurisdictional attack based on plaintiffs' standing, mootness and state sovereign immunity.[6] These are all issues of law that we review de novo. The denial of the state sovereign immunity defense is a reviewable interlocutory order. Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011).

II.

A. Standing

McCraw initially challenges plaintiffs' standing to sue for correction of their driving records. Article III standing to sue requires that a plaintiff has suffered injury (a) to a legally protected interest, and that is actual or imminent, concrete and particularized; (b) that is fairly traceable to the challenged action of the defendant; and (c) that is redressable by the court.[7] The court must evaluate each plaintiff's Article III standing for each claim; " standing is not dispensed in gross." Lewis v. Casey, 518 U.S. 343, 358 n.6, 116 S.Ct. 2174, 2183 n.6, 135 L.Ed.2d 606 (1996). Assuming, as we do, that the maintenance of accurate ...


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