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.
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.
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.
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 by 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
Before us on appeal are the claims of the three plaintiffs against Appellant McCraw.
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.
Plaintiff Fontenot amended her complaint to add McCraw as a defendant on April 22, 2013. But by then, the Houston Municipal Court had alerted DPS to the City's inaccurate reporting. Based on this new information, on January 29, 2013, DPS removed the unlicensed driving conviction from Fontenot's record and replaced it with a failure-to-display conviction. Therefore, when plaintiffs brought McCraw into this suit, McCraw had already provided a complete remedy for Fontenot's record correction claim. If Fontenot has standing, it is only for purposes
On the other hand, DPS corrected the records of plaintiffs Miller and Zamarron only after McCraw was made a defendant. Unlike plaintiff Fontenot, these two plaintiffs' records still reflected the wrong convictions when McCraw was sued. Consequently, they properly alleged standing to sue for all asserted claims.
Even when a plaintiff has standing at the outset, "[t]here must be a case or controversy through all stages of a case[.]" K.P. v. LeBlanc, 729 F.3d 427, 438 (5th Cir.2013). "A case becomes moot — and therefore no longer a `Case' or `Controversy' for purposes of Article III — `when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome.'" Already, LLC v. Nike, Inc., ___ U.S. ___, 133 S.Ct. 721, 726-27, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam)). See also Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997) (holding that "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed") (quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975)). "Generally, any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot." Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir.2006).
It is undisputed that DPS corrected Miller's record on April 25 and Zamarron's record on May 21, 2013. Because there remains no live controversy between the parties as to the accuracy of the named plaintiffs' driving records, the injunction they seek would be meaningless.
The parties acknowledge, however, that "a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 709, 145 L.Ed.2d 610 (2000). "It is well settled that `a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.'" Id. at 189, 120 S.Ct. at 708 (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982)).
Consequently, "allegations by a defendant that its voluntary conduct has
McCraw calls to our attention the somewhat contrary intuition that we "are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude[.]" Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir.2009), aff'd on other grounds sub nom. Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011). Sossamon asserted that because government officials are public-spirited and not motivated by self-interest, a government defendant is less inclined to act in bad faith. Id. It concluded that "[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing." Id. As the plaintiffs note, there are no formally announced changes to policy in the present case, but that is irrelevant here. McCraw has already done for plaintiffs all that they could ask. The two plaintiffs who had standing to sue McCraw have received a record correction — indeed, received it merely by asking for it. Consequently, there is no reason to believe that Miller and Zamarron continue to have a live controversy with McCraw. The very nature of the records correction controversy, which was precipitated by the plaintiffs' failures to produce a driver's license, counsels that the defendant is not likely "to return to his old ways." Gates v. Cook, 376 F.3d 323, 337 (5th Cir.2004) (quoting Laidlaw, 528 U.S. at 190, 120 S.Ct. at 708). Unless Miller and Zamarron plan to be driving again without carrying their licenses, they have nothing to fear. The controversy as to these plaintiffs has been extinguished.
C. Relation Back
Miller and Zamarron alternatively contend that even if their claims for record correction had become moot before a class certification motion was filed, that motion "relates back" to the filing date of the first amended complaint in order to keep the class action alive. This argument seeks to extend current Fifth Circuit law, which in turn extends (and may be undermined by) Supreme Court precedent. To examine the relation back argument, we work forward from the Supreme Court decisions.
In 1975, the Supreme Court modified the general rule of mootness, which is that a class action becomes moot when the putative representative plaintiff's claim has been rendered moot before a class is certified. The Court declined to find mootness where the named class action plaintiff's claim becomes moot after the class was certified. Sosna v. Iowa, 419 U.S. 393, 402-03, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). Important to the Court's reasoning was that "[w]hen the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by [the named plaintiff]." 419 U.S. at 400, 95 S.Ct. at 557. Consequently, a live controversy continued to exist. Id. at 399-402, 95 S.Ct. at 558. The Court concluded:
419 U.S. at 402, 95 S.Ct. at 559. The Sosna Court took care to "disturb no principles... with respect to class action litigation." Id. at 402-03, 95 S.Ct. 553 (citing Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973); Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969)); see also Walker v. Haynes, 659 F.2d 46, 47 (5th Cir.1981).
The Court subsequently applied Sosna's reasoning to mootness that follows an order denying class certification. U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980). The Court there held that a putative class representative can maintain an action when the suit "would have acquired the independent legal status described in Sosna but for the district court's erroneous denial of class certification[.]" Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S.Ct. 1523, 1530, 185 L.Ed.2d 636 (2013) (discussing Geraghty). Geraghty was explicitly limited to cases in which the named plaintiff's claim becomes moot after the time the district court denied certification and the district court's "erroneous deni[al] ... if correctly decided, would have prevented the action from becoming moot." Geraghty, 445 U.S. at 404, 100 S.Ct. at 1212. In that scenario, "the corrected ruling `relates back' to the date of the original denial." Id. at 404, 100 S.Ct. at 1213.
Miller and Zamarron cannot avail themselves of Sosna or Geraghty. Sosna requires that "the named plaintiff had a personal stake in the action at the time the class was properly certified [.]" Rocky v. King, 900 F.2d 864, 867 (5th Cir.1990) (emphasis added). And Geraghty extends this exception to cases where the named plaintiffs contend that class certification was wrongly denied. Here, no class action certification motion had been filed against McCraw, much less granted or denied when DPS corrected their driving records and rendered those claims moot. But that is not the end of the story.
A "separate, but related, line of cases" evolved from a footnote
The current status of Zeidman may be in doubt. In Genesis Healthcare, the Supreme Court took pains to clarify its class action mootness decisions. That Genesis Healthcare specifically ruled on how mootness doctrine applies to collective actions under Section 216(b) of the Fair Labor Standards Act renders the Court's discussion no less authoritative in regard to class action mootness cases. First, Genesis Healthcare notes that both Sosna and Geraghty pertain only to cases where the named plaintiff's claim became moot after a class certification decision had been made. 133 S.Ct. at 1530. Second, the Court explained that the relation back doctrine applies when the substantive claims raised "`are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires.'" Genesis Healthcare, 133 S.Ct. at 1531 (quoting Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661, 1667, 114 L.Ed.2d 49 (1991)). Thus, the "inherently transitory" basis for relating back a class certification ruling to the date the complaint was filed is focused not on the defendant's litigation strategy, but on the substance of the plaintiff's claim. 133 S.Ct. at 1531 (citing Swisher, 438 U.S. at 213 n. 11, 98 S.Ct. 2699, 2705 n. 11, 57 L.Ed.2d 705; Spencer v. Kemna, 523 U.S. 1, 17-18, 118 S.Ct. 978, 988, 140 L.Ed.2d 43 (1998)). Genesis Healthcare does not foreclose the broader Zeidman approach to relation back doctrine, but the Court's explanation undermines, at least in money damages cases, Zeidman's analogy between the "inherently transitory" exception to mootness and the strategic "picking off" of named plaintiffs' claims.
For present purposes, McCraw does not contend that Zeidman has been overruled, and we need not finally decide that question. What is clear from Genesis Healthcare and Zeidman is that any extant exception must be extended for plaintiffs to
In this case, there is no need to create another exception to mootness. In Murray, we declined to extend Zeidman to allow relation back where a joinder motion was pending, but not yet ruled on, for a class representative plaintiff whose individual claim was not moot. The plaintiffs there argued they should be allowed a "reasonable period of time to file a motion for class certification before their claims can be mooted by tender of the individual damages." Murray, 594 F.3d at 422. Because the plaintiffs "had a readily available means of preventing the defendants from mooting their suit[,]" this court saw no reason to extend Zeidman. Id. Likewise in this case, the plaintiffs could have filed a class action certification motion against McCraw, and indeed could have filed the motion simultaneously with the filing of their first amended complaint. This case, like Murray, is simply not one in which an exception is required lest "otherwise the issue would evade review." Sosna, 419 U.S. at 402, 95 S.Ct. at 559. Where plaintiffs may avoid being "picked off" by using the tools within the Federal Rules of Civil Procedure, the rationale for creating further exceptions to mootness cannot be sustained.
In sum, when Miller's and Zamarron's individual records correction claims became moot, so did the class action case. The general rule rather than its exceptions prevails.
Turning to the refund claims, we consider whether the State's sovereign immunity, codified partly in the Eleventh Amendment, requires their dismissal. If the plaintiffs' individual refund claims are nonjusticiable in federal court, the class claims fail as well.
The essential principles are well established. One privilege of Texas's state sovereignty is "not to be amenable to the suit of an individual without its consent." Hans v. Louisiana, 134 U.S. 1, 13, 10 S.Ct. 504, 506, 33 L.Ed. 842 (1890)
Plaintiffs' suit for refunds on its face seeks to recover their erroneously inflicted surcharges from the state's treasury. To avoid the apparent Eleventh Amendment bar, they sued McCraw in his official capacity and attempt to characterize the refunds in terms of McCraw's alleged ongoing ultra vires acts for which they seek "prospective" declaratory and injunctive relief. Their first amended complaint seeks a declaratory judgment and "permanent injunction ... ordering correction of driving records maintained by the State of Texas." They articulate the refund claims in three ways. First, they allege that the ongoing violation by McCraw consists in DPS's maintaining their false driving records, as a result of which they remain vulnerable to having additional surcharges imposed in addition to those already illegally collected. Second, they describe the refund claims as "ancillary relief" to the injunctive and declaratory relief pertaining to the driving records. Third, they contend the State has the obligation to return their money that was wrongfully taken, and that this theory is cognizable apart from Ex parte Young's limitation to prospective, injunctive relief.
The plaintiffs' first contention, that they seek refunds as prospective relief for potential future surcharges, runs afoul of the mootness of their records correction claims. Because their individual driving records were corrected by DPS shortly after the first amended complaint was filed, there is no basis for their allegation that the agency will collect additional surcharges. While McCraw's act of maintaining erroneous driving records might have been an ongoing violation susceptible of prospective injunctive relief, see Va. Office for Protection & Advocacy v. Stewart, U.S. ___, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011) (continuing refusal to turn over medical records), such a claim is undisputedly counterfactual as to the named plaintiffs.
The Supreme Court reversed, holding that, regardless of the nature of the relief, "a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by" state sovereign immunity. Id. at 663, 666 94 S.Ct. at 1356, 1357. The logic of Ex parte Young — that a state official acting without authority is not acting as the State — is contradicted when the court's order requires payment of an accrued liability from the state treasury. Id. at 664-65, 94 S.Ct. at 1356-57. Edelman also reaffirmed Ford Motor Company v. Department of Treasury, a taxpayer's refund action against Indiana for an allegedly unconstitutional tax. 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), overruled on other grounds by Lapides v. Bd. of Regents, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). Although "[t]he term `equitable restitution' would seem even more applicable" in Ford Motor Company because the Indiana taxpayer (unlike the welfare recipients in Edelman) once held the funds, the Court nevertheless "had no hesitation in holding that the taxpayer's action was a suit against the State, and barred by the Eleventh Amendment." Edelman, 415 U.S. at 669, 94 S.Ct. at 1358.
Still, as the Court recognized, cases have been permitted in which the judgment against a state officer had "an ancillary effect on the state treasury[.]" Id. at 651, 668, 94 S.Ct. at 1358. The injunction in Ex parte Young itself "was not totally without effect on the State's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions." Id.
The district court here thought it anomalous to invalidate McCraw's erroneous collection of the surcharges "while permitting Texas to keep the fruits of that unlawful behavior." Ancillary relief, however, cannot stand alone. It must accompany and further some other — and otherwise appropriate — relief. The district
Edelman, 415 U.S. at 669, 94 S.Ct. at 1358. The order is "in practical effect indistinguishable from an award of damages against the State." Id.
Plaintiffs assert that the refunds they seek are ancillary, just like the relief ordered in a Second Circuit case where the court enjoined the operation of a New York statute that delayed payment of certain state employees' paychecks. Ass'n of Surrogates & Sup. Ct. Reporters v. New York, 940 F.2d 766, 774 (2d Cir.1991). The ancillary effect of the judgment required the State to pay what and when it otherwise would have done before the offending statute was passed. In that unusual situation, without ancillary relief, the judgment would have served the State's interest by terminating its payment obligation. Association of Surrogates is distinguishable because plaintiffs here can point to no injunctive relief for which a refund order would be required "to shape [McCraw's] official conduct to the mandate of the [c]ourt's decrees[.]" Id. (quoting Edelman, 415 U.S. at 668, 94 S.Ct. at 1358).
State sovereign immunity here bars "the retroactive portion of the relief awarded by the District Court[,]" just as it did in Edelman and Ford Motor Company. Edelman, 415 U.S. at 669, 94 S.Ct. at 1358.
Plaintiffs' final thrust is to characterize their requested monetary relief as something like replevin, a claim for return of their wrongfully taken property. Relying principally on the Supreme Court's decision in Florida Dep't of State v. Treasure Salvors, 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982), plaintiffs urge that DPS engages in a continuing violation by refusing to return their property without due process. In Treasure Salvors, the Court held that plaintiffs could maintain an in rem admiralty suit against the State of Florida in federal court to obtain possession of sunken ship artifacts. Treasure Salvors, however, will not bear the weight of plaintiffs' argument. First, suing a state for the return of identifiable property is far different from suing for a return of money, which is fungible once improperly paid into state coffers. The Treasure Salvors plurality opinion draws this distinction, noting that the decision, consistent with Edelman, "did not seek any attachment of state funds and would impose no burden on the state treasury." 458 U.S. at 699, 102 S.Ct. at 3321.
This court likewise refused to allow plaintiffs to reach into the state treasury. Jagnandan v. Giles, 538 F.2d 1166, 1173 (5th Cir.1976). The plaintiffs appealed a judgment that denied them recovery of excess tuition they had paid state colleges under an unconstitutional statute. Id. This court held that, despite the presence of university trustees as defendants, "the State of Mississippi [was] the real party defendant." Id. at 1174. State sovereign immunity, we held, "protect[s] against federal judgments requiring payment of money that would interfere with the state's fiscal autonomy and thus its political sovereignty." Id. at 1176. Important to the analysis were the facts that the tuition payments were "commingled with all moneys held by the University" and were public funds. Id. See also NEMS v. Calif. Dep't. of Health Care Servs., 712 F.3d 461, 469-70 (9th Cir.2013) (state sovereign immunity bars suit for refund of money erroneously charged by State under Medicare).
E-Systems, Inc. v. Pogue, 929 F.2d 1100 (5th Cir.1991), on which plaintiffs rely, is inapposite. That case considered a challenge to a state tax that was in tension with ERISA. Id. at 1101-02. Although the State challenged jurisdiction on sovereign immunity grounds, the opinion dealt exclusively with the Tax Injunction Act.
For these reasons, this court will not "assum[e] the control of the administration of the fiscal affairs of the state to the extent that may be necessary to accomplish the end in view." Louisiana ex rel. Elliott v. Jumel, 107 U.S. 711, 722, 2 S.Ct. 128, 137, 27 L.Ed. 448 (1883). The plaintiffs' refund claims are barred by the Eleventh Amendment and state sovereign immunity.
Plaintiff Fontenot lacks standing to sue. Plaintiffs Miller and Zamarron have no live controversy with the State for correction of driving records, and consequently the class action claim for similar relief is moot and nonjusticiable. The refund claims to recover surcharges are barred by the Eleventh Amendment and sovereign immunity. These conclusions render it unnecessary to discuss the Tax Injunction Action, 28 U.S.C. § 1341, as a jurisdictional defense, which the State raised for the first time in this court. We