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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                    FILED
                                                                            January 23, 2015
                                      No. 13-20611
                                                                              Lyle W. Cayce
                                                                                   Clerk
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


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


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




      * District Judge of the Northern District of Texas, sitting by designation.
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                                        No. 13-20611

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 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


       1 The district court dismissed all claims against defendant Susan Combs, Texas
Comptroller of Public Accounts. Plaintiffs did not appeal this portion of the district court’s
ruling. Therefore, although Combs is named as an appellant here, she is no longer a party.

       2 Section 521.021 states:

LICENSE REQUIRED. A person, other than a person expressly exempted under this
chapter, may not operate a motor vehicle on a highway in this state unless the person
holds a driver's license issued under this chapter.

     3 Section 521.025 states:

LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND; CRIMINAL PENALTY.
     (a) A person required to hold a license under Section 521.021 shall:
            (1) have in the person's possession while operating a motor vehicle the
            class of driver's license appropriate for the type of vehicle operated; and
            (2) display the license on the demand of a magistrate, court officer, or peace
            officer.

       4Another section of the Program, likely more familiar to many drivers, assigns points
for “moving violations,” which the statute authorizes DPS to define. Transp. Code § 708.052-
                                               2
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                                       No. 13-20611

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 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



054. DPS could list § 521.025 as a moving violation and assess points for violating it, but it
has not done so as of this opinion. 37 Tex. Admin. Code § 15.89(b)-(c).
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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
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




       5  On October 10, 2013, plaintiffs moved to certify a class that contained allegations
against all of the remaining defendants. Together with the motion the plaintiffs filed a notice
informing the court that they had prepared, but not filed, their motion for class certification
before the state defendants filed an interlocutory appeal (October 8, 2013) that divested the
district court of jurisdiction over the state defendants. On August 7, 2014, the district court
granted summary judgment for all remaining defendants and dismissed the class
certification motion as moot.

                                              4
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                                        No. 13-20611

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 (1996). Assuming, as we do, that the maintenance of
accurate DPS driving records is a cognizable interest the invasion of which
confers standing, Miller and Zamarron were proper plaintiffs but Fontenot
lacks standing.
      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




      6  McCraw argues that plaintiffs did not adequately plead a continuing violation of
federal law. Because we resolve the case on other grounds, we need not express any view on
this issue.

      7   See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992).
                                               5
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                                       No. 13-20611

provided a complete remedy for Fontenot’s record correction claim. If Fontenot
has standing, it is only for purposes of her refund claim. 8
       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.
       B. Mootness
       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., 133 S. Ct. 721, 726–27 (2013) (quoting Murphy v.
Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982) (per curiam)). See also
Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S. Ct. 1055, 1068
(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 (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).




       8  DPS claims to have refunded Fontenot’s wrongly assessed surcharges, and Miller
and Zamarron dispute whether they received full refunds. However, McCraw does not
challenge any plaintiff’s standing on the refund claims. Although Article III standing is
jurisdictional and we must raise it sua sponte, we decline to do so in the absence of briefing
from any party when an alternative jurisdictional ground disposes of the refund claims. See
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S. Ct. 1563, 1570 (1999).
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      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 (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 (1982)). 9          Defendant-induced mootness is
viewed with caution because “there exists some cognizable danger of recurrent
violation” where “a defendant [] follows one adjudicated violation with others.”
United States v. W. T. Grant Co., 345 U.S. 629, 633, 634, 73 S. Ct. 894, 898
(1953).
      Consequently, “allegations by a defendant that its voluntary conduct has
mooted the plaintiff's case require closer examination than allegations that
‘happenstance’ or official acts of third parties have mooted the case.” Envt’l
Conservation Org. v. City of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 2008). The
overarching goal is to determine whether the defendant’s actions are mere
“litigation posturing” or whether the controversy is extinguished. See, e.g., Ctr.
for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 426 n.3 (5th



      9 In the context of mootness, an action is voluntary when taken free from compulsion
of an enforcement action or judicial order. See Envt’l Conservation Org. v. City of Dall,
529 F.3d 519, 528 (5th Cir. 2008).
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Cir. 2013) (this court was “not persuaded that the speculative possibility that
BP could some day return to this site, after the tremendous time, energy, and
manpower expended to close it, saves the Center’s current claims from a
finding of mootness”).
      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. Sossaman
v. Texas, 131 S. Ct. 1651 (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.




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                                    No. 13-20611

      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. 400, 402–03, 95 S. Ct.
553, 559 (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:
      There must . . . be a named plaintiff who has such a case or
      controversy at the time the complaint is filed, and at the time the
      class is certified by the District Court . . . . The controversy may
      exist, however, between a named defendant and a member of the
      class represented by the named plaintiff, even though the claim of
      the named plaintiff has become moot.

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 (citing Bailey
v. Patterson, 369 U.S. 31, 82 S. Ct. 549 (1962); Rosario v. Rockefeller, 410 U.S.


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752, 93 S. Ct. 1245, 1249 (1973); Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200
(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 (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, 133 S. Ct. 1523, 1530 (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, 455 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 10 in Sosna,
which “held that an ‘inherently transitory’ class-action claim is not necessarily



        The footnote itself says that whether “the controversy . . . becomes moot as to [the
       10

named plaintiffs] before the district court can reasonably be expected to rule on a certification
                                              10
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                                     No. 13-20611

moot upon the termination of the named plaintiff's claim.” Genesis Healthcare,
133 S. Ct. at 1530 (referring to Sosna, 419 U.S. at 402 n.11, 95 S. Ct. at 559
n.11). See Swisher v. Brady, 438 U.S. 204, 98 S. Ct. 2699 (1977) (challenging
juvenile delinquency procedures); Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854
(1975) (challenging constitutionality of pretrial detentions).                   Genesis
Healthcare explained that “[t]he ‘inherently transitory’ rationale was
developed to address circumstances in which the challenged conduct was
effectively unreviewable, because no plaintiff possessed a personal stake in the
suit long enough for litigation to run its course.” 133 S. Ct. at 1531.
      This court extended the concept of relation back even farther in holding
that “a suit brought as a class action should not be dismissed for mootness
upon tender to the named plaintiffs of their personal claims, at least
when . . . there is pending before the district court a timely filed and diligently
pursued motion for class certification.” Zeidman v. J. Ray McDermott & Co.,
651 F.2d 1030, 1051 (5th Cir. 1981). In other words, a court order granting or
denying class certification, and therefore resolving the separate status of the
class, is unnecessary to maintaining a live class action suit despite the
mootness of the named plaintiff’s case. See also Murray v. Fidelity Nat. Fin.,
Inc., 594 F.3d 419, 421 (5th Cir. 2010) (discussing Zeidman).                  Zeidman
acknowledged that the Sosna-created relation back doctrine had previously
been applied only in cases where the plaintiffs’ claims were “inherently
transitory,” whereas the plaintiffs’ claims in Zeidman had been rendered moot
by the defendants’ “purposive” action of offering a full tender of their damages.
But the Zeidman court believed “the result should be no different when the




motion may depend upon the circumstances of the particular case and especially the reality
of the claim that otherwise the issue would evade review.” Id.

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                                      No. 13-20611

defendants have the ability by tender to each named plaintiff effectively to
prevent any plaintiff in the class from procuring a decision on class
certification.” 651 F.2d at 1050. A defendant’s ability to “pick off” successive
plaintiffs’ claims in this way, the court reasoned, is no less inimical to
procuring judicial review than is the inherently transitory nature of a
substantive claim. 11
       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 (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; Spencer v. Kemna, 523 U.S. 1, 17–18, 118 S. Ct. 978, 988 (1998)). Genesis



       11 At least two other circuits have followed Zeidman. Lucero v. Bureau of Collection
Recovery, Inc., 639 F.3d 1239 (10th Cir. 2011); Weiss v. Regal Collections, 385 F.3d 337, 347
(3d Cir. 2004), as amended (Oct. 22, 2004).
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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 avoid mootness in the instant putative class action.
Here, not only had the district court not ruled on the named plaintiffs’
certification motion, a prerequisite to applying Sosna and Geraghty, but no
certification motion was even pending when DPS corrected Miller’s and
Zamarron’s driving records and mooted their individual claims. Yet Zeidman
is predicated on a class certification motion’s having been diligently filed and
pursued at the time the named plaintiff’s claim becomes moot. Further, when
the class certification motion was filed, it expressly excluded McCraw. 12 Thus,
only by extending this circuit’s precedent beyond Zeidman could we apply the
relation back doctrine here.
       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



       12   To the extent the plaintiffs rely on this court’s decision in Sandoz v. Cingular
Wireless LLC, 553 F.3d 913 (5th Cir. 2008), the case is inapposite. First, Sandoz extended
Zeidman’s relation back ruling to a Fair Labor Standards Act collective action case and has
probably been overruled in its specific holding by Genesis Healthcare. Genesis Healthcare
rejected a factually similar relation back holding of the Third Circuit, which relied in part on
Sandoz. Second, even on its facts, Sandoz is distinguishable because the plaintiffs’ class
certification motion here excluded McCraw.
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                                        No. 13-20611

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. 13                   See Miss. Prot. &
Advocacy Sys., Inc. v. Cotten, 929 F.2d 1054, 1057 (5th Cir. 1991) (requiring
“special circumstances” for applying exceptions).
       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.
                                              III.
        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



       13Mabary v. Hometown Bank, N.A., 771 F.3d 820 (5th Cir. 2014), does not extend any
exception to the general mootness rule. In that opinion a panel of this court expressly held
that the defendant’s “attempt to ‘pick off’ [the plaintiff’s] claim before the court could decide
the issue of class certification fits squarely within the ‘relation back’ doctrine[.]” Id. at 825
(emphasis added).
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                                    No. 13-20611

consent.” Hans v. Louisiana, 134 U.S. 1, 13, 10 S. Ct. 504, 506 (1890) (quoting
THE FEDERALIST No. 81 (Alexander Hamilton)). Although the plaintiffs sued
McCraw, “a suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s office.” Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989). In Ex
parte Young, however, the Supreme Court created an “exception” to state
sovereign immunity on the theory that an ultra vires act “is simply an illegal
act upon the part of a state official in attempting, by the use of the name of the
state,    to   enforce   a   legislative   enactment    which     is   void   because
unconstitutional.” Ex parte Young, 209 U.S. 123, 159, 28 S. Ct. 441, 454 (1908).
This doctrine “ensures that state officials do not employ the Eleventh
Amendment as a means of avoiding compliance with federal law[.]”                 P.R.
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct.
684, 688 (1993). Suits by private citizens against state officers in their official
capacity are not, therefore, categorically barred.        Thus, “[i]n determining
whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to
suit, a court need only conduct a ‘straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.’” Verizon Md. Inc. v. Pub. Svc. Comm’n, 535 U.S.
635, 645, 122 S. Ct. 1753, 1760 (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 296, 117 S. Ct. 2028, 2047 (1997) (O’Connor, J., concurring in
part and concurring in the judgment). The Court has “refused to extend the
reasoning of Young . . . to claims for retrospective relief.” Green v. Mansour,
474 U.S. 64, 68, 106 S. Ct. 423, 426 (1985).
         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

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                                     No. 13-20611

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, 131 S. Ct. 1632 (2011) (continuing refusal
to turn over medical records), such a claim is undisputedly counterfactual as
to the named plaintiffs.
      Plaintiffs’ second characterization of the refunds, which the district court
adopted, is that such relief would be incidental to the declaratory or injunctive
relief that is permitted under Ex Parte Young. This argument misunderstands
the ancillary effect corollary, which the Supreme Court clearly expressed in

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                                  No. 13-20611

Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347 (1974). There, plaintiffs sued
officials of the     State of Illinois for “administering [] federal-state
programs . . . in a manner inconsistent with various federal regulations and
with the Fourteenth Amendment to the Constitution.” Id. at 653, 94 S. Ct. at
1351. The district court rendered declaratory and injunctive relief requiring
compliance and ordered defendant State officials to pay out the wrongfully
withheld funds. Id. at 656, 194 S. Ct. at 1352. The Seventh Circuit affirmed.
Id. at 664, 94 S. Ct. at 1356.
      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 (1945), overruled on other grounds by Lapides v. Bd. of
Regents, 545 U.S. 613, 122 S. Ct. 1640 (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

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                                       No. 13-20611

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. 14 In such cases, purely prospective decrees have the ancillary effect of
making state officials “more likely [] to spend money from the state treasury,”
but they are “permissible and often an inevitable consequence of the principle
announced in Ex parte Young[.]” Id. See also Milliken v. Bradley, 433 U.S.
267, 290, 97 S. Ct. 2749, 2762 (1977) (upholding district court order requiring
State to bear part of cost of future compliance).
       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 court’s order commits the identical mistake as the payment
order in Edelman:
       It requires payment of state funds, not as a necessary consequence
       of compliance in the future with a substantive federal-question
       determination, but as a form of compensation [to prior victims].

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. 15


       14 See also Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848 (1971) (welfare officials
were prohibited from denying welfare benefits to otherwise qualified alien recipients);
Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 (1970) (New York City welfare officials
enjoined from following state procedures terminating welfare benefits without prior hearing).

       15  The Supreme Court reaffirmed in Papasan that “relief that serves directly to bring
an end to a present violation of federal law is not barred by the Eleventh Amendment even
though accompanied by a substantial ancillary effect on the state treasury.” Papasan v.
Allain, 478 U.S. 265, 278, 106 S. Ct. 2932, 2940 (1986). But it also held that compensatory
relief against States “is barred even when the state official is the named defendant” and even
when “the relief is tantamount to an award for damages…even though styled as something
else.” Id.
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                                  No. 13-20611

      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 (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,

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                                      No. 13-20611

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. 16 Second, the case has no majority opinion and thus no controlling
rationale. Third, this court has correctly cited Treasure Salvors for the narrow
proposition that “a federal court is not empowered to adjudicate the State’s
interest in property without the State’s consent.” John G. & Marie Stella
Kenedy Mem’l Found. v. Mauro, 21 F.3d 667, 672 (5th Cir. 1994).
       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



       16  Two related Ninth Circuit cases cited by plaintiffs are distinguishable precisely
because the accounts and property in those cases were escheated, but not yet permanently
escheated to the State, “because the State held such funds in custodial trust for the benefit
of property owners—the funds were not state funds.” Suever v. Connell, 439 F.3d 1142, 1147
(9th Cir. 2006) (citing Taylor v. Westly, 402 F.3d 924, 933 (9th Cir. 2005)).
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                                      No. 13-20611

jurisdiction on sovereign immunity grounds, the opinion dealt exclusively with
the Tax Injunction Act. 17 It is unclear whether the decision sub silentio deemed
ERISA to have abrogated state sovereign immunity, but in any case the
opinion does not discuss sovereign immunity. We decline to infer from that
opinion a principle inconsistent with controlling authority.               Cf. Edelman,
415 U.S. at 670, 94 S. Ct. at 1359 (declining a similar inference from Shapiro
v. Thompson, 394 U.S. 618, 89 S. Ct. 1322 (1969)).
       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 (1883). The plaintiffs’ refund claims are
barred by the Eleventh Amendment and state sovereign immunity.
                                                 IV.
       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 VACATE the district court’s order denying state sovereign immunity and
REMAND with instructions to dismiss for lack of federal jurisdiction.




       17 Specifically, we held that because “ERISA preempts [the state tax law] [i]t
necessarily follows that there can be no effective state remedy under the Tax Injunction Act
which, therefore, is inapplicable in an ERISA setting.” E-Systems., Inc. v. Pogue, 929 F.2d
1100, 1102 (5th Cir. 1991)
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