                                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    _____________

                        No. 17-1715
                       _____________

    PENNSYLVANIA INTERNATIONAL ACADEMY, LLC

                              v.

           FORT LEBOEUF SCHOOL DISTRICT,
                                Appellant

                       _____________

                        No. 17-1762
                       _____________

   PENNSYLVANIA INTERNATIONAL ACADEMY, LLC,
                             Appellant

                              v.

           FORT LEBOEUF SCHOOL DISTRICT

                      ______________

         Appeal from the United States District Court
          for the Western District of Pennsylvania
                  (D.C. No. 1-16-cv-00251)
           District Judge: Hon. Arthur J. Schwab
                      ______________

                  Argued January 24, 2018
                     ______________

Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.

                 (Filed: February 13, 2018)
Bryan G. Baumann, Esq. [ARGUED]
Alexander K. Cox, Esq. [ARGUED]
Knox, McLaughlin, Gornall & Sennett, P.C.
120 West 10th Street
Erie, PA 16501

       Counsel for Appellant/Cross-Appellee


Thomas A. Pendleton, Esq. [ARGUED]
Dominick A. Sisinni, Esq.
MacDonald, Illig, Jones & Britton LLP
100 State Street, Suite 700
Erie, PA 16507

       Counsel for Appellee/Cross-Appellant

                                     ______________

                                        OPINION*
                                     ______________
SHWARTZ, Circuit Judge.

       Plaintiff Pennsylvania International Academy, LLC (the “Academy”) brought this

action against Defendant Fort LeBoeuf School District (the “School District”), asserting

that 24 Pa. Stat. Ann. § 13-1361(1) (the “busing statute”) required the School District to

provide free bus transportation to its students. The School District asserts that federal

immigration law preempts the statute. We agree with the District Court that the

immigration law does not preempt the busing statute and will affirm its order granting

summary judgment on the Academy’s claim for subrogation, but we will vacate its order

declining to rule on the Academy’s remaining claims and remand for further proceedings.



       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
                                              2
                                              I

       The Academy operates a residential boarding facility for high school students (the

“Students”) who are F-1 visa holders1 attending private school at Mercyhurst Preparatory

School (“Mercyhurst”) in Erie, Pennsylvania. For the six years prior to the 2016-2017

school year, the School District provided free bus transportation to the Students to and

from Mercyhurst. Then, in June 2016, the School District notified the Academy that,

because the Students were F-1 visa holders, the School District would charge the

Students for their school transportation, at a cost of $765 per Student for the 2016-2017

school year. Rather than pay the approximately $87,975 the School District would have

charged the Academy, the Academy arranged to provide transportation for the Students

for that school year at a cost it originally estimated as $26,207.

       The Academy filed this lawsuit against the School District in the Court of

Common Pleas of Erie County, Pennsylvania, and the School District removed the case

to the United States District Court for the Western District of Pennsylvania. The

Academy sought: (1) a mandamus in the form of a permanent injunction requiring the

School District to provide free transportation to its students (Count One); (2) subrogation

of the $26,207 the Academy paid during the 2016-2017 school year to transport the

Students to Mercyhurst (Count Two); and (3) damages in the amount of $26,207 for the

School District’s alleged deprivation of the Students’ property right to free school bus



       1
         F-1 visa holders are a class of nonimmigrants who enter the United States to
attend school and plan on leaving the country after their course of study is complete. 8
U.S.C. § 1101(a)(15)(F)(i).
                                              3
transportation without due process (Count Three). The parties later amended the

damages amount to $29,774.10 in a stipulation that also converted the Academy’s

contested motion to dismiss into cross-motions for summary judgment concerning

whether federal immigration law preempts the busing statute.

       The District Court denied the School District’s motion but granted the Academy’s

motion on Count Two and ordered the School District to reimburse the Academy for the

money it paid to transport the Students. Pa. Int’l Acad., LLC v. Fort LeBoeuf Sch. Dist.,

No. 1:16-cv-0251, 2017 WL 839492, at *11 (W.D. Pa. Mar. 3, 2017). Regarding Counts

One and Three, the District Court said that, because it “fully resolved the preemption

matter in favor of the Academy, [it would] not and need not address the Academy’s”

request for an injunction or its § 1983 claim. Id. The School District appeals the District

Court’s order denying its motion for summary judgment, and the Academy cross-appeals

the Court’s order declining to rule on Counts One and Three.

                                            II2

       The main question before us is whether federal immigration law preempts a statute

that requires the Commonwealth of Pennsylvania to provide busing to students who

attend private nonprofit schools. The statute provides, among other things, that



       2
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction under 28 U.S.C. § 1291. We review the District Court’s decision on
summary judgment de novo. Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir.
2008). Summary judgment is appropriate where, drawing all reasonable inferences in
favor of the non-moving party, “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
                                             4
       [w]hen provision is made by a board of school directors for the [free]
       transportation of public school pupils to and from . . . schools [located within
       the district boundaries or outside the district boundaries at a distance not
       exceeding ten miles by the nearest public highway], . . . the board of school
       directors shall also make identical provision for the free transportation of
       pupils who regularly attend nonpublic kindergarten, elementary and high
       schools not operated for profit to and from such schools.

24 Pa. Stat. Ann. § 13-1361(1). There is no dispute that the School District provides free

bus transportation to its public school students and that Mercyhurst is a private nonprofit

school located within ten miles of the School District. Thus, the busing statute plainly

requires the School District to provide free bus transportation to the Students. The

School District, however, contends that the statutory obligation to provide nonimmigrant

students busing is preempted by federal law.

       The preemption doctrine stems from the Supremacy Clause, which provides that

“the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in

the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art.

VI, cl. 2. Thus, “Congress . . . has the power to preempt state law.” In re Vehicle Carrier

Servs. Antitrust Litig., 846 F.3d 71, 83 (3d Cir. 2017). There are three categories of

preemption: express preemption, field preemption, and conflict preemption. Holk v.

Snapple Beverage Corp., 575 F.3d 329, 334 (3d Cir. 2009). Since preemption is an

affirmative defense, we examine the specific preemption defense the School District

asserted. In re Vehicle, 846 F.3d at 84.

       The School District argues that the busing statute is subject to conflict preemption,

which occurs where “compliance with both federal and state regulations is a physical

impossibility,” Arizona v. United States, 567 U.S. 387, 399 (2012) (quoting Fla. Lime &

                                              5
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963)), or “where the challenged

state law ‘stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of Congress’” id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

The School District argues that it is impossible to comply with both federal and state law

and that compliance with the state statute poses an obstacle to achieving Congress’s

objectives.

       In evaluating the School District’s argument, we start with the presumption against

preemption and that “the historic police powers of the States [are] not to be superseded

by [a] [f]ederal [a]ct unless that was the clear and manifest purpose of Congress.”

Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 687 (3d Cir. 2016) (quoting Wyeth

v. Levine, 555 U.S. 555, 565 (2009)). We therefore “presume claims based on laws

[reflecting the exercise of] state police powers are not preempted.” In re Vehicle, 846

F.3d at 84; see also Farina v. Nokia Inc., 625 F.3d 97, 115 (3d Cir. 2010).

       Providing education is traditionally a state government function. See, e.g.,

Edinboro College Park Apartments v. Edinboro Univ. Found., 850 F.3d 567, 577 n.9 (3d

Cir. 2017). Because the busing statute concerns the provision of school transportation,

and because school busing falls within the powers traditionally exercised by a state

government, see Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 166 (3d Cir. 2001), we

presume that the federal immigration statutes do not conflict with the busing statute

“unless Congress has made such an intention ‘clear and manifest,’” see MD Mall

Assocs., LLC v. CSX Transp. Inc., 715 F.3d 479, 489 (3d Cir. 2013) (quoting Bates v.



                                             6
Dow Agrosciences, LLC, 544 U.S. 431, 449 (2005)).3 The School District argues that

Congress’s intent to preempt the busing statute is reflected in the federal immigration

statutes and regulations governing the issuance of student visas, which evince Congress’s

desire for aliens to be self-sufficient. None of the statutes upon which the School District

relies applies to the Students.

       F-1 visa holders are required to demonstrate that they have sufficient funds to

cover tuition, fees, and living expenses and provide documentary evidence of financial

support. 8 C.F.R. § 214.2(f)(1)(i)(B); 22 C.F.R. § 41.61(b)(1)(ii). A public school F-1

visa holder must go further and “demonstrate[] that the [student] has reimbursed the local

educational agency that administers the school for the full, unsubsidized per capita cost of

providing education at such school for the period of the [student’s] attendance.” 8 U.S.C.

§ 1184(m)(1)(B)(ii).4 The School District acknowledges that the Students are not

“expressly bound by” this provision, Appellant Br. 18, but argue that Congress still

intended for private school students to pay for any public benefits they receive, including

free school transportation, because it sought to ensure that all F-1 visa holders not rely on




       3
         Although the federal government has “broad, undoubted power over the subject
of immigration and the status of aliens,”Arizona, 567 U.S. at 394-95, the busing statute
does not concern the regulation of immigration, even tangentially. Accordingly, it is
unlike the ordinances at issue in Lozano v. City of Hazelton, 724 F.3d 297, 318 (3d Cir.
2013), upon which the School District relies.
       4
         The School District also invokes a part of § 1184 that provides that F-1 visa
holders violate their nonimmigrant status if they obtained the status to enter private
school and then switch to public school. 8 U.S.C. § 1184(m)(2). The School District,
however, does not assert that the Students have switched to a taxpayer-funded public
school. Thus, the statute is not applicable.
                                              7
any public support while studying in the United States, and the busing statute is an

obstacle to accomplishing this goal. This argument fails.

       The plain language of the statute shows that Congress deliberately treated private

school F-1 visa holders differently from their public school counterparts. Moreover, the

statute does not suggest that an F-1 visa holder attending a private school violates the

terms of his or her visa simply by virtue of receiving specific benefits from a local public

school district. See 8 U.S.G. §§ 1182(a)(4)(A), 1184(m)(2).

       While there is no doubt that Congress intended F-1 visa holders, like all

nonimmigrant aliens, to be self-sufficient, id. § 1601(1)-(2), and an “alien who . . . is

likely at any time to become a public charge,” id. § 1182(a)(4)(A), is inadmissible, the

School District concedes that the Students’ receipt of free busing does not make them

public charges and does not show that the Students lack self-sufficiency. As a result,

Congress’s objective in ensuring nonimmigrants are self-sufficient is not impeded by

providing F-1 visa-holders free busing.

       For these reasons, the District Court correctly concluded that the federal

immigration laws do not preempt the busing statute.

                                             III

       We next review whether the District Court erred in granting relief on Plaintiff’s

claim for subrogation in Count Two.

       Under Pennsylvania law, subrogation is a means to “plac[e] the ultimate burden of

[a] debt upon the person who should bear it,” Topelski v. Universal South Side Autos,

Inc., 180 A.2d 414, 421 (Pa. 1962) (quoting Potoczny v. Vallejo, 85 A.2d 675, 677 (Pa.

                                              8
Super. Ct. 1952)), and it is “applicable whenever a debt or obligation is paid from the

funds of one person although primarily payable from the funds of another,” Anderson v.

Greenville Borough, 273 A.2d 512, 514 (Pa. 1971). The remedy of equitable subrogation

is available where a claimant demonstrates: “(1) the claimant paid the creditor to protect

his own interests; (2) the claimant did not act as a volunteer; (3) the claimant was not

primarily liable for the debt . . . ; (4) the entire debt has been satisfied; and (5) allowing

subrogation will not cause injustice to the rights of others.” Tudor Dev. Grp., Inc. v. U.S.

Fid. & Guar. Co., 968 F.2d 357, 361 (3d Cir. 1992).

       All elements of a claim for subrogation are satisfied here. The statute requires the

School District to provide free bus transportation to the Students, but it refused to do so

for the 2016-2017 school year, requiring the Academy to pay for the transportation. The

Academy did not act as a volunteer and, under the busing statute, was not primarily liable

for the costs associated with the school transportation. In addition, the Academy paid the

entire amount due for such transportation and allowing subrogation will not cause

injustice to the rights of others. Therefore, the District Court did not err in granting

summary judgment on the Academy’s claim for subrogation.

                                               IV

       Finally, we turn to the District Court’s order declining to rule on Counts One or

Three for, respectively, a permanent injunction requiring the School District to provide

free transportation to the Students and deprivation of property without due process in

violation of 42 U.S.C. § 1983. The District Court concluded that, because it “fully

resolved the preemption matter in favor of the Academy, [it would] not and need not

                                               9
address” either of these claims. Pa. Int’l Acad., 2017 WL 839492, at *11. The Academy

argues that it is entitled to an injunction compelling the School District to provide free

bus transportation, that the failure to provide busing deprived the Students of a property

right without due process, that they are entitled to relief under § 1983, and that the

stipulation concerning damages does not bar the § 1983 claim it advances on their behalf.

Because we have no ruling on these claims to review, we will vacate the District Court’s

order concerning Counts One and Three and remand for further proceedings on the

Academy’s request for an injunction and its § 1983 claim.

                                              V

       For the foregoing reasons, we will affirm the District Court’s order granting

summary judgment on Count Two, vacate its order declining to rule on Counts One and

Three, and remand for further proceedings.




                                             10
