Legal Case Summary

Davis. May I please the court. Bill Davis for a pellenstein, McCraw. The plaintiffs claims against McCraw are jurisdictionally barred for several reasons. But because a ruling in our favor on the Tax and Junction Act would prevent any need for the court to address the other issues, I'd like to start there. Why? I'm sorry, Your Honor. Why? Why does the Tax and Junction Act apply? Because you didn't even raise that until the appellate court. So one naturally has the suspicion that it, that as an afterthought, it probably isn't your best argument. So I just... Judge Jones, we should have raised it before. It was an oversight. We can raise it now. And we do believe it applies. And the plaintiffs have no response to our arguments based on the precedent of this court. And in particular, this court decision in Henderson versus Stadler, we believe is instructive. The fact that we have not heard until now, this argument that is your best argument and that you're leading... leading Fourth of... initially, was an oversight? It should have been

... How do you oversee... the crux and the psychology of the case? Judge Jolly, we have several strong arguments in this case. The Tax and Junction Act argument should have been raised as it was raised in other cases for the first time, even in the Supreme Court, I believe. I understand that, but I mean... Okay, okay. This court... We're accustomed to a very high level of advocacy and briefing from the State of Texas, so it's pretty unusual in recent years for something to pop up at the last minute like this. And I apologize, Judge Jones. If I made... We have high expectations. If I may speak to the merits of the argument. The court's decision in Henderson versus Stadler makes several important points. The first is the word tax in Tax and Junction Act must be construed broadly to effectuate congressional intent

. The second is that in this circuit, tax and junction analysis, tax and junction act analysis proceeds based on the three-part test laid out in nine-ass versus Texas for distinguishing between a regulatory fee on the one hand and a tax and junction act tax on the other. Henderson also illustrates that not all three prongs of that test need to point in the same direction in order for the court to conclude that the CIA applies. In Henderson, two of the three prongs pointed toward tax, and we have the same situation here. On the first point, the assessments are set by the legislature, not an agency that points toward tax. On the second point, the surcharges do not fall upon the community as a whole, but rather on specific motorists, so that points towards fee. But on the third point, and this is arguably the most important problem, the analysis, the assessments go to general revenue raising purposes. They don't defray any regulatory costs. And we have here a 1% fee that does go to cover the cost of the program. That's similar to the $3.50 charge at issue in Henderson, but the court put that aside and looked to the rest of the money. Here we have 99% going to general revenue, well half of that 99%, going to general revenue directly, and the other half going to specific programs designated by the legislature. So we believe that this case is controlled by Henderson, and again the plaintiffs have no response to that opinion. Well, that's because they didn't really have a chance to think about it until you're brief on appeal. I mean, so why don't you move on to your other argument? Certainly, Your Honor. I'd like to move to sovereign immunity. And on this point, we feel that the district court's order could mislead other courts. The law here is settled both in the Supreme Court and in this court. Under the doctrine of exparte young, the plaintiffs can obtain perspective in junk to relief, but may not obtain a retrospective monetary award that dips into the state's treasury. The leading case here is Edelman versus Jordan, in which the Supreme Court considered and laid out in its opinions arguments from the parties very similar to the arguments laid out in briefs in this case, came out our way in that decision and has not changed course sense. In this circuit, the court's decision in Jagdandan versus Giles is particularly instructive. That case, like this one, involved a 14th amendment claim. There it was to a state statute that allowed Mississippi State University to charge out of state tuition to resident aliens. The district court struck down that statute as unconstitutional and the state did not appeal that ruling

. And so there was no question that the tuition had been charged unconstitutionally. The only question in the court before this court was whether the plaintiffs could get a refund of that tuition illegally paid in the past. This was just a couple of years after Edelman was decided the court followed Edelman and said no, sovereign immunity bars that relief, whatever we may think about the equities of the situation. Any decision for the plaintiffs in this case would conflict with Edelman, with Jagdandan, and with the decisions from all of the other circuits cited in 3 on pages 34 to 35 of our opening briefs. What about the eSystems case? The eSystems case contained no sovereign immunity analysis. And after this court decided it went on petition for a writ of search, Yari, to the Supreme Court. That was ultimately denied, but Justice Scalia handed down a stay order. And the citation for that is 501 US 1301. And at page 1304 of that order, Justice Scalia explained what the fifth circuit had done by saying that it found an implicit abrogation of sovereign immunity. So that's separate and apart from any attempt to proceed under young. I think that's the best way that decision can be explained. Now, the district court attempted to rely on the ancillary effect reasoning of popus on versus a lane, but that reasoning doesn't apply here. That would apply if we changed the facts of Jan Nagnin slightly. If, for instance, the plaintiffs had still been enrolled in the university at the time that case was moving through the courts, then a court could prospectively enjoy any future tuition payment. And being above what the Constitution permitted. But of course, we don't have that here. We have the actual facts of Jan Nagnin, or something very similar, where the plaintiffs are seeking a refund of money from the state treasury. Well, now I guess you could say there are two possibilities with regard to the popus on. One of them is that since the state would collect $100 for three years, if this is a class action or even as pertains to these plaintiffs. If they are exposed to an additional $100 in future years, that part of it would be prospective. And the second one has to do with their claim that they were arguing for expungement of their supposed convictions. That's right. And I believe you're honored

. Each of those theories would go to the record correction claim. So what I've been talking about so far is the refund claim. That's barred by sovereign community. I could turn to the record correction claim. We call it a punitive record correction claim, but because it's our contention that it was not alleged properly. That's our first issue on ongoing violation. I feel that's sufficiently laid out in the briefs unless there are questions. I'll move straight to the mootness analysis, which is arguably the trickiest part of this case. Before you get to the merits of that, the sovereign immunity point is still there substantively, even if you went on mootness. They're separate pieces. They are because they go to different claims, your honor. So the sovereign immunity piece goes to the refund claim. The record correction claim is moot. Are there any other claims that are affected by the mootness argument, or is it just record? Those are the only two claims. And of course, our argument is also the tax injunction act covers each of those claims. So on mootness, the Supreme Court looks to the moment that the district court rules on a class certification motion. If at that time the name to plaintiffs claims have become moot, and the entire punitive class action is moot must be dismissed. In this circuit, the timing is accelerated a bit. The court looks to the time that the motion for class certification is filed. And if at that point, the name plaintiffs claims are moot, then the action must be dismissed. Now, we went under both of these tests, because in this case, the Department of Public Safety corrected the name plaintiffs records several months before any motion for a class certification was filed. All three of them. All three

. And in fact, the plaintiffs are even in a more difficult position here, because the class certification motion that they did file was limited to defendants other than the crawl. And so in order to win on their mootness argument here, the plaintiffs would have to obtain an even further extension of circuit precedent. And we know from the Supreme Court's decision in Genesis Healthcare that that court is headed in the opposite direction here. In parts 3A and 3B of Genesis Healthcare, the Supreme Court walks through the two types of relation back doctrine that are legally applied. First is the one I alluded to earlier that if a district court denies class certification and an appellate court corrects that ruling, that appellate ruling can relate back to the time of the district courts ruling such that if the plaintiffs claims to rely that time, the case can continue. That's one type of relation back theory that doesn't apply here. The only other relation back theory, this is part 3B of Genesis Healthcare, is for inherently transitory claims. What are those? Well, I don't think we have a whole lot of examples from the Supreme Court. The one that the court cited was the County of Riverside case, that involved a challenge to temporary pre-trial detention. And the period of time we're talking about there was a matter of days. I think it was three days on average seven at the most. And the plaintiffs have not argued that these claims are inherently transitory and they couldn't. Because as your honor judge shone as you mentioned earlier, the theory here on record correction is that these plaintiffs will be subject to $300 worth of charges. Because there's $100 charged every year. And so that's a three year period that's far longer than any inherently transitory. Let me ask you a question. There was some statement in the briefs about how the plaintiffs got back all their money. And that something about a correction form being filed with the state. Was that something the state initiated on its own or did the plaintiffs have to participate in that request? The way the correction form works is that it must come from the convicting court to DPS. And so if the plaintiff gets a notice that there's a surcharge that he or she owes that he believes is erroneous, he goes to the convicting court and that convicting court here the City of Houston court system sends it to DPS. And this is laid out on the Department of Public Safety's customer service page. And who initiates that the person who received the citation or the court in and of the municipal court in and of itself? I think it can happen either way. But the point of contact for the person is the city court system and then the city gives that information to it

. You happen to know in this case whether these plaintiffs initiated that themselves or whether the city did. I'm not sure the record doesn't reflect that, Your Honor. I do know that Miss Fontino's record was corrected two months before McCraw was even sued. And all of these plaintiffs records were corrected within three business days of receiving. All of the plaintiffs were. But again, I'm maybe I'm missing something, but how are you resolving this? I mean, is it an individual's initiative? I mean, the state of Texas is not taking automatic steps to expunge all of the records. We'll have to have documentation from the court in which they were convicted and so on. The state wants to make sure it's getting it right. And so the state wants to make sure it's getting it right. I understand that, but I mean, it seems to me that the case is far from far from mood or as far as as far as as the court. I'm sorry. Speak up just a little bit. That's not correct. And it would create a circuit split if the court were to hold that. In Rocky versus King, this court explained that. I don't care about that. I care about one way right around. And the right analysis is to look at the name plaintiffs claims. And the claims of putative class members don't enter into the equation unless the court would follow the federal circuit, which I believe is alone on that. But I mean, it seems to me that your argument that the case does not require any further injunctive relief. And to the extent that may be quite the way your articulant falls on its face. If there is no programmatic way that the state is taking care of this, but is doing it on an individual basis. It looks like it takes interest to get through with the way you're all going

. Judge Jalya, see my time has expired. Can I ask you a brief? There is nothing to prevent any additional putative plaintiff here from bringing a new class action and moving to certify the class along with that. I've had that done impress me because if anybody, that's for being an answer to any class action. Well, I mean, they got that fellow got hurt and we may hurt a few more, but if we hurt a few more, they can follow a new class action. And then you correct those two or three and kick them out, kick the class action out. Well, just to correct the record, if we were to look at the evidence that the district court erroneously excluded it said that thousands of these records were going to be in court. The records had been voluntarily corrected as of whenever that affidavit was filed, right? That's right. As Ms. Hibb's notes in her affidavit, the department corrected over 20,000 of these records. I'm saying that, but you said voluntarily. That's correct. As I understand it, you were saying that the individual had to request. No. Is that maybe you and I are not it may. It can happen in one of two ways. The individual can get something that looks wrong, contact the convicting court and the convicting court says, yep, you're right, we made a mistake, we'll tell DPS, we'll get it taken care of. What kind of plan does the state of Texas have to continue what you've alleged that they're doing? And that is to voluntarily correct these records in some kind of programmatic way. It has always been the department's policy to process valid corrections. You know, I've done it's aware of that. That's about as unresponsive to the question I ask. I'm sorry, I'm trying to answer. I said, what are they doing now programmatically to correct these records? They are processing corrections forms that come in from court systems reflecting erroneous records that are initiated by M.M

. Individuals and a lot of people are going to be excluded from this process. Now the city of Houston is a big malifactor here, right? That's correct, they are out of it. No, they're not out of it, there's ongoing litigation until they settled it, right? Well, last month the district court granted summary judgment in favor of the city of Houston. Well, I'm sure that'll go on appeal. So that will be something. But there's also a state litigation, isn't there? I'm not aware of state. There was it, I mean that would have been the obvious way to avoid any 11th amendment problem. Exactly. The further seems to me, it's like this is on 12b6, right? This came up on the 12b1 motion because we're speaking jurisdiction. It was on the 12b6? There was a 12b6 motion as well that went to the merits of the due process claim. So we have no problem treating this as 12b1. I believe it's correctly characterized as 12b1 judge John. Well, I mean if it's denominated, 12b6, and it addresses 12b1 and 12b6, I mean how do we know what the motion is? Because our arguments go to jurisdiction. And it's not any argument or motion dismiss other than jurisdiction. That's right. We're here on jurisdictional grounds. Tax and Junction Act, sovereign immunity, moodness, ongoing violation, for instance. I see I'm well over my time. Thank you, Your Honours. May I please the Court? In answer to your question, Judge Jolly, the State is currently doing absolutely nothing. If I can explain what happened here, when the first lawsuit was filed, the City realized that for six years it had been illegally and wrongfully reporting people to the State for a crime they never committed. When that happened, the City and the State, and you see this in the factual information provided to this Court by the State, the City and the State began to discuss this issue. And what was allowed to happen was that the

... You can't tell it. Is that in your complaint? No, that's actually in the evidence submitted to this Court on appeal by the State. It's an association. It's in the affidavit of Rebecca. You're awfully before us. Yes. Okay, thank you. And what happened is, then, that the City of Houston was allowed to self-select a small population of people that the City deemed fell within this category. The City, on its own, submitted correction forms to the State who then began to process them. None of this was done with the knowledge of the District Court who currently had jurisdiction or of the attorneys representing the plaintiffs in the Puditive Class. The first we heard of any of this was on October 8th when the State filed this last-minute motion with the affidavit of Rebecca Hibbs simultaneously with its motion, notice of appeal and state. So in a sense, they threw in this mutinous evidence and then slammed the door shut on the way up here. It's never been able to be tested by the Court or the plaintiffs. Actually, one could argue that you slammed the door shut on your own claim by filing your motion to certify a little too late. But your honor, we were actually quite timely. We filed that motion within four months of the defendant's answer date and two and a half months prior to the Court's deadline for filing. Yeah, but Zideman holds that motions to certify, I realize the relation back is not the state's strongest argument, but Zideman is the controlling authority in the fifth circuit. And Zideman says that it's time, according to when the Class Certification motion was filed. That is what Zideman holds, but Sando's versus singular wireless is still also controlling a thought. Yeah, but Sando's is a number, a, a later case, b, ruling on the Fair Labor Standards Act, which was rejected by the Supreme Court in Genesis, although I'd say you've got an argument in your favor on that, but we have to go with the rule of the earliest controlling case, which is Zideman. That's my view anyway

. But Judge Jones, even in the Murray case, which was clearly a rule 23 class action case that came after Sando's discord again said we recognize Sando's not as an FLSA rule, but as a class as a rule 23 class action rule that's been applied to FLSA. What happened in with Genesis is simply the Justice Thomas for the Supreme Court came down and said, look, you can't look at a collective action under the Fair Labor Standards Act like a class 23 stop applying class rule 23 actions to FLSA. Sando's is still the rule and what Sando says is that the trial court should be given a reasonable opportunity to consider and rule upon the class certification. In this case, which is not right. Sando's can say what it says. That's a very odd rule. That's out of line with every other circuit, I think. Well, but I believe your honor actually the third circuit. Well, even I read the third. I read Judge Siric's opinion in the third circuit and that's pretty closely. I'm afraid my presiding judge is going to chastise me here, but I think that's pretty closely tied to the plaintiff having a fair opportunity to present its motion. And there was little doubt from the time you filed your case that as to all of the defendants except McCraw, you were seeking class treatment. Yes, but we moved your honor within within six months of filing the complaint and within four months of the state handshake. And when you moved, you explicitly said this does not apply to Steve McCraw. Now, isn't that a forfeiture? No, your honor. We had to do that because by the time here's what happened on that October 8th, which is the same day that the state filed this flurry of motions and then stayed the case behind them. On that very day, we had filed a motion with a agreement of all parties for the court to give us an allowance of extra pages on our certification motion, which was attached when we submitted it, all right? Did it say McCraw? Yes, because at that time there was no state. That afternoon, two and a half hours later, they rushed in, they stayed the case. So on the next Monday, when we formally, because the judge agreed that we could have the extra pages, when we file our class action, we wrote in a preliminary filing, we said to the court, look, we're not going to urge this against the state because obviously we're subject to a stay, all of us now. And so it was not urged as against the state, but it was filed with the state in it and would have been had they not stayed the case later that afternoon. Did I understand that there was a scheduling order from the district court establishing a deadline for filing the class certification? Yes, there was. It required the class certification motion to be filed by December 30th. We actually filed it on October 10th. And I understood that Mr. McGraw agreed to that motion. Yes, establishing the schedule. Yes, the state was a party and agreed to that motion for the state board. Do you think McGraw is then stopped from claiming your motion is untimely? Yes, I do. I adopt that fully. Yes, it is. Yes, it is. And I believe that is a, no, I truly do think there's real wisdom in that. I mean, when we look at the issue of timeliness, this was a complex case that required us to be able to conduct certain discovery just to get a sense of numbers. You know, the only thing I think that's complex about this case or all the preliminary jurisdictional issues, each of which is complex. So why didn't you file in state court? We filed in federal court, your honor, because as against the city of Houston, the key issue was the section 1983 constitutional violation. And we felt that the best place for that to be determined would be in the federal court. But there's concurrent jurisdiction in state courts. And you might even have a cause of action under state law against the state. Well, actually, the law in the state of Texas, as the state pointed out in that Heinrich opinion, is very quite similar. It basically follows the same ex party, young, element type of an approach. And so we think we would have been facing the same arguments either way and felt like with our federal questions that those should be addressed in the federal system. So I answered the judge Jones's question of why filing federal court versus state court is after evaluating everything, we thought we had the best chance to win in federal court. Well, yes, and I mean, why did it plan? Why does it plan to file a case in one court instead of another? It thinks you got about a chance. Well, and then that's true. And we believe. Remember, tax and junction act, mutants, none of this was in front of the district judge when he was ruling on the motion to dismiss on jurisdiction

. And I understood that Mr. McGraw agreed to that motion. Yes, establishing the schedule. Yes, the state was a party and agreed to that motion for the state board. Do you think McGraw is then stopped from claiming your motion is untimely? Yes, I do. I adopt that fully. Yes, it is. Yes, it is. And I believe that is a, no, I truly do think there's real wisdom in that. I mean, when we look at the issue of timeliness, this was a complex case that required us to be able to conduct certain discovery just to get a sense of numbers. You know, the only thing I think that's complex about this case or all the preliminary jurisdictional issues, each of which is complex. So why didn't you file in state court? We filed in federal court, your honor, because as against the city of Houston, the key issue was the section 1983 constitutional violation. And we felt that the best place for that to be determined would be in the federal court. But there's concurrent jurisdiction in state courts. And you might even have a cause of action under state law against the state. Well, actually, the law in the state of Texas, as the state pointed out in that Heinrich opinion, is very quite similar. It basically follows the same ex party, young, element type of an approach. And so we think we would have been facing the same arguments either way and felt like with our federal questions that those should be addressed in the federal system. So I answered the judge Jones's question of why filing federal court versus state court is after evaluating everything, we thought we had the best chance to win in federal court. Well, yes, and I mean, why did it plan? Why does it plan to file a case in one court instead of another? It thinks you got about a chance. Well, and then that's true. And we believe. Remember, tax and junction act, mutants, none of this was in front of the district judge when he was ruling on the motion to dismiss on jurisdiction. And he found quite fairly and straightforward. He found that the plaintiffs' allegations were seeking prospective and junctive relief against Mr. McCraw. Well, and let's get to that then just for the sake of argument because there are two sorts of claims as you both know. One is the refund claim, one is the correction of records. I got, unfortunately, neither party put the first amended complaint in your record excerpts, but we read it anyway. And there is not a word in there about seeking and junctive relief to expunge the quote convictions, I'd call them citations, for traffic violations, in order to prevent the future erroneous collection of these, these penalties. So I don't understand how the district judge got to your request for quote, other and further relief being records correction when all you asked for. And practically every paragraph on every page was, we want our money back. Your honor, he looked to the same place the Supreme Court looked in the Verizon Maryland case, which is cited in both briefs. What the court looked to there was a simple straightforward examination of the prayer for relief, because that is the most direct evidence of what the plaintiff seeks. And in this case, in our prayer for relief, there is quite clearly a request for injunctive relief that they cease maintaining records that reflect false convictions. That's not what I read. Permanent Junction to cease and reporting violations of the state of Texas as being convictions, ordering defendants to cease and reporting violations, while the only people who were reporting was the city of Houston, right? I agree on that and it's the court will continue. And ordering correction of up. Oops. It's okay. I just was hoping that. And ordering correction of the driving records maintained by the state of Texas. And the problem is, your honor, there are very many. We supplied an example of five specific individuals that we were able to identify and I won't go beyond the record, but to say that there is still a very pressing need for a complete correction of records for people. Whose records were not included in this first little subset that the state and city worked on behind closed doors. There is a great need for the completion of this correcting of records

. And he found quite fairly and straightforward. He found that the plaintiffs' allegations were seeking prospective and junctive relief against Mr. McCraw. Well, and let's get to that then just for the sake of argument because there are two sorts of claims as you both know. One is the refund claim, one is the correction of records. I got, unfortunately, neither party put the first amended complaint in your record excerpts, but we read it anyway. And there is not a word in there about seeking and junctive relief to expunge the quote convictions, I'd call them citations, for traffic violations, in order to prevent the future erroneous collection of these, these penalties. So I don't understand how the district judge got to your request for quote, other and further relief being records correction when all you asked for. And practically every paragraph on every page was, we want our money back. Your honor, he looked to the same place the Supreme Court looked in the Verizon Maryland case, which is cited in both briefs. What the court looked to there was a simple straightforward examination of the prayer for relief, because that is the most direct evidence of what the plaintiff seeks. And in this case, in our prayer for relief, there is quite clearly a request for injunctive relief that they cease maintaining records that reflect false convictions. That's not what I read. Permanent Junction to cease and reporting violations of the state of Texas as being convictions, ordering defendants to cease and reporting violations, while the only people who were reporting was the city of Houston, right? I agree on that and it's the court will continue. And ordering correction of up. Oops. It's okay. I just was hoping that. And ordering correction of the driving records maintained by the state of Texas. And the problem is, your honor, there are very many. We supplied an example of five specific individuals that we were able to identify and I won't go beyond the record, but to say that there is still a very pressing need for a complete correction of records for people. Whose records were not included in this first little subset that the state and city worked on behind closed doors. There is a great need for the completion of this correcting of records. People who are moving forward with their permanent driving record reflecting a crime for which they were never charged or convicted and continuing to face, as you pointed out, the future surcharges. This is a matter that does call for action by the court. So all of your plaintiffs, each one of you, do you want to? I just want to question. Where is the Constitution entry here? I mean, is that where is the injury to these individuals as a result of having those records sitting in Texas? Well, I mean, in the files in Texas, if they have no consequence. Well, I think the injuries is twofold, your honor. The first injury is, of course, the taking of property, which is the result of those incorrect convictions. Well, we're talking about money as part one, because once that conviction is on record, the state DPS has to, by statute, go get the money. Yeah, but how is that any different from seeking a tax refund? Well, I think it's very different. I think when we look at the line of cases that flows under the 11th Amendment, there are essentially two types of claims. And for the past money damages, if one is a restitution or a refunding type claim of money, that has always been the plaintiff, that the state never had a legal right to. I mean, just Jones, I'm trying to get the facts just to. He's an equity judge. But I mean, when I ask you, where is the entry, the only thing you can say is the money. So if we decide that this money is not relief that you're entitled to, then the entire case is dismissed, because there's no other conduct on the part of the state that is entitled, that requires you to inject a relief. And the money was part one. Part two is that we believe, as the district court in this case found, that the continued maintenance on the official record of false criminal records is in and of itself an unconstitutional violation. This is not a mere injury to reputation, as was suggested in the state's briefing. Well, the injury is, if you have got a false criminal conviction on the first- I mean, this is their false citation. On the facts, this is a citation for driving without a license, as opposed to a citation for driving without possession of your license. So what happens other than the taking of money as a result of a false citation, erroneous citation for driving without a license? Well, I think many things can happen, Your Honor. And for example, if you are someone who's, as it's routinely done now, where you're driving record is something that's checked as a part of a job application, there is a difference between the guy that says, I got a ticket because I left my wallet at home, and the guy that says, I'm willing to drive a vehicle on the streets of Houston without having a valid license. That's a significant difference. It's certainly significant in the eyes of the state who applies a $300 surcharge to this conviction and nothing to this conviction

. People who are moving forward with their permanent driving record reflecting a crime for which they were never charged or convicted and continuing to face, as you pointed out, the future surcharges. This is a matter that does call for action by the court. So all of your plaintiffs, each one of you, do you want to? I just want to question. Where is the Constitution entry here? I mean, is that where is the injury to these individuals as a result of having those records sitting in Texas? Well, I mean, in the files in Texas, if they have no consequence. Well, I think the injuries is twofold, your honor. The first injury is, of course, the taking of property, which is the result of those incorrect convictions. Well, we're talking about money as part one, because once that conviction is on record, the state DPS has to, by statute, go get the money. Yeah, but how is that any different from seeking a tax refund? Well, I think it's very different. I think when we look at the line of cases that flows under the 11th Amendment, there are essentially two types of claims. And for the past money damages, if one is a restitution or a refunding type claim of money, that has always been the plaintiff, that the state never had a legal right to. I mean, just Jones, I'm trying to get the facts just to. He's an equity judge. But I mean, when I ask you, where is the entry, the only thing you can say is the money. So if we decide that this money is not relief that you're entitled to, then the entire case is dismissed, because there's no other conduct on the part of the state that is entitled, that requires you to inject a relief. And the money was part one. Part two is that we believe, as the district court in this case found, that the continued maintenance on the official record of false criminal records is in and of itself an unconstitutional violation. This is not a mere injury to reputation, as was suggested in the state's briefing. Well, the injury is, if you have got a false criminal conviction on the first- I mean, this is their false citation. On the facts, this is a citation for driving without a license, as opposed to a citation for driving without possession of your license. So what happens other than the taking of money as a result of a false citation, erroneous citation for driving without a license? Well, I think many things can happen, Your Honor. And for example, if you are someone who's, as it's routinely done now, where you're driving record is something that's checked as a part of a job application, there is a difference between the guy that says, I got a ticket because I left my wallet at home, and the guy that says, I'm willing to drive a vehicle on the streets of Houston without having a valid license. That's a significant difference. It's certainly significant in the eyes of the state who applies a $300 surcharge to this conviction and nothing to this conviction. So I think that is a significant difference, and it rises far beyond a mere reputational injury. Let me ask you this, though, if it's the just of this is a due process violation, right? Yes. Well, it's actually an ultra virus claim that results in a due process violation. Well, whatever you want to call it, I mean, because it's a violation of procedural due process that they're doing this to you without that's your allegation without notice and an opportunity for a hearing, right? Yes. And that they are doing it in the complete absence of any statutory authority. I understand that, but it's not in the absence of any statutory authority on the face of it, because what the state says here is, and I don't think you disputed this, that if Mrs. Jolly, who is an innocent driver in the city of Houston gets his erroneous citation, and she gets a bill in the mail from the state of Texas for $100, she can haul on down to the city courts, and I'm very familiar with that municipal court. She can haul on down there to the convicting court and say, what's this? My citation was for driving without having my license on my person. And then she can initiate a process to get that corrected. Is that not right? That's not right, Your Honor. He's that's what he said, is he lying to us? I believe he was giving you his best estimation of what he thought the process is, but that is incorrect. I don't believe the Assistant Solister General for the State of Texas would lie to this court, but no, that is not the way the process works. First of all, when you get that letter from the collection agency for the DPS, it doesn't give you any appellate recommendations or any ways to challenge or appeal. There's a number at the bottom that you can call for questions, but it's simply a customer service number that doesn't even answer anything. The collection notice has to be initiated by the court that convicted, and that's the only basis on which the State of Texas is saying, at least so far in this case, that they're going to respond. My point is that there is a process available for correction of the record, and you may not claim a due process constitutional violation, where there is a process in place. The same as if you want to attack your conviction, normally if it's your in custody, you do it through the State of Habeas Corpus proceeding, and this would be the civil equivalent of a Habeas Corpus. As just Jones, I understand, but with all due respect, I would say this is exactly why being here simply on a motion to dismiss for jurisdiction is too soon to evaluate what final orders this judge might enter, because this whole issue of what the remedy is has not yet been fully developed in the record. I would suggest that what you have heard today is completely inaccurate. The problem is there's no evidence from either of us in this record upon which this court could rely. I'm sorry. God bless the question. You're actually answering my question, which was, do you think Judge Jones's question is one that should be addressed in the district court to begin with? I absolutely do

. So I think that is a significant difference, and it rises far beyond a mere reputational injury. Let me ask you this, though, if it's the just of this is a due process violation, right? Yes. Well, it's actually an ultra virus claim that results in a due process violation. Well, whatever you want to call it, I mean, because it's a violation of procedural due process that they're doing this to you without that's your allegation without notice and an opportunity for a hearing, right? Yes. And that they are doing it in the complete absence of any statutory authority. I understand that, but it's not in the absence of any statutory authority on the face of it, because what the state says here is, and I don't think you disputed this, that if Mrs. Jolly, who is an innocent driver in the city of Houston gets his erroneous citation, and she gets a bill in the mail from the state of Texas for $100, she can haul on down to the city courts, and I'm very familiar with that municipal court. She can haul on down there to the convicting court and say, what's this? My citation was for driving without having my license on my person. And then she can initiate a process to get that corrected. Is that not right? That's not right, Your Honor. He's that's what he said, is he lying to us? I believe he was giving you his best estimation of what he thought the process is, but that is incorrect. I don't believe the Assistant Solister General for the State of Texas would lie to this court, but no, that is not the way the process works. First of all, when you get that letter from the collection agency for the DPS, it doesn't give you any appellate recommendations or any ways to challenge or appeal. There's a number at the bottom that you can call for questions, but it's simply a customer service number that doesn't even answer anything. The collection notice has to be initiated by the court that convicted, and that's the only basis on which the State of Texas is saying, at least so far in this case, that they're going to respond. My point is that there is a process available for correction of the record, and you may not claim a due process constitutional violation, where there is a process in place. The same as if you want to attack your conviction, normally if it's your in custody, you do it through the State of Habeas Corpus proceeding, and this would be the civil equivalent of a Habeas Corpus. As just Jones, I understand, but with all due respect, I would say this is exactly why being here simply on a motion to dismiss for jurisdiction is too soon to evaluate what final orders this judge might enter, because this whole issue of what the remedy is has not yet been fully developed in the record. I would suggest that what you have heard today is completely inaccurate. The problem is there's no evidence from either of us in this record upon which this court could rely. I'm sorry. God bless the question. You're actually answering my question, which was, do you think Judge Jones's question is one that should be addressed in the district court to begin with? I absolutely do. I look at the moodness issue. Related question? Yes. I understand that it is your position that there is a factual question as to whether or not one of your name plaintiffs claim is moot if we accept the legal arguments of the State. Yes, Mr. Miller. Your view is worst case on mootness is we remand to the district court for further factual development on mootness. That would be our alternative request. Hypothetical question. If that in fact happens, should we anticipate request to intervene from other potential named plaintiffs? I don't know that there would be a request to intervene because I believe that sand does without creating an issue here. I believe that sand does allows this case to be remanded back. And for the court to go ahead and reach the issue of classification as to the state, which has been on state since October of last year. If in fact the court finds and grants the motion to certify under the sand does rule, the case still presents a libra just as a claim or controversy going back to the time that the original first amendment was filed. So I don't believe there would be a need necessarily for intervention of additional named plaintiffs. On the other hand, that's something that can happen at times in class action cases with the approval of the court. So it might happen. This was a 12 B1, or at least that's where 12 B1, 12 B6, or 12 B1 to the extent that outside record information was considered by the district court and offered by the parties, offered by the parties and considered by the district court. Correcting correct. I just, John, could you restate that for me please? No, and the 12 B1, you can go outside the motion to dismiss to collect any kind of evidence that will dispose of the jurisdictional issue. Now, was that information, did you have all of the opportunity to present that information that you needed? Absolutely not, because- Because as I explained earlier, the only information about jurisdiction in this case was the straight legal argument based on the allegations in the pleading, up until the time that they simultaneously filed this second motion with all of this mootness evidence and a motion for a notice of appeal and stay at the exact same moment. So we never had a chance, neither us nor the court, had an opportunity to develop it, to test it, to challenge it. We went out and found five examples of individuals who don't fit within, or who fit the class and who are not taking care of, but beyond that, we haven't had a chance to even flesh it out. Well, since the other side got more time, I'm presuming that our presiding judge would give you a couple more minutes. I'll give it as much as much as time as a judge has a question, and that has a question

. I look at the moodness issue. Related question? Yes. I understand that it is your position that there is a factual question as to whether or not one of your name plaintiffs claim is moot if we accept the legal arguments of the State. Yes, Mr. Miller. Your view is worst case on mootness is we remand to the district court for further factual development on mootness. That would be our alternative request. Hypothetical question. If that in fact happens, should we anticipate request to intervene from other potential named plaintiffs? I don't know that there would be a request to intervene because I believe that sand does without creating an issue here. I believe that sand does allows this case to be remanded back. And for the court to go ahead and reach the issue of classification as to the state, which has been on state since October of last year. If in fact the court finds and grants the motion to certify under the sand does rule, the case still presents a libra just as a claim or controversy going back to the time that the original first amendment was filed. So I don't believe there would be a need necessarily for intervention of additional named plaintiffs. On the other hand, that's something that can happen at times in class action cases with the approval of the court. So it might happen. This was a 12 B1, or at least that's where 12 B1, 12 B6, or 12 B1 to the extent that outside record information was considered by the district court and offered by the parties, offered by the parties and considered by the district court. Correcting correct. I just, John, could you restate that for me please? No, and the 12 B1, you can go outside the motion to dismiss to collect any kind of evidence that will dispose of the jurisdictional issue. Now, was that information, did you have all of the opportunity to present that information that you needed? Absolutely not, because- Because as I explained earlier, the only information about jurisdiction in this case was the straight legal argument based on the allegations in the pleading, up until the time that they simultaneously filed this second motion with all of this mootness evidence and a motion for a notice of appeal and stay at the exact same moment. So we never had a chance, neither us nor the court, had an opportunity to develop it, to test it, to challenge it. We went out and found five examples of individuals who don't fit within, or who fit the class and who are not taking care of, but beyond that, we haven't had a chance to even flesh it out. Well, since the other side got more time, I'm presuming that our presiding judge would give you a couple more minutes. I'll give it as much as much as time as a judge has a question, and that has a question. Was there a state court action? There was not a state court action. Okay, and on what basis did the district court dismiss the city of Houston or grant some rejudgment? The district court dismiss the city of Houston on the 1983 claim, because it found that although clearly this happened, and we all know this happened, the court found that the city did not recognize it. It was not part of a plan or scheme. It was, in fact, a negligent error. In addition, however, yeah. But the district court also dismissed the ultravirus claim against the clerk who does the reporting, but that's an issue that we believe we do need to revisit, because it specifically said in the order that she was without jurisdiction to make the incorrect report. Okay, thank you. Thank you. I'll hold on just a minute now. Do you have it? Okay. If I could say one thing you're on to the tax in judgment, you've got to have a bottle. Yes, you've got a bottle. So that would have been my question on the Tax and Junction Act. Yes. We don't believe this can, by any stretch, be considered a tax. This is a straight-out penalty. It is an penalty that is associated with additional punishment. In fact, the state cited the court to the legislative history. What about NFIB versus Sibelius? Well, I think that NFIB versus Sibelius is very consistent here. And it was a tax, even though Congress said it was a penalty. Well, he said it was both. He said it was not a tax in the eyes of the Anti-Injunction Act, which very similar to the Tax Injunction Act says the first thing you ask is it a tax. So he said it's not a tax for purposes of anti-injunction, but then he turned around and said, but it is a tax in terms of falling within Congress's power to tax

. Was there a state court action? There was not a state court action. Okay, and on what basis did the district court dismiss the city of Houston or grant some rejudgment? The district court dismiss the city of Houston on the 1983 claim, because it found that although clearly this happened, and we all know this happened, the court found that the city did not recognize it. It was not part of a plan or scheme. It was, in fact, a negligent error. In addition, however, yeah. But the district court also dismissed the ultravirus claim against the clerk who does the reporting, but that's an issue that we believe we do need to revisit, because it specifically said in the order that she was without jurisdiction to make the incorrect report. Okay, thank you. Thank you. I'll hold on just a minute now. Do you have it? Okay. If I could say one thing you're on to the tax in judgment, you've got to have a bottle. Yes, you've got a bottle. So that would have been my question on the Tax and Junction Act. Yes. We don't believe this can, by any stretch, be considered a tax. This is a straight-out penalty. It is an penalty that is associated with additional punishment. In fact, the state cited the court to the legislative history. What about NFIB versus Sibelius? Well, I think that NFIB versus Sibelius is very consistent here. And it was a tax, even though Congress said it was a penalty. Well, he said it was both. He said it was not a tax in the eyes of the Anti-Injunction Act, which very similar to the Tax Injunction Act says the first thing you ask is it a tax. So he said it's not a tax for purposes of anti-injunction, but then he turned around and said, but it is a tax in terms of falling within Congress's power to tax. And so I think actually we're quite right online with Sibelius. And more importantly, according to Texas, and looking at a double jeopardy challenge. What do you think? May I hear it, May I? I thought he'd answered your question. I'm sorry. He said there is a state court decision. There is a state court decision. It's cited. In our brief, it is the exparte drake case. It's a double jeopardy case. And in that decision, the court actually characterizes this surcharge as a penalty. We do not believe it fits within the definition of a taxed. And I appreciate the court's patience with that. I'll conclude. Thank you. Okay. You may proceed. Beginning on that point, what the state court says doesn't influence tax injunction act analysis. We know that from Henderson. We know from Washington versus Linebarger that in this circuit, a penalty can be a tax injunction act tax. In that case, the court confronted a 30% penalty on delinquent tax payments, where the money from that penalty went to cover collection costs. The court never let us held that that penalty was a tax injunction act tax. This is another instance in which the plaintiffs have no response to the controlling circuit precedent on this point. And they do have an argument based on some other court decisions, but those don't control on this circuit

. And so I think actually we're quite right online with Sibelius. And more importantly, according to Texas, and looking at a double jeopardy challenge. What do you think? May I hear it, May I? I thought he'd answered your question. I'm sorry. He said there is a state court decision. There is a state court decision. It's cited. In our brief, it is the exparte drake case. It's a double jeopardy case. And in that decision, the court actually characterizes this surcharge as a penalty. We do not believe it fits within the definition of a taxed. And I appreciate the court's patience with that. I'll conclude. Thank you. Okay. You may proceed. Beginning on that point, what the state court says doesn't influence tax injunction act analysis. We know that from Henderson. We know from Washington versus Linebarger that in this circuit, a penalty can be a tax injunction act tax. In that case, the court confronted a 30% penalty on delinquent tax payments, where the money from that penalty went to cover collection costs. The court never let us held that that penalty was a tax injunction act tax. This is another instance in which the plaintiffs have no response to the controlling circuit precedent on this point. And they do have an argument based on some other court decisions, but those don't control on this circuit. That leaves the two claims. I think it's important to distinguish between these two claims. We have one seeking refunds and one seeking record correction to prevent further surcharge assessment. Judge Goddby, you asked about Mr. Miller's situation, I believe. And there is a dispute about whether Miller got his money. The state says, yeah, we refunded it. He says, well, I looked at my credit card bills and I can't find it. That goes solely to the refund claim. And so that's separate in apart from the mootness analysis. And that claim is barred in total by sovereign immunity. And in response to what we've said in the HIDS declaration, and we understand the timing of the district court's order prevented a response to that. But the plaintiffs successfully moved to supplement the record in this court. And they supplemented the record with information from the five additional proposed plaintiffs and with evidence about Miller not getting his refund. But none of that goes to our mootness point. Again, the analysis focuses on the named plaintiffs. So even if it's true that beyond the 20,000 additional people for whom we've already corrected the records, there are some more whose records need to be corrected. That is outside the scope of review on the question of whether the record correction claims moot. The focus is only on the name plaintiffs. And to the extent there's a suggestion that the timing of the second motion to dismiss the HIDS declaration was improper. That's not correct because the HIDS declaration merely documented corrections that happened long before. And so the records were corrected. As I said, Ms

. That leaves the two claims. I think it's important to distinguish between these two claims. We have one seeking refunds and one seeking record correction to prevent further surcharge assessment. Judge Goddby, you asked about Mr. Miller's situation, I believe. And there is a dispute about whether Miller got his money. The state says, yeah, we refunded it. He says, well, I looked at my credit card bills and I can't find it. That goes solely to the refund claim. And so that's separate in apart from the mootness analysis. And that claim is barred in total by sovereign immunity. And in response to what we've said in the HIDS declaration, and we understand the timing of the district court's order prevented a response to that. But the plaintiffs successfully moved to supplement the record in this court. And they supplemented the record with information from the five additional proposed plaintiffs and with evidence about Miller not getting his refund. But none of that goes to our mootness point. Again, the analysis focuses on the named plaintiffs. So even if it's true that beyond the 20,000 additional people for whom we've already corrected the records, there are some more whose records need to be corrected. That is outside the scope of review on the question of whether the record correction claims moot. The focus is only on the name plaintiffs. And to the extent there's a suggestion that the timing of the second motion to dismiss the HIDS declaration was improper. That's not correct because the HIDS declaration merely documented corrections that happened long before. And so the records were corrected. As I said, Ms. Fontano's record was corrected before McCraw was even sued. That means she lacks standing. The plaintiffs don't argue against that. The other two records were corrected later, but again, several months before any class certification motion was filed. And that under a controlling precedent is the dispositive point on mootness. I think the plaintiffs' best case is sandos. But as Judge Jones noted, there are several problems with relying on sandos, especially after the Supreme Court's decision in Genesis Healthcare. The third circuit in Genesis Healthcare relied heavily on sandos, and of course the Supreme Court reversed that decision. Essentially what sandos did was take the inherently transitory relation back rationale and expanded it and said, yes, some claims are inherently transitory by their very nature. And some claims are inherently transitory by virtue of a defendant's litigation conduct. And we're going to let the plaintiffs have the advantage of relation back in both scenarios. And the Supreme Court majority in Genesis Healthcare said, no, no, that's not how it works. When we're talking about inherently transitory relation back, we look to the fleeting nature of the claim itself, not the defendant's litigation conduct. I believe that covers the points I wanted to cover. The record correction claim. That was it. Thank you very much, Mr. Davis.

Davis. May I please the court. Bill Davis for a pellenstein, McCraw. The plaintiffs claims against McCraw are jurisdictionally barred for several reasons. But because a ruling in our favor on the Tax and Junction Act would prevent any need for the court to address the other issues, I'd like to start there. Why? I'm sorry, Your Honor. Why? Why does the Tax and Junction Act apply? Because you didn't even raise that until the appellate court. So one naturally has the suspicion that it, that as an afterthought, it probably isn't your best argument. So I just... Judge Jones, we should have raised it before. It was an oversight. We can raise it now. And we do believe it applies. And the plaintiffs have no response to our arguments based on the precedent of this court. And in particular, this court decision in Henderson versus Stadler, we believe is instructive. The fact that we have not heard until now, this argument that is your best argument and that you're leading... leading Fourth of... initially, was an oversight? It should have been... How do you oversee... the crux and the psychology of the case? Judge Jolly, we have several strong arguments in this case. The Tax and Junction Act argument should have been raised as it was raised in other cases for the first time, even in the Supreme Court, I believe. I understand that, but I mean... Okay, okay. This court... We're accustomed to a very high level of advocacy and briefing from the State of Texas, so it's pretty unusual in recent years for something to pop up at the last minute like this. And I apologize, Judge Jones. If I made... We have high expectations. If I may speak to the merits of the argument. The court's decision in Henderson versus Stadler makes several important points. The first is the word tax in Tax and Junction Act must be construed broadly to effectuate congressional intent. The second is that in this circuit, tax and junction analysis, tax and junction act analysis proceeds based on the three-part test laid out in nine-ass versus Texas for distinguishing between a regulatory fee on the one hand and a tax and junction act tax on the other. Henderson also illustrates that not all three prongs of that test need to point in the same direction in order for the court to conclude that the CIA applies. In Henderson, two of the three prongs pointed toward tax, and we have the same situation here. On the first point, the assessments are set by the legislature, not an agency that points toward tax. On the second point, the surcharges do not fall upon the community as a whole, but rather on specific motorists, so that points towards fee. But on the third point, and this is arguably the most important problem, the analysis, the assessments go to general revenue raising purposes. They don't defray any regulatory costs. And we have here a 1% fee that does go to cover the cost of the program. That's similar to the $3.50 charge at issue in Henderson, but the court put that aside and looked to the rest of the money. Here we have 99% going to general revenue, well half of that 99%, going to general revenue directly, and the other half going to specific programs designated by the legislature. So we believe that this case is controlled by Henderson, and again the plaintiffs have no response to that opinion. Well, that's because they didn't really have a chance to think about it until you're brief on appeal. I mean, so why don't you move on to your other argument? Certainly, Your Honor. I'd like to move to sovereign immunity. And on this point, we feel that the district court's order could mislead other courts. The law here is settled both in the Supreme Court and in this court. Under the doctrine of exparte young, the plaintiffs can obtain perspective in junk to relief, but may not obtain a retrospective monetary award that dips into the state's treasury. The leading case here is Edelman versus Jordan, in which the Supreme Court considered and laid out in its opinions arguments from the parties very similar to the arguments laid out in briefs in this case, came out our way in that decision and has not changed course sense. In this circuit, the court's decision in Jagdandan versus Giles is particularly instructive. That case, like this one, involved a 14th amendment claim. There it was to a state statute that allowed Mississippi State University to charge out of state tuition to resident aliens. The district court struck down that statute as unconstitutional and the state did not appeal that ruling. And so there was no question that the tuition had been charged unconstitutionally. The only question in the court before this court was whether the plaintiffs could get a refund of that tuition illegally paid in the past. This was just a couple of years after Edelman was decided the court followed Edelman and said no, sovereign immunity bars that relief, whatever we may think about the equities of the situation. Any decision for the plaintiffs in this case would conflict with Edelman, with Jagdandan, and with the decisions from all of the other circuits cited in 3 on pages 34 to 35 of our opening briefs. What about the eSystems case? The eSystems case contained no sovereign immunity analysis. And after this court decided it went on petition for a writ of search, Yari, to the Supreme Court. That was ultimately denied, but Justice Scalia handed down a stay order. And the citation for that is 501 US 1301. And at page 1304 of that order, Justice Scalia explained what the fifth circuit had done by saying that it found an implicit abrogation of sovereign immunity. So that's separate and apart from any attempt to proceed under young. I think that's the best way that decision can be explained. Now, the district court attempted to rely on the ancillary effect reasoning of popus on versus a lane, but that reasoning doesn't apply here. That would apply if we changed the facts of Jan Nagnin slightly. If, for instance, the plaintiffs had still been enrolled in the university at the time that case was moving through the courts, then a court could prospectively enjoy any future tuition payment. And being above what the Constitution permitted. But of course, we don't have that here. We have the actual facts of Jan Nagnin, or something very similar, where the plaintiffs are seeking a refund of money from the state treasury. Well, now I guess you could say there are two possibilities with regard to the popus on. One of them is that since the state would collect $100 for three years, if this is a class action or even as pertains to these plaintiffs. If they are exposed to an additional $100 in future years, that part of it would be prospective. And the second one has to do with their claim that they were arguing for expungement of their supposed convictions. That's right. And I believe you're honored. Each of those theories would go to the record correction claim. So what I've been talking about so far is the refund claim. That's barred by sovereign community. I could turn to the record correction claim. We call it a punitive record correction claim, but because it's our contention that it was not alleged properly. That's our first issue on ongoing violation. I feel that's sufficiently laid out in the briefs unless there are questions. I'll move straight to the mootness analysis, which is arguably the trickiest part of this case. Before you get to the merits of that, the sovereign immunity point is still there substantively, even if you went on mootness. They're separate pieces. They are because they go to different claims, your honor. So the sovereign immunity piece goes to the refund claim. The record correction claim is moot. Are there any other claims that are affected by the mootness argument, or is it just record? Those are the only two claims. And of course, our argument is also the tax injunction act covers each of those claims. So on mootness, the Supreme Court looks to the moment that the district court rules on a class certification motion. If at that time the name to plaintiffs claims have become moot, and the entire punitive class action is moot must be dismissed. In this circuit, the timing is accelerated a bit. The court looks to the time that the motion for class certification is filed. And if at that point, the name plaintiffs claims are moot, then the action must be dismissed. Now, we went under both of these tests, because in this case, the Department of Public Safety corrected the name plaintiffs records several months before any motion for a class certification was filed. All three of them. All three. And in fact, the plaintiffs are even in a more difficult position here, because the class certification motion that they did file was limited to defendants other than the crawl. And so in order to win on their mootness argument here, the plaintiffs would have to obtain an even further extension of circuit precedent. And we know from the Supreme Court's decision in Genesis Healthcare that that court is headed in the opposite direction here. In parts 3A and 3B of Genesis Healthcare, the Supreme Court walks through the two types of relation back doctrine that are legally applied. First is the one I alluded to earlier that if a district court denies class certification and an appellate court corrects that ruling, that appellate ruling can relate back to the time of the district courts ruling such that if the plaintiffs claims to rely that time, the case can continue. That's one type of relation back theory that doesn't apply here. The only other relation back theory, this is part 3B of Genesis Healthcare, is for inherently transitory claims. What are those? Well, I don't think we have a whole lot of examples from the Supreme Court. The one that the court cited was the County of Riverside case, that involved a challenge to temporary pre-trial detention. And the period of time we're talking about there was a matter of days. I think it was three days on average seven at the most. And the plaintiffs have not argued that these claims are inherently transitory and they couldn't. Because as your honor judge shone as you mentioned earlier, the theory here on record correction is that these plaintiffs will be subject to $300 worth of charges. Because there's $100 charged every year. And so that's a three year period that's far longer than any inherently transitory. Let me ask you a question. There was some statement in the briefs about how the plaintiffs got back all their money. And that something about a correction form being filed with the state. Was that something the state initiated on its own or did the plaintiffs have to participate in that request? The way the correction form works is that it must come from the convicting court to DPS. And so if the plaintiff gets a notice that there's a surcharge that he or she owes that he believes is erroneous, he goes to the convicting court and that convicting court here the City of Houston court system sends it to DPS. And this is laid out on the Department of Public Safety's customer service page. And who initiates that the person who received the citation or the court in and of the municipal court in and of itself? I think it can happen either way. But the point of contact for the person is the city court system and then the city gives that information to it. You happen to know in this case whether these plaintiffs initiated that themselves or whether the city did. I'm not sure the record doesn't reflect that, Your Honor. I do know that Miss Fontino's record was corrected two months before McCraw was even sued. And all of these plaintiffs records were corrected within three business days of receiving. All of the plaintiffs were. But again, I'm maybe I'm missing something, but how are you resolving this? I mean, is it an individual's initiative? I mean, the state of Texas is not taking automatic steps to expunge all of the records. We'll have to have documentation from the court in which they were convicted and so on. The state wants to make sure it's getting it right. And so the state wants to make sure it's getting it right. I understand that, but I mean, it seems to me that the case is far from far from mood or as far as as far as as the court. I'm sorry. Speak up just a little bit. That's not correct. And it would create a circuit split if the court were to hold that. In Rocky versus King, this court explained that. I don't care about that. I care about one way right around. And the right analysis is to look at the name plaintiffs claims. And the claims of putative class members don't enter into the equation unless the court would follow the federal circuit, which I believe is alone on that. But I mean, it seems to me that your argument that the case does not require any further injunctive relief. And to the extent that may be quite the way your articulant falls on its face. If there is no programmatic way that the state is taking care of this, but is doing it on an individual basis. It looks like it takes interest to get through with the way you're all going. Judge Jalya, see my time has expired. Can I ask you a brief? There is nothing to prevent any additional putative plaintiff here from bringing a new class action and moving to certify the class along with that. I've had that done impress me because if anybody, that's for being an answer to any class action. Well, I mean, they got that fellow got hurt and we may hurt a few more, but if we hurt a few more, they can follow a new class action. And then you correct those two or three and kick them out, kick the class action out. Well, just to correct the record, if we were to look at the evidence that the district court erroneously excluded it said that thousands of these records were going to be in court. The records had been voluntarily corrected as of whenever that affidavit was filed, right? That's right. As Ms. Hibb's notes in her affidavit, the department corrected over 20,000 of these records. I'm saying that, but you said voluntarily. That's correct. As I understand it, you were saying that the individual had to request. No. Is that maybe you and I are not it may. It can happen in one of two ways. The individual can get something that looks wrong, contact the convicting court and the convicting court says, yep, you're right, we made a mistake, we'll tell DPS, we'll get it taken care of. What kind of plan does the state of Texas have to continue what you've alleged that they're doing? And that is to voluntarily correct these records in some kind of programmatic way. It has always been the department's policy to process valid corrections. You know, I've done it's aware of that. That's about as unresponsive to the question I ask. I'm sorry, I'm trying to answer. I said, what are they doing now programmatically to correct these records? They are processing corrections forms that come in from court systems reflecting erroneous records that are initiated by M.M. Individuals and a lot of people are going to be excluded from this process. Now the city of Houston is a big malifactor here, right? That's correct, they are out of it. No, they're not out of it, there's ongoing litigation until they settled it, right? Well, last month the district court granted summary judgment in favor of the city of Houston. Well, I'm sure that'll go on appeal. So that will be something. But there's also a state litigation, isn't there? I'm not aware of state. There was it, I mean that would have been the obvious way to avoid any 11th amendment problem. Exactly. The further seems to me, it's like this is on 12b6, right? This came up on the 12b1 motion because we're speaking jurisdiction. It was on the 12b6? There was a 12b6 motion as well that went to the merits of the due process claim. So we have no problem treating this as 12b1. I believe it's correctly characterized as 12b1 judge John. Well, I mean if it's denominated, 12b6, and it addresses 12b1 and 12b6, I mean how do we know what the motion is? Because our arguments go to jurisdiction. And it's not any argument or motion dismiss other than jurisdiction. That's right. We're here on jurisdictional grounds. Tax and Junction Act, sovereign immunity, moodness, ongoing violation, for instance. I see I'm well over my time. Thank you, Your Honours. May I please the Court? In answer to your question, Judge Jolly, the State is currently doing absolutely nothing. If I can explain what happened here, when the first lawsuit was filed, the City realized that for six years it had been illegally and wrongfully reporting people to the State for a crime they never committed. When that happened, the City and the State, and you see this in the factual information provided to this Court by the State, the City and the State began to discuss this issue. And what was allowed to happen was that the... You can't tell it. Is that in your complaint? No, that's actually in the evidence submitted to this Court on appeal by the State. It's an association. It's in the affidavit of Rebecca. You're awfully before us. Yes. Okay, thank you. And what happened is, then, that the City of Houston was allowed to self-select a small population of people that the City deemed fell within this category. The City, on its own, submitted correction forms to the State who then began to process them. None of this was done with the knowledge of the District Court who currently had jurisdiction or of the attorneys representing the plaintiffs in the Puditive Class. The first we heard of any of this was on October 8th when the State filed this last-minute motion with the affidavit of Rebecca Hibbs simultaneously with its motion, notice of appeal and state. So in a sense, they threw in this mutinous evidence and then slammed the door shut on the way up here. It's never been able to be tested by the Court or the plaintiffs. Actually, one could argue that you slammed the door shut on your own claim by filing your motion to certify a little too late. But your honor, we were actually quite timely. We filed that motion within four months of the defendant's answer date and two and a half months prior to the Court's deadline for filing. Yeah, but Zideman holds that motions to certify, I realize the relation back is not the state's strongest argument, but Zideman is the controlling authority in the fifth circuit. And Zideman says that it's time, according to when the Class Certification motion was filed. That is what Zideman holds, but Sando's versus singular wireless is still also controlling a thought. Yeah, but Sando's is a number, a, a later case, b, ruling on the Fair Labor Standards Act, which was rejected by the Supreme Court in Genesis, although I'd say you've got an argument in your favor on that, but we have to go with the rule of the earliest controlling case, which is Zideman. That's my view anyway. But Judge Jones, even in the Murray case, which was clearly a rule 23 class action case that came after Sando's discord again said we recognize Sando's not as an FLSA rule, but as a class as a rule 23 class action rule that's been applied to FLSA. What happened in with Genesis is simply the Justice Thomas for the Supreme Court came down and said, look, you can't look at a collective action under the Fair Labor Standards Act like a class 23 stop applying class rule 23 actions to FLSA. Sando's is still the rule and what Sando says is that the trial court should be given a reasonable opportunity to consider and rule upon the class certification. In this case, which is not right. Sando's can say what it says. That's a very odd rule. That's out of line with every other circuit, I think. Well, but I believe your honor actually the third circuit. Well, even I read the third. I read Judge Siric's opinion in the third circuit and that's pretty closely. I'm afraid my presiding judge is going to chastise me here, but I think that's pretty closely tied to the plaintiff having a fair opportunity to present its motion. And there was little doubt from the time you filed your case that as to all of the defendants except McCraw, you were seeking class treatment. Yes, but we moved your honor within within six months of filing the complaint and within four months of the state handshake. And when you moved, you explicitly said this does not apply to Steve McCraw. Now, isn't that a forfeiture? No, your honor. We had to do that because by the time here's what happened on that October 8th, which is the same day that the state filed this flurry of motions and then stayed the case behind them. On that very day, we had filed a motion with a agreement of all parties for the court to give us an allowance of extra pages on our certification motion, which was attached when we submitted it, all right? Did it say McCraw? Yes, because at that time there was no state. That afternoon, two and a half hours later, they rushed in, they stayed the case. So on the next Monday, when we formally, because the judge agreed that we could have the extra pages, when we file our class action, we wrote in a preliminary filing, we said to the court, look, we're not going to urge this against the state because obviously we're subject to a stay, all of us now. And so it was not urged as against the state, but it was filed with the state in it and would have been had they not stayed the case later that afternoon. Did I understand that there was a scheduling order from the district court establishing a deadline for filing the class certification? Yes, there was. It required the class certification motion to be filed by December 30th. We actually filed it on October 10th. And I understood that Mr. McGraw agreed to that motion. Yes, establishing the schedule. Yes, the state was a party and agreed to that motion for the state board. Do you think McGraw is then stopped from claiming your motion is untimely? Yes, I do. I adopt that fully. Yes, it is. Yes, it is. And I believe that is a, no, I truly do think there's real wisdom in that. I mean, when we look at the issue of timeliness, this was a complex case that required us to be able to conduct certain discovery just to get a sense of numbers. You know, the only thing I think that's complex about this case or all the preliminary jurisdictional issues, each of which is complex. So why didn't you file in state court? We filed in federal court, your honor, because as against the city of Houston, the key issue was the section 1983 constitutional violation. And we felt that the best place for that to be determined would be in the federal court. But there's concurrent jurisdiction in state courts. And you might even have a cause of action under state law against the state. Well, actually, the law in the state of Texas, as the state pointed out in that Heinrich opinion, is very quite similar. It basically follows the same ex party, young, element type of an approach. And so we think we would have been facing the same arguments either way and felt like with our federal questions that those should be addressed in the federal system. So I answered the judge Jones's question of why filing federal court versus state court is after evaluating everything, we thought we had the best chance to win in federal court. Well, yes, and I mean, why did it plan? Why does it plan to file a case in one court instead of another? It thinks you got about a chance. Well, and then that's true. And we believe. Remember, tax and junction act, mutants, none of this was in front of the district judge when he was ruling on the motion to dismiss on jurisdiction. And he found quite fairly and straightforward. He found that the plaintiffs' allegations were seeking prospective and junctive relief against Mr. McCraw. Well, and let's get to that then just for the sake of argument because there are two sorts of claims as you both know. One is the refund claim, one is the correction of records. I got, unfortunately, neither party put the first amended complaint in your record excerpts, but we read it anyway. And there is not a word in there about seeking and junctive relief to expunge the quote convictions, I'd call them citations, for traffic violations, in order to prevent the future erroneous collection of these, these penalties. So I don't understand how the district judge got to your request for quote, other and further relief being records correction when all you asked for. And practically every paragraph on every page was, we want our money back. Your honor, he looked to the same place the Supreme Court looked in the Verizon Maryland case, which is cited in both briefs. What the court looked to there was a simple straightforward examination of the prayer for relief, because that is the most direct evidence of what the plaintiff seeks. And in this case, in our prayer for relief, there is quite clearly a request for injunctive relief that they cease maintaining records that reflect false convictions. That's not what I read. Permanent Junction to cease and reporting violations of the state of Texas as being convictions, ordering defendants to cease and reporting violations, while the only people who were reporting was the city of Houston, right? I agree on that and it's the court will continue. And ordering correction of up. Oops. It's okay. I just was hoping that. And ordering correction of the driving records maintained by the state of Texas. And the problem is, your honor, there are very many. We supplied an example of five specific individuals that we were able to identify and I won't go beyond the record, but to say that there is still a very pressing need for a complete correction of records for people. Whose records were not included in this first little subset that the state and city worked on behind closed doors. There is a great need for the completion of this correcting of records. People who are moving forward with their permanent driving record reflecting a crime for which they were never charged or convicted and continuing to face, as you pointed out, the future surcharges. This is a matter that does call for action by the court. So all of your plaintiffs, each one of you, do you want to? I just want to question. Where is the Constitution entry here? I mean, is that where is the injury to these individuals as a result of having those records sitting in Texas? Well, I mean, in the files in Texas, if they have no consequence. Well, I think the injuries is twofold, your honor. The first injury is, of course, the taking of property, which is the result of those incorrect convictions. Well, we're talking about money as part one, because once that conviction is on record, the state DPS has to, by statute, go get the money. Yeah, but how is that any different from seeking a tax refund? Well, I think it's very different. I think when we look at the line of cases that flows under the 11th Amendment, there are essentially two types of claims. And for the past money damages, if one is a restitution or a refunding type claim of money, that has always been the plaintiff, that the state never had a legal right to. I mean, just Jones, I'm trying to get the facts just to. He's an equity judge. But I mean, when I ask you, where is the entry, the only thing you can say is the money. So if we decide that this money is not relief that you're entitled to, then the entire case is dismissed, because there's no other conduct on the part of the state that is entitled, that requires you to inject a relief. And the money was part one. Part two is that we believe, as the district court in this case found, that the continued maintenance on the official record of false criminal records is in and of itself an unconstitutional violation. This is not a mere injury to reputation, as was suggested in the state's briefing. Well, the injury is, if you have got a false criminal conviction on the first- I mean, this is their false citation. On the facts, this is a citation for driving without a license, as opposed to a citation for driving without possession of your license. So what happens other than the taking of money as a result of a false citation, erroneous citation for driving without a license? Well, I think many things can happen, Your Honor. And for example, if you are someone who's, as it's routinely done now, where you're driving record is something that's checked as a part of a job application, there is a difference between the guy that says, I got a ticket because I left my wallet at home, and the guy that says, I'm willing to drive a vehicle on the streets of Houston without having a valid license. That's a significant difference. It's certainly significant in the eyes of the state who applies a $300 surcharge to this conviction and nothing to this conviction. So I think that is a significant difference, and it rises far beyond a mere reputational injury. Let me ask you this, though, if it's the just of this is a due process violation, right? Yes. Well, it's actually an ultra virus claim that results in a due process violation. Well, whatever you want to call it, I mean, because it's a violation of procedural due process that they're doing this to you without that's your allegation without notice and an opportunity for a hearing, right? Yes. And that they are doing it in the complete absence of any statutory authority. I understand that, but it's not in the absence of any statutory authority on the face of it, because what the state says here is, and I don't think you disputed this, that if Mrs. Jolly, who is an innocent driver in the city of Houston gets his erroneous citation, and she gets a bill in the mail from the state of Texas for $100, she can haul on down to the city courts, and I'm very familiar with that municipal court. She can haul on down there to the convicting court and say, what's this? My citation was for driving without having my license on my person. And then she can initiate a process to get that corrected. Is that not right? That's not right, Your Honor. He's that's what he said, is he lying to us? I believe he was giving you his best estimation of what he thought the process is, but that is incorrect. I don't believe the Assistant Solister General for the State of Texas would lie to this court, but no, that is not the way the process works. First of all, when you get that letter from the collection agency for the DPS, it doesn't give you any appellate recommendations or any ways to challenge or appeal. There's a number at the bottom that you can call for questions, but it's simply a customer service number that doesn't even answer anything. The collection notice has to be initiated by the court that convicted, and that's the only basis on which the State of Texas is saying, at least so far in this case, that they're going to respond. My point is that there is a process available for correction of the record, and you may not claim a due process constitutional violation, where there is a process in place. The same as if you want to attack your conviction, normally if it's your in custody, you do it through the State of Habeas Corpus proceeding, and this would be the civil equivalent of a Habeas Corpus. As just Jones, I understand, but with all due respect, I would say this is exactly why being here simply on a motion to dismiss for jurisdiction is too soon to evaluate what final orders this judge might enter, because this whole issue of what the remedy is has not yet been fully developed in the record. I would suggest that what you have heard today is completely inaccurate. The problem is there's no evidence from either of us in this record upon which this court could rely. I'm sorry. God bless the question. You're actually answering my question, which was, do you think Judge Jones's question is one that should be addressed in the district court to begin with? I absolutely do. I look at the moodness issue. Related question? Yes. I understand that it is your position that there is a factual question as to whether or not one of your name plaintiffs claim is moot if we accept the legal arguments of the State. Yes, Mr. Miller. Your view is worst case on mootness is we remand to the district court for further factual development on mootness. That would be our alternative request. Hypothetical question. If that in fact happens, should we anticipate request to intervene from other potential named plaintiffs? I don't know that there would be a request to intervene because I believe that sand does without creating an issue here. I believe that sand does allows this case to be remanded back. And for the court to go ahead and reach the issue of classification as to the state, which has been on state since October of last year. If in fact the court finds and grants the motion to certify under the sand does rule, the case still presents a libra just as a claim or controversy going back to the time that the original first amendment was filed. So I don't believe there would be a need necessarily for intervention of additional named plaintiffs. On the other hand, that's something that can happen at times in class action cases with the approval of the court. So it might happen. This was a 12 B1, or at least that's where 12 B1, 12 B6, or 12 B1 to the extent that outside record information was considered by the district court and offered by the parties, offered by the parties and considered by the district court. Correcting correct. I just, John, could you restate that for me please? No, and the 12 B1, you can go outside the motion to dismiss to collect any kind of evidence that will dispose of the jurisdictional issue. Now, was that information, did you have all of the opportunity to present that information that you needed? Absolutely not, because- Because as I explained earlier, the only information about jurisdiction in this case was the straight legal argument based on the allegations in the pleading, up until the time that they simultaneously filed this second motion with all of this mootness evidence and a motion for a notice of appeal and stay at the exact same moment. So we never had a chance, neither us nor the court, had an opportunity to develop it, to test it, to challenge it. We went out and found five examples of individuals who don't fit within, or who fit the class and who are not taking care of, but beyond that, we haven't had a chance to even flesh it out. Well, since the other side got more time, I'm presuming that our presiding judge would give you a couple more minutes. I'll give it as much as much as time as a judge has a question, and that has a question. Was there a state court action? There was not a state court action. Okay, and on what basis did the district court dismiss the city of Houston or grant some rejudgment? The district court dismiss the city of Houston on the 1983 claim, because it found that although clearly this happened, and we all know this happened, the court found that the city did not recognize it. It was not part of a plan or scheme. It was, in fact, a negligent error. In addition, however, yeah. But the district court also dismissed the ultravirus claim against the clerk who does the reporting, but that's an issue that we believe we do need to revisit, because it specifically said in the order that she was without jurisdiction to make the incorrect report. Okay, thank you. Thank you. I'll hold on just a minute now. Do you have it? Okay. If I could say one thing you're on to the tax in judgment, you've got to have a bottle. Yes, you've got a bottle. So that would have been my question on the Tax and Junction Act. Yes. We don't believe this can, by any stretch, be considered a tax. This is a straight-out penalty. It is an penalty that is associated with additional punishment. In fact, the state cited the court to the legislative history. What about NFIB versus Sibelius? Well, I think that NFIB versus Sibelius is very consistent here. And it was a tax, even though Congress said it was a penalty. Well, he said it was both. He said it was not a tax in the eyes of the Anti-Injunction Act, which very similar to the Tax Injunction Act says the first thing you ask is it a tax. So he said it's not a tax for purposes of anti-injunction, but then he turned around and said, but it is a tax in terms of falling within Congress's power to tax. And so I think actually we're quite right online with Sibelius. And more importantly, according to Texas, and looking at a double jeopardy challenge. What do you think? May I hear it, May I? I thought he'd answered your question. I'm sorry. He said there is a state court decision. There is a state court decision. It's cited. In our brief, it is the exparte drake case. It's a double jeopardy case. And in that decision, the court actually characterizes this surcharge as a penalty. We do not believe it fits within the definition of a taxed. And I appreciate the court's patience with that. I'll conclude. Thank you. Okay. You may proceed. Beginning on that point, what the state court says doesn't influence tax injunction act analysis. We know that from Henderson. We know from Washington versus Linebarger that in this circuit, a penalty can be a tax injunction act tax. In that case, the court confronted a 30% penalty on delinquent tax payments, where the money from that penalty went to cover collection costs. The court never let us held that that penalty was a tax injunction act tax. This is another instance in which the plaintiffs have no response to the controlling circuit precedent on this point. And they do have an argument based on some other court decisions, but those don't control on this circuit. That leaves the two claims. I think it's important to distinguish between these two claims. We have one seeking refunds and one seeking record correction to prevent further surcharge assessment. Judge Goddby, you asked about Mr. Miller's situation, I believe. And there is a dispute about whether Miller got his money. The state says, yeah, we refunded it. He says, well, I looked at my credit card bills and I can't find it. That goes solely to the refund claim. And so that's separate in apart from the mootness analysis. And that claim is barred in total by sovereign immunity. And in response to what we've said in the HIDS declaration, and we understand the timing of the district court's order prevented a response to that. But the plaintiffs successfully moved to supplement the record in this court. And they supplemented the record with information from the five additional proposed plaintiffs and with evidence about Miller not getting his refund. But none of that goes to our mootness point. Again, the analysis focuses on the named plaintiffs. So even if it's true that beyond the 20,000 additional people for whom we've already corrected the records, there are some more whose records need to be corrected. That is outside the scope of review on the question of whether the record correction claims moot. The focus is only on the name plaintiffs. And to the extent there's a suggestion that the timing of the second motion to dismiss the HIDS declaration was improper. That's not correct because the HIDS declaration merely documented corrections that happened long before. And so the records were corrected. As I said, Ms. Fontano's record was corrected before McCraw was even sued. That means she lacks standing. The plaintiffs don't argue against that. The other two records were corrected later, but again, several months before any class certification motion was filed. And that under a controlling precedent is the dispositive point on mootness. I think the plaintiffs' best case is sandos. But as Judge Jones noted, there are several problems with relying on sandos, especially after the Supreme Court's decision in Genesis Healthcare. The third circuit in Genesis Healthcare relied heavily on sandos, and of course the Supreme Court reversed that decision. Essentially what sandos did was take the inherently transitory relation back rationale and expanded it and said, yes, some claims are inherently transitory by their very nature. And some claims are inherently transitory by virtue of a defendant's litigation conduct. And we're going to let the plaintiffs have the advantage of relation back in both scenarios. And the Supreme Court majority in Genesis Healthcare said, no, no, that's not how it works. When we're talking about inherently transitory relation back, we look to the fleeting nature of the claim itself, not the defendant's litigation conduct. I believe that covers the points I wanted to cover. The record correction claim. That was it. Thank you very much, Mr. Davis