Blazine Monaco v. WV Parkways Authority

57 F.4th 185

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 6, 2023
• Docket: 21-1230
• Status: Published

Opinion

USCA4 Appeal: 21-1230 Doc: 48 Filed: 01/06/2023 Pg: 1 of 8

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1230

BLAZINE MONACO,

Plaintiff – Appellant,

v.

WV PARKWAYS AUTHORITY,

Defendant – Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:20–cv–00517)

Argued: September 14, 2022 Decided: January 6, 2023

Before RICHARDSON and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit Judge.

Vacated and remanded by published opinion. Judge Richardson wrote the opinion, in which Judge Heytens and Senior Judge Motz joined.

ARGUED: Patrick J. Perotti, DWORKEN & BERNSTEIN CO., L.P.A., Painesville, Ohio, for Appellant. Stuart A. McMillan, BOWLES RICE, LLP, Charleston, West Virginia, for Appellee. ON BRIEF: Nicole T. Fiorelli, DWORKEN & BERNSTEIN CO., L.P.A., Painesville, Ohio; Stephen G. Skinner, SKINNER LAW FIRM, Charleston, West Virginia, for Appellant. Peter G. Markham, BOWLES RICE LLP, Charleston, West Virginia, for Appellee. USCA4 Appeal: 21-1230 Doc: 48 Filed: 01/06/2023 Pg: 2 of 8

RICHARDSON, Circuit Judge:

Blazine Monaco appeals the district court’s dismissal of her putative class action

against the West Virginia Parkways Authority, in which she alleges that the Parkways

Authority improperly collected fees. And the Parkways Authority appeals the district

court’s holding that it was not entitled to sovereign immunity under the United States or

West Virginia Constitutions. But before we can turn to these questions, we must assure

ourselves that we have subject-matter jurisdiction. Monaco relies on the Class Action

Fairness Act for jurisdiction. Yet that jurisdictional grant does not apply when the primary

defendants are “governmental entities against whom the district court may be foreclosed

from ordering relief.” 28 U.S.C. § 1332(d)(5)(A). That is the situation we have here, so

this case must be dismissed.

In 2018, Blazine Monaco drove through four separate cash toll booths on the West

Virginia Turnpike. Because she had no cash on hand, Monaco passed through without

paying the tolls. Nor did she pay the tolls on her own after her trip. So six weeks later, the

West Virginia Parkways Authority sent Monaco an “Unpaid Toll Violation Notice.” That

notice explained that she now owed $138: $8 in unpaid tolls, $120 in administrative fees,

and a $10 notice fee. Monaco paid the $138 but then filed a putative federal class-action

suit against the Parkways Authority.

In her suit, Monaco alleged that the Parkways Authority unjustly enriched itself by

collecting the administrative and notice fees in violation of West Virginia law. She claimed

that the Parkways Authority’s fees violated West Virginia’s Electronic Toll Collection Act

and Administrative Procedure Act. The Parkways Authority moved to dismiss the suit,

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arguing that it was immune from suit under the United States and West Virginia

Constitutions, and that, in any event, the fees were properly assessed under its Enabling

Act. The district court granted the Parkways Authority’s motion. It rejected the Parkways

Authority’s immunity arguments but concluded that the fees were proper under the

Parkways Authority’s Enabling Act. Yet—although Monaco styled her lawsuit as a

diversity case—nobody questioned whether the district court had diversity jurisdiction in

the first place. 1

“An appellate federal court must satisfy itself not only of its own jurisdiction, but

also of that of the lower courts in a cause under review.” Mitchell v. Maurer, 293 U.S.

237, 244 (1934). Subject-matter jurisdiction is a threshold question, because if we lack

jurisdiction “the only function remaining to the court is that of announcing the fact and

dismissing the cause.” Ex parte McCardle, 74 U.S. 506, 514 (1868); see also Steel Co. v.

Citizens for a Better Env’t., 523 U.S. 83, 94–95 (1998). After reading the briefs, we

questioned whether we had jurisdiction over this suit and asked the parties to address this

issue at oral argument.

Monaco alleged in her complaint that there was jurisdiction under the Class Action

Fairness Act. That Act expanded diversity jurisdiction over certain interstate class actions.

Dominion Energy, Inc. v. City of Warren Police and Fire Ret. Sys., 928 F.3d 325, 329–30

1 The district court did address (and reject) the Parkways Authority’s argument that the court lacked subject-matter jurisdiction because Monaco failed to comply with a state notice law. But the court did not ask whether the parties satisfied the statutory requirements for diversity. 3 USCA4 Appeal: 21-1230 Doc: 48 Filed: 01/06/2023 Pg: 4 of 8

(4th Cir. 2019). It provides that “district courts shall have original jurisdiction of any civil

action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive

of interest and costs, and is a class action in which . . . any member of a class of plaintiffs

is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). But the

Act also limits this jurisdictional grant. See 28 U.S.C. §§ 1332(d)(4), (d)(5), (d)(9).

Relevant here, the Act does not include class actions where the “primary defendants” are

“governmental entities against whom the district court may be foreclosed from ordering

relief.” 28 U.S.C. § 1332(d)(5)(A). If this limitation applies to Monaco’s suit, then the

district court lacked jurisdiction over it.

As always, when interpreting a statute, we start with its text. See Harrell v. Freedom

Mortg. Corp., 976 F.3d 434, 439 (4th Cir. 2020). Section 1332(d)(5)(A) states that the

Act’s jurisdictional grant “shall not apply to any class action in which . . . the primary

defendants are States, State officials, or other governmental entities against whom the

district court may be foreclosed from ordering relief.” § 1332(d)(5)(A). This language

raises three questions: (1) Who are the primary defendants? (2) Are they governmental

entities? and (3) May the district court be foreclosed from ordering relief against them?

The first question is easy, as there is only one defendant here––the Parkways

Authority. So it is the “primary defendant.”

The second question is also straightforward. The Parkways Authority is a

governmental entity. It is “an agency of the state” of West Virginia whose powers and

duties are set by statute. W. Va. Code § 17-16A-3(a) (West 2022). The Governor chairs

the Parkways Authority, and the remaining members are the Secretary of Transportation

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and five individuals appointed by the Governor. §§ 17-16A-3(b), (c), (i). The Parkways

Authority issues bonds in the name of the state, deposits funds into the State Treasury, is

exempt from taxation, and can acquire land in the name of the state. §§ 17-16A-6, -8, -11,

-16. If this isn’t a governmental entity, nothing is. Cf. Kendrick v. Conduent State & Loc.

Sols., Inc., 910 F.3d 1255, 1257 (9th Cir. 2018) (concluding that the Bay Area Toll

Authority and Golden Gate Bridge Highway and Transportation District are governmental

entities under § 1332(d)(5)(A)); Frazier v. Pioneer Ams. LLC, 455 F.3d 542, 546 (5th Cir.

2006) (concluding that the Louisiana Department of Environmental Quality is a

governmental entity under § 1332(d)(5)(A)).

That leaves the third question. While perhaps not as simple as the first two, it is

also satisfied. The district court “may be foreclosed from ordering relief” against the

Parkways Authority based on its assertion of sovereign immunity. § 1332(d)(5)(A)

(emphasis added). 2 The statute’s use of “may be” reflects that we need not determine that

the Parkways Authority certainly has immunity to hold that § 1332(d)(5)(A) nonetheless

limits jurisdiction here. In context, “may” conveys a mere possibility or likelihood, not

certainty. May, American Heritage Dictionary (4th ed. 2006) (“Used to indicate a certain

measure of likelihood or possibility.”); May, Black’s Law Dictionary (8th ed. 2004) (“To

2 The Parkways Authority has vigorously argued at all stages of this litigation that it is immune from suit under the United States and the West Virginia Constitutions. If the Parkways Authority is correct, then, of course, the district court cannot order relief against it. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72–73 (1996); Davari v. W. Va. Bd. of Governors, 245 W. Va. 95, 102 (2021). But because of our interpretation of § 1332(d)(5)(A), we need not resolve that question.

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be a possibility.”); May, Merriam-Webster’s Collegiate Dictionary (10th ed. 1999)

(“[U]sed to indicate possibility or probability.”).

Because of its “may be” language, § 1332(d)(5)(A) is not narrowly limited to

circumstances in which the district court conclusively “is” foreclosed from ordering relief.

Cf. Brown Shoe Co. v. United States, 370 U.S. 294, 323 (1962) (noting that congressional

use of “may be” concerns “probabilities, not certainties”). It more broadly includes those

circumstances in which the district court “may be” foreclosed. Limiting § 1332(d)(5)(A)

to times when a governmental entity is in fact entitled to sovereign immunity would render

that subsection superfluous, because the entity would already be immune from suit. So the

Parkways Authority need not actually be entitled to sovereign immunity for

§ 1332(d)(5)(A) to apply.

But that does not mean that “may be” has no limits. A bare claim of sovereign

immunity would not trigger § 1332(d)(5)(A). Section 1332(d)(5)(A) is a prerequisite for

jurisdiction. 3 Invoking jurisdiction under the Class Action Fairness Act requires plausibly

alleging—and if challenged, demonstrating—that jurisdiction exists. Scott v. Cricket

3 The requirements for original jurisdiction under the Class Action Fairness Act are minimum diversity, $5 million in controversy, and a class of more than 100 members. Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013). The first two requirements come from § 1332(d)(2), the Act’s jurisdictional grant. The latter requirement comes from § 1332(d)(5)(B). As § 1332(d)(5)(B) is a requirement for jurisdiction, so too is § 1332(d)(5)(A). Accord Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1020 n.3 (9th Cir. 2007) (“[S]atisfaction of § 1332(d)(5) serves as a prerequisite, rather than as an exception, to jurisdiction under § 1332(d)(2).”). So the burden of showing that § 1332(d)(5)(B) does not bar jurisdiction lies with the party claiming it, here the plaintiff.

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Commc’ns, LLC, 865 F.3d 189, 194 (4th Cir. 2017); Strawn v. AT&T Mobility LLC, 530

F.3d 293, 296–97 (4th Cir. 2008). 4 And a plainly implausible claim of immunity would

not defeat jurisdiction by application of § 1332(d)(5)(A) because it would not show that

the district court “may be foreclosed from ordering relief.”

In this case, we need not define the precise bounds of § 1332(d)(5)(A). It applies

without definitively determining that the Parkways Authority has immunity. And it would

not apply if the Parkways Authority’s claimed immunity was plainly implausible. Whether

the precise line is drawn closer to possibility, probability, or plausibility, the Parkways

Authority’s immunity arguments are enough to apply § 1332(d)(5)(A).

We examine four factors to determine whether a state agency is entitled to

immunity. This test examines (1) “whether any judgment against the entity as defendant

will be paid by the State”; (2) “the degree of autonomy exercised by the entity”; (3)

“whether the entity is involved with state concerns as distinct from non-state concerns”;

and (4) “how the entity is treated under state law.” United States ex rel. Oberg v. Penn.

Higher Educ. Assistance Agency, 745 F.3d 131, 137–38 (4th Cir. 2014); see also Hutto v.

S. Carolina Ret. Sys., 773 F.3d 536, 543, 546 (4th Cir. 2014). While the district court

ultimately held that the Parkways Authority was not entitled to immunity, we find the

4 See also Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014) (“[A] defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds [$5 million].”); 7A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1756.2 (4th ed. 2022) (“Courts interpreting the removal provisions in CAFA have held that defendant need show only a reasonable probability that the amount satisfying the Act’s jurisdictional minimum is being claimed.”).

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Parkways Authority’s sovereign immunity arguments stronger than the district court

suggested. And that is enough for § 1332(d)(5)(A) to preclude jurisdiction.

To recap, the Parkways Authority is the only, and thus “primary,” defendant. And

it is a “governmental entity.” The Parkways Authority’s sovereign-immunity claim is

strong enough to conclude that the district court “may be foreclosed from ordering relief”

against it. § 1332(d)(5)(A). So § 1332(d)(2)’s jurisdictional grant “shall not apply.” Id.

Since that is the only provision that Monaco relies on to establish jurisdiction over her

putative class action, the district court lacked jurisdiction to hear it. 5

* * *

We conclude that, here, § 1332(d)(5)(A) bars jurisdiction under § 1332(d)(2) of the

Class Action Fairness Act. Accordingly, the judgment of the district court must be vacated,

and the case remanded to the district court with directions to dismiss without prejudice.

VACATED AND REMANDED

5 No other Court of Appeals appears to have addressed this specific question. Questions about § 1332(d)(5)(A) tend to arise when there are multiple primary defendants, some of whom are private entities. See, e.g., Kendrick, 910 F.3d at 1257; Frazier, 455 F.3d at 544; Woods v. Standard Ins. Co., 771 F.3d 1257, 1260 (10th Cir. 2014). In these cases, courts can avoid answering the question raised here because the limitation in § 1332(d)(5)(A) applies only when all primary defendants are “States, State officials, or other governmental entities.” See Kendrick, 910 F.3d at 1262 (Watford, J., dissenting); Frazier, 455 F.3d at 546; Woods, 771 F.3d at 1263–64. 8