Reyes et al v. North Texas Tollway Authority (NTTA) et al
Filing
31
MEMORANDUM OPINION AND ORDER granting in part and denying in part 21 Motion to Dismiss, 20 Motion to Dismiss. (Ordered by Senior Judge A. Joe Fish on 11/14/2011) (skt)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MIRNA REYES, ET AL.,
Plaintiffs,
VS.
NORTH TEXAS TOLLWAY
AUTHORITY, ET AL.,
Defendants.
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CIVIL ACTION NO.
3:10-CV-0868-G
MEMORANDUM OPINION AND ORDER
Before the court are the motions filed by the defendants, North Texas Tollway
Authority (“NTTA”), Paul Wageman (“Wageman”), Allen Clemson (“Clemson”),
Janice Davis (“Davis”), Kiven Williams (Williams”), Victor Vandergriff
(“Vandergriff”), and Clayton Howe (“Howe”) (collectively, the “defendants”), to
dismiss the amended complaint filed by the plaintiffs, Mirna Reyes (“Reyes”),
Emmanuel Lewis (“Lewis”), Jennifer Bunch (“Bunch”), and Brian Covert (“Covert”)
(collectively, the “plaintiffs”) (docket entries 20, 21). For the reasons set forth below,
the defendants’ motions to dismiss are granted in part and denied in part.
I. BACKGROUND
A. Factual Background
This case concerns the administrative fees charged by the NTTA to tollway
users who fail to pay their toll invoices on time. First Amended Complaint -- Class
Action (“Complaint”) ¶ 1 (docket entry 18). The plaintiffs are drivers in North Texas
who have used one of the NTTA’s tollways. See id. ¶¶ 37, 39, 43, 47. They bring
this suit individually and on behalf of a putative class of similarly situated individuals.
Id. ¶¶ 51-54. The defendants are the NTTA and some of its current or former
directors or officers. Id. ¶¶ 14-20.
The NTTA allows drivers to pay the toll for a tollway in one of three ways:
(1) cash, (2) a TollTag, and (3) ZipCash. Id. ¶ 25(a). ZipCash is a video tolling
system which uses cameras to take a picture of a car’s license plate and charge the
driver the toll. Id; see also http://www.ntta.org/AboutUs/Projects/AllETC/ (last visited
October 27, 2011). If a driver does not pay the NTTA for the toll within 30 days,
the NTTA will mail the driver a “ZipCash invoice” listing the tolls owed. Id. The
cost of sending out the initial invoice is approximately $3.86. Id. ¶25(b). “The
invoice may, and usually does, contain more than one transaction.”1 Id. If that
initial invoice is not paid within 30 days, the NTTA will send the driver a “violation
invoice.” Id. ¶ 25(c). The cost of sending out a violation invoice is approximately
1
In this opinion, a transaction will refer to a single usage of a toll road.
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$4.61. Id. In the violation invoice, the NTTA will assess the driver an
“administrative fee” for each toll transaction for which the driver has not paid the
toll. Id. ¶ 25(d). Initially, the NTTA assessed an administrative fee of $25.00 for
each transaction listed on a violation invoice. Id. However, the administrative fee
charged was lowered in 2010 to $8.33 per transaction. Id.
The four named plaintiffs in this case used the ZipCash system, but failed to
pay their initial ZipCash invoices on time. Id. ¶¶ 36-50. As a result, they were
charged hundreds or thousands of dollars in administrative fees by the NTTA. Id.
They allege that the NTTA’s assessment of an administrative fee per transaction
(rather than per violation invoice) at either $25.00 or $8.33 per transaction violates
TEXAS TRANSPORTATION CODE § 366.178, which governs situations where drivers fail
or refuse to pay their tolls. See generally Complaint ¶¶ 59, 72, 81, 92.2 As a result, the
plaintiffs allege, their federal constitutional rights under the Due Process Clause of
the Fourteenth Amendment and the Excessive Fines Clause of the Eighth
Amendment, and their state constitutional rights under Sections 13, 17, and 19 of
Article 1 of the Texas Constitution, were violated. Id. ¶¶ 55-61, 69-82, 88-93.
2
Plaintiffs’ complaint alleges violations of the Equal Protection Clause of
the Fourteenth Amendment to the U.S. Constitution, and equal protection under
Article 1, Section 3 of the Texas Constitution. Complaint ¶¶ 66, 85. However, the
plaintiffs elected not to contest the defendants’ motion to dismiss those claims.
Plaintiffs’ Response to Defendants’ Motions to Dismiss First Amended Complaint
and Brief in Support (“Plaintiffs’ Response”) at 1 n.1 (docket entry 22). Therefore,
without objection, the defendants’ motion to dismiss these two claims is granted.
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Reyes used the ZipCash method to pay tolls between May 2008 and August
2009. Id. ¶ 37. She received Zipcash invoices from the NTTA on a monthly basis,
consistent with the NTTA’s stated policy. Id. “When Ms. Reyes inadvertently failed
to pay the invoices in a timely manner, Defendants assessed an administrative fee for
each and every time she used ZipCash.” Id. Reyes claims that she was charged more
than $3,000.00 in administrative fees, and that she eventually paid the NTTA
$950.00 for her failure to pay her violation invoices. Id.
Bunch also used the ZipCash method to pay tolls that she incurred between
November 2007 and mid-year 2009. Id. ¶ 39. “Ms. Bunch failed to pay the
[ZipCash] invoices in a timely manner.” Id. In December of 2009, Bunch received a
violation invoice listing fourteen transactions between May 2009 and September
2009 totaling $19.58. Id. ¶ 40. Despite the transactions being listed on one invoice,
the NTTA assessed $350 in administrative fees against her -- a $25 administrative fee
for each transaction. Id. ¶ 40. In January of 2010, Bunch paid the fines in full. Id.
¶ 41.
Covert received a ZipCash invoice from the NTTA in December of 2009
identifying fifteen transactions between September 19, 2009 and October 23, 2009.
Id. ¶ 43. “Covert failed to pay the NTTA invoices in a timely manner.” Id. In
February of 2010, Covert received a violation invoice from the NTTA listing the same
fifteen transactions, amounting to collective tolls of $28.16 but requiring $550 in
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administrative fees. Id. ¶ 44. Covert ultimately paid the NTTA $250.00 and
purchased a TollTag. Id. ¶ 45.
Lewis received a violation invoice from the NTTA in November of 2009. Id.
¶ 48. The violation invoice listed tolls totaling $46.91 but required him to pay
$1,546.91 in administrative fees. Id. Lewis was eventually billed “$10,000.00 in
charges for approximately $300.” Id. ¶ 49. The NTTA sent the matter to collections,
which Lewis alleges damaged his credit. Id.
The plaintiffs bring this action on behalf of themselves and all other
individuals similarly situated, as part of a class action under FEDERAL RULE OF CIVIL
PROCEDURE 23(b)(2) and 23(b)(3). Id. ¶ 51. The plaintiffs have divided the class
into two subclasses. Id. Class One consists of any individual who, since 2008, paid
an administrative fee over $100.00 per NTTA tollway violation invoice, and “suffered
financial injury by having to pay [the] sums to the NTTA”. Id. Class Two consists of
every individual who incurred an administrative fee on an NTTA tollway violation
invoice that was calculated “per individual toll transaction listed on the invoice rather
than the administrative costs of recovery,” and “suffered financial injury as a result.”
Id.
The plaintiffs have sued the NTTA and a number of its board of directors and
senior executives in their individual and official capacities. Particularly, the plaintiffs
name as defendants: (1) Wageman, who was the chairman of the NTTA’s board of
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directors from 2006 through September of 2010; (2) Vandergriff, who was vice
chairman from 2007 until he succeeded Wageman as chairman in October of 2010;
(3) Clemson, the NTTA’s executive director; (4) Davis, its chief financial officer;
(5) Williams, its director of toll collections; and (6) Howe, its assistant director of
operations. Id. ¶¶ 15-20.
The defendants now move to dismiss under Federal Rule of Civil Procedure
12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a
claim for which relief may be granted. See generally Defendants’ Motion to Dismiss
First Amended Complaint and Brief in Support Thereof (“Defendants’ Motion”)
(docket entry 20). The individual defendants also argue that they are immune from
the plaintiffs’ suit. Defendants Paul Wageman, Allen Clemson, Janice Davis, Kiven
Williams, Victor Vandergriff, and Clayton Howe’s Motion to Dismiss First Amended
Complaint and Brief in Support Thereof (“Individual Defendants’ Motion”) (docket
entry 21).
B. Statutory Background
The NTTA is governed by Chapter 366 of the TEXAS TRANSPORTATION CODE.
The purposes of Chapter 366 are “the creation of regional tollway authorities to
secure and acquire rights-of-way for urgently needed transportation systems and to
plan, design, construct, operate, expand, extend, and modify those systems.” Id.
§ 366.002(a)(2). Chapter 366 “shall be liberally construed to effect its purposes.” Id.
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§ 366.002(b). Moreover, regional tollway authorities like the NTTA have the power
to “do all things necessary or appropriate to carry out the powers expressly granted by
this chapter.” Id. § 366.033(a)(14).
TEXAS TRANSPORTATION CODE § 366.178(a) requires “[a] motor vehicle . . .
that passes through a toll collection facility . . . [to] pay the proper toll.” Id.
Subsections 366.178(b)-(d) control the fines and administrative fees that the NTTA
can impose on drivers who fail to pay the proper toll:
(b) A person who fails or refuses to pay a toll provided for
the use of a project is liable for a fine not to exceed $250,
plus an administrative fee incurred in connection with the
violation.
(c) If a person fails to pay the proper toll:
(1) on issuance of a notice of nonpayment,
the registered owner of the nonpaying vehicle
shall pay both the proper toll and the
administrative fee; and
(2) an authority may charge an administrative
fee of not more than $100 to recover the cost
of collecting the unpaid toll.
(d) Notice of nonpayment under Subsection (c)(1) shall
be sent by first-class mail and may not require payment of
the proper toll and the administrative fee before the 30th
day after the date the notice is mailed. The registered
owner shall pay a separate toll and administrative fee for
each nonpayment.
Since this case was filed, the Texas Legislature has amended Section 366.178.
Act of May 27, 2011, 82nd Leg., R.S., ch. 1216, §§ 1-4, 2011 Tex. Sess. Law Serv.
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3247-49 (Vernon) (“S.B. 469”). S.B. 469 has no effect on tolls assessed prior to
September 1, 2011. Id. §3, 2011 Tex. Sess. Law. Serv. at 3249. Therefore, the
amendments themselves have no direct effect on this case. However, S.B. 469 is
helpful in interpreting the pre-amendment version of Section 366.178.
S.B. 469 changed the NTTA’s power to collect administrative fees from drivers
who do not timely pay their ZipCash invoices. Under Section 366.178(c) (as
amended), the NTTA “may charge only one administrative fee of not more than $25
for the first notice of nonpayment that is sent to the registered owner of the
nonpaying vehicle.” If the driver fails to pay the first notice of non-payment, then
the NTTA will send the driver a second notice of non-payment. Id. § 366.178(d-1)
(amended). In this second notice, the NTTA is permitted to impose, in addition to
the amount included in the first notice of nonpayment, “an additional administrative
fee of not more than $25 for each unpaid toll included in the notice, not to exceed a
total of $200.” Id. § 366.178(d-1)(1)-(2) (amended). If the NTTA has to send out a
third notice of non-payment, then it can impose, in addition to the amount included
on the second notice of nonpayment, “any third-party collection service fees incurred
by the authority.” Id. § 366.178(d-2)(2) (amended). Moreover, unlike the pre-S.B.
469 version of Section 366.178, the statute does not expressly tie the administrative
fees “to recover the cost of collecting the unpaid toll.” See Plaintiffs’ Brief Concerning
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the Recent Amendments to Texas Transportation Code § 366.178 (“Plaintiffs’ S.B.
469 Brief”) at 1-2 (docket entry 30).
II. ANALYSIS
A. Rule 12(b)(1): Lack of Subject Matter Jurisdiction
The defendants have moved to dismiss this cause of action for lack of subject
matter jurisdiction under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1). Defendants’
Motion at 4. Specifically, the defendants argue that the plaintiffs lack standing to
bring this lawsuit. Id.
1. Legal Standard
Article III of the United States Constitution limits federal courts’ jurisdiction
to “cases” and “controversies.” U.S. CONST. Art. III, § 2. Standing -- i.e., the need to
demonstrate that the plaintiff has a direct, personal stake in the outcome of the suit -is an “essential and unchanging part” of this case-or-controversy requirement. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
As the Supreme Court explained in Lujan, the “irreducible constitutional
minimum of standing” has three elements:
First, the plaintiff[s] must have suffered an “injury in fact”
-- an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Second,
there must be a causal connection between the injury and
the conduct complained of - the injury has to be “fairly . . .
trace[able] to the challenged action of the defendant, and
not . . . th[e] result [of] the independent action of some
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third party not before the court.” Third, it must be
“likely,” as opposed to merely “speculative,” that the injury
will be “redressed by a favorable decision.”
Lujan, 504 U.S. at 560 (internal citations and footnote omitted).
Lack of standing is a defect in subject matter jurisdiction. See Haase v. Sessions,
835 F.2d 902, 906 (D.C. Cir. 1987) (citing Bender v. Williamsport Area School District,
475 U.S. 534, 541 (1986)); see also Sommers Drug Stores Company Employee Profit
Sharing Trust v. Corrigan, 883 F.2d 345, 348 (5th Cir. 1989) (“standing is essential to
the exercise of jurisdiction, and . . . lack of standing can be raised at any time by a
party or by the court”) (citing United States v. One 18th Century Colombian Monstrance,
797 F.2d 1370, 1374 (5th Cir.1986), cert. denied, 481 U.S. 1014 (1987)).
Federal district courts have the unique power to make factual findings which
are decisive of subject matter jurisdiction. See Williamson v. Tucker, 645 F.2d 404,
413 (5th Cir.) (citing, among other authorities, Land v. Dollar, 330 U.S. 731, 735 n.4
(1947)), cert. denied, 454 U.S. 897 (1981). The district court has the power to
dismiss for lack of subject matter jurisdiction -- and thus for lack of standing -- on any
one of three separate bases: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Williamson, 645 F.2d at 413; Robinson v. TCI/US West Communications Inc., 117 F.3d
900, 904 (5th Cir. 1997); see also Haase, 835 F.2d at 907 (noting that, to the extent
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the assessment of a plaintiff’s standing turns on factual evidence, a court may
consider all matters developed in the record at the time of its decision).
Moreover, while the burden is on the party seeking to invoke the federal
court’s subject matter jurisdiction to establish the requisite standing requirements,
that burden need be met only by a preponderance of the evidence. See Hartford
Insurance Group v. Lou-Con Inc., 293 F.3d 908, 910 (5th Cir. 2002).
2. Application
In this case, the defendants argue that the plaintiffs lack standing because they
have failed to allege an invasion of a legally protected interest, and thus have not
fulfilled the “injury in fact” requirement. Defendants’ Motion at 5. In support of
their position, the defendants point to this court’s decision in Verrando v. ACS State
and Local Solutions, Inc., No. 3:08-CV-2241-G, 2009 WL 2958370 (N.D. Tex.
Sept. 15, 2009) (unpublished) (Fish, J.). In Verrando, the plaintiffs were individuals
who had received a notice of violation from the City of Dallas for running a red light.
Id. at *1. These plaintiffs then sued the company that had allegedly sold the red light
cameras to the City of Dallas, arguing that the company was operating without a
necessary state license. Id. This court found that the plaintiffs lacked standing to
bring the suit, because the injury they suffered -- the civil fine paid -- was not a
“legally protected right.” Id. at *3.
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However, the facts in Verrando are distinguishable from the facts in this case.
Unlike the plaintiffs in Verrando, the plaintiffs in this case do not dispute the need to
pay the toll, a fine for failure to pay the toll, or the imposition of a lawful
administrative fee. Plaintiffs’ Response at 4. Instead, the plaintiffs allege that the
defendants have imposed “excessive” administrative fees that are in violation of their
federal and state constitutional rights. Id. An allegation of an excessive
administrative fee imposed on a given driver is an allegation of an actual, concrete,
and particularized harm. Thus the plaintiffs have fulfilled the “injury in fact”
requirement of Lujan.
The defendants also argue that plaintiff Lewis and the Class Two plaintiffs fail
to sufficiently allege that they have suffered an “injury in fact.” Defendants’ Motion
at 7. Unlike the other named plaintiffs and the Class One plaintiffs, Lewis and the
Class Two plaintiffs have been billed the administrative fees on their violation
invoices, but they have not yet paid them. Id. Nevertheless, the plaintiffs’ complaint
presents enough facts to allege injuries to Lewis and the Class Two plaintiffs that are
sufficiently “concrete and particularized” and “actual and imminent.” See Lujan, 504
U.S. at 560.
While Lewis may have not yet paid out any money to the NTTA, the
complaint alleges sufficient facts to show “injury in fact.” The complaint alleges that
Lewis received a violation invoice which quoted an administrative fee of $1546.91,
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which was later raised to over $4400. See Complaint ¶ 48. The complaint also
alleges that NTTA “sent the matter to collections,” and that he has “suffered damage
to his credit.” Id. ¶ 49. These are not “conjectural or hypothetical” allegations of a
potential invasion; these are real measures taken by the NTTA to directly collect from
Lewis an administrative fee that the plaintiffs allege is unconstitutional.
Likewise, the complaint’s allegations with respect to the Class Two plaintiffs
are sufficient to fulfill the “injury in fact” requirement. This is because the Class Two
plaintiffs are defined as those who “used an NTTA tollway and who [were] . . .
notified or assessed an Administrative Fee, via a violation invoice.” Complaint ¶ 51.
Thus the individuals who fit within Class Two are not people who might be assessed
an allegedly excessive administrative fee; these are individuals who have already
received their violation invoices and have been assessed the administrative fee in
question. This distinguishes the Class Two plaintiffs from individuals who are subject
only to the “the possibility of future harm” or a “general threat of prosecution.” See
Defendants’ Reply Brief in Support of Motion to Dismiss (“Defendants’ Reply”) at 4
(docket entry 23). The defendants’ motion to dismiss for lack of jurisdiction is
denied.
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B. Rule 12(b)(6): Failure to State a Claim
Upon Which Relief Can Be Granted
The defendants have moved to dismiss the plaintiffs’ claims in this case under
FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) for “failure to state a claim for which
relief can be granted.” Defendants’ Motion at 8.
1. Legal Standard
“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
‘enough facts to state a claim to relief that is plausible on its face.’” In re Katrina
Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic
Corporation v. Twombly, 550 U.S. 544, 570 (2007)), cert. denied, 552 U.S. 1182
(2008). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of [its]
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(citations, quotations marks, and brackets omitted). “Factual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Katrina Canal,
495 F.3d at 205 (quoting Twombly, 550 U.S. at 555) (internal quotation marks
omitted). “The court accepts all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.” Id. (quoting Martin K. Eby Construction Company, Inc.
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v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)) (internal quotation
marks omitted).
The Supreme Court has prescribed a “two-pronged approach” to determine
whether a complaint fails to state a claim under Rule 12(b)(6). See Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1949-50 (2009). The court must “begin by
identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.” 129 S.Ct. at 1950. The court should then
assume the veracity of any well-pleaded allegations and “determine whether they
plausibly give rise to an entitlement of relief.” Id. The plausibility principle does not
convert Rule 8(a)(2) notice pleading to a “probability requirement,” but “a sheer
possibility that a defendant has acted unlawfully” will not defeat a motion to dismiss.
Id. at 1949. The plaintiff must “plead[ ] factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged -- but it has not ‘show[n]” -- ‘that
the pleader is entitled to relief.’” Id. at 1950 (quoting FED. R. CIV. P. 8(a)(2)). The
court, drawing on its judicial experience and common sense, must undertake the
“context-specific task” of determining whether the plaintiff’s allegations “nudge” its
claims against the defendant “across the line from conceivable to plausible.” See id.
at 1950, 1952.
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2. Application
In their complaint, the plaintiffs allege that the defendants have violated their
federal constitutional rights under the Due Process Clause of the Fourteenth
Amendment, as well as the Excessive Fines Clause of the Eighth Amendment as
incorporated against the states through the Fourteenth Amendment. Complaint
¶¶ 55-61, 69-75. The plaintiffs seek relief for these alleged constitutional violations
under 42 U.S.C. § 1983. Id. The plaintiffs also allege that the defendants violated
their Texas state constitutional rights to enjoy property without unlawful deprivation
under Sections 17 and 19 of Article 1, and the prohibition on excessive fines under
Section 13 of Article 1. Id. ¶¶ 76-82, 88-93.
a. The Plaintiffs’ Arguments
The plaintiffs’ claims are based on the proposition that the NTTA violated
Texas statutory law when it assessed the administrative fees. The plaintiffs have
offered two principal arguments as to why the NTTA violated Section 366.178. First,
they argue that the NTTA’s policy of assessing an administrative fee based upon each
transaction, instead of upon each invoice sent out, is a violation of the express terms
of Section 366.178. Second, they argue that the administrative fees that the NTTA
has imposed on drivers violate the statutory requirement that the fees are charged “to
recover the cost of collecting the unpaid toll.” See TEXAS TRANSPORTATION CODE
§ 366.178(c).
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i. Assessing the administrative fee on a per transaction,
rather than per invoice, basis
The plaintiffs argue that the NTTA’s policy of assessing an administrative fee
based upon each transaction is in violation of Section 366.178. Complaint ¶ 2.
However, a careful reading of Section 366.178 shows that the NTTA’s per
transaction policy is correct. By its terms, Section 366.178 addresses only a failure to
pay a toll, not an invoice. Section 366.178(b) states that a person who fails to pay “a
toll” is liable for a fine and an administrative fee “incurred in connection with the
violation.” (emphasis added). And Section 366.178(c) states that the NTTA can
charge an administrative fee “to recover the cost of collecting the unpaid toll.”
(emphasis added). In addition, Section 366.178(d) suggests that the NTTA’s
interpretation regarding the imposition of administrative fees is required by the
statute. This subsection states that “[t]he registered owner shall pay a separate toll
and administrative fee for each nonpayment.” TEXAS TRANSPORTATION CODE
§ 366.178(d) (emphasis added). That is, each failure to pay a separate toll is a single
instance of nonpayment, and each instance of nonpayment requires its own separate
administrative fee. Therefore, an administrative fee is imposed for each toll.
Furthermore, the Texas Legislature’s amendments to Section 366.178
demonstrate that the NTTA properly interpreted the statute in developing its
administrative fee policy. As the defendants note, “[w]hen the legislature amends a
law, it is presumed that it intends to change the law.” Defendants’ Brief Regarding
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Effect of Senate Bill 469 (“Defendants’ S.B. 469 Brief”) at 5 (docket entry 29)
(quoting Schott v. Leissner, 659 S.W.2d 752, 754 (Tex. App.--Corpus Christi 1983),
writ ref’d n.r.e., 668 S.W.2d 686 (Tex. 1984) (per curiam)). The fact that the
legislature changed the statute to one that imposes per-invoice (as well as per-toll)
administrative fees suggests that pre-S.B. 469 Section 366.178 only dealt with pertoll fees. Moreover, in amending Section 366.178, the Senate expressly stated that
the NTTA’s interpretation of the original text was correct.
Currently, [the] statute authorizes the North Texas Tollway
Authority to assess an administrative fee of up to $100 per toll
transaction and a subsequent fine of $250 per transaction for late
payments. With advancements in electronic tolling, using
toll roads has become more convenient for residents, and
an average invoice contains twelve transactions; however,
because bills arrive in the mail days or weeks after a toll
road trip, drivers sometimes unknowingly miss a payment.
Violators should be held accountable, but the current
penalty structure allows fines and fees to accumulate to the
point that drivers are unable to afford them; an average
invoice could cost a driver thousands of dollars for missing
a payment.
[S.B. 469] reduces the initial fee from $100 to $25 and
makes the fee applicable to a monthly invoice instead of per
transaction. The bill also makes the subsequent fine of
$250 applicable to a monthly invoice instead of per
transaction.
Senate Committee on Transportation and Homeland Security, Bill Analysis, Texas
S.B. 469, 82nd Legislature, R.S. (2011) (emphases added).
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ii. Administrative fees and the cost of collecting the toll
The plaintiffs also argue that the defendants’ administrative fee policy violates
Section 366.178(c)’s requirement that the administrative fee be charged “to recover
the cost of collecting the unpaid toll.” The plaintiffs’ complaint alleges that it costs
the NTTA $3.86 to send out a ZipCash invoice, and $4.61 to send out a violation
invoice. Complaint ¶ 25. However, the complaint alleges that the plaintiffs were
charged hundreds or even thousands of dollars in administrative fees. Id. ¶¶ 37, 41,
44, 48; see also id. ¶ 2 (“[W]hile the true administrative cost of the unpaid tolls on
one violation invoice are less than $10 and at the very least are of a fixed amount as
determined by the invoice that they are collectively sent out on, the NTTA regularly
and customarily charges over $100 to recover the ‘cost of an unpaid toll.’”)
The defendants argue that the plaintiffs are wrong to “equate the alleged actual
cost of mailing a single invoice with the cost of collecting the unpaid toll.”
Defendants’ Motion at 11 n.49 (“Ignoring the facial fallacy of such a statement, it
defies logic to suggest that the cost of collecting a single unpaid toll is equal to the
cost of collecting, from the same individual, sixty unpaid tolls.”). Moreover, the
defendants cite the Supreme Court’s decision in United States v. Sperry Corporation,
493 U.S. 52, 60 (1989), where the Court stated that it “has never held that the
amount of a user fee must be precisely calibrated to the use that a party makes of
Government services.” See Defendants’ Motion at 14. Instead, the Supreme Court
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has required that a user fee only must be a “fair approximation of the cost of benefits
supplied.” Id. at 14-15. Finally, the defendants emphasize that the NTTA has the
power to “do all things necessary and appropriate to carry out the powers expressly
granted to it,” TEXAS TRANSPORTATION CODE § 366.033(a)(14), and that the statute
“shall be liberally construed to effect its purposes,” id. § 366.002(b). See Defendants’
Motion at 11 & n.46.
Nevertheless, the difference between the plaintiffs’ allegations of the NTTA’s
administrative costs, and the administrative fees imposed on certain drivers, appears
to be vast. Because the issue arises in the context of a motion to dismiss, the court
cannot make any factual determinations about whether the fees were appropriate to
recover the cost of collecting the unpaid toll. Consequently, the court cannot
determine, on this motion, whether NTTA’s administrative fee practice did or did not
violate Section 366.178(c).
b. Due Process Clause of the Fourteenth
Amendment to the U.S. Constitution
The Fourteenth Amendment to the U.S. Constitution prohibits states from
depriving “any person of life, liberty, or property, without due process of law.” U.S.
CONST. amend. XIV. Under 42 U.S.C. § 1983, the plaintiffs can recover damages for
a constitutional violation if they can prove that the defendants deprived them of a
constitutional right or privilege while the defendants were acting under color of state
law.
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Under Texas law, money is considered property. Canal Insurance Company v.
Hopkins, 238 S.W.3d 549, 568 (Tex. App.--Tyler 2007, pet. denied) (citing Norris v.
City of Waco, 57 Tex. 635, 643 (Tex. 1882)). As a result, the state cannot deprive a
person of his money without due process. Woodard v. Andrus, 419 F.3d 348, 353-54
(5th Cir. 2005).
A violation of a state statute, however, is not necessarily a violation of a
constitutional right. Woodard, 419 F.3d at 353 (“[A] violation of a state statute alone
is not cognizable under § 1983 because § 1983 is only a remedy for violations of
federal statutory and constitutional rights.”). It is also true, though, that a person
acting under color of state law can violate a constitutional right by violating a
particular state statute. For example, in Woodard, 419 F.3d at 352-53, the Fifth
Circuit found that a plaintiff had pled a successful due process claim under Section
1983 by alleging that a court clerk had charged and collected litigation fees that were
in excess of those authorized by a state statute.
In this case, the plaintiffs have properly pled a Section 1983 claim for a
violation of the Due Process Clause. First, the plaintiffs have pled that “[t]he NTTA
is an entity of statutory creation, existing only under color of [state] law.” Complaint
¶ 56. Second, because money is considered property in Texas, they have pled that
they were deprived of a property right. Id. ¶ 60. Finally, to the extent that the
administrative fees imposed were more than Section 366.178 permitted, the plaintiffs
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have pled that they were deprived of their property without due process of law. Id.
¶ 59.
c. Federal Excessive Fines Clause of the Eighth
Amendment to the U.S. Constitution
The Eighth Amendment to the U.S. Constitution prohibits the imposition of
“excessive fines.” U.S. CONST. amend. VIII.
There is a surprising amount of confusion as to whether the Excessive Fines
Clause has been incorporated against the states through the Due Process Clause of
the Fourteenth Amendment. In a recent decision, the Court expressly stated that it
has “never decided whether . . . the Eighth Amendment’s prohibition of excessive
fines applies to the States through the Due Process Clause.” See McDonald v. City of
Chicago,
U.S.
, 130 S.Ct. 3020, 3035 n.13 (2010). In support of this
proposition, Justice Alito cited Browning-Ferris Industries of Vermont, Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 276 n.22 (1989) (“We shall not decide whether the
Eighth Amendment’s prohibition on excessive fines applies to the several States
through the Fourteenth Amendment[.]”). In the past, the Fifth Circuit has also held
that the clause has not been incorporated against the states. See Broussard v. Parish of
Orleans, 318 F.3d 644, 652 (5th Cir.) (“[T]he Supreme Court has never directly
applied the Excessive Fines Clause of the Eighth Amendment to the several states.”),
cert. denied, 539 U.S. 915 (2003).
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However, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424,
433-34 (2001), Justice Stevens stated that the Fourteenth Amendment “makes the
Eighth Amendment’s prohibition against excessive fines and cruel and unusual
punishment applicable to the States.” In the past, Justice Stevens has supported
incorporating the Excessive Fines Clause against the states in dissent. See BrowningFerris, 492 U.S. at 284 (“I see no reason to distinguish one Clause of the Eighth
Amendment from another for purposes of incorporation, and would hold that the
Excessive Fines Clause also applies to the States.”) (O’Connor and Stevens, JJ.,
concurring in part and dissenting in part).
Furthermore, the Fifth Circuit has cited Cooper and applied the Excessive Fines
Clause against the states. See Watson v. Johnson Mobile Homes, 284 F.3d 568, 572
(5th Cir. 2002) (“The imposition of punitive damages under state law is constrained
by the Eighth and Fourteenth Amendments, the first proscribing excessive fines and
cruel and unusual punishment, the second making grossly excessive punishments
unlawful under its Due Process Clause.”). And there are appellate cases outside the
Fifth Circuit that have applied the Excessive Fines Clause to state entities. See, e.g.,
Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000). In Wright, the Ninth Circuit
simply assumes that the Excessive Fines Clause applies against a state agency. 219
F.3d at 915-19.
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However, most commentators appear to believe that the Supreme Court has
not expressly incorporated the Excessive Fines clause against the states through the
Fourteenth Amendment. For example, Rotunda and Nowak state that the Excessive
Fines Clause has “not been the subject of litigation which would establish [its]
application to the states.” RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON
CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE, § 14.2(a) (2011).
Nevertheless, they also state that “because the provision seems logically intertwined
with the other provisions of that Amendment, it may already have been impliedly
made applicable to the states.” Id. Furthermore, Professor Chemerinsky states that
“the Court has never ruled as to whether the prohibition of excessive fines in the
Eighth Amendment is incorporated.” ERWIN CHEMERINSKY, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES 505 (3rd ed. 2006).
After considering the relevant precedent, this court concludes that the
Excessive Fines Clause of the Eighth Amendment has not yet been incorporated
against the states through the Due Process Clause of the Fourteenth Amendment.
First, in the most recent case on the matter, the Supreme Court stated that the Clause
had not been incorporated. See McDonald, 130 S.Ct. at 3035 n.13. Second, two of
the most respected treatises on constitutional law state that it has not been
incorporated. See NOWAK AND ROTUNDA § 14.2(a); CHEMERINSKY at 505. Finally, it
is unlikely that the Excessive Fines Clause could have been incorporated as a result of
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Justice Stevens’ opinion in Cooper Industries. To support his position that the “Eighth
Amendment’s prohibition against excessive fines and cruel and unusual punishments
applicable to the States,” Justice Stevens cites Furman v. Georgia, 408 U.S. 238
(1972). However, Furman deals with whether the death penalty violates the Cruel
and Unusual Punishment Clause; it only mentions the Excessive Fines Clause in
passing. When considered against Justice O’Connor’s dissenting opinion in BrowningFerris, which Justice Stevens joined, it appears that the line in Cooper Industries was
more wishful thinking than a statement of the law. As a result, this court concludes
that the Excessive Fines Clause is not incorporated against the states, and so a statecreated entity like the NTTA could not have violated it. Therefore, the plaintiffs’
Section 1983 claim against the defendants for a violation of the Excessive Fines
clause of the Eighth Amendment is dismissed.
d. Texas Constitutional Claims
The plaintiffs also allege that the defendants violated their Texas state
constitutional right to enjoy property without unlawful deprivation under Sections 17
and 19 of Article 1, and the prohibition on excessive fines under Section 13 of Article
1.
i. Governmental Immunity for the NTTA
The NTTA argues that it is entitled to governmental immunity, which would
bar the state law claims brought against it. Defendants’ Motion at 19-20. The
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NTTA is an authority created under chapter 366 of the TEXAS TRANSPORTATION
CODE, which makes it “a body politic and corporate and a political subdivision of this
state.” Id. § 366.032(a). As a political subdivision of the state, the NTTA is entitled
to governmental immunity. See Tooke v. City of Mexia, 197 S.W.3d 325, 331 n.11
(Tex. 2006) (internal quotations omitted). Governmental immunity protects an
entity from suit unless there has been a clear and unambiguous waiver of this
immunity. Id. at 328-29. Moreover, a plaintiff who wishes to sue a governmental
entity must plead and establish that the NTTA’s immunity has been waived. Texas
Department of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
In this case, the plaintiffs have not pled or established that the NTTA’s
governmental immunity has been waived. See Defendants’ Motion at 20.
Furthermore, the plaintiffs appear to have admitted as much in their response. See
Plaintiffs’ Response at 22. As a result, the plaintiffs’ state constitutional claims again
the NTTA are barred. The defendants’ motion to dismiss these claims is granted.
ii. State constitutional claims against individual
NTTA directors and officers
While governmental immunity protects the NTTA from suit on the plaintiffs’
state constitutional claims, “governmental immunity . . . does not preclude
prospective injunctive remedies in official-capacity suits against government actors
who violate statutory or constitutional provisions.” City of El Paso v. Heinrich, 284
S.W.3d 366, 368-69 (Tex. 2009). Because Texas does not recognize a private cause
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of action for money damages for a violation of the Texas Constitution, see City of
Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995), the plaintiffs only request
injunctive relief for their state constitutional claims in their complaint. See Complaint
¶¶ 82, 93. First, the plaintiffs request that this court “stop[] the NTTA’s policy of
charging administrative fees per transaction as opposed to per invoice[.]” Id. Second,
the plaintiffs request “a monthly accounting to ensure that only administrative ‘costs’
were being charged.” Id.
However, even if the plaintiffs are able to prove that the defendants violated
the plaintiffs rights under the state constitution, this court will not grant either of the
two injunctions that the plaintiff has requested. First, this court will not stop the
NTTA from charging administrative fees per transaction, instead of per invoice,
because both the pre- and post-S.B. 469 versions of Section 366.178 permit (or
require) the NTTA to do so. See supra section II.B.2.a.i. Second, this court will not
grant a monthly accounting to ensure that only administrative costs are being
charged, because post-S.B. 469 Section 366.178 demonstrates that the legislature did
not intend to require the NTTA to tie its administrative fees to “costs.” In S.B. 469,
the Texas state legislature removed the requirement that administrative fees be used
“to recover the cost of collecting the unpaid toll.” This indicates that the legislature
no longer wanted to limit the NTTA’s discretion in setting administrative fees in this
manner. Instead, the legislature chose to give the NTTA more latitude in setting the
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administrative fees, as long as they were within the escalating fee scheme created by
S.B. 469. See supra section I.B. As a result, the plaintiffs state constitutional law
claims for injunctive relief against the directors and officers of the NTTA are
dismissed as moot.
C. Individual Defendants’ Defenses
Along with the defenses offered by the NTTA, the individual defendants have
moved to dismiss on two additional grounds. First, they argue that the plaintiffs have
failed to satisfy the pleading requirements under Federal Rule of Civil Procedure
8(a)(2) and 12(b)(6). Individual Defendants’ Motion at 4. Second, they argue that
they are entitled to qualified immunity from all of the plaintiffs’ claims. Id. at 9.
1. Failure to satisfy pleading requirements under Rule 8(a)(2) and 12(b)(6)
In order to support a cause of action, the plaintiffs must have stated a legally
cognizable claim under FEDERAL RULE OF CIVIL PROCEDURE 8(a)(2) and 12(b)(6).
Under Rule 8(a)(2), a complaint must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” This standard “does not require
detailed factual allegations, but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. 662, 129 S. Ct. at 1949.
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. In particular, the plaintiff must “plead
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that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Id.
In this case, the plaintiffs’ complaint has sufficiently pled the individual
defendants’ participation in developing the allegedly unconstitutional administrative
fee scheme. The complaint alleges that as members of the NTTA Board of Directors,
Wageman and Vandergriff specifically voted “[i]n March of 2010 . . . to continue
[NTTA’s] administrative fee charging policy.” Complaint ¶¶ 27-28, 31. The
complaint also alleges that Clemson and Davis, as Executive Directors of the NTTA,
had “financial oversight as well as the creation of financial policies for the NTTA.”
Id. ¶ 32. Furthermore, the complaint alleges that Williams, as Director for Toll
Collections, was responsible for “planning, organizing, supervising and directing the
operations of the Toll Collection Department.” Id. ¶ 34. Finally, the complaint
alleges that Howe, as Assistant Executive Director of Operations for the NTTA,
“maintained supervisory authority over the Director of Toll Collection and value.” Id.
¶ 35. These allegations support the plausible inference that each of the individual
defendants were instrumental in developing the administrative fee policy. As a result,
the plaintiff’s complaint has met the pleading requirements set forth in Rule 8(a)(2)
and 12(b)(6).
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2. Qualified Immunity
The individual defendants also argue that they are entitled to qualified
immunity. Under the doctrine of qualified immunity, “government officials
performing discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (outlining the standard in a Bivens action); see
also Wilson v. Layne, 526 U.S. 603, 609 (1999) (“Although this case involves suits
under both § 1983 and Bivens, the qualified immunity analysis is identical under
either cause of action.”). Once the defendants have raised this defense, the burden
shifts to the plaintiffs to show that the individual defendants are not entitled to
qualified immunity. See McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.
2001) (en banc) (“When a defendant invokes qualified immunity, the burden is on
the plaintiff to demonstrate the inapplicability of the defense.”), cert. denied, 537 U.S.
1232 (2003).
To overcome a motion to dismiss based on qualified immunity, the plaintiffs
must demonstrate two things. First, the plaintiffs must have alleged facts sufficient to
show that the individual defendants violated a constitutional right. See Pearson v.
Callahan, 555 U.S. 223, 232 (2009). Second, the plaintiffs must show that the
constitutional right was clearly established at the time of the individual defendants’
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alleged misconduct. Id. “This inquiry turns on the objective legal reasonableness of
the action, assessed in light of the legal rules that were clearly established at the time
it was taken.” Id. at 244 (internal quotations omitted).
This court is permitted to consider the two prongs of the qualified immunity
test in any order. Id. at 236. In considering the second prong of the test first, it is
clear that the individual defendants actions were not objectively unreasonable. The
principal issue remaining in this case is whether the defendants violated Section
366.178(c)’s requirement that the fee be used “to recover the cost of collecting the
unpaid toll.” See supra section II.B.2.a.ii. However, this provision permits the NTTA
to charge “not more than $100” as the administrative fee. Texas Transportation
Code § 366.178(c). By charging a $25.00 or $8.33 transaction fee, which is well
below the $100.00 limitation, the directors and officers of the NTTA could plausibly
have thought that they were in compliance with the statute. Therefore, their actions
were not objectively unreasonable, and thus they are entitled to qualified immunity.
III. CONCLUSION
For the reasons stated above, the defendants’ Rule 12(b)(1) motion to dismiss
the plaintiffs’ claims for lack of jurisdiction is DENIED, but their Rule 12(b)(6)
motion to dismiss, for failure to state a claim, the plaintiffs’ claims under the
Excessive Fines Clause of the Eighth Amendment, the Equal Protection Clause of the
Fourteenth Amendment to the federal constitution, the right to enjoy property
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without unlawful deprivation under Article 1, Sections 17 and 19 of the Texas
Constitution, the right to equal treatment and protection under Article 1, Section 2
of the Texas Constitution, and the prohibition of excessive fines under Article 1,
Section 13 of the Texas Constitution is GRANTED, and those claims are
DISMISSED. Furthermore, the defendants’ Rule 12(b)(6) motion to dismiss all of
the claims brought against the individual defendants is GRANTED. The NTTA’s
Rule 12(b)(6) motion to dismiss the plaintiffs’ federal constitutional claim under the
Due Process Clause of the Fourteenth Amendment is DENIED.
SO ORDERED.
November 14, 2011.
___________________________________
A. JOE FISH
Senior United States District Judge
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