the court bill davis for appellant steve mccraw the plaintiff's claims against the crawl are jurisdictionally barred for several reasons but because a ruling in our favor on the tax injunction act would prevent any need for the court to address the other issues i'd like to start there well i i'm sorry ana why why does the tax injunction 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  now this argument that is your best argument and the true lead in leaning lead in force initially was an oversight it should have been  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 i apologize judge jones if i made we have high expectations if they stick to the merits of the argument the court's decision anderson vs stadler makes several important points the first is the word tax and tax injunction act must be construed broadly to effectuate congressional intent the second is that in this circuit tax injunction analysis tax act tax injunction act analysis proceeds based on the three part test laid out and nine asked versus texas for distinguishing between a regulatory fee on the one hand and 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 to freight any regulatory costs and we have here a one percent fee that does go to cover the cost of the program that's similar to the three dollars fifty cent charge at issue in henderson but the court put that aside and look to the rest of the money here we have ninety nine percent going to general revenue half of that ninety nine percent going to general revenue directly and the other half going to specific programs designated by the legislature that have broad public purposes 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 your brief on appeal the same i mean so why don't you why don't you move on to your other argument certainly  honor i'd like to move to sovereign immunity and on this point we know that the district court's order could mislead other courts the lawyers settle both in the supreme court and in this court under the doctrine of ex parte young in which the supreme court considered and laid out in its opinions arguments from the parties very similar to the arguments laid out in the briefs in this case i came out our way in that decision and has not changed or sense in this circuit the court's decision in jagging and inverses giles is particularly instructive that case like this one involved a fourteenth amendment claim there it was to a state statute that allow d mississippi state university to charge out of state tuition to resident aliens the district court struck down that statute is unconstitutional and the state did not appeal that ruling and so there is 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 adelman was decided the court followed edelman and said no sovereign immunity bars that relief whatever you may think about the equities that situation any decision for the plaintiffs in this case would conflict with edelman in and with the decisions from all of the other circuits cited in footnote three on pages thirty four thirty five of our opening brief what about the east systems case the east distance case contained no sovereign immunity university at the time that case was moving through the courts then a court kids prospectively enjoin any future tuition payment being above what the constitution permitted but of course we don't have that here we have the actual facts jack now and it is 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 poppies on one of them is that  since the state would collect one hundred dollars for three years if this is a class action or even as pertains to these plaintiffs if they are exposed to an additional one hundred dollars in future years that part of it would be what i've been talking about so far is the refund claim that's part by seventy 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 and ongoing violation i feel that's sufficiently laid out in the briefs unless there are questions on this straight to the moon is analysis which is arguably the trickiest part of this case before you get to the merits of the ordinary enquirer the sovereign immunity point to the time that the motion for class certification is filed and if at that point the name plaintiff's claims are moot than the action must be dismissed now we wait under both of these tests because in this case the department of public safety corrected the name plaintiff's records several months before any motion for 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  classification motion that they did file was limited to defendants other than mccraw and so in order to win on their moon is argument here the plainest would have to obtain and even further extension of circuit precedent and we know from the supreme court's decision in genesis health care that that court is headed in the opposite direction here in parts three a in three b of genesis health care the supreme court walks through the two types of relation back doctrine that arguably apply 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 court's ruling such that if the plaintiffs claims are alive at 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 three b of genesis health care 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 that involved a challenge to temporary pretrial 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 pla have not argued that these claims are inherently transitory and they couldn't because as your honor judge jones as you mentioned earlier the theory here on record correction is that these plaintiffs will be subject to three hundred dollars worth of charges because there's one hundred dollars a charge every year and so there's a three year period that's far longer than any inherently transitory let me ask you question there was some statement in the brief about how the plaintiffs got back all their money and that but something about a correction form being filed with the state was that something that 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 d p s and so if the plaintiff gets a notice that there's a certain surcharge that he or she has that the city court system and then the city gives that information do 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 hon r i do know that this function is record was corrected two months before macross was even sued and so and all of these plaintiffs records were corrected within three business days of texas is not taken automatic steps to expunge all of the wreckage will have to have documentation from the court in which they were convicted and so on really the state wants to make sure it's getting it right and so on this state wants to make sure it's getting it right under stand that i mean it seems to me that the case is as far from far from moot are as far as as far as  assurance you're going to don't thing about honor that's not correct and it would create a certain suck hole that's not that i can take to oh i'm sorry speak up just a little bit yes certainly that's not correct and it would create a certain split if the court were to hold that in rocky versus king this court court would follow the federal circuit which i believe is alone on that i don't mean it seems to me that your argument that the case does not require any further injunctive relief to the extent that me because if anybody could be a match to any class action well i mean they've got the father got hurt and we may hurt a few more but if we had a few more they can follow a new class action and then voluntarily corrected as of whenever that affidavit was filed right that's right is as missives notes in her affidavit the department corrected over twenty thousand of these records i'm saying that  doing and that is to voluntarily correct these records and some kind of programatic way it is it is always been the department's policy to process valid corrections you know as i have done is aware of that's about as unresponsive to the question i ask i'm sorry i am trying to say what are they doing now programatic late to to correct these records they are they're processing corrections forms that come in from court systems reflecting erroneous records that those are nice shaded by individuals and a lot of people are going to be excluded from this process of the city if you sense a big malefactor here right that's that's correct they are out of it now no they're not out of it there's ongoing litigation until they settled it right well it last month the district court granted summary judgment in favor of the city of houston i'm sure that will go on appeal so that there will be submit there's also a may 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 in the state began to discuss this issue you and what happened is then that the city of houston was allowed to self selected a small population of people that the city dean 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 putative class the first we heard of any of this was on october eighth when the state filed this last minute motion with the affidavit of rebecca heads simultaneously with its motion notice of appeal and stay so in a sense they threw in this mood in this evidence and it slammed the door shut on the way up here it's never been able to be tested by the court or the plaintiff 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 we mean i realize that relation back is not the state strongest argument but zeidman is the controlling authority in the fifth circuit and sidemen says that it's time to courting when the class certification motions file genesis although i say it got an argument in your favor on that but we have to go with the rule of the earliest controlling case which is sidemen that's my view anyway but the judge jones even in the murray case which is clearly a rule 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 twenty three stop applying class rule twenty three actions  is still the rule and what sandow says is that the trial court should be given a reasonable opportunity to consider rule upon the class certification in this case which lead me has upped well right sandoz can say what it says that's a very odd rule that's out of line with every other circuit i think will but i believe your honor actually the third circuit well even though i are in the team i read the third i read judge through a consent pinion 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 plaintiffs having a fair opportunity to present its motion and there was little doubt from the time you filed your case but as to all of the defendant except mccrie you were seeking class treatment yes but we moved your honor within within six months of filing the complaint in within four months of the of the stadium and when you move to use 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 eighth today which is the same day that the state flower filed this flurry of motions and then stay behind them on that very day we had filed a motion with 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 a across yes because at that time there was no state that afternoon two and a half hours later they rushed in they stay the case so on the next monday when we formally because the judge agreed that we could have the extra pages when we 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 if it was not heard as against the state but it was  with the state in it and would have been had they not stated 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 or to cation yes there was it required the class motion to be filed by december thirtieth we actually filed it on october tenth 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 this going you think  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 are 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 is the section one thousand nine hundred three 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 court and you're not even have a cause of faction under state law against the state well actually the law in the state of texas is the state pointed out in heinrich opinion is really quite similar it basically follows the same ex parte young woman 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 before him remember tax injunction act mutinous none of this was in front of the district judge when he was ruling on a motion to dismiss on jurisdiction any found quite fairly straightforward he found that the pla is the correction of records i got unfortunately neither party put the first amended complaint in your record excerpt but we read it anyway and there is not a word in there about seeking injunctive relie exponential the quote convictions i call them citations for traffic violations in order to prevent the future iranians collection of these these penalties so i don't understand how the district your judge got to your request for quote other and for the relief being records correction when all you asked for in practically every paragraph on every page  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 for act that they cease maintaining records that reflect false convictions from an injunction to cease and reporting and of the state of texas as being convictions bordering defendants to seize and reporting violations well the only people who were reporting was the city of houston right i gree on that and it's the court will continue and ordering correction it's ok i just was hoping and ordering correction of the driving records maintained by the state of texas and then the problem is your honors 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 river correcting of records of people 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 well i think the injuries is twofold your honor the first injury is of course the the taking of property which is the result of those incorrect convictions or talk about money well we're talking about money as part one because once that conviction is on record the state d p s has to by statute go get the money you know 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 when i ask you where is the entry the only thing you can say is the money that was so if we decide that this money is it's not relief that you're entitled to  one part two hundred part two is that we believe that the district court in this case found that the continued maintenance on the official record of false criminal records is in and of itself citation for driving without a license as opposed to a citation for driving without possession of your law so what can what happens other than taking the money as a result of a false citation erroneous citation for driving without a license well i think many things can happen broader than for example if you are if you are someone who's as it is routinely done now where your driving record is something the check is a part of the 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 three hundred dollars 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 if it the gist of this is a due process file lieschen right yes well it's actually an ultra vires claim that results in a due process 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 in 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 i don't think you disputed this that if when you know mrs mrs jarley mr jolly who was an innocent driver in the city of houston cicerone his citation and she gets a bill in the mail from the state of texas for one hundred dollars she can haul on down to the city courts and i'm very familiar with that means a supreme court she can haul on down there to the convecting court and say what's this might 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 he's that's what he said is he lying to us first of all when you get that letter from the collection agency for the d p s 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 the questions but it's certainly a customer service number that doesn't even answer anything the collection notice has to be initiated by the court to 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 he views corpus proceeding and this would be the civil equivalent of behaviors corpus if it is just  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 can rely we believe i'm sorry that you got back as a question you're actually answering my question which was do you think judge jones this question is one that should be addressed in the district court to begin with i absolutely do and i look at the move this issue even related question yes i understand it is your position that there  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 no your view is worst case on weakness is we to the district court for further factual development on the ice that would yes that would be our our alternative request hypothetical question if that in fact happen should we anticipate requests to intervene from other potential named plaintiffs i don't know that there would be a request to intervene because i believe that sandoz without creating a an issue here i believe the sandoz allows this case to be remitted back and for the court to go ahead and reach the issue of class certification as to the state which has been on stage since october of last year if in fact the court finds in grant's the motion to certify under the the opportunity to present that information that you needed absolutely not because a well why didn't you ask for more heart in that happened because as i explained earlier the only information about jurisdiction in this case of 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 new this evidence and a motion for a notice of appeal and stay at the exact same moment right arm and so we never had a chance and 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  who fit the class and who were not taken 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 sure so i can i court dismiss the city of houston on the one nine hundred eighty three claim because it found that although clearly this happened and we all know this happened the court found that the the that the city did not recognize that it was not part of a plan or a scheme it wasn't fact a negligent error in addition however yeah that but the did the district court also dismissed the ultraviolet rays claim against the clerk who does the reporting but that's an issue that we believe we do tax so he said it's not a tax for purposes of anti junction 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 on line with with  m more importantly it according texas in looking at a double jeopardy challenge for you right now here i thought he answered your question so he said there's a state court decision there is a state court decision it's sided in our brief it beginning on that point the what the state court says doesn't influence tax injunction act analysis we know that from henderson we know from washington versus lineberger that in this circuit a penalty can be a tax injunction act tax in that case the court confronted a thirty percent penalty on delinquent tax payments where that cut where the money from that penalty went to cover collection costs the court nevertheless held that that penalty  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 the 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 go asked about mr miller's situation i believe and there's a we dispute there's a dispute about whether miller got his money he says 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 soley to the refund claim and so that's separate and apart from the moon is analysis and that claim is barred in total by sovereign immunity and in response to what we've said in the hibs declaration and we understand the timing of the district court's order prevented a response to that but the plainest 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 allegedly but none of that goes to our moon this point again the analysis focuses on the named plaintiffs so even if it's true that beyond the twenty thousand 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 mood focuses only on the name plaintiffs and to the extent there's a suggestion that the timing of the second motion to dismiss the fibs declaration was improper or that's that's not correct because his declaration merely documented corrections that happened long before and so the corrections the records were corrected as i said miss fontanne his record was corrected before mccall was even sued that means she l standing in the plaintiff's don't argue against that the other two records were corrected later but again several months before any classification motion was filed and that especially after the supreme court's decision in genesis health care the third circuit in genesis health care relied heavily on santos and of course the supreme court reversed that decision essentially what santos 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 defend 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 health care 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