IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20611

BERTHA M. FONTENOT, Individually and on Behalf of Those Similarly 

Situated; DAVID MILLER; SANTA ZAMARRON, 

 Plaintiffs - Appellees

v.

STEVE MCCRAW, in his official capacity as Director of the Texas 

Department of Public Safety; SUSAN COMBS, in her official capacity as 

Texas Comptroller of Public Accounts, 

 Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY and JONES, Circuit Judges, and GODBEY*, District Judge.

EDITH H. JONES, Circuit Judge:

The claims in this proposed class action arose from the wrongful 

assessment of surcharges under the Texas Driver Responsibility Program. The 

City of Houston misreported the charges against plaintiffs (and members of 

the class they seek to represent) to the State, and the State overcharged them 

as a result. Defendant-Appellant Steve McCraw, Director of the Texas 

Department of Public Safety, appeals the district court’s partial denial of his

motion to dismiss the case against him for want of jurisdiction.1 Because this 

* District Judge of the Northern District of Texas, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

January 23, 2015

Lyle W. Cayce

Clerk

 

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case suffers from a number of jurisdictional defects, we VACATE the order of 

the district court and REMAND with instructions to dismiss.

I. 

The conflict here stems from the confusion of two laws, both of which can 

fairly be characterized as prohibiting “driving without a license.” The first, 

more serious offense requires motorists to be licensed to drive. Tex. Transp. 

Code Ann. § 521.021.2 A driver who violates this law is unlicensed — he is not 

permitted to operate motor vehicles on Texas roads. The other law requires a 

driver to have his license with him while driving and to produce it on demand 

of a peace officer. Id. § 521.025.3 A driver who violates this law is a licensed

driver who simply failed to produce appropriate documentation.

The Texas Driver Responsibility Program requires the Department of 

Public Safety (“DPS”) to assess a $100 surcharge “for conviction of driving 

without valid license.” Tex. Transp. Code Ann. § 708.104. This provision refers 

explicitly to unlicensed driving under § 521.021; no surcharge is imposed for a 

violation of the less serious offense.4 DPS relies on third party reports to 

1 The district court dismissed all claims against defendant Susan Combs, Texas 

Comptroller of Public Accounts. Plaintiffs did not appeal this portion of the district court’s 

ruling. Therefore, although Combs is named as an appellant here, she is no longer a party.

2 Section 521.021 states:

LICENSE REQUIRED. A person, other than a person expressly exempted under this 

chapter, may not operate a motor vehicle on a highway in this state unless the person 

holds a driver's license issued under this chapter.

3 Section 521.025 states:

LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND; CRIMINAL PENALTY. 

(a) A person required to hold a license under Section 521.021 shall:

(1) have in the person's possession while operating a motor vehicle the 

class of driver's license appropriate for the type of vehicle operated; and

(2) display the license on the demand of a magistrate, court officer, or peace 

officer.

4 Another section of the Program, likely more familiar to many drivers, assigns points 

for “moving violations,” which the statute authorizes DPS to define. Transp. Code § 708.052-

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ascertain the identities of drivers who have violated sections of the code. Using 

the third party information, the Department collects the surcharges once a 

year for three years and remits them to the Comptroller. Transp. Code 

§ 708.156; Tex. Health & Safety Code § 780.002(a).

Plaintiff-Appellee Bertha Fontenot brought this § 1983 suit against the 

City of Houston and two private vendors, alleging that the City reported to 

DPS her conviction for failure to produce a license as a conviction for 

unlicensed driving and thereby wrongfully subjected her to surcharges. 

Fontenot’s first amended complaint added David Miller and Santa Zamarron 

as plaintiffs and joined Appellant McCraw and State Comptroller Combs as 

defendants in their official capacities. The plaintiffs alleged that McCraw’s

assessment and collection of surcharges was ultra vires and violated due 

process under the Texas and U.S. Constitutions. Plaintiffs sought declaratory

relief, an order enjoining the maintenance of incorrect records, and a refund of 

the illegal surcharges. The first amended complaint also contained class action 

allegations, but plaintiffs did not immediately seek certification of the class. 

The City admits that it erroneously reported tens of thousands of failure-toproduce convictions as unlicensed driving convictions, and it is undisputed that 

DPS relied on the City’s erroneous reports when it assessed surcharges. 

Combs and McCraw moved to dismiss the claims against them, arguing 

that: (1) the state law claims and request for surcharge refunds are barred by 

state sovereign immunity, (2) plaintiffs lack standing to seek prospective 

injunctive relief, and (3) the amended complaint fails to state a claim. They 

noted that the State was developing a method to refund the erroneously 

assessed surcharges. The district court granted the motion to dismiss with 

054. DPS could list § 521.025 as a moving violation and assess points for violating it, but it 

has not done so as of this opinion. 37 Tex. Admin. Code § 15.89(b)-(c).

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respect to the state law claims against McCraw and all claims against 

Comptroller Combs, who merely received the funds. The court, however,

ultimately denied the motion to dismiss the federal claims against Appellant 

McCraw. The court acknowledged that state sovereign immunity would 

prevent an order directing state officials to pay retrospective money damages

under the doctrine of Ex Parte Young. The court nonetheless opined that if the 

plaintiffs were “to prevail and the Court were to grant declaratory relief, that 

grant would necessarily precipitate refund of the plaintiffs’ money.” It 

concluded that “it would be an anomaly for this Court to enter an order that 

[McCraw’s] action is unconstitutional, while permitting Texas to keep the 

fruits of that unlawful behavior.” The court also rejected the argument that

the plaintiffs lacked standing, reasoning that the DPS’s maintenance of a 

public record reflecting an improper conviction constituted a “continuing, 

present adverse effect.” McCraw timely appealed.

Before us on appeal are the claims of the three plaintiffs against 

Appellant McCraw.5 The claims are of two types: a “record correction claim” 

demanding that the State expunge from plaintiffs’ driving records any 

reference to the more serious offense, and a “refund claim” calling for the 

return of surcharges already paid. Appellant launches a multifaceted

jurisdictional attack based on plaintiffs’ standing, mootness and state

5 On October 10, 2013, plaintiffs moved to certify a class that contained allegations 

against all of the remaining defendants. Together with the motion the plaintiffs filed a notice 

informing the court that they had prepared, but not filed, their motion for class certification 

before the state defendants filed an interlocutory appeal (October 8, 2013) that divested the 

district court of jurisdiction over the state defendants. On August 7, 2014, the district court 

granted summary judgment for all remaining defendants and dismissed the class 

certification motion as moot.

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sovereign immunity.6 These are all issues of law that we review de novo. The 

denial of the state sovereign immunity defense is a reviewable interlocutory 

order. Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011).

II.

A. Standing

McCraw initially challenges plaintiffs’ standing to sue for correction of 

their driving records. Article III standing to sue requires that a plaintiff has

suffered injury (a) to a legally protected interest, and that is actual or 

imminent, concrete and particularized; (b) that is fairly traceable to the 

challenged action of the defendant; and (c) that is redressable by the court.7 

The court must evaluate each plaintiff’s Article III standing for each claim; 

“standing is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6, 116 

S. Ct. 2174, 2183 n.6 (1996). Assuming, as we do, that the maintenance of 

accurate DPS driving records is a cognizable interest the invasion of which 

confers standing, Miller and Zamarron were proper plaintiffs but Fontenot 

lacks standing.

Plaintiff Fontenot amended her complaint to add McCraw as a defendant 

on April 22, 2013. But by then, the Houston Municipal Court had alerted DPS 

to the City’s inaccurate reporting. Based on this new information, on 

January 29, 2013, DPS removed the unlicensed driving conviction from 

Fontenot’s record and replaced it with a failure-to-display conviction. 

Therefore, when plaintiffs brought McCraw into this suit, McCraw had already 

6 McCraw argues that plaintiffs did not adequately plead a continuing violation of 

federal law. Because we resolve the case on other grounds, we need not express any view on 

this issue.

7 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992).

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provided a complete remedy for Fontenot’s record correction claim. If Fontenot 

has standing, it is only for purposes of her refund claim.8

On the other hand, DPS corrected the records of plaintiffs Miller and 

Zamarron only after McCraw was made a defendant. Unlike plaintiff 

Fontenot, these two plaintiffs’ records still reflected the wrong convictions

when McCraw was sued. Consequently, they properly alleged standing to sue

for all asserted claims.

B. Mootness

Even when a plaintiff has standing at the outset, “[t]here must be a case 

or controversy through all stages of a case[.]” K.P. v. LeBlanc, 729 F.3d 427, 

438 (5th Cir. 2013). “A case becomes moot—and therefore no longer a ‘Case’ or 

‘Controversy’ for purposes of Article III—‘when the issues presented are no 

longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’” 

Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726–27 (2013) (quoting Murphy v. 

Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982) (per curiam)). See also 

Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S. Ct. 1055, 1068 

(1997) (holding that “an actual controversy must be extant at all stages of 

review, not merely at the time the complaint is filed”) (quoting Preiser v. 

Newkirk, 422 U.S. 395, 401, 95 S. Ct. 2330, 2334 (1975)). “Generally, any set 

of circumstances that eliminates actual controversy after the commencement 

of a lawsuit renders that action moot.” Ctr. for Individual Freedom v. 

Carmouche, 449 F.3d 655, 661 (5th Cir. 2006).

8 DPS claims to have refunded Fontenot’s wrongly assessed surcharges, and Miller 

and Zamarron dispute whether they received full refunds. However, McCraw does not 

challenge any plaintiff’s standing on the refund claims. Although Article III standing is 

jurisdictional and we must raise it sua sponte, we decline to do so in the absence of briefing 

from any party when an alternative jurisdictional ground disposes of the refund claims. See 

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S. Ct. 1563, 1570 (1999).

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It is undisputed that DPS corrected Miller’s record on April 25 and 

Zamarron’s record on May 21, 2013. Because there remains no live controversy 

between the parties as to the accuracy of the named plaintiffs’ driving records,

the injunction they seek would be meaningless. 

The parties acknowledge, however, that “a defendant claiming that its 

voluntary compliance moots a case bears the formidable burden of showing 

that it is absolutely clear the allegedly wrongful behavior could not reasonably 

be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 

Inc., 528 U.S. 167, 190, 120 S. Ct. 693, 709 (2000). “It is well settled that ‘a 

defendant’s voluntary cessation of a challenged practice does not deprive a 

federal court of its power to determine the legality of the practice.’” Id. at 189, 

120 S. Ct. at 708 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 

283, 289, 102 S. Ct. 1070, 1074 (1982)).9 Defendant-induced mootness is 

viewed with caution because “there exists some cognizable danger of recurrent 

violation” where “a defendant [] follows one adjudicated violation with others.” 

United States v. W. T. Grant Co., 345 U.S. 629, 633, 634, 73 S. Ct. 894, 898 

(1953). 

Consequently, “allegations by a defendant that its voluntary conduct has 

mooted the plaintiff's case require closer examination than allegations that 

‘happenstance’ or official acts of third parties have mooted the case.” Envt’l 

Conservation Org. v. City of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 2008). The

overarching goal is to determine whether the defendant’s actions are mere 

“litigation posturing” or whether the controversy is extinguished. See, e.g., Ctr. 

for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 426 n.3 (5th 

9 In the context of mootness, an action is voluntary when taken free from compulsion 

of an enforcement action or judicial order. See Envt’l Conservation Org. v. City of Dall, 

529 F.3d 519, 528 (5th Cir. 2008).

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Cir. 2013) (this court was “not persuaded that the speculative possibility that 

BP could some day return to this site, after the tremendous time, energy, and 

manpower expended to close it, saves the Center’s current claims from a 

finding of mootness”). 

McCraw calls to our attention the somewhat contrary intuition that we 

“are justified in treating a voluntary governmental cessation of possibly 

wrongful conduct with some solicitude[.]” Sossamon v. Lone Star State of Tex., 

560 F.3d 316, 325 (5th Cir. 2009), aff’d on other grounds sub nom. Sossaman 

v. Texas, 131 S. Ct. 1651 (2011). Sossamon asserted that because government 

officials are public-spirited and not motivated by self-interest, a government 

defendant is less inclined to act in bad faith. Id. It concluded that “[w]ithout 

evidence to the contrary, we assume that formally announced changes to 

official governmental policy are not mere litigation posturing.” Id. As the 

plaintiffs note, there are no formally announced changes to policy in the 

present case, but that is irrelevant here. McCraw has already done for

plaintiffs all that they could ask. The two plaintiffs who had standing to sue 

McCraw have received a record correction — indeed, received it merely by 

asking for it. Consequently, there is no reason to believe that Miller and 

Zamarron continue to have a live controversy with McCraw. The very nature 

of the records correction controversy, which was precipitated by the plaintiffs’ 

failures to produce a driver’s license, counsels that the defendant is not likely 

“to return to his old ways.” Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004) 

(quoting Laidlaw, 528 U.S. at 190, 120 S. Ct. at 708). Unless Miller and 

Zamarron plan to be driving again without carrying their licenses, they have 

nothing to fear. The controversy as to these plaintiffs has been extinguished.

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C. Relation Back

Miller and Zamarron alternatively contend that even if their claims for 

record correction had become moot before a class certification motion was filed, 

that motion “relates back” to the filing date of the first amended complaint in 

order to keep the class action alive. This argument seeks to extend current 

Fifth Circuit law, which in turn extends (and may be undermined by) Supreme 

Court precedent. To examine the relation back argument, we work forward 

from the Supreme Court decisions.

In 1975, the Supreme Court modified the general rule of mootness, which 

is that a class action becomes moot when the putative representative plaintiff’s 

claim has been rendered moot before a class is certified. The Court declined to 

find mootness where the named class action plaintiff’s claim becomes moot 

after the class was certified. Sosna v. Iowa, 419 U.S. 400, 402–03, 95 S. Ct. 

553, 559 (1975). Important to the Court’s reasoning was that “[w]hen the 

District Court certified the propriety of the class action, the class of unnamed 

persons described in the certification acquired a legal status separate from the 

interest asserted by [the named plaintiff].” 419 U.S. at 400, 95 S. Ct. at 557. 

Consequently, a live controversy continued to exist. Id. at 399–402, 95 S. Ct. 

at 558. The Court concluded:

There must . . . be a named plaintiff who has such a case or 

controversy at the time the complaint is filed, and at the time the 

class is certified by the District Court . . . . The controversy may 

exist, however, between a named defendant and a member of the 

class represented by the named plaintiff, even though the claim of 

the named plaintiff has become moot. 

419 U.S. at 402, 95 S. Ct. at 559. The Sosna Court took care to “disturb no 

principles . . . with respect to class action litigation.” Id. at 402-03 (citing Bailey 

v. Patterson, 369 U.S. 31, 82 S. Ct. 549 (1962); Rosario v. Rockefeller, 410 U.S. 

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752, 93 S. Ct. 1245, 1249 (1973); Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200 

(1969)); see also Walker v. Haynes, 659 F.2d 46, 47 (5th Cir. 1981). 

The Court subsequently applied Sosna’s reasoning to mootness that 

follows an order denying class certification. U.S. Parole Comm’n v. Geraghty, 

445 U.S. 388, 404, 100 S. Ct. 1202, 1212 (1980). The Court there held that a 

putative class representative can maintain an action when the suit “would 

have acquired the independent legal status described in Sosna but for the 

district court’s erroneous denial of class certification[.]” Genesis Healthcare 

Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013) (discussing Geraghty). Geraghty

was explicitly limited to cases in which the named plaintiff’s claim becomes 

moot after the time the district court denied certification and the district 

court’s “erroneous[] deni[al] ... if correctly decided, would have prevented the 

action from becoming moot.” Geraghty, 455 U.S. at 404, 100 S. Ct. at 1212. In 

that scenario, “the corrected ruling ‘relates back’ to the date of the original 

denial.” Id. at 404, 100 S. Ct. at 1213. 

Miller and Zamarron cannot avail themselves of Sosna or Geraghty. 

Sosna requires that “the named plaintiff had a personal stake in the action at 

the time the class was properly certified[.]” Rocky v. King, 900 F.2d 864, 867 

(5th Cir. 1990) (emphasis added). And Geraghty extends this exception to cases 

where the named plaintiffs contend that class certification was wrongly denied. 

Here, no class action certification motion had been filed against McCraw, much 

less granted or denied when DPS corrected their driving records and rendered 

those claims moot. But that is not the end of the story.

A “separate, but related, line of cases” evolved from a footnote10 in Sosna, 

which “held that an ‘inherently transitory’ class-action claim is not necessarily 

10 The footnote itself says that whether “the controversy . . . becomes moot as to [the 

named plaintiffs] before the district court can reasonably be expected to rule on a certification 

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moot upon the termination of the named plaintiff's claim.” Genesis Healthcare, 

133 S. Ct. at 1530 (referring to Sosna, 419 U.S. at 402 n.11, 95 S. Ct. at 559 

n.11). See Swisher v. Brady, 438 U.S. 204, 98 S. Ct. 2699 (1977) (challenging 

juvenile delinquency procedures); Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854 

(1975) (challenging constitutionality of pretrial detentions). Genesis 

Healthcare explained that “[t]he ‘inherently transitory’ rationale was 

developed to address circumstances in which the challenged conduct was 

effectively unreviewable, because no plaintiff possessed a personal stake in the 

suit long enough for litigation to run its course.” 133 S. Ct. at 1531. 

This court extended the concept of relation back even farther in holding 

that “a suit brought as a class action should not be dismissed for mootness 

upon tender to the named plaintiffs of their personal claims, at least 

when . . . there is pending before the district court a timely filed and diligently 

pursued motion for class certification.” Zeidman v. J. Ray McDermott & Co., 

651 F.2d 1030, 1051 (5th Cir. 1981). In other words, a court order granting or 

denying class certification, and therefore resolving the separate status of the 

class, is unnecessary to maintaining a live class action suit despite the 

mootness of the named plaintiff’s case. See also Murray v. Fidelity Nat. Fin., 

Inc., 594 F.3d 419, 421 (5th Cir. 2010) (discussing Zeidman). Zeidman

acknowledged that the Sosna-created relation back doctrine had previously 

been applied only in cases where the plaintiffs’ claims were “inherently 

transitory,” whereas the plaintiffs’ claims in Zeidman had been rendered moot 

by the defendants’ “purposive” action of offering a full tender of their damages. 

But the Zeidman court believed “the result should be no different when the 

motion may depend upon the circumstances of the particular case and especially the reality 

of the claim that otherwise the issue would evade review.” Id.

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defendants have the ability by tender to each named plaintiff effectively to 

prevent any plaintiff in the class from procuring a decision on class 

certification.” 651 F.2d at 1050. A defendant’s ability to “pick off” successive 

plaintiffs’ claims in this way, the court reasoned, is no less inimical to 

procuring judicial review than is the inherently transitory nature of a 

substantive claim.11 

The current status of Zeidman may be in doubt. In Genesis Healthcare, 

the Supreme Court took pains to clarify its class action mootness decisions. 

That Genesis Healthcare specifically ruled on how mootness doctrine applies to 

collective actions under Section 216(b) of the Fair Labor Standards Act renders 

the Court’s discussion no less authoritative in regard to class action mootness 

cases. First, Genesis Healthcare notes that both Sosna and Geraghty pertain 

only to cases where the named plaintiff’s claim became moot after a class 

certification decision had been made. 133 S. Ct. at 1530. Second, the Court 

explained that the relation back doctrine applies when the substantive claims 

raised “‘are so inherently transitory that the trial court will not have even 

enough time to rule on a motion for class certification before the proposed 

representative’s individual interest expires.’” Genesis Healthcare, 133 S. Ct. 

at 1531 (quoting Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S. Ct. 

1661, 1667 (1991)). Thus, the “inherently transitory” basis for relating back a 

class certification ruling to the date the complaint was filed is focused not on 

the defendant’s litigation strategy, but on the substance of the plaintiff’s claim. 

133 S. Ct. at 1531 (citing Swisher, 438 U.S. at 213 n.11, 98 S. Ct. 2699, 2705

n.11; Spencer v. Kemna, 523 U.S. 1, 17–18, 118 S. Ct. 978, 988 (1998)). Genesis 

11 At least two other circuits have followed Zeidman. Lucero v. Bureau of Collection 

Recovery, Inc., 639 F.3d 1239 (10th Cir. 2011); Weiss v. Regal Collections, 385 F.3d 337, 347 

(3d Cir. 2004), as amended (Oct. 22, 2004).

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Healthcare does not foreclose the broader Zeidman approach to relation back 

doctrine, but the Court’s explanation undermines, at least in money damages

cases, Zeidman’s analogy between the “inherently transitory” exception to 

mootness and the strategic “picking off” of named plaintiffs’ claims.

For present purposes, McCraw does not contend that Zeidman has been 

overruled, and we need not finally decide that question. What is clear from 

Genesis Healthcare and Zeidman is that any extant exception must be

extended for plaintiffs to avoid mootness in the instant putative class action. 

Here, not only had the district court not ruled on the named plaintiffs’ 

certification motion, a prerequisite to applying Sosna and Geraghty, but no 

certification motion was even pending when DPS corrected Miller’s and 

Zamarron’s driving records and mooted their individual claims. Yet Zeidman

is predicated on a class certification motion’s having been diligently filed and 

pursued at the time the named plaintiff’s claim becomes moot. Further, when 

the class certification motion was filed, it expressly excluded McCraw.12 Thus,

only by extending this circuit’s precedent beyond Zeidman could we apply the 

relation back doctrine here. 

In this case, there is no need to create another exception to mootness. In 

Murray, we declined to extend Zeidman to allow relation back where a joinder 

motion was pending, but not yet ruled on, for a class representative plaintiff 

whose individual claim was not moot. The plaintiffs there argued they should 

be allowed a “reasonable period of time to file a motion for class certification 

12 To the extent the plaintiffs rely on this court’s decision in Sandoz v. Cingular 

Wireless LLC, 553 F.3d 913 (5th Cir. 2008), the case is inapposite. First, Sandoz extended 

Zeidman’s relation back ruling to a Fair Labor Standards Act collective action case and has 

probably been overruled in its specific holding by Genesis Healthcare. Genesis Healthcare

rejected a factually similar relation back holding of the Third Circuit, which relied in part on 

Sandoz. Second, even on its facts, Sandoz is distinguishable because the plaintiffs’ class 

certification motion here excluded McCraw.

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before their claims can be mooted by tender of the individual damages.” 

Murray, 594 F.3d at 422. Because the plaintiffs “had a readily available means 

of preventing the defendants from mooting their suit[,]” this court saw no 

reason to extend Zeidman. Id. Likewise in this case, the plaintiffs could have 

filed a class action certification motion against McCraw, and indeed could have 

filed the motion simultaneously with the filing of their first amended 

complaint. This case, like Murray, is simply not one in which an exception is 

required lest “otherwise the issue would evade review.” Sosna, 419 U.S. at 

402, 95 S. Ct. at 559. Where plaintiffs may avoid being “picked off” by using 

the tools within the Federal Rules of Civil Procedure, the rationale for creating 

further exceptions to mootness cannot be sustained.13 See Miss. Prot. & 

Advocacy Sys., Inc. v. Cotten, 929 F.2d 1054, 1057 (5th Cir. 1991) (requiring 

“special circumstances” for applying exceptions).

In sum, when Miller’s and Zamarron’s individual records correction 

claims became moot, so did the class action case. The general rule rather than 

its exceptions prevails.

III.

 Turning to the refund claims, we consider whether the State’s sovereign 

immunity, codified partly in the Eleventh Amendment, requires their 

dismissal. If the plaintiffs’ individual refund claims are nonjusticiable in 

federal court, the class claims fail as well.

 The essential principles are well established. One privilege of Texas’s 

state sovereignty is “not to be amenable to the suit of an individual without its 

13 Mabary v. Hometown Bank, N.A., 771 F.3d 820 (5th Cir. 2014), does not extend any 

exception to the general mootness rule. In that opinion a panel of this court expressly held 

that the defendant’s “attempt to ‘pick off’ [the plaintiff’s] claim before the court could decide 

the issue of class certification fits squarely within the ‘relation back’ doctrine[.]” Id. at 825 

(emphasis added).

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consent.” Hans v. Louisiana, 134 U.S. 1, 13, 10 S. Ct. 504, 506 (1890) (quoting 

THE FEDERALIST No. 81 (Alexander Hamilton)). Although the plaintiffs sued 

McCraw, “a suit against a state official in his or her official capacity is not a 

suit against the official but rather is a suit against the official’s office.” Will v. 

Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989). In Ex 

parte Young, however, the Supreme Court created an “exception” to state 

sovereign immunity on the theory that an ultra vires act “is simply an illegal 

act upon the part of a state official in attempting, by the use of the name of the 

state, to enforce a legislative enactment which is void because 

unconstitutional.” Ex parte Young, 209 U.S. 123, 159, 28 S. Ct. 441, 454 (1908). 

This doctrine “ensures that state officials do not employ the Eleventh 

Amendment as a means of avoiding compliance with federal law[.]” P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 

684, 688 (1993). Suits by private citizens against state officers in their official 

capacity are not, therefore, categorically barred. Thus, “[i]n determining 

whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to 

suit, a court need only conduct a ‘straightforward inquiry into whether [the] 

complaint alleges an ongoing violation of federal law and seeks relief properly 

characterized as prospective.’” Verizon Md. Inc. v. Pub. Svc. Comm’n, 535 U.S. 

635, 645, 122 S. Ct. 1753, 1760 (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 

521 U.S. 261, 296, 117 S. Ct. 2028, 2047 (1997) (O’Connor, J., concurring in 

part and concurring in the judgment). The Court has “refused to extend the 

reasoning of Young . . . to claims for retrospective relief.” Green v. Mansour, 

474 U.S. 64, 68, 106 S. Ct. 423, 426 (1985).

 Plaintiffs’ suit for refunds on its face seeks to recover their erroneously 

inflicted surcharges from the state’s treasury. To avoid the apparent Eleventh 

Amendment bar, they sued McCraw in his official capacity and attempt to 

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characterize the refunds in terms of McCraw’s alleged ongoing ultra vires acts 

for which they seek “prospective” declaratory and injunctive relief. Their first 

amended complaint seeks a declaratory judgment and “permanent 

injunction . . . ordering correction of driving records maintained by the State 

of Texas.” They articulate the refund claims in three ways. First, they allege 

that the ongoing violation by McCraw consists in DPS’s maintaining their false 

driving records, as a result of which they remain vulnerable to having 

additional surcharges imposed in addition to those already illegally collected. 

Second, they describe the refund claims as “ancillary relief” to the injunctive 

and declaratory relief pertaining to the driving records. Third, they contend 

the State has the obligation to return their money that was wrongfully taken, 

and that this theory is cognizable apart from Ex Parte Young’s limitation to 

prospective, injunctive relief. 

The plaintiffs’ first contention, that they seek refunds as prospective 

relief for potential future surcharges, runs afoul of the mootness of their 

records correction claims. Because their individual driving records were 

corrected by DPS shortly after the first amended complaint was filed, there is 

no basis for their allegation that the agency will collect additional surcharges. 

While McCraw’s act of maintaining erroneous driving records might have been 

an ongoing violation susceptible of prospective injunctive relief, see Va. Office 

for Protection & Advocacy v. Stewart, 131 S. Ct. 1632 (2011) (continuing refusal 

to turn over medical records), such a claim is undisputedly counterfactual as 

to the named plaintiffs. 

Plaintiffs’ second characterization of the refunds, which the district court 

adopted, is that such relief would be incidental to the declaratory or injunctive 

relief that is permitted under Ex Parte Young. This argument misunderstands 

the ancillary effect corollary, which the Supreme Court clearly expressed in 

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Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347 (1974). There, plaintiffs sued 

officials of the State of Illinois for “administering [] federal-state 

programs . . . in a manner inconsistent with various federal regulations and 

with the Fourteenth Amendment to the Constitution.” Id. at 653, 94 S. Ct. at 

1351. The district court rendered declaratory and injunctive relief requiring 

compliance and ordered defendant State officials to pay out the wrongfully 

withheld funds. Id. at 656, 194 S. Ct. at 1352. The Seventh Circuit affirmed. 

Id. at 664, 94 S. Ct. at 1356. 

The Supreme Court reversed, holding that, regardless of the nature of 

the relief, “a suit by private parties seeking to impose a liability which must be 

paid from public funds in the state treasury is barred by” state sovereign 

immunity. Id. at 663, 666 94 S. Ct. at 1356, 1357. The logic of Ex Parte Young

— that a state official acting without authority is not acting as the State — is 

contradicted when the court’s order requires payment of an accrued liability 

from the state treasury. Id. at 664-65, 94 S. Ct. at 1356-57. Edelman also 

reaffirmed Ford Motor Company v. Department of Treasury, a taxpayer’s 

refund action against Indiana for an allegedly unconstitutional tax. 323 U.S. 

459, 65 S. Ct. 347 (1945), overruled on other grounds by Lapides v. Bd. of 

Regents, 545 U.S. 613, 122 S. Ct. 1640 (2002). Although “[t]he term ‘equitable 

restitution’ would seem even more applicable” in Ford Motor Company because 

the Indiana taxpayer (unlike the welfare recipients in Edelman) once held the 

funds, the Court nevertheless “had no hesitation in holding that the taxpayer’s 

action was a suit against the State, and barred by the Eleventh Amendment.” 

Edelman, 415 U.S. at 669, 94 S. Ct. at 1358. 

Still, as the Court recognized, cases have been permitted in which the 

judgment against a state officer had “an ancillary effect on the state 

treasury[.]” Id. at 651, 668, 94 S. Ct. at 1358. The injunction in Ex parte Young

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itself “was not totally without effect on the State’s revenues, since the state law 

which the Attorney General was enjoined from enforcing provided substantial 

monetary penalties against railroads which did not conform to its provisions.” 

Id.14 In such cases, purely prospective decrees have the ancillary effect of 

making state officials “more likely [] to spend money from the state treasury,” 

but they are “permissible and often an inevitable consequence of the principle 

announced in Ex parte Young[.]” Id. See also Milliken v. Bradley, 433 U.S. 

267, 290, 97 S. Ct. 2749, 2762 (1977) (upholding district court order requiring 

State to bear part of cost of future compliance). 

The district court here thought it anomalous to invalidate McCraw’s 

erroneous collection of the surcharges “while permitting Texas to keep the 

fruits of that unlawful behavior.” Ancillary relief, however, cannot stand alone. 

It must accompany and further some other — and otherwise appropriate —

relief. The district court’s order commits the identical mistake as the payment 

order in Edelman:

It requires payment of state funds, not as a necessary consequence 

of compliance in the future with a substantive federal-question 

determination, but as a form of compensation [to prior victims].

Edelman, 415 U.S. at 669, 94 S. Ct. at 1358. The order is “in practical effect 

indistinguishable from an award of damages against the State.” Id.15

14 See also Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848 (1971) (welfare officials 

were prohibited from denying welfare benefits to otherwise qualified alien recipients); 

Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 (1970) (New York City welfare officials 

enjoined from following state procedures terminating welfare benefits without prior hearing). 

15 The Supreme Court reaffirmed in Papasan that “relief that serves directly to bring 

an end to a present violation of federal law is not barred by the Eleventh Amendment even 

though accompanied by a substantial ancillary effect on the state treasury.” Papasan v. 

Allain, 478 U.S. 265, 278, 106 S. Ct. 2932, 2940 (1986). But it also held that compensatory 

relief against States “is barred even when the state official is the named defendant” and even 

when “the relief is tantamount to an award for damages...even though styled as something 

else.” Id.

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Plaintiffs assert that the refunds they seek are ancillary, just like the 

relief ordered in a Second Circuit case where the court enjoined the operation 

of a New York statute that delayed payment of certain state employees’ 

paychecks. Ass’n of Surrogates & Sup. Ct. Reporters v. New York, 940 F.2d 

766, 774 (2d Cir. 1991). The ancillary effect of the judgment required the State 

to pay what and when it otherwise would have done before the offending 

statute was passed. In that unusual situation, without ancillary relief, the 

judgment would have served the State’s interest by terminating its payment 

obligation. Association of Surrogates is distinguishable because plaintiffs here 

can point to no injunctive relief for which a refund order would be required “to 

shape [McCraw’s] official conduct to the mandate of the [c]ourt’s decrees[.]” Id. 

(quoting Edelman, 415 U.S. at 668, 94 S. Ct. at 1358).

State sovereign immunity here bars “the retroactive portion of the relief 

awarded by the District Court[,]” just as it did in Edelman and Ford Motor 

Company. Edelman, 415 U.S. at 669, 94 S. Ct. at 1358. 

Plaintiffs’ final thrust is to characterize their requested monetary relief 

as something like replevin, a claim for return of their wrongfully taken 

property. Relying principally on the Supreme Court’s decision in Florida Dep’t 

of State v. Treasure Salvors, 458 U.S. 670, 102 S. Ct. 3304 (1982), plaintiffs 

urge that DPS engages in a continuing violation by refusing to return their 

property without due process. In Treasure Salvors, the Court held that 

plaintiffs could maintain an in rem admiralty suit against the State of Florida 

in federal court to obtain possession of sunken ship artifacts. Treasure Salvors, 

however, will not bear the weight of plaintiffs’ argument. First, suing a state 

for the return of identifiable property is far different from suing for a return of 

money, which is fungible once improperly paid into state coffers. The Treasure 

Salvors plurality opinion draws this distinction, noting that the decision, 

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consistent with Edelman, “did not seek any attachment of state funds and 

would impose no burden on the state treasury.” 458 U.S. at 699, 102 S. Ct. at 

3321.16 Second, the case has no majority opinion and thus no controlling 

rationale. Third, this court has correctly cited Treasure Salvors for the narrow 

proposition that “a federal court is not empowered to adjudicate the State’s 

interest in property without the State’s consent.” John G. & Marie Stella 

Kenedy Mem’l Found. v. Mauro, 21 F.3d 667, 672 (5th Cir. 1994).

This court likewise refused to allow plaintiffs to reach into the state 

treasury. Jagnandan v. Giles, 538 F.2d 1166, 1173 (5th Cir. 1976). The 

plaintiffs appealed a judgment that denied them recovery of excess tuition they 

had paid state colleges under an unconstitutional statute. Id. This court held 

that, despite the presence of university trustees as defendants, “the State of 

Mississippi [was] the real party defendant.” Id. at 1174. State sovereign 

immunity, we held, “protect[s] against federal judgments requiring payment of 

money that would interfere with the state's fiscal autonomy and thus its 

political sovereignty.” Id. at 1176. Important to the analysis were the facts 

that the tuition payments were “commingled with all moneys held by the 

University” and were public funds. Id. See also Nems v. Calif. Dep’t. of Health 

Care Servs., 712 F.3d 461, 469-70 (9th Cir. 2013) (state sovereign immunity

bars suit for refund of money erroneously charged by State under Medicare).

E-Systems, Inc. v. Pogue, 929 F.2d 1100 (5th Cir. 1991), on which 

plaintiffs rely, is inapposite. That case considered a challenge to a state tax 

that was in tension with ERISA. Id. at 1101-02. Although the State challenged 

16 Two related Ninth Circuit cases cited by plaintiffs are distinguishable precisely 

because the accounts and property in those cases were escheated, but not yet permanently 

escheated to the State, “because the State held such funds in custodial trust for the benefit 

of property owners—the funds were not state funds.” Suever v. Connell, 439 F.3d 1142, 1147 

(9th Cir. 2006) (citing Taylor v. Westly, 402 F.3d 924, 933 (9th Cir. 2005)).

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jurisdiction on sovereign immunity grounds, the opinion dealt exclusively with 

the Tax Injunction Act.17 It is unclear whether the decision sub silentio deemed 

ERISA to have abrogated state sovereign immunity, but in any case the 

opinion does not discuss sovereign immunity. We decline to infer from that 

opinion a principle inconsistent with controlling authority. Cf. Edelman, 

415 U.S. at 670, 94 S. Ct. at 1359 (declining a similar inference from Shapiro 

v. Thompson, 394 U.S. 618, 89 S. Ct. 1322 (1969)). 

For these reasons, this court will not “assum[e] the control of the 

administration of the fiscal affairs of the state to the extent that may be 

necessary to accomplish the end in view.” Louisiana ex rel. Elliott v. Jumel, 

107 U.S. 711, 722, 2 S. Ct. 128, 137 (1883). The plaintiffs’ refund claims are 

barred by the Eleventh Amendment and state sovereign immunity.

IV.

Plaintiff Fontenot lacks standing to sue. Plaintiffs Miller and Zamarron 

have no live controversy with the State for correction of driving records, and 

consequently the class action claim for similar relief is moot and nonjusticiable. 

The refund claims to recover surcharges are barred by the Eleventh 

Amendment and sovereign immunity. These conclusions render it 

unnecessary to discuss the Tax Injunction Action, 28 U.S.C. § 1341, as a 

jurisdictional defense, which the State raised for the first time in this court. 

We VACATE the district court’s order denying state sovereign immunity and 

REMAND with instructions to dismiss for lack of federal jurisdiction.

17 Specifically, we held that because “ERISA preempts [the state tax law] [i]t 

necessarily follows that there can be no effective state remedy under the Tax Injunction Act 

which, therefore, is inapplicable in an ERISA setting.” E-Systems., Inc. v. Pogue, 929 F.2d 

1100, 1102 (5th Cir. 1991)

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