PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 19-1775

______________

OWNER OPERATOR INDEPENDENT DRIVERS 

ASSOCIATION, INC.; NATIONAL MOTORIST 

ASSOCIATION; MARION L. SPRAY; B.L. REEVER 

TRANSPORT, INC.; FLAT ROCK TRANSPORTATION, 

LLC; MILLIGAN TRUCKING, INC.*; FRANK SCAVO; 

LAURENCE G. TARR,

 Appellants

v.

PENNSYLVANIA TURNPIKE COMMISSION; LESLIE S. 

RICHARDS, in her individual capacity and her official 

capacities as Chair of the PTC and Secretary of the 

Department of Transportation; WILLIAM K. LIEBERMAN, 

in his individual capacity and his official capacity as Vice 

Chair of the PTC; BARRY T. DREW, in his individual 

capacity and his official capacity as Secretary-Treasurer of 

the PTC; PASQUALE T. DEON, SR., in his individual 

capacity and his official capacity as Commissioner of the 

PTC; JOHN N. WOZNIAK, in his individual capacity and his 

official capacity as Commissioner of the PTC; MARK P. 

COMPTON, in his individual capacity and his official 

capacity as Chief Executive Officer of the PTC; CRAIG R. 

SHUEY, in his individual capacity and his official capacity as 
2

Chief Operating Officer of the PTC; TOM WOLF, Governor 

of the Commonwealth of Pennsylvania, in his individual 

capacity and his official capacity as Governor

*(Amended as per the Clerk’s 04/25/19 Order)

______________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-18-cv-00608)

District Judge: Hon. Yvette Kane

______________

Argued July 9, 2019

______________

Before: SHWARTZ, KRAUSE, and FUENTES, Circuit 

Judges.

(Filed: August 13, 2019)

Melissa A. Chapaska

Kevin J. McKeon

Dennis Whitaker

Hawke McKeon & Sniscak

100 North Tenth Street

P.O. Box 1778

Harrisburg, PA 17101

Paul D. Cullen, Jr. 

Paul D. Cullen, Sr. [ARGUED]

Kathleen B. Havener 

The Cullen Law Firm
3

1101 30th Street, N.W. 

Suite 300

Washington, DC 20007

Counsel for Appellants Owner Operator 

Independent Drivers Association, Inc., National 

Motorist Association, Marion L. Spray, B.L. 

Reever Transport Inc., Flat Rock 

Transportation LLC, Milligan Trucking Inc., 

Frank Scavo, and Laurence G. Tarr

Robert L. Byer [ARGUED]

Leah A. Mintz

Lawrence H. Pockers

Brian J. Slipakoff

Duane Morris

30 South 17th Street

United Plaza

Philadelphia, PA 19103

Counsel for Appellees Pennsylvania Turnpike 

Commission; Leslie S. Richards, in her 

individual capacity and her official capacities 

as Chair of the PTC and Secretary of the 

Department of Transportation; William K. 

Lieberman, in his individual capacity and his 

official capacity as Vice Chair of the PTC; 

Barry Drew, in his individual capacity and his 

official capacity as Secretary-Treasurer of the 

PTC; Pasquale T. Deon, Sr., in his individual 

capacity and his official capacity as 

Commissioner of the PTC; John N. Wozniak, in 

his individual capacity and his official capacity 
4

as Commissioner of the PTC; Mark P. 

Compton, in his individual capacity and his 

official capacity as Chief Executive Officer of 

the PTC; and Craig R. Shuey, in his individual 

capacity and his official capacity as Chief 

Operating Officer of the PTC

Arleigh P. Helfer, III

Bruce P. Merenstein [ARGUED]

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Counsel for Appellees Leslie S. Richards, in her 

individual capacity and her official capacities 

as Chair of the PTC and Secretary of the 

Department of Transportation, and Tom Wolf,

Governor of the Commonwealth of 

Pennsylvania, in his individual capacity and his 

official capacity as Governor

Alex M. Lacey

Robert M. Linn

Robyn A. Shelton

Cohen & Grigsby

625 Liberty Avenue

5th Floor

Pittsburgh, PA 15222

Counsel for Appellee William K. Lieberman, in 

his individual capacity and his official capacity 

as Vice Chair of the PTC
5

Matthew H. Haverstick

Shohin H. Vance

Kleinbard

Three Logan Square

1717 Arch Street, 5th Floor

Philadelphia, PA 19103

Counsel for Appellee Craig R. Shuey, in his 

individual capacity and his official capacity as 

Chief Operating Officer of the PTC

Thomas M. Fisher

Office of Attorney General of Indiana

302 West Washington Street

Indianapolis, IN 46204

Counsel for Amicus Curiae the State of Indiana

Miguel A. Estrada

Gibson Dunn & Crutcher

1050 Connecticut Avenue, N.W.

Washington, DC 20036

Counsel for Amicus Curiae ITR Concession 

Company LLC

______________

OPINION

______________

SHWARTZ, Circuit Judge.
6

Plaintiffs are individuals and members of groups who 

pay tolls to travel on the Pennsylvania Turnpike.1

 They allege 

that Pennsylvania state entities and officials (“Defendants”)

have violated the dormant Commerce Clause and their right to 

travel.

2 Specifically, Plaintiffs assert that Defendants have set 

exorbitantly high tolls for use of the Pennsylvania Turnpike 

and that the amounts collected exceed the costs to operate the 

Turnpike. They contend the extra funds are being used for 

projects that disproportionately benefit local interests and that 

the high tolls deter non-Pennsylvanians from using the 

Turnpike.

Because Congress has permitted state authorities, such 

as Defendants, to use the tolls for non-Turnpike purposes, the 

collection and use of the tolls do not implicate the Commerce 

Clause. Moreover, because Plaintiffs have not alleged that 

their right to travel to, from, and within Pennsylvania has been 

deterred, their right to travel has not been infringed. Therefore,

 1 Plaintiffs are Owner Operator Independent Drivers 

Association, Inc.; National Motorist Association; Marion L. 

Spray; B.L. Reever Transport, Inc.; Flat Rock Transportation, 

LLC; Milligan Trucking, Inc.; Frank Scavo; and Laurence G. 

Tarr. 2 Defendants are the Pennsylvania Turnpike 

Commission (“PTC”), William K. Lieberman, Vice Chair of 

the PTC; Barry Drew, Secretary-Treasurer of the PTC; 

Pasquale T. Deon, Sr., and John N. Wozniak, Commissioners 

of the PTC; Mark P. Compton, Chief Executive Officer of the 

PTC; Craig R. Shuey, Chief Operating Officer of the PTC; 

Pennsylvania Governor Tom Wolf; and Leslie S. Richards, 

who is both the Chair of the PTC and Secretary of the 

Pennsylvania Department of Transportation.
7

we will affirm the District Court’s order dismissing the 

complaint. 

I

A

The Pennsylvania Turnpike is part of a 552-mile 

highway system that crosses Pennsylvania from New Jersey to 

Ohio. The Pennsylvania Turnpike Commission (“PTC”) sets 

and collects Turnpike tolls. 

In 2007, the Pennsylvania legislature enacted Act 44, 

which, among other things, permitted the PTC to increase tolls 

and required the PTC to make annual payments for a fifty-year 

period to the Pennsylvania Department of Transportation 

(“PennDOT”) Trust Fund. See 75 Pa. Cons. Stat. § 8915.3. In 

2013, Act 89 amended Act 44, as amended “Act 44/89.” Act 

89 continued to permit toll increases but lowered the annual 

payments to the PennDOT Trust Fund. 

After Act 44 went into effect, the PTC announced a 25% 

toll increase and from 2009 through 2016, tolls were increased 

annually by more than 10% for cash customers and 5.75% for 

customers using an electronic toll transmitter known as an EZPass. Plaintiffs assert that since the enactment of Act 44, tolls 

have increased more than 200% and that the current cost for 

the heaviest vehicles to cross the 359-mile portion of the 

Pennsylvania Turnpike that spans from New Jersey to Ohio

exceeds $1800. Pennsylvania’s Auditor General found that 

PTC’s annual “costly toll increases place an undue burden” on 

Pennsylvanians, opined that “the average turnpike traveler will 

be deterred by the increased cost and seek alternative toll-free 
8

routes,” App. 88 (emphasis omitted) (quoting September 2016 

Performance Audit of the PTC), and recommended that the 

PTC seek legislative relief from its Act 44/89 payment

obligations. 

Tolls are PTC’s largest revenue source and amount to 

166-215% of the costs to maintain and operate the Turnpike. 

Simply put, the amount of the tolls collected exceeds the 

amount it costs to run the Turnpike. The excess tolls are

deposited into the PennDOT Trust Fund, which are, in turn, 

transferred to four different programs: (1) operating programs 

under 74 Pa. Cons. Stat. § 1513, which include asset 

maintenance costs and expenses for public passenger transport; 

(2) the multimodal transportation fund under 74 Pa. Cons. Stat. 

§ 2104, which covers aviation, freight and passenger rail, and 

port and waterway projects; (3) the asset improvement 

program under 74 Pa. Cons. Stat. § 1514 for financial 

assistance for the improvement, replacement, or expansion of 

capital projects; and (4) programs of statewide significance 

under 74 Pa. Cons. Stat. § 1516, which include disability 

programs, rail and bus services, community transportation, 

Welfare-to-Work programs, and research projects. Act 44/89 

is designed to generate $450 million annually for PennDOT 

from 2011 through 2022.3

 More than ninety percent of Act 

44/89 payments—approximately $425 million annually—

benefit “non-Turnpike road and bridge projects and transit 

operations.” App. 78. Plaintiffs allege that many of these 

“programs have no functional relationship to the Pennsylvania 

Turnpike,” including, for instance, the “[c]onstruction of an 

 3 Act 44/89 payments will generate $50 million 

annually for PennDOT from 2023 through 2057.
9

underpass” and a “[s]idewalk installation.”4 App. 81-82. 

Plaintiffs concede that a federal statute, the Intermodal Surface 

 4 Plaintiffs allege that Act 44/89 funds have been used 

for various programs across the state including:

a. Development of Three Crossings, a mixed-use 

development consisting of residential units, 

office space, and a transportation facility with 

vehicle and bicycle parking, bicycle repair, 

electric-vehicle charging stations, kayak storage, 

and transit station in Pittsburgh (Allegheny 

County);

b. Construction of an underpass under U.S. 22, 

connecting the Lower Trail with Canoe Creek 

State Park (Blair County);

c. Rehabilitation of nine stone-arch bridges along 

the SEPTA regional railway line (Regional 

project);

d. Replacement of the roof at Collier Bus Garage 

(Allegheny County); 

e. Sidewalk installation along North Main Street 

in Yardley (Bucks County);

f. Installation of approximately 1,800 feet of 

ADA-compliant sidewalk along the south side of 

Union Deposit Road between Shield Street and 

Powers Avenue at the Union Square Shopping 

Center in Susquehanna (Dauphin County); 
10

 

g. Extension of internal road, including final 

design, survey, permit modifications, bid 

documents, construction, storm water, street 

lights, project administration, legal expenses, 

audit expenses, and contingencies in Windy 

Ridge Business and Technology Park (Indiana 

County);

h. Improvements to roadways in 12,000 acres of 

parks, including widening shoulders, paving, 

signage installation, and bicycle marking in the 

Allegheny County Parks;

i. Addition of eight curb ramps, new asphalt, 

four decorative crosswalks and a surface sign at 

an intersection in Latrobe (Westmoreland 

County);

j. Phase II Construction of Erie Metropolitan 

Transportation Authority’s Maintenance and 

Paratransit Bus Storage Facility (Erie County);

k. Improvements to the Erie International Airport 

terminal building (Erie County);

l. Creation of a multi-use trail and installing 

associated signage from the West End 

neighborhood linking existing bike routes to a 

multiuse path that connects to The Pennsylvania 

State University (Centre County);
11

Transportation Efficiency Act of 1991 (“ISTEA”), Pub. L. No. 

102-240, 105 Stat. 1914 (codified as amended in scattered 

titles), authorizes these types of projects. Nonetheless, they 

assert that the toll costs burden interstate commerce and

“discourag[e] both business and private travelers from using 

the Turnpike.” App. 99.

 

m. Creation of a pedestrian island at the 

intersection of Park Avenue and McKee Street in 

State College to provide a safer crossing for 

pedestrians and cyclists and accommodate the 

accessibility needs of vision-impaired residents 

(Centre County);

n. Construction of a new two-way industrial 

access road, realigning a portion of the Nittany 

& Bald Eagle Railroad Main Line to 

accommodate the access road, and constructing 

new sidings and operating tracks for First 

Quality Tissue’s two existing facilities and a 

proposed new facility (Clinton County);

o. Construction of an 85-car unit train loop track 

in the Keystone Regional Industrial Park to 

connect with an existing Norfolk Southern main 

line track and serve a Deerfield Farms Service 

grain elevator facility in Greenwood (Crawford 

County).

App. 81-84. 
12

B

Plaintiffs brought suit on behalf of a putative class 

alleging violations of the dormant Commerce Clause and their 

right to travel.5

 Defendants moved to dismiss and Plaintiffs

moved for partial summary judgment on the issue of liability. 

The District Court granted Defendants’ motions to 

dismiss6 and denied Plaintiffs’ motion for summary judgment. 

See generally Owner Operator Indep. Drivers Ass’n v. Pa. Tpk.

Comm’n, No. 1:18-cv-00608, -- F. Supp. 3d --, 2019 WL 

 5 The Complaint seeks (1) a declaratory judgment that 

PTC’s tolls and the provisions of Act 44/89 that direct the PTC 

to make payments to PennDOT violate the dormant Commerce 

Clause and the constitutional right to travel, (2) a preliminary 

and permanent injunction enjoining both the excess tolls and 

payments under Act 44/89, and (3) a judgment against 

Defendants ordering the refund of excess toll payments. 6 Certain Defendants also moved in the alternative for 

summary judgment. Although the District Court outlined the 

legal standards for both Federal Rules of Civil Procedure 

12(b)(6) and 56, Owner Operator Indep. Drivers Ass’n v. Pa. 

Tpk. Comm’n, No. 1:18-cv-00608, -- F. Supp. 3d --, 2019 WL 

1493182, at *8-9 (M.D. Pa. Apr. 4, 2019), and, at the outset of 

its dormant Commerce Clause analysis, referenced 

“undisputed” facts, id. at *18, it applied the Rule 12(b)(6) 

standard, concluding that Plaintiffs’ “factual allegations do not 

support a claim for violations of the dormant Commerce 

Clause or the constitutional right to travel,” and granting “the 

PTC Defendants’ and Commonwealth Defendants’ motions to 

dismiss,” id. at *24. We therefore review the District Court’s 

opinion granting a motion to dismiss. See infra note 7.
13

1493182 (M.D. Pa. Apr. 4, 2019). The Court applied the test 

set forth in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), 

and held that, because the alleged burdens from the tolls are 

equally imposed on both in- and out-of-state drivers, they are 

general burdens on commerce that do not violate the dormant 

Commerce Clause, Owner Operator, 2019 WL 1493182, at

*22. The Court also held that Plaintiffs failed to state a claim 

that their right to interstate travel was infringed because they

asserted only that the toll structure deterred Turnpike travel.

Id. at *24. 

II7

A

1

The Commerce Clause confers upon Congress the 

 7 The District Court had jurisdiction under 28 U.S.C. 

§§ 1331 and 1343. We have jurisdiction under 28 U.S.C. 

§ 1291.

Our review of the District Court’s dismissal of 

Plaintiffs’ complaint is plenary. Burtch v. Milberg Factors, 

Inc., 662 F.3d 212, 220 (3d Cir. 2011). To withstand a motion 

to dismiss, a complaint must allege a claim “that is plausible 

on its face” when accepting all the factual allegations as true 

and drawing every reasonable inference in favor of the 

nonmoving party. Connelly v. Lane Constr. Corp., 809 F.3d 

780, 786 & n.2 (3d Cir. 2016) (quoting Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009)). In reviewing a complaint, we disregard 

conclusory assertions and bare recitations of the elements. Id.

at 786 n.2. 
14

power “[t]o regulate Commerce . . . among the several States.” 

U.S. Const. art. I, § 8, cl. 3. By negative implication, 

Congress’s authority to regulate commerce prohibits the states 

from enacting “laws that unduly restrict interstate commerce.” 

Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 

2449, 2459 (2019). This “dormant Commerce Clause” bars 

states from discriminating against or unduly burdening

interstate commerce, for instance by enacting protectionist 

regulations that give in-state businesses an advantage over outof-state businesses, see, e.g., Pike, 397 U.S. at 144-45, or by 

assessing fees that “threaten the free movement of commerce 

by placing a financial barrier around the [s]tate,” Am. Trucking 

Ass’ns, Inc. v. Scheiner, 483 U.S. 266, 284 (1987).

Congress, however, may authorize a state to take 

actions that burden interstate commerce. S. Dakota v. Wayfair, 

Inc., 138 S. Ct. 2080, 2089 (2018). “[W]hen Congress 

exercises its power to regulate commerce by enacting 

legislation, the legislation controls.” Id. Thus, where Congress 

has spoken and state or local governments take actions that are 

“specifically authorized by Congress,” those actions are “not 

subject to the Commerce Clause even if [they] interfere[] with 

interstate commerce.” 8

 White v. Mass. Council of Constr. 

Emp’rs, Inc., 460 U.S. 204, 213 (1983) (citation omitted). In 

short, as applied here, if Congress authorizes an action, such as 

using tolls for non-toll road purposes, then “no dormant 

Commerce Clause issue is presented.” Id. 

 8 Absent such legislation, “Congress has left it to the 

courts to formulate the rules to preserve the free flow of 

interstate commerce.” Wayfair, 138 S. Ct. at 2090 (internal 

quotation marks and citations omitted). 
15

To determine whether Congress has authorized such 

action and thereby “removed [it] from the reach of the dormant 

Commerce Clause,” we must consider whether its intent is 

“unmistakably clear.” S.-Cent. Timber Dev., Inc. v. 

Wunnicke, 467 U.S. 82, 91 (1984); see Ne. Bancorp, Inc. v. 

Bd. of Governors of Fed. Reserve Sys., 472 U.S. 159, 174 

(1985) (“When Congress so chooses, state actions which it 

plainly authorizes are invulnerable to constitutional attack 

under the Commerce Clause.”). While “congressional intent 

and policy to insulate state legislation from Commerce Clause 

attack [must be] ‘expressly stated,’” “[t]here is no talismanic 

significance to the phrase ‘expressly stated.’” S.-Cent. Timber, 

467 U.S. at 90-91. “‘Expressly stated’ . . . merely states one 

way of meeting the requirement that for a state regulation to be 

removed from the reach of the dormant Commerce Clause, 

congressional intent must be unmistakably clear.” Id. at 91. 

That is, Congress “need not expressly state that it is authorizing 

a state to engage in activity that would otherwise violate the 

[d]ormant Commerce Clause.” Am. Trucking Ass’ns, Inc. v. 

N.Y. State Thruway Auth., 886 F.3d 238, 245 (2d Cir. 2018). 

Rather, Congress “need only clearly allow the state to engage 

in such activity.” Id.

2

Defendants contend that Congress, through ISTEA,

specifically authorized states to enact legislation that allocates 

highway tolls for purposes unrelated to the toll road. If a state’s

actions fall within the scope of Congress’s authorization, then 

the dormant Commerce Clause does not apply. We therefore 
16

begin by analyzing whether ISTEA authorizes Defendants’ 

conduct.9

 

Under ISTEA, “Congress sought to foster a National 

Intermodal Transportation System, consisting of all forms of 

transportation in a unified, interconnected manner.” Am. 

Trucking, 886 F.3d at 242 (internal quotation marks omitted). 

Before ISTEA, “Congress enacted the Surface Transportation 

Assistance Act (‘STAA’),” which provided “federal financial 

support” for toll roads. Id. at 241. STAA required that for state 

public authorities maintaining highways “to receive federal 

financial aid,” they “had to discontinue levying tolls once they 

had collected sufficient revenues to retire outstanding bonds” 

that funded the highways. Id. “If those authorities failed to 

make a toll road free once they had collected sufficient tolls to 

retire those bonds, STAA required them to repay the federal 

government for the financing it had provided them.” Id. at 241-

42. ISTEA, however, “freed states from their obligation under 

the STAA to repay the federal government should they 

continue to collect tolls after retiring outstanding debts, and 

granted them greater flexibility to operate toll facilities and use 

toll revenues for a variety of transportation projects.” Id. at 

 9 Principles of constitutional avoidance counsel us to 

first address whether a statutory ground resolves the case, and 

thereby renders unnecessary the need to answer the 

“constitutional question” here of whether the Defendants’ toll 

collection and allocation place an undue burden on interstate 

commerce in violation of the dormant Commerce Clause. 

Slack v. McDaniel, 529 U.S. 473, 485 (2000) (quoting 

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) 

(Brandeis, J., concurring)).
17

242. To that end, ISTEA “broadened the list of purposes for 

which states could use federal funds.” Id. 

ISTEA regulates the use of “toll revenues” by “[a] 

public authority,” such as the PTC,10 and enumerates the 

categories for which toll revenues may be used. 23 U.S.C. 

§ 129(a)(3)(A). ISTEA provides that the public authority 

“shall ensure that all toll revenues received from operation of 

the toll facility are used only for”:

• debt service; 

• “a reasonable return on investment of any 

private person financing the project”;

• “any costs necessary” to improve, operate, 

and maintain the toll facility; and 

• payments to private parties (where 

applicable) “if the toll facility is subject to a 

public-private partnership agreement.”

Id. § 129(a)(3)(A)(i)-(iv). In addition, if “the public authority 

certifies annually that the tolled facility is being adequately 

maintained,” ISTEA permits the public authority to use toll 

revenues for “any other purpose for which Federal funds may 

be obligated by a State under [title 23].” Id. § 129(a)(3)(A)(v). 

In short, ISTEA allows a public authority to use toll revenues 

for non-toll road projects. 

 10 A “public authority” includes a state “instrumentality 

with authority to finance, build, operate or maintain toll . . . 

facilities.” 23 U.S.C. § 101(a)(21).
18

Pursuant to title 23, federal funds “may be obligated” 

for several broad categories of items, id., and at least two 

statutory subsections authorize expenditures unrelated to the 

toll road itself. For example, ISTEA authorizes states to 

construct, among other things, “transit capital projects eligible 

for assistance under chapter 53 of title 49.” Id. § 133(b)(1)(C). 

Subject to certain conditions, capital projects may include 

“walkways,” “pedestrian and bicycle access to [] public 

transportation facilit[ies],” and the “construction, renovation, 

and improvement of intercity bus and intercity rail stations and 

terminals.” 49 U.S.C. § 5302(3)(G)(v)(VI)-(VIII). 

Title 23 also authorizes states to build “[a]ny type of 

project eligible under this section as in effect on the day before 

the date of enactment of the [Fixing America’s Surface 

Transportation] Act, including projects described under [§]

101(a)(29) as in effect on such day.” 23 U.S.C. § 133(b)(15). 

Before Congress enacted the Fixing America’s Surface 

Transportation Act in 2015, § 101(a)(29) listed various 

projects under the phrase “[t]ransportation alternatives,” 

including the

[c]onstruction . . . of on-road and off-road trail 

facilities for pedestrians, bicyclists, and other

nonmotorized forms of transportation, including 

sidewalks, bicycle infrastructure, pedestrian and 

bicycle signals . . . to achieve compliance with 

the Americans with Disabilities Act of 1990 (42 

U.S.C. [§] 12101 et seq.). 

23 U.S.C. § 101(a)(29)(A) (2012). “Transportation 

alternatives” also include the “[c]onstruction of turnouts, 

overlooks, and viewing areas.” Id. § 101(a)(29)(D) (2012). 
19

Through ISTEA, Congress expressed its “unmistakably 

clear” intent that the Defendants could use toll revenues for 

non-toll road projects. S.-Cent. Timber, 467 U.S. at 91. 

Congress’s authorization that toll revenues be used for 

purposes other than maintaining and operating the toll road, 

and servicing its debt, necessarily envisions that a public 

authority can collect funds that exceed a toll road’s costs before 

it can spend them. See 23 U.S.C. § 129(a)(3)(A)(v). Thus, 

ISTEA contemplated that tolls exceeding the amount needed 

to fund a toll road would be collected and spent on non-toll 

road projects. 

Plaintiffs argue that Congress could not have 

contemplated that a state would increase its tolls by over 200% 

to fund non-toll road projects. Plaintiffs ignore the text of 

ISTEA. Nowhere in the statute, including § 129(a)(3)(A)(v), 

did Congress cap the amount of toll money a state could raise. 

See Am. Trucking, 886 F.3d at 246 (holding that “a plain 

reading of [ISTEA] reveals that Congress meant to permit [a 

public authority] to continue collecting tolls of whatever 

amount without having to repay federal funds—something that 

it was previously barred from doing once it satisfied its debt 

obligations” (emphasis omitted)). As we already noted, the 

fact that Congress allowed states to use toll money on non-toll 

road projects presupposes that funds exceeding the amount 

needed for the toll road would be collected. 

Nor is there merit to Plaintiffs’ argument that ISTEA speaks 

only to “use” of excess toll revenue, not to “collection” or 

“generation” of toll revenue. As a matter of common sense, 

however, Congress’s authorization of “use” assumes there is toll 

revenue collected in the first place to be used, and contrary to 

Plaintiffs’ suggestion that Congress was speaking only to “nickels 

and dimes” left over each year due to fluctuating Turnpike costs, 
20

Oral Arg. Tr. at 18, 77, Congress identified a host of big-ticket items 

that excess tolls could be spent to construct, including “highways, 

bridges, tunnels, . . . ferry boats[,] and [ferry] terminal facilities.” 

23 U.S.C. § 133(b)(1). This further shows that ISTEA did not 

limit the amount of funds the PTC could collect and spend on 

non-Turnpike projects.

Plaintiffs concede that the non-Turnpike related 

projects listed in their complaint for which toll funds were used 

fall within ISTEA’s scope, but contend that Defendants failed 

to satisfy one of ISTEA’s conditions for using the toll funds for 

non-toll road purposes. As noted earlier, ISTEA requires that 

the public authority “certif[y] annually that the toll facility is 

being adequately maintained” before any excess funds may be 

used for non-toll road projects. 23 U.S.C. § 129(a)(3)(A)(v). 

Defendants conceded before the District Court that they did not 

submit the required annual certifications. Their failure to 

comply with this condition, however, does not diminish the 

fact that Congress has legislated in the area of interstate 

commerce at issue and blessed the use of tolls for non-toll road 

purposes.11 In other words, the presence or absence of the 

 11 Moreover, Plaintiffs’ attempt to preclude Defendants 

from relying on § 129(a)(3)(A)(v)’s spending authority 

because they did not fulfill the statute’s certification 

requirements also fails because the statute does not provide a 

private right of action. See Endsley v. City of Chicago, 230 

F.3d 276, 280 (7th Cir. 2000). Not only is there no private right 

of action, but Congress specified its own remedy here for the 

failure to abide by this condition. That remedy is vested in the 

Secretary of Transportation, who “may require the public 

authority to discontinue collecting tolls” if she “concludes that 

a public authority has not complied with the limitations on the 

use of revenues described in [§ 129(a)(3)(A)].” 23 U.S.C. 
21

annual certification does not otherwise affect Congress’s 

“unambiguous intent to authorize [a state authority, such as the 

PTC,] to allocate excess toll funds” to non-toll road projects.

Am. Trucking, 886 F.3d at 247. 

In sum, “[t]he text is clear”: Congress has authorized the 

states, including the Commonwealth of Pennsylvania, to 

generate and use such tolls to fund the type of projects listed in 

Plaintiffs’ complaint.12 Id. As a result, the collection and use 

of the tolls to fund the challenged expenditures does not violate 

the dormant Commerce Clause, and the District Court properly 

dismissed Plaintiffs’ dormant Commerce Clause claim.13

 

§ 129(a)(3)(C). As it is Congress’s prerogative to authorize the 

use of funds at issue and it has done so, we need not adjudicate 

the consequence for the failure to certify.

12 Because we hold that Congress has authorized 

Defendants to engage in the challenged activity, we need not 

decide whether Pike, 397 U.S. 137, or Evansville-Vanderburgh 

Airport Auth. Dist. v. Delta Airlines, Inc., 405 U.S. 707 (1972), 

or some other test applies to a dormant Commerce Clause 

challenge to a toll.

13 Although the District Court declined to decide 

whether “Congress has specifically authorized the expenditure 

of toll revenues contemplated by Act 44/89,” Owner Operator, 

2019 WL 1493182, at *22 n.23, we may affirm its order 

dismissing Plaintiffs’ complaint “on any ground supported by 

the record,” Tourscher v. McCullough, 184 F.3d 236, 240 (3d 

Cir. 1999). 
22

B

Plaintiffs’ claim that the tolls violate their right to travel

also fails. “The constitutional right to travel from one State to 

another, and necessarily to use the highways and other 

instrumentalities of interstate commerce in doing so, occupies 

a position fundamental to the concept of our Federal Union.” 

United States v. Guest, 383 U.S. 745, 757 (1966). We have 

observed that the right to travel includes “the right of a citizen 

of one State to enter and to leave another State,” Connelly v. 

Steel Valley Sch. Dist., 706 F.3d 209, 213 (3d Cir. 2013), as 

amended (May 10, 2013) (quoting Saenz v. Roe, 526 U.S. 489, 

500 (1999)), as well as a right to intrastate travel, see Lutz v. 

City of York, 899 F.2d 255, 268 (3d Cir. 1990), though the 

exact “contours” of that right remain elusive, see United States 

v. Baroni, 909 F.3d 550, 588 (3d Cir. 2018), cert. granted Kelly 

v. United States, No. 18-1059, 2019 WL 588845 (U.S. June 28, 

2019).

To determine whether a state law “sufficiently impinges 

upon the right to travel or migrate to trigger strict scrutiny, [we 

look] to see whether the challenged law’s [1] ‘primary 

objective’ is to impede interstate travel; [2] whether it 

‘penalize[s] the exercise of that right;’ or [3] whether it 

‘actually deters such travel.’” Maldonado v. Houstoun, 157 

F.3d 179, 186 (3d Cir. 1998) (fourth alteration in original) 

(quoting Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 

(1986) (plurality opinion)). 

Plaintiffs do not assert that the toll penalizes or impedes 

travel. Rather, Plaintiffs allege that “the average turnpike 

traveler will be deterred by the increased cost and seek 

alternative toll-free routes[,]” App. 88 (quotation marks and 
23

citation omitted), and that the tolls “discourag[e] both business 

and private travelers from using the Turnpike,” App. 99. Thus, 

we must decide whether Plaintiffs have stated a claim that the 

tolls “actually deter[]” interstate or intrastate travel. SotoLopez, 476 U.S. at. 903.

“[B]urdens on a single mode of transportation do not 

implicate the right to interstate travel.”14 Miller v. Reed, 176 

F.3d 1202, 1205 (9th Cir. 1999). Moreover, “[b]urdens placed 

on travel generally, such as gasoline taxes, or minor burdens 

impacting interstate travel, such as toll roads, do not constitute 

a violation of” the right to travel. Id. Put differently, “[m]inor 

restrictions on travel,” including delays and costs, “simply do 

not amount to the denial of a fundamental right that can be 

upheld only if the Government has a compelling justification.” 

Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991); see 

also Lutz, 899 F.2d at 269 (“[T]he right to travel cannot 

conceivably imply the right to travel whenever, wherever and 

however one pleases—even on roads specifically designed for 

public travel.”). “A law does not actually deter travel merely 

because it makes it somewhat less attractive for a person to 

travel interstate,” Pollack v. Duff, 793 F.3d 34, 46 (D.C. Cir. 

2015) (internal quotation marks omitted), or it is not “the most 

convenient form of travel,” Town of Southold v. Town of E. 

Hampton, 477 F.3d 38, 54 (2d Cir. 2007) (internal quotation 

marks omitted); see Kansas v. United States, 16 F.3d 436, 442 

(D.C. Cir. 1994) (holding that law channeling interstate air 

 14 States may not impose burdens on all modes of 

interstate travel. See Crandall v. Nevada, 73 U.S. 35, 39-40, 

46 (1867) (holding unconstitutional a state tax imposed on all 

persons exiting the state or passing through its borders). 
24

travel through new airport requiring a longer drive had at most 

“negligible” or “trivial” effect on right to travel). 

Because Plaintiffs allege only that the increased tolls 

have caused and will continue to cause Turnpike users to 

switch to non-toll roads in the future,15 and not that interstate

or intrastate travel has been or will be deterred,16 they have not 

stated a claim that their right to travel has been infringed. 

Therefore, the District Court properly dismissed Plaintiffs’ 

right to travel claim. 

III

For the foregoing reasons, we will affirm.

 15 In Wallach v. Brezenoff, we applied Evansville to 

evaluate plaintiffs’ assertion that an increase in tolls on all of 

the bridges and tunnels from New Jersey to New York City 

violated their right to travel. 930 F.2d 1070, 1072 (3d Cir. 

1991). The Evansville Court observed that “facilit[ies] 

provided at public expense [such as highways] aid[] rather than 

hinder[] the right to travel,” and therefore requiring users to 

“pay a reasonable fee” is constitutional. 405 U.S. at 714. We 

need not engage in such analysis or determine, as Plaintiffs 

urge us to do, whether Evansville supplies the exclusive test of 

constitutionality for certain right to travel claims because 

Plaintiffs here acknowledge that there are non-toll routes to 

travel in and out of Pennsylvania. 16 Plaintiffs seek to rely on Defendant Wolf’s statements 

on the radio that the tolls deter travel on the Turnpike, but those 

statements are outside of the pleadings and thus are irrelevant 

to whether the complaint states a claim.