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
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 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)
July 9, 2019
from the United States District Court for the Middle District
of Pennsylvania (D.C. No. 1-18-cv-00608) District Judge: Hon.
Melissa A. Chapaska Kevin J. McKeon Dennis Whitaker Hawke
McKeon & Sniscak Paul D. Cullen, Jr. Paul D. Cullen, Sr.
[ARGUED] Kathleen B. Havener 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
L. Byer [ARGUED] Leah A. Mintz Lawrence H. Pockers Brian J.
Slipakoff Duane Morris 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 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 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
M. Lacey Robert M. Linn Robyn A. Shelton Cohen & Grigsby
Counsel for Appellee William K. Lieberman, in his individual
capacity and his official capacity as Vice Chair of the PTC
Matthew H. Haverstick Shohin H. Vance Kleinbard Three Logan
Square Counsel for Appellee Craig R. Shuey, in his individual
capacity and his official capacity as Chief Operating Officer
of the PTC
M. Fisher Office of Attorney General of Indiana Counsel for
Amicus Curiae the State of Indiana
A. Estrada Gibson Dunn & Crutcher Counsel for Amicus
Curiae ITR Concession Company LLC
Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges.
SHWARTZ, CIRCUIT JUDGE
are individuals and members of groups who pay tolls to travel
on the Pennsylvania Turnpike. They allege that Pennsylvania
state entities and officials ("Defendants") have
violated the dormant Commerce Clause and their right to
travel. 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.
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, we will affirm the District Court's order
dismissing the complaint.
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.
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
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
EZ-Pass. 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 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.
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. 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 underpass" and a
"[s]idewalk installation." App. 81-82. Plaintiffs
concede that a federal statute, the Intermodal Surface
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.
brought suit on behalf of a putative class alleging
violations of the dormant Commerce Clause and their right to
travel. Defendants moved to dismiss and Plaintiffs
moved for partial summary judgment on the issue of liability.
District Court granted Defendants' motions to
dismiss 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 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.
Commerce Clause confers upon Congress the 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 out-of-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).
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."
White v. Mass. Council of Constr. Emp'rs, Inc.,
460 U.S. 204, 213 (1983) (citation omitted). In short, as
applied here, if Congress ...