Owner Operator Indep. Drivers Ass'n, Inc. v. Pa. Tpk. Comm'n

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
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
2
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
3
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
4
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.
5
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.
6
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 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
7
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.
8
underpass” and a “[s]idewalk installation.” 4 Ohio 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);
9
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);
10
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.
11
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
dismiss 6 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.
12
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.
II 7
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.
13
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).
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).
14
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
15
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)).
16
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).
17
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).
18
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,
19
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.
20
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).
21
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
22
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. Soto-
Lopez, 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).
23
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.
24