Virginia Ass'n of Towing & Recovery Operators v. Virginia , 78 F. App'x 867 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VIRGINIA ASSOCIATION OF 
TOWING AND RECOVERY OPERATORS,
INCORPORATED,
Plaintiff-Appellant,
 No. 03-1312
v.
COMMONWEALTH OFVIRGINIA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-02-1814-A)
Submitted: July 23, 2003
Decided: October 21, 2003
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert L. Tomlinson II, TOMLINSON & ASSOCIATES, Arlington,
Virginia, for Appellant. Jerry W. Kilgore, Attorney General of Vir-
ginia, Judith Williams Jagdmann, Deputy Attorney General, Edward
M. Macon, Senior Assistant Attorney General/Chief, Peter R. Messitt,
Senior Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee.
2 VIRGINIA ASSOCIATION v. COMMONWEALTH OF VIRGINIA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Virginia Association of Towing and Recovery Operators, Inc.
("VATRO"), filed an action against the Commonwealth of Virginia
seeking a declaratory judgment that Va. Code Ann. § 46.2-1233.1(Michie 2002), which limited the applicable fees for non-consensual
towing, violated the Fifth and Fourteenth Amendments. The district
court granted Virginia’s motion to dismiss on the ground the action
was barred by the Eleventh Amendment. Finding no error, we affirm.
VATRO argues neither the Eleventh Amendment nor the doctrine
of sovereign immunity prohibits a claim in federal court that alleges
a violation of the Fourteenth Amendment due process clause. While
§ 5 of the Fourteenth Amendment can provide constitutional authori-
zation for Congress to abrogate the States’ immunity, see Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 59 (1996), we reject
VATRO’s arguments that a claim under the Fourteenth Amendment
may proceed against the State even in the absence of appropriate leg-
islation under § 5. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531
U.S. 356, 364 (2001) ("[H]owever, we held that ‘the Eleventh
Amendment, and the principle of state sovereignty which it embodies,
are necessarily limited by the enforcement provisions of § 5 of the
Fourteenth Amendment." (citing Fitzpatrick v. Bitzer, 427 U.S. 445,
456 (1976))).
To the extent VATRO argues it may proceed under 28 U.S.C.
§ 2201 (2000), we reject these arguments. Lastly, VATRO argues it
may proceed under the doctrine of Ex parte Young, 209 U.S. 123(1908) (allowing for suit seeking injunctive or declaratory relief
against state officials). However, the only defendant VATRO sued
was the Commonwealth of Virginia, consequently Ex parte Young
does not apply. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 146 (1993). Nor do we find the Supreme
VIRGINIA ASSOCIATION v. COMMONWEALTH OF VIRGINIA 3
Court’s recent opinion in Verizon Md., Inc. v. Pub. Serv. Comm’n of
Md., 535 U.S. 635 (2002), affects this analysis.
Accordingly, we affirm the district court’s order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED