Patrick Doheny, Jr. v. Commonwealth of Pennsylvania ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-2168
______________
PATRICK J. DOHENY, JR.,
an adult individual,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING, a government agency;
JANET L. DOLAN, an adult individual; KARA N. TEMPLETON,
an adult individual; WILLIAM A. KUHAR, JR., an adult individual;
TERRENCE EDWARDS, an adult individual;
DONALD J. SMITH, an adult individual;
WILLIAM J. CRESSLER, an adult individual;
PHILIP MURRAY BRICKNELL, an adult individual
______________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-16-cv-01744)
District Judge: Honorable Cathy Bissoon
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 23, 2019
______________
Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.
(Filed: July 23, 2019)
______________
OPINION
______________
SHWARTZ, Circuit Judge.
Plaintiff Patrick J. Doheny, Jr. appeals the District Court’s orders granting
Defendants’ motion to dismiss and granting in part and denying in part his motion for
reconsideration. Because the Court soundly exercised its discretion in remanding Count I
and correctly dismissed Counts II through IV of Doheny’s complaint, we will affirm.
I
A
Doheny was involved in a car accident, resulting in his criminal conviction and
sentence for violating two provisions of the Pennsylvania Vehicle Code. Following his
sentence, the Department of Transportation Bureau of Driver Licensing (“PennDOT”)
sent him two “Official Notice of Suspension” letters, each with a mail date of July 3,
2013, informing him of a one-year suspension of his driver’s license. App. 109-14. The
letters, signed by then-PennDOT Director Janette Dolan, directed Doheny to surrender
his license by August 7, 2013. In addition, the first letter stated that his suspension
period, based on a violation of 75 Pa. Stat. and Cons. Stat. Ann. § 3735.1, would begin on
August 7, 2013, and the second letter said that his suspension period, based on a violation
of 75 Pa. Stat. and Cons. Stat. Ann. § 3802(b), would begin on August 7, 2014. The

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
2
letters also advised Doheny of his right to appeal within thirty days of the July 3, 2013
mail date. On August 20, 2013, Doheny received another letter from PennDOT,
confirming that he would not be eligible for reinstatement of his operating privileges until
August 2015 and describing the reinstatement process.
In September 2013, Plaintiff filed a “petition to file appeal nunc pro tunc” in the
Pennsylvania Court of Common Pleas, asserting that the suspension notices were
deceptive and prevented his timely appeal. App. 33 (capitalization omitted). The court
granted Doheny’s petition to file an untimely appeal, but ultimately dismissed his appeal
challenging the suspension notice on the merits. Doheny appealed to the Pennsylvania
Commonwealth Court, which held that pursuant to 75 Pa. Stat. and Cons. Stat. Ann.
§ 1550 and 42 Pa. Stat. and Cons. Stat. Ann. § 5571, the Court of Common Pleas erred in
granting Doheny’s petition to file an untimely appeal. Doheny v. Commonwealth, Dep’t
of Transp., No. 2019 C.D.2014, 2015 WL 9393952 (Pa. Commw. Ct. Dec. 23, 2015),
amended 2016 WL 1002079 (Pa. Commw. Ct. Feb. 17, 2016), pet. for allowance of
appeal denied 141 A.3d 436 (Pa. 2016) (Mem.) (per curiam).
B
Doheny sued PennDOT, Dolan, current PennDOT director Kara Templeton, and
various PennDOT attorneys1 in state court. Defendants removed the case to federal
court. Doheny filed an amended complaint: (1) seeking declaratory judgments that the
These attorneys are PennDOT’s Chief Counsel William Cressler, Deputy Chief
1
Counsel Donald Smith, and Assistant Counsel Terrence Edwards, Philip Bricknell, and
William Kuhar.
3
two-year suspension is void (Count I) and that 75 Pa. Stat. and Cons. Stat. Ann. § 1550
and 42 Pa. Stat. and Cons. Stat. Ann. § 5571 are unconstitutional (Count II); and (2)
requesting prospective injunctive relief (Count III) and damages (Count IV) under 42
U.S.C. § 1983 for violations of his Fourteenth Amendment due process rights.2
Defendants moved to dismiss Doheny’s complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). The District Court granted the motion, holding that (1) the
Rooker-Feldman doctrine did not bar consideration of Doheny’s claims, Doheny v. Pa.
Dep’t of Transp., Civ. A. No. 16-1744, 2017 WL 1282716, at *4 (W.D. Pa. Apr. 6,
2017); (2) Defendants were entitled to Eleventh Amendment immunity because Doheny
“seeks in Count I a declaration that the Defendant state agency and state official violated
state law,” id. (emphasis omitted); (3) the thirty-day appeal deadline for a license
suspension is constitutional, id. at *5-6; (4) PennDOT is not a person subject to suit under
§ 1983, id. at *6; (5) PennDOT’s attorneys are absolutely immune, id.; and (6) Doheny
failed to state a procedural due process claim against Templeton and Dolan because he
did not timely invoke the appellate process, and the time period for filing appeals does
not violate his due process rights, id. *7.
Doheny moved for reconsideration, which the District Court granted with respect
to Count I, remanding that Count to the state court. The Court explained that, even if
Defendants had waived Eleventh Amendment immunity, it would decline to exercise
2
Doheny also brought Equal Protection Clause and § 1985(3) claims, which the
District Court dismissed. Doheny v. Pa. Dep’t of Transp., Civ. A. No. 16-1744, 2017
WL 1282716, at *7-8 (W.D. Pa. Apr. 6, 2017). He does not challenge these rulings.
4
supplemental jurisdiction over Count I because it is “grounded entirely in state law and
the Court has dismissed with prejudice all federal claims.”3 Doheny v. Pa. Dep’t of
Transp., Civ. A. No. 16-1744, 2017 WL 1493857, at *2 (W.D. Pa. Apr. 26, 2017). The
Court did not reconsider its other rulings. Id.
Plaintiff appeals these orders.
II4
A
Doheny is not entitled to a declaratory judgment that his second suspension notice
is void ab initio based on state law. This is a state law claim over which a district court
3
Following the District Court’s remand, the Commonwealth Court dismissed
Count I, holding that res judicata and administrative finality barred Doheny’s collateral
attack on the order denying his nunc pro tunc appeal and suspension. Doheny v.
Commonwealth, Dep’t of Transp., 171 A.3d 930, 935-36 (Pa. Commw. Ct. 2017). The
Pennsylvania Supreme Court affirmed. Doheny v. Commonwealth, Dep’t of Transp.,
187 A.3d 246 (Pa. 2018) (Mem.) (per curiam).
4
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we
have jurisdiction under 28 U.S.C. § 1291. We review de novo the Court’s order
dismissing Doheny’s complaint for failure to state a claim under Rule 12(b)(6). Fowler
v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). To survive a Rule 12(b)(6)
motion, “a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
We disregard “a pleading’s legal conclusions” but “assume all remaining factual
allegations to be true” and construe them in the light most favorable to the plaintiff.
Connelly v. Lane Constr. Corp., 809 F.3d 780, 790 (3d Cir. 2016). In addition to the
factual allegations in the complaint, we may consider “undisputedly authentic documents
if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605
F.3d 223, 230 (3d Cir. 2010).
An appeal of an order denying a motion for reconsideration “brings up the
underlying judgment for review.” Quality Prefabrication, Inc. v. Daniel J. Keating Co.,
675 F.2d 77, 78 (3d Cir. 1982). “[W]hen a district court predicates its denial of
reconsideration on an issue of law, our review is plenary, and when it bases its denial on
an issue of fact, we review for clear error.” Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir.
2013).
5
may exercise supplemental jurisdiction. 28 U.S.C. § 1367(a). Here, the District Court
acted within its discretion in declining to do so since it “dismissed all claims over which
it ha[d] original jurisdiction.”5 28 U.S.C. § 1367(c)(3); see Elkadrawy v. Vanguard Grp.,
Inc., 584 F.3d 169, 172 (3d Cir. 2009) (“We review a district court’s refusal to exercise
supplemental jurisdiction for abuse of discretion.”).
Moreover, even if Count I were not dismissed under § 1367, dismissal would be
warranted because Doheny fails to state a claim on which relief may be granted. Doheny
received two one-year suspensions, one pursuant to 75 Pa. Stat. and Cons. Stat. Ann.
§ 1532(a), and the other pursuant to 75 Pa. Stat. and Cons. Stat. Ann. § 3804(e)(2)(i).
Doheny’s argument that the two should have merged into a single one-year suspension is
meritless. Under Pennsylvania law, the suspension of Doheny’s license and driving
privileges was a collateral consequence of his criminal convictions, and thus are not
subject to the criminal doctrine of merger. Bell v. Commonwealth, Dep’t of Transp., 96
A.3d 1005, 1019 (Pa. 2014).6 In addition, the language of § 1532(a) shows that
5
We need not resolve whether PennDOT and Templeton waived their Eleventh
Amendment immunity by removing Doheny’s state complaint to federal court.
Defendants did not affirmatively argue Eleventh Amendment immunity on appeal, but
rather have adopted the argument that “even if” they were not immune, these Defendants
are not “persons” amenable to suit under § 1983. Appellees’ Br. at 35.
6
Applying Bell does not violate the ex post facto clause. See Peugh v. United
States, 569 U.S. 530 (2013) (quoting Calder v. Bull, 3 U.S. 386, 390 (1798) and
describing four ex post facto categories); Commonwealth v. Muniz, 164 A.3d 1189, 1195
(Pa. 2017) (same). First, the ex post facto clause applies to criminal laws, and as Doheny
acknowledges, the suspensions are civil collateral consequences of a criminal proceeding.
See Thorek v. Commonwealth, Dep’t of Transp., 938 A.2d 505, 509 (Pa. Commw. Ct.
2007) (“The licensing of vehicle operators is civil in nature and is separate and apart from
criminal DUI proceedings.” (citation omitted)). Second, the ex post facto clause applies
to legislative enactments, and Bell is a judicial opinion that interpreted statutes that
6
suspensions are not intended to merge.7 Id. Therefore, because the consecutive
suspensions are lawful, Doheny is not entitled to declaratory relief stating that his second
suspension notice was invalid under state law. For this additional reason, the District
Court properly dismissed Count I of the complaint.
B
In Count II, Doheny asserts that, facially or as applied, 75 Pa. Stat. and Cons. Stat.
Ann. § 1550(a) and 42 Pa. Stat. and Cons. Stat. Ann. § 5571(b) unconstitutionally
deprive individuals like him of a right to seek relief from illegal action by PennDOT.
This claim fails.
The statutes do not unconstitutionally restrict a petitioner’s ability to challenge
license suspensions. The Vehicle Code affords a person “whose operating privilege has
been recalled, suspended, revoked or disqualified by [PennDOT] . . . the right to appeal,”
75 Pa. Stat. and Cons. Stat. Ann. § 1550(a), if the appeal is “commenced within 30 days
after the entry of the order from which the appeal is taken,” 42 Pa. Stat. and Cons. Stat.
existed at the time of Doheny’s offenses. Commonwealth v. Rose, 127 A.3d 794, 667
(Pa. 2015) (“The ex post facto prohibition is concerned with legislative acts, as opposed
to judicial decisions.” (citing Rogers v. Tennessee, 532 U.S. 451 (2001)).
7
Doheny’s argument that merger applies because the 2003 General Assembly
amendments made suspensions criminal under 75 Pa. Stat. and Cons. Stat. Ann. § 3804 is
meritless. Section 3804 “Penalties” appears within a portion of the Vehicle Code entitled
“Operation of Vehicles,” in the chapter “Driving After Imbibing Alcohol or Utilizing
Drugs.” PennDOT may issue a suspension “upon receiving a certified record of the
individual’s conviction or an adjudication of delinquency for” an offense under § 3802
(“Driving Under Influence of Alcohol or Controlled Substance”). 75 Pa. Stat. and Cons.
Stat. Ann. § 3804(e). Therefore, the section indicates that suspensions are collateral, non-
criminal consequences flowing from a DUI conviction. Bell, 96 A.3d at 1007 (involving
a § 3804(e)(2)(i) suspension).
7
Ann. § 5571(b). Thus, the statute provides an adequate period to seek judicial review of
a driver’s license suspension, and it is facially constitutional.8
Doheny’s “as applied” challenge, App. 86, also fails because it is actually an effort
to have a federal court review the state court order denying his untimely appeal. When a
plaintiff sues in federal court after filing suit in state court, the Rooker-Feldman doctrine
prohibits a district court from exercising jurisdiction. See ITT Corp. v. Intelnet Int’l, 366
F.3d 205, 210 (3d Cir. 2004). For the doctrine to apply, four requirements must be met:
“(1) the federal plaintiff lost in state court; (2) the plaintiff ‘complain[s] of injuries
caused by [the] state-court judgments’; (3) those judgments were rendered before the
federal suit was filed; and (4) the plaintiff is inviting the district court to review and
reject the state judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615
F.3d 159, 166 (3d Cir. 2010) (alterations in original) (quoting Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
Here, all four elements are satisfied. First, Doheny lost in his state court
proceedings where the Commonwealth Court declined to permit an untimely appeal of
his suspensions. Second, Doheny’s “as applied” challenge, App. 86, attacks the state
8
The “statutory time limit[] for taking an appeal [is] jurisdictional.” Bowles v.
Russell, 551 U.S. 205, 210 (2007); Fetherman v. Commonwealth, Dep’t of Transp., 167
A.3d 846, 849 (Pa. Commw. Ct. 2017) (“If an appeal [of a license suspension] is not filed
within 30 days as statutorily mandated, the court has no jurisdiction to hear the appeal of
the suspension unless the delay in filing the appeal was caused by fraud or a breakdown
in the administrative process.”). Therefore, the Pennsylvania Court of Common Pleas
lacked jurisdiction over the late-filed appeal. Fetherman, 167 A.3d at 850; Doheny, 2016
WL 1002079, at *3-4; see also Bowles, 551 U.S. at 213 (“[W]hen an appeal has not been
prosecuted in the manner directed, within the time limited by the acts of [the legislature],
it must be dismissed for want of jurisdiction.” (citation omitted)).
8
courts for treating PennDOT as a “preferred litigant in statutory appeals” and for failing
to credit his argument that his delay in appealing is irrelevant since PennDOT, according
to Doheny, never had the jurisdiction to impose consecutive license suspensions in the
first place, Appellant’s Br. at 35. Therefore, he is complaining of an injury caused by the
state court, not by PennDOT’s actions or the relevant statutes governing his appellate
rights. Third, the Commonwealth Court decision predates this action. Fourth, the relief
he seeks would “effectively would reverse a state court decision or void its ruling.”
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir. 2006) (citation
omitted). Therefore, Rooker-Feldman bars a federal court from granting Doheny relief.
For these reasons, the District Court properly dismissed Count II.
C
Doheny’s § 1983 claim in Count III against PennDOT and Templeton also fails
because, assuming they waived Eleventh Amendment immunity,9 they may not be sued
under § 1983. Under § 1983, only “persons” are amenable to suit. Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 66 (1989) (“Section 1983 . . . does not provide a federal
forum for litigants who seek a remedy against a State for alleged deprivations of civil
9
Because a plaintiff may sue state officials for prospective injunctive relief to end
ongoing violations of federal law, Christ the King Manor, Inc. v. Sec’y U.S. Dep’t of
Health & Human Servs., 730 F.3d 291, 318 (3d Cir. 2013), and Doheny seeks only
injunctive relief in Count III, Templeton would not be immune from suit. For the same
reasons described with respect to Doheny’s due process claims against Dolan in Count
IV, however, Doheny has not stated violations of federal law and thus is not entitled to
injunctive relief. See infra Section III.D.
9
liberties.”). The Commonwealth’s agency PennDOT10 and Templeton in her official
capacity are not “persons” subject to suit under § 1983. See id. at 71 (“[N]either a state
nor its officials acting in their official capacities are ‘persons’ under § 1983.”); Patterson
v. Pa. Liquor Control Bd., 915 F.3d 945, 956 n.2 (3d Cir. 2019) (“[A] state, including an
entity that is an arm of the state, is not a ‘person’ under 42 U.S.C. § 1983, and therefore
cannot be sued for damages under that statute.”). Therefore, the District Court properly
dismissed Doheny’s § 1983 claim in Count III.
D
The District Court also properly dismissed Doheny’s due process claim in Count
IV against the PennDOT attorneys and Dolan in their individual capacities.
The PennDOT attorneys are immune from Doheny’s claims. The PennDOT
attorneys functioned as advocates for the state agency by litigating Doheny’s appeals on
PennDOT’s behalf.11 “[A]gency officials performing certain functions analogous to
those of a prosecutor should be able to claim absolute immunity with respect to such
acts.” Butz v. Economou, 438 U.S. 478, 515 (1978); Light v. Haws, 472 F.3d 74, 78-80
(3d Cir. 2007) (recognizing absolute immunity applies to a defendant who functioned as
an agency advocate in bringing a civil compliance action and civil contempt petitions).
10
Other courts have similarly held that state departments of transportation are
arms of the state for Eleventh Amendment purposes. See, e.g., U.S. Oil Recovery Site
Potentially Responsible Parties Grp. v. Railroad Comm’n of Tex., 898 F.3d 497, 501 (5th
Cir. 2018) (holding Texas Department of Transportation is an arm of the state); Robinson
v. Ga. Dep’t of Transp., 966 F.2d 637, 640 (11th Cir. 1992) (holding Georgia Department
of Transportation is an arm of the state).
11
The alleged conduct here is not an administrative or investigative function that
precludes absolute immunity. See Odd v. Malone, 538 F.3d 202, 211-13 (3d Cir. 2008).
10
Because the PennDOT attorneys were performing prosecutorial functions, they “are
immune from a civil suit for damages under § 1983,” Imbler v. Pachtman, 424 U.S. 409,
430 (1976), and the claim against them lodged in Count IV was properly dismissed.
Doheny’s due process claim against Dolan also fails. While the Fourteenth
Amendment’s Due Process Clause applies to the deprivation of a driver’s license, a post-
deprivation hearing and appeal process satisfy due process. Dixon v. Love, 431 U.S.
105, 112, 115 (1977); see Commonwealth, Dep’t of Transp. v. McCafferty, 758 A.2d
1155, 1163 (Pa. 2000). To comport with due process, the government need only provide
“notice reasonably calculated . . . to apprise interested parties” of property deprivations.
Jones v. Flowers, 547 U.S. 220, 226 (2006) (citation omitted). Here, Doheny received
two notices of suspension clearly informing him that his license would be suspended for
one year beginning August 7, 2013 and another year beginning August 7, 2014. In
addition, the letters advised him of his “right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail date, JULY 03, 2013, of this
letter.” App. 111, 113. Thus, PennDOT notified him of a thirty-day window to appeal
the suspensions before they became effective. “This de novo appeal before a court of
law is an appropriate and adequate remedy that can be used to raise any defense, whether
constitutional or statutory.” Smires v. O’Shell, 126 A.3d 383, 390 (Pa. Commw. Ct.
2015) (discussing 75 Pa. Stat. Ann. § 1550(a)). Furthermore, Doheny cannot claim a
constitutional injury arising from a purported due process violation because he never
timely invoked the appeal process available to him. See Elsmere Park Club, LP v. Town
of Elsmere, 542 F.3d 412, 423 (3d Cir. 2008) (“[T]o state a claim for failure to provide
11
due process, a plaintiff must have taken advantage of the processes that are available to
him or her . . . . Thus, the [plaintiff’s] failure to take advantage of that process means it
cannot claim a constitutional injury.” (internal quotation marks and citation omitted)).
For these reasons, Doheny fails to state a due process claim against Dolan.
Therefore, the District Court properly dismissed Count IV.
III
For the foregoing reasons, we will affirm.12
12
Leave to amend would be futile. Many of the parties Doheny attempts to sue
are either immune from or not amenable to suit, and he fails to state claims for relief
based on constitutional violations. Doheny’s assertion that “the Commonwealth Court
created additional due process violations for which amendment of the complaint is not
only appropriate, but necessary, to address,” Appellant’s Br. at 47, also does not support
amendment. Not only did he fail to provide a proposed amended complaint to the
District Court, but Doheny’s vague comment does not show that he could state claim for
relief.
We also decline to grant Doheny’s motion to certify the issues in Count I to the
Pennsylvania Supreme Court. The Pennsylvania Supreme Court has already supplied the
precedent we need to resolve the issues presented. See Pa. R. App. P. 3341(c).
12