Intl Truck & Engine v. Bray

United States Court of Appeals
Fifth Circuit
F I L E D
August 2, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50479
INTERNATIONAL TRUCK AND ENGINE CORPORATION,
Plaintiff-Appellant,
versus
BRETT BRAY, In his official capacity as the Director of the Motor
Vehicle Division of the Texas Department of Transportation and
Chief Executive and Administrative Officer of the Motor Vehicle
Board of the Texas Department of Transportation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas, Austin
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ON PETITION FOR REHEARING EN BANC
Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.
BENAVIDES, Circuit Judge:
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, we delete footnote 4 from the original panel
opinion and substitute the following in its place:
We have jurisdiction to consider this controversy.
In a cursory reference at the beginning of his brief, the
Director cites Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89 (1984), for the proposition that
Eleventh Amendment immunity bars International’s suit.
The district court ruled that Bray had waived sovereign
immunity by failing to raise the defense within the time

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period allowed under local rules, see W.D. Tex. R. CV-12,
and by seeking summary judgment on the coverage of
section 2301.476(c) before raising immunity. The
Director neither critiques the district court’s ruling
nor explains the application of Pennhurst to this case.
Because the Director has failed to provide any
substantial legal analysis, we consider the Director’s
sovereign immunity arguments waived as not adequately
briefed on appeal. See Martin v. Alamo Cmty. Coll.
Dist., 353 F.3d 409, 413-14 (5th Cir. 2003).
The Director, relying on Fleet Bank, National
Association v. Burke, 160 F.3d 883 (2d Cir. 1998), also
argues that International’s constitutional claims are
insufficient to invoke federal question jurisdiction
under the well-pleaded complaint rule. Fleet Bank is
inapposite. The Second Circuit carefully limited its
holding in Fleet Bank to the context of preemption. Id.
at 889. Preemption, standing alone, creates a federal
defense but not a federal question. Id. International’s
dormant Commerce Clause challenge, in contrast, raises a
federal question.
In all other respects, the Petition for Panel Rehearing is DENIED.
No member of the panel nor judge in regular active service of
the Court having requested that the court be polled on Rehearing En
Banc (Fed. R. App. P. and 5th Cir. R. 35), the Petition for
Rehearing En Banc is DENIED.

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