NOT PRECEDENTIAL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, 

(Pa. Commw. Ct. Dec. 23, 2015),

amended 

(Pa. Commw. Ct. Feb. 17, 2016), pet. for allowance of

appeal denied 

(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, 

, 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,” 

(3) the thirty-day appeal deadline for a license

suspension is constitutional, 

(4) PennDOT is not a person subject to suit under

§ 1983, 

(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, 

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, 

, 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, 

, at *2 (W.D. Pa. Apr. 26, 2017). The

Court did not reconsider its other rulings. 

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., 

, 935-36 (Pa. Commw. Ct. 2017). The
Pennsylvania Supreme Court affirmed. Doheny v. Commonwealth, Dep’t of Transp.,

(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, 

, 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, 

, 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., 

, 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, 

, 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.,

, 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, 

, 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., 

, 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., 

, 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, 

(2013) (quoting Calder v. Bull, 

, 390 (1798) and
describing four ex post facto categories); Commonwealth v. Muniz, 

, 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., 

, 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 

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, 

, 667
(Pa. 2015) (“The ex post facto prohibition is concerned with legislative acts, as opposed
to judicial decisions.” (citing Rogers v. Tennessee, 

(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. 

(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, 

, 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, 

, 166 (3d Cir. 2010) (alterations in original) (quoting Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 

, 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, 

, 210 (2007); Fetherman v. Commonwealth, Dep’t of Transp., 

, 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. 

; Doheny, 

, at *3-4; see also 

(“[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., 

, 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, 

, 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., 

, 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 

(“[N]either a state

nor its officials acting in their official capacities are ‘persons’ under § 1983.”); Patterson

v. Pa. Liquor Control Bd., 

, 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, 

, 515 (1978); Light v. Haws, 

, 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., 

, 501 (5th
Cir. 2018) (holding Texas Department of Transportation is an arm of the state); Robinson
v. Ga. Dep’t of Transp., 

, 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, 

, 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, 

,

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, 

, 112, 115 (1977); see Commonwealth, Dep’t of Transp. v. McCafferty, 

, 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, 

, 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, 

, 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, 

, 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