Hull v . NH DOS, et a l . 09-CV-279-SM 01/04/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Robert P. Hull and Stephen D. Hellwig, Plaintiffs

v. Civil N o . 09-cv-279-SM Opinion N o .

John J. Barthelmes, Commissioner, New Hampshire Department of Safety; and Virginia C . Beecher, Director, New Hampshire Division of Motor Vehicles, Department of Safety, Defendants

O R D E R

Plaintiffs Robert Hull and Stephen Hellwig challenge the New

Hampshire Division of Motor Vehicles’ apparent practice of

waiting until drivers apply for license renewal to inform them

that information in the National Driver Registry precludes

renewal. The National Driver Registry maintains a problem driver

“pointer system,” and adverse information about a driver in that

system is relied upon by the State to deny license renewal —

which can pose a serious problem when a driver first learns of an

issue as his or her license is about to expire. And, when the

information is wrong, or misattributed (bureaucracies being what

they a r e ) , the imposition and attendant frustration can be

magnified. Before the court are defendants’ motion to dismiss

and plaintiffs’ motion for a hearing. Both motions are opposed. Although oral argument has been requested, it would not prove

helpful since the dispositive issues are limited in scope and

have been fully and capably briefed by both sides.

Background

The relevant facts, drawn from plaintiffs’ complaint, are as

follows.

In 2004, Robert Hull became a New Hampshire resident. He

obtained a New Hampshire driver’s license from the Division of

Motor Vehicles (“DMV”), in the process surrendering his New

Jersey driver’s license. In 2008, approximately two weeks before

his New Hampshire license was due to expire, Hull went to a DMV

office to renew i t . He was not permitted to do s o . Rather, he

was issued a “PDPS Problem Announcement” which stated:

We are sorry, but our system indicates that your operating privileges are under suspension in another state. We cannot issue you a license until this matter has been resolved and cleared from our system by the suspending state. You may contact our Bureau of Financial Responsibility at 23 Hazen Drive in Concord and they will help determine the nature of the problem and advise you what steps to take.

(Def.’s Mot. to Dismiss, Ex. A , at 9.) The Problem Announcement

listed New Jersey as the “Problem State,” along with a reference

number and a New Jersey telephone number. When Hull tried to

pursue the matter with the DMV, he was told that he would have to

2 resolve it in New Jersey, as New Hampshire (and presumably other

states) accept the registry information as presumptively valid.

After retaining legal counsel in New Jersey, Hull was able to

have the meritless suspension of his New Jersey driving

privileges lifted, and the notation in the pointer system

purged.1 Approximately four months after his New Hampshire

license expired, he was finally issued a new one.

Stephen Hellwig also went to a DMV office to renew his New

Hampshire license, some five weeks before it was to expire. A

DMV representative told him he could not renew his license due to

an adverse notation in the pointer system, entered by the

Commonwealth of Massachusetts. Hellwig was without a driver’s

license during the ensuing five and a half months required to

resolve the problem in Massachusetts.

1 The problem in New Jersey involved license suspensions, in 2007 and 2008, apparently for failure to obtain a certificate of occupancy for apartments located at a property Hull once owned. Hull characterizes the problem as bureaucratic blundering: “a municipality in which [he] did not live suspended a New Jersey driver’s license he did not have, for [an unrelated regulatory] violation [associated with] a building that he did not own.” (Compl. ¶ 5.) Hull’s displeasure over the impact in New Hampshire of his dubious New Jersey license suspensions is understandable. Whether such blundering rises to the level of a federal constitutional violation, however, is another question altogether.

3 Plaintiffs’ complaint does not disclose, but the court

acknowledges, the following facts. Shortly after the D M V

declined to renew his license, Hull filed a petition in the New

Hampshire Superior Court seeking declaratory2 and injunctive

relief.3 The Superior Court denied Hull’s requests for relief,

and the New Hampshire Supreme Court affirmed.

While Hull’s appeal to the state Supreme Court was pending,

he filed a second petition in the Superior Court, alleging that

the Department of Safety failed to fulfill its responsibilities

under the New Hampshire Right-to-Know Law, N . H . R E V . STAT. A N N . ch.

91-A, and seeking declaratory and injunctive relief that would

bar New Hampshire’s participation in National Driver Registry, as

well as its reliance on the pointer system. The Superior Court

denied all of Hull’s requests for relief, and that order is

currently on appeal to the New Hampshire Supreme Court.

2 He sought declarations that the DMV violated the law by: (1) refusing to renew his driver’s license based on information in the pointer system; (2) denying his request for information in the pointer system; and (3) refusing to renew his driver’s license. (Def.’s Mot. to Dismiss, Ex. A , at 6-7.) 3 He asked the court to enjoin the DMV from: (1) continuing to refuse renewal of his driver’s license; (2) denying license renewal based on information in the pointer system; (3) denying requests for information in the pointer system; and (4) denying renewal of his driver’s license based on information in the pointer system. (Def.’s Mot. to Dismiss, Ex. A , at 7.)

4 In this court, Hull and Hellwig seek relief based upon

alleged violations of their federal constitutional rights to due

process. In Count I , they assert that “[t]he processes,

procedures, policies, regulations, statutes and practices by

which the Defendants determine and implement refusals to renew

motor vehicle operator’s licenses by reason of notations in [the

pointer system] are unconstitutionally vague . . . in violation

of the Due Process requirements of the United States

Constitution.” (Compl. ¶ 67.) Count II asserts that “[n]otice

and [a] right to be heard prior to the DMV denying New Hampshire

residents renewal of their motor vehicle operator’s licenses is a

requirement arising out of a fundamental right . . . under the

United States Constitution” (id. ¶ 7 3 ) , and that defendants

violated that right (id. ¶ 7 4 ) . 4 Count III asserts:

The processes, procedures, policies, regulations, statutes and practices of the Defendants in denying renewal of motor vehicle operator’s licenses, based upon entries by foreign jurisdictions of information in the Problem Driver Pointer System, unconstitutionally deny the public, the Plaintiffs and every member of the class of which Plaintiffs are representative of the right to a hearing on charges upon which the Defendants rely in denying renewal of the motor vehicle operators licenses.

(Id. ¶ 77.)

4 The wording of Count II makes it somewhat difficult to determine whether plaintiffs are raising a substantive due- process claim or a procedural due-process claim.

5 The heart of plaintiffs’ case appears to be their contention

that the Due Process Clause of the national constitution

“requires that a holder of a New Hampshire driver’s license

receive notice of any information reported from the [pointer

system] that would result in denial of that licence’s renewal

sufficiently in advance of the renewal deadline to enable the

holding, upon request, of an administrative hearing in which to

contest it.” (Pl.’s Memo. of Law (document n o . 5 ) , at 2.) While

it is not clear, plaintiffs also appear to claim the right to a

hearing in New Hampshire, at which the validity of out-of-state

license suspensions may be contested.

Finally, the caption of the complaint suggests that Hull and

Hellwig are suing both on their own behalf and as representatives

of a class of similarly situated individuals. But they have not

moved for class certification, and no plaintiff class has been

certified.

Discussion

Defendants argue that they are entitled to dismissal based

on the Rooker-Feldman doctrine, principles of res judicata, the

Younger abstention doctrine, and plaintiffs’ lack of standing

(and/or mootness). They also seek dismissal on the merits.

Plaintiffs disagree, categorically. Having carefully considered

6 the parties’ briefs, the court concludes that defendants are

entitled to dismissal, based on plaintiffs’ lack of standing,

and, additionally, to dismissal of Hull’s claims on res judicata

grounds.

A . Standing/Mootness

Defendants point out that both plaintiffs resolved their

out-of-state issues and successfully renewed their New Hampshire

driver’s licenses, so lack standing to pursue these claims,

and/or that their claims are now moot.5 Plaintiffs disagree, but

offer no supporting analysis.

“The ‘irreducible constitutional minimum of standing

contains three elements’: (1) that the plaintiff suffered an

‘injury in fact,’ (2) that there is a ‘causal connection between

the injury and the conduct complained of,’ and (3) that it is

‘likely’ that the injury will be redressed by the requested

relief.” Sutliffe v . Epping Sch. Dist.,

(1st

Cir. 2009) (quoting Lujan v . Defenders of Wildlife,

(1992)). In addition, “[t]he burden of stating facts

5 Defendants argue both standing and mootness in that section of their brief devoted to standing. As the court of appeals has pointed out, standing and mootness are closely related concepts. See Ramírez v . Sánchez Ramos,

2 , 97 (1st Cir. 2006) (“mootness is aptly described as ‘the doctrine of standing set in a time frame’ ” ) (quoting U.S. Parole Comm’n v . Geraghty,

(1980)).

7 sufficient to support standing rests with the party seeking to

assert federal jurisdiction.” Sutliffe,

(quoting

Sea Shore Corp. v . Sullivan,

1 , 54 (1st Cir. 1998)).

Assuming, for the sake of argument, that plaintiffs continue

to suffer from constitutionally cognizable injuries in fact, and

have adequately pled a causal connection between their injuries

and the conduct they complain o f , their claims still founder on

the third element, redressability. Because plaintiffs both now

hold renewed driver’s licenses – and had them at the time they

filed suit – their cognizable injury is not that they are

deprived of licenses, but that they had to do without licenses

during the time it took to resolve their out-of-state problems.

The declaratory or injunctive relief plaintiffs seek, however,

will not redress that injury. Accordingly, they lack standing to

bring the claims raised in this suit.6 Moreover, their claims

6 To the extent plaintiffs contend that the situation they seek to remedy is “capable of repetition yet evading review,” an exception to the mootness doctrine, not the standing requirement, see Horizon Bank & Trust C o . v . Massachusetts,

8 , 54 (1st Cir. 2004), that exception does not apply in this case. There is no demonstrated probability that either Hull or Hellwig will again suffer because of meritless entries in the pointer system of which they are unaware. See United States v . Reid,

(1st Cir. 2004) (the “capable of repetition, yet evading review” exception applies only if “there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again”) (quoting Spencer v . Kemna,

, 17 (1998)) (emphasis added). Hull and Hellwig are actually (as well as constructively) aware of the DMV’s policies and procedures, so there is no reason to think they will again be

8 also seem to run afoul of “the rule [of prudential standing]

barring adjudication of generalized grievances more appropriately

addressed in the representative branches.” Nulankeyutmonen

Nkihtaqmikon v . Impson,

8 , 26 (1st Cir. 2007) (quoting

Allen v . Wright,

(1984)).

Plaintiffs suggest that the court would benefit from having

the parties address “the holdings in a number of Circuits that a

person satisfies Article III standing where s/he alleges a

failure to afford required procedures which leaves that person at

risk of suffering a concrete injury in the future.” (Document

no. 6, at 3.) But those authorities are not persuasive in this

context.

First, this is not “a ‘procedural rights’ case in which a

party ‘has been accorded a procedural right to protect his

concrete interests.’ ” Nuclear Info. & Res. Serv. v . NRC,

(D.C. Cir. 2007) (quoting Lujan,

n.7)). Because there is no established procedural requirement

that DMV afford licensed drivers pre-renewal notification of

surprised by a P D P S Problem Announcement when renewing their driver’s licenses, particularly given their ability to retrieve information in the pointer system from the National Driver Registry. See N . H . CODE R . Saf-C 1013.03 (describing the procedure individuals may follow to obtain information from the pointer system).

9 information in the pointer system that might preclude license

renewal, this is not a case in which plaintiffs have “standing to

challenge an agency’s failure to follow a procedural

requirement.” Nuclear Info.,

(citation omitted).

Moreover, neither plaintiffs, nor any individuals similarly

situated, i.e., those who have had license renewals denied

pending resolution of out-of-state licensing issues, are at risk

of suffering similar injury in the future. Plaintiffs have

resolved their out-of-state issues and are able to access the

pointer system before their next renewal date, in sufficient time

to resolve any disqualifying notation. In other words, the

likelihood of similar problems befalling plaintiffs in the future

is not sufficiently concrete to confer standing. As Sutliffe

explains, “[i]njury in fact is an invasion of a legally protected

interest that is both concrete and particularized and actual or

imminent, not conjectural or hypothetical.”

(quoting Lujan,

(internal quotation marks

omitted).

Because the relief plaintiffs seek will not redress the

injuries they claim, they lack standing to bring the claims

asserted in their complaint.

10 B . Res Judicata

Defendants also argue that plaintiffs’ claims are barred by

the res judicata doctrine, given the result of Hull’s first

Superior Court petition. Plaintiffs counter that: (1) Hellwig

was not a party to Hull’s earlier suit; (2) Hellwig’s problem

with DMV was entirely unconnected to Hull’s, has never been

adjudicated, and could have been brought in this court as a

separate case; (3) this case and Hull’s previous case rest on

different factual bases and, consequently, are different causes

of action. Plaintiffs are correct to a point; Hellwig’s claims

are not barred by res judicata, but Hull’s claims are.

“Under federal law, a federal court must give to a state-

court judgment the same preclusive effect as would be given that

judgment under the law of the state in which the judgment was

entered.” Sutliffe,

(quoting Torromeo v . Town of

Fremont,

(1st Cir. 2006) (internal quotation

marks omitted).

Under New Hampshire law, res judicata “precludes the litigation in a later case of matters actually decided, and matters that could have been litigated, in an earlier action” when the following three elements are met: “(1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered in the first action.”

11 Sutliffe,

(quoting Meier v . Town of Littleton,

(2006)).

Here, the first and third elements are plainly satisfied.

Hull sued representatives of the New Hampshire DMV in both this

case and his earlier state case, on nearly identical grounds,

arising from the same operative facts. That case progressed to

the New Hampshire Supreme Court, which rendered a final decision.

Turning to the second element, “New Hampshire law considers

two causes of action to be the same for purposes of res judicata

when they arise from the same factual transaction.” Sutliffe,

(quoting Patterson v . Patterson,

(1st Cir. 2002); citing ERG, Inc. v . Barnes,

(1993)). Focusing on the presence of constitutional claims

in this case that were absent from Hull’s earlier state-court

suit, plaintiffs contend that “the factual bases of the claims

are clearly distinct in the two cases,” rendering the two causes

of action different and res judicata inapplicable. That argument

is unavailing.

“[T]he New Hampshire Supreme Court has stated that ‘[c]ause

of action’ has a broad transaction definition in the res judicata

context.” Sutliffe,

(quoting Brzica v . Trs. of

12 Dartmouth Coll.,

(2002)). Here, a side-by-side

comparison of the factual allegations in Hull’s earlier state-

court petition and his complaint in this court demonstrates that

the claims are nearly identical. In both cases, Hull complained

that he was unlawfully denied the opportunity to renew his New

Hampshire driver’s license due to a disqualifying notation in the

pointer system. The complaint in this case adds one new fact —

the DMV’s failure to notify Hull of the pointer system notation

before he sought renewal of his license. But, “[t]he fact that a

second suit contains some additional factual allegations does not

mean it does not arise from the same factual transaction.”

Sutliffe,

. Thus, “[r]es judicata will bar a

second action even though the plaintiff is prepared in the second

action to present evidence or grounds or theories of the case not

presented in the first action.”

(quoting Brzica,

).

The bottom line is this. Hull’s earlier state-court

petition and the complaint filed in this case present essentially

the same causes of action, arising from the same operative facts,

and the additional constitutional claims Hull raises here could

have been raised in his earlier state-court case. The claims

raised in this case, then, are barred by res judicata. Hellwig’s

claims, however, are not barred. Hellwig was not a party to

13 Hull’s earlier state case, and, because no class has been

certified, Hull and Hellwig are not in privity.

Conclusion

For the reasons given, plaintiffs’ motion for a hearing

(document n o . 6 ) is denied, and defendants’ motion to dismiss

(document n o . 3 ) is granted. The clerk of the court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

January 4 , 2010

cc: William L. O’Brien, Esq. Nancy J. Smith, Esq.

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