Opinion
12-P-205
01-07-2013
JOHN H. GASS v. REGISTRAR OF MOTOR VEHICLES & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Based on suspected identity fraud, defendant registry of motor vehicles (RMV) revoked plaintiff John H. Gass's driver's license effective April 1, 2011. After Gass satisfied the RMV's concerns, the agency restored his license on April 11, 2011. Unsatisfied with that resolution, Gass filed a four-count complaint that, on various theories, sought declaratory and injunctive relief, as well as damages, attorney's fees, and costs. Arguing that Gass's claim for injunctive relief was moot, his claim for damages was barred by sovereign immunity, and his action was otherwise infirm as a matter of law, the RMV moved to dismiss Gass's action. After a hearing, a Superior Court judge granted the defendants' motion 'for the reasons stated in [their] memorandum.' We affirm.
Background. According to the allegations of the complaint, which we accept as true for purposes of this appeal, the RMV mailed to Gass a written notice, dated March 22, 2011, that his license was being revoked for an indefinite period effective April 1, 2011. That notice indicated that his license was being revoked for an 'offense' identified as 'COMP FRAUD LIC/ID.' The notice, which stated that Gass had a right to request a hearing, was mailed on March 24, 2011, to the post office box that Gass used. However, Gass did not receive the notice until April 5, 2011, four days after the revocation became effective. It is not clear on the record before us whether the delay in Gass's receiving the notice was due to his failure to check his mail on a regular basis or some other cause. In any event, upon receiving the notice, Gass contacted the RMV immediately. The RMV contacts he spoke with reiterated that he could have a hearing and told him to bring proof of his identity to the hearing. The RMV officials refused to provide him further specification as to the grounds of the revocation. An informal hearing was held on April 11, 2011. At the hearing, Gass learned that the RMV's concerns about his identity stemmed from two things: 1) a recent photograph of Gass was determined to resemble closely that of another man in the RMV's database; and 2) a 2010 photograph of Gass did not appear to match a 1997 photo of him that the RMV had on file. Gass pointed out that he has a scar above his right eye and that both photographs of him from the RMV's files show that scar, while the photograph purporting to show a different individual does not. He also explained that his 2010 photograph looks different from his earlier photo because he had gained weight in the intervening thirteen years. Finally, he provided his birth certificate and social security card as proof of his identity, and -- at the RMV's request -- he later that day faxed proof of his current address. The RMV accepted his explanation and reinstated his license that day. However, the hearing officer refused Gass's request that he write a letter stating that Gass 'was cleared and had done nothing wrong.'
The date of the alleged 'offense' is listed as April 22, 2004, a reference that is not explained in the record before us.
The post office box that Gass maintained was in Needham; according to his complaint, he actually lives in Newton.
The resemblence was flagged by a computer software program that the RMV uses.
Discussion. Absent its consent, a State or State agency cannot be sued for damages pursuant to 42 U.S.C. § 1983 (2006). Will v. Michigan Dept. of State Police, 491 U.S. 58, 67 (1989). The same applies to State officials sued in their official capacity. Id. at 71. With Gass not having identified any other statutory basis upon which the RMV could be found liable for damages, such claims fail.
Although the complaint does not expressly identify the capacity in which the registrar was being sued, it sounds in terms of claims brought against her in her official capacity. In any event, the complaint does not contain sufficient allegations to support a plausible claim for personal liability. See, e.g., Chao v. Ballista, 630 F. Supp. 2d 170, 177 (D. Mass. 2009) (in § 1983 action, plaintiff must adequately plead 'personal involvement' of supervisory officials in order to survive motion to dismiss). See generally Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (to survive motion to dismiss, complaint must plead 'factual 'allegations plausibly suggesting [not merely consistent with]' an entitlement to relief').
Because the RMV promptly restored Gass's license, his claims for injunctive relief are now moot and should be dismissed unless an exception to the mootness doctrine applies. See Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976) ('[o]rdinarily, litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome'). There is an exception under which appellate courts have 'discretion to decide an issue which is [moot], where the question is one of public importance, is very likely to arise again in similar circumstances, and where appellate review could not be obtained before the question would again be moot.' Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000), quoting from Attorney Gen. v. Commissioner of Ins., 403 Mass. 370, 380 (1988). Although Gass's pique at having to defend his identity is understandable, it does not follow that his case raises larger legal questions that appellate courts must resolve at this time. As explained below, no such issues appear before us.
There can be no reasonable dispute that -- as a general matter -- the RMV has authority to suspend licenses based on suspected identity fraud. See G. L. c. 90, § 22(e). Whether the agency properly exercised that authority in a particular case requires attention to the facts of that case; an allegedly improper suspension is not amenable to resolution through the sort of generic attack that Gass seeks to mount. Although Gass claims that the RMV has a generic practice of summarily revoking licenses without a hearing (an issue that might warrant judicial review even if it became moot in an individual case), his complaint belies that claim: the RMV made reasonable efforts to provide him a hearing prior to the effective date of the revocation.
To be sure, as the RMV acknowledged in its brief and at oral argument, the statute on which the RMV relies authorizes it to 'suspend' a license for six months, while the agency in this case asserted the authority to 'revoke' Gass's license indefinitely. However, the agency indisputably restored Gass's license ten days after it was revoked. Therefore, Gass no longer has any stake in determining the maximum time that the RMV could have terminated his driving privileges.
Gass also claims that the RMV has an established practice of providing inadequate prehearing notice to those whose licenses are going to be suspended for suspected identity fraud, and that we need to review this issue now or the practice will continue. However, while the written notice that the RMV provided is 'not a model of clarity' (as the RMV's counsel acknowledged), Gass was made aware prior to the hearing that the RMV had some concerns about his identity and that he should bring proof of his identity to the hearing. At the hearing, and through the posthearing submittal that the hearing officer invited, Gass was able to satisfy the RMV's concerns. In other words, the prehearing notice Gass received was adequate in fact to allow him to defend against the RMV's allegations. In this context, it makes little sense to consider the general adequacy of the notice that the RMV provides in a moot case.
At oral argument the RMV's counsel reported that she has discussed with the agency ways in which the quality of the notice that the RMV provides could be improved.
Finally, Gass cannot save his moot claims by framing them as requests for declaratory relief, as those proceedings 'are concerned with the resolution of real, not hypothetical, controversies,' and declaratory relief is available only where it would 'have an immediate impact on the rights of the parties.' Massachusetts Assn. of Indep. Ins. Agents & Brokers v. Commissioner of Ins., 373 Mass. 290, 292 (1977).
Nor is there merit in Gass's procedural arguments. Through its motion to dismiss, the RMV did not contest Gass's factual allegations, but argued instead that his case failed as a matter of law. Gass nevertheless complains that the RMV submitted an affidavit that converted its motion to dismiss into a motion for summary judgment, without abiding by the procedural requirements applicable to such motions. Leaving aside well-recognized case law that a party can submit affidavits that go to jurisdictional questions without converting a motion to dismiss into a motion for summary judgment, see Ginther v. Commissioner of Ins., 427 Mass. 319, 322 n.6 (1998), we note that the RMV's affidavit added little, if any, substance to what appears from the face of Gass's complaint. This is not surprising given that the essential facts necessary for resolving the motion to dismiss are undisputed. For similar reasons, Gass's protests that he was unfairly deprived of discovery have no merit. In short, Gass cannot show what facts needed to be developed before his motion to dismiss could be adjudicated. Moreover, Gass is incorrect that discovery provides his only available means of uncovering additional facts about the RMV's administration of its program. See G. L. c. 66, § 10 (public records law).
Judgment affirmed.
By the Court (Grasso, Vuono & Milkey, JJ.),