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October 5, 1970

Benjamin F. BROCKWAY, on his own behalf and on behalf of all others similarly situated, Plaintiffs,
Vincent L. TOFANY, in his capacity as Commissioner of the Department of Motor Vehicles of the State of New York, Defendant

Mansfield, District Judge.

The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

In this action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), plaintiff moves to convene a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284 to weigh the constitutionality of N.Y. Vehicle and Traffic Law, McKinney's Consol. Laws, c. 71, § 510(6), and for declaratory and injunctive relief and damages. Defendant, in turn, has moved to dismiss the action. Under § 510(6), *fn1" the Commissioner of Motor Vehicles ("Commissioner" herein) is permitted to prolong the revocation of driver's and chauffeur's licenses beyond a mandatory period of six months, by denying license applications submitted by individuals whose licenses have been mandatorily revoked. Although there is no provision in the statute itself for notice to the applicant and an opportunity to be heard, the practice of the New York Department of Motor Vehicles is to accord hearings to such applicants under conditions more fully described below. Plaintiff contends that the statute violates his constitutional right to due process of law under the Fourteenth Amendment. For reasons set forth below, plaintiff's motion is denied and defendant's motion is granted.

 On March 26, 1968, Brockway pleaded guilty to and was convicted of the charge of driving while intoxicated in violation of § 1192(2) of the N.Y. Vehicle and Traffic Law. He was sentenced to a fine of $50, and his chauffeur's license to operate a motor vehicle in New York State was mandatorily revoked pursuant to § 510(2) of the Vehicle and Traffic Law. *fn2" Under § 510(6), this revocation was to continue for a minimum of six months. Section 510(6) provides that after six months a new license might be granted in the discretion of the Commissioner.

 After the mandatory six-month period had expired, Brockway applied for a new chauffeur's license. His application was denied in early December, 1968, "after a review of [his] entire record, involving a history of drinking and three convictions of driving while intoxicated." Brockway was informed that he might reapply six months later. On August 19, 1969, Brockway's second application was denied on the grounds on which the denial of his first application had been based.

 On October 2, 1969, Brockway wrote the Commissioner through an attorney requesting either "restoration of [his] chauffeur's license or, in the alternative, a full administrative hearing to determine whether the continued refusal to restore [his] chauffeur's license was warranted under all the facts and circumstances of the case." The Commissioner responded on October 20, 1969, stating that his decision to deny Brockway's application remained unchanged. Apparently after receiving the Commissioner's reply, Brockway's attorney again wrote the Commissioner, requesting for a second time a full administrative hearing. On November 21, 1969, the Commissioner replied that, although in his opinion such a hearing was not required by the Vehicle and Traffic Law or by the Constitution, a hearing would be scheduled if Brockway desired one. Subsequently, Brockway was informed that no further consideration could be given to his former application, as "an application once denied cannot be reconsidered," but that he would be required to file an application de novo to obtain the proferred hearing and any other further consideration of his case.

 On January 23, 1970, Brockway commenced an action in this court, Brockway v. Tofany, 310 F. Supp. 266 (S.D.N.Y. 1970), alleging the above facts, claiming a violation of his Due Process rights, and requesting declaratory and injunctive relief and damages. Identical claims and requests are made in the present case. In support of defendant's motion to dismiss the original action, affidavits were submitted specifying the records on which the Commissioner had based his decision and describing in some detail the hearing procedure which the Commissioner had offered Brockway.

 The undisputed record thus furnished discloses a firm factual basis for the Commissioner's action in denying Brockway's applications. Although Brockway's two prior convictions for driving while intoxicated occurred more than 20 years ago, his record also reveals two somewhat more recent convictions for public intoxication, three instances in which he obtained a license irregularly by not revealing, when required, current revocations and suspensions of prior licenses, three convictions for driving while his license was under suspension or revocation, and four convictions for various moving violations between January 22, 1965, and August 15, 1967. In addition, the Commissioner's records contain a notarized stipulation which Brockway filed at the Commissioner's request in 1957. In that year the Commissioner lifted Brockway's second mandatory revocation for driving while intoxicated upon Brockway's stipulation that, should his license again be revoked as a result of conviction for driving while intoxicated, he would not reapply for a license until five years after the commencement of the revocation. Upon this record denial of Brockway's license applications in 1968 and 1969 appears to have been prima facie a valid exercise of the Commissioner's discretion. Cf. Application of Frazzita, Sup., 147 N.Y.S. 2d 11 (1955).

 On March 19, 1970, Judge Pollack ruled that Brockway's complaint did not state a claim cognizable under the Civil Rights Act, 42 U.S.C. § 1983, in that the Commissioner had "unequivocally" told Brockway that an administrative hearing would be provided him, 310 F. Supp. at 267, and consequently the requirement of Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), that state administrative remedies be exhausted before § 1983 jurisdiction might properly be invoked, had not been met. It is clear that the administrative hearing to which Judge Pollack referred was the "informal hearing" or "personal interview" (more fully described below) which had been offered to Brockway in the Commissioner's letter of November 21, 1969. Accordingly, the complaint was dismissed, but "without prejudice to the filing of a new action in the event that the Commissioner fails to afford a hearing to the plaintiff." 310 F. Supp. at 267. Thus Judge Pollack decided that the action would stand dismissed if an informal administrative hearing should be accorded to Brockway and that he would be permitted to commence a new action only if such a hearing was not to be granted.

 On July 8, 1970, following Judge Pollack's decision, a hearing was granted to Brockway, and there is no contention that it did not conform to the concept of a hearing as specified by Judge Pollack or to the offer of a hearing that was outstanding when the original action was dismissed. Since the requirement specified by Judge Pollack for reinstitution of the action has not been met, his decision would call for dismissal of the present suit. Viewed technically, of course, the present action may not fulfill the "same case" requirement for the application of "law of the case," Fidelity & Deposit Co. of Maryland v. Port of Seattle, 106 F.2d 777 (9th Cir. 1939), cert denied, 309 U.S. 661, 60 S. Ct. 515, 84 L. Ed. 1009 (1940). However, since the issues have once been litigated, and "law of the case" is a doctrine of practicality which may be applied by us in our discretion, Dictograph Products Company v. Sonotone Corp., 230 F.2d 131 (2d Cir. 1956), we defer to Judge Pollack's opinion in the original Brockway v. Tofany action, where the same parties litigated the identical issues.

 Even if we were not inclined to follow Judge Pollack's decision, we would be disposed to dismiss the new action as meritless since the hearing accorded to Brockway met procedural due process requirements and there is no indication that a similar hearing would not be granted to any other members of the purported class similarly situated. In fact, we are not furnished with any basis for believing that there are other persons similarly situated. It therefore appears that on the undisputed record no substantial constitutional question is presented warranting the convening of a three-judge court, and no basis exists for the other relief demanded.

 In determining whether minimum procedural safeguards required by due process have been afforded to an applicant for a driver's license, we are guided by the oft-quoted principle proclaimed by the Supreme Court in Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961), that due process does not demand "inflexible procedures universally applicable to every imaginable situation," but must be resolved after a balancing of the governmental function involved against the substance of the private interest affected. See Goldberg v. Kelly, 397 U.S. 254, 263, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Hannah v. Larche, 363 U.S. 420, 440, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960); Escalera v. New York City Housing Authority, 425 F.2d 853, 861 (2d Cir. 1970). Where national security is involved, for instance, as in the training of cadets as future military personnel, disciplinary hearings may be rudimentary and informal in character. Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967). In the present case the essential interest of the State of New York, of course, is to protect its citizens by minimizing the number of accidents caused by drunken or reckless drivers, while that of Brockway is to regain his license so that he may seek work as a chauffeur.

 The procedure followed by the New York Department of Motor Vehicles in the processing and disposing of applications for drivers' licenses by persons whose licenses have previously been revoked is described in detail in the affidavit of Reubin Schriro, head clerk of the Department's New York central office and a member of the Review Board designated by the Commissioner of Motor Vehicles. A motorist whose driver's license has been mandatorily revoked pursuant to § 510 of the Vehicle & Traffic Law (as was Brockway's license) may, after a six-month waiting period, file an application for a new license which is referred to the Department's Review Unit. If his record indicates nothing other than the violation which resulted in the revocation of his license, his application is routinely approved. If, on the other hand, the Department's records reveal other information such as multiple revocations or suspensions, a record of accidents, poor driving record, other violations, or similar detrimental information, the applicant is advised that his application is being considered and is requested to furnish additional information with respect to his ownership of a motor vehicle, employment and drinking habits. The Department then obtains a copy of the applicant's criminal record and also writes to the local police where he resides for any information they may have with respect to the applicant. Further information may be obtained through a field investigation by an inspector who personally communicates with local police, neighbors, employer, family and the applicant himself.

 After all replies and reports are received, the application is considered by the Review Unit in the light of the information thus furnished. If the information indicates that the applicant would constitute a danger to the life, limb or property of persons on the highways, he is notified in writing of the denial of his application, with a brief statement of the reason for the denial. If the Review Unit, after considering the information thus obtained, remains in doubt as to whether the application should be approved or denied, or if there are conflicting statements or information in the file, the applicant is called in for a personal interview or informal hearing with the Review Board. Similarly it appears that where an application has been denied, the Department, although taking the position that it has no statutory obligation to do so, will upon the applicant's request arrange for a hearing before its Review Board, as was done in Brockway's case. The procedure upon such an informal hearing is described by Mr. Schriro as follows:

"His [applicant's] record is discussed with him. He is given an opportunity to deny any information or report, explain anything he wishes, amplify statements previously submitted in writing, state any extenuating circumstances and give his reasons why he should receive favorable consideration. He may appear at the interview with an attorney, may produce witnesses, and may submit letters of recommendation or anything else he considers material and in his favor. The Review Board at any interview consists of not less than three members of the Department of Motor Vehicles designated by the Commissioner and may number four or five members. After the interview, the applicant is sent out of the hearing room while the Review Board deliberates. When the Review Board has reached a determination, the applicant is recalled and is informed of the decision, which is later confirmed in writing by a letter to the applicant from the Review Unit in Albany. Every determination of the Review Board is subject to review by the Commissioner of Motor Vehicles, who may, of course, modify or reverse the decision of the Review ...

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