Cicchetti v. Lucey

• Decision Date: 16 April 1975
• Docket Number: No. 74-1239,74-1239
• Citation: 514 F.2d 362
• Parties: John B. CICCHETTI, Plaintiff-Appellee, v. David J. LUCEY, Registrar of Motor Vehicles, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 362

514 F.2d 362

33 A.L.R.Fed. 561

John B. CICCHETTI, Plaintiff-Appellee, v. David J. LUCEY, Registrar of Motor Vehicles, Defendant-Appellant.

No. 74-1239.

United States Court of Appeals First Circuit.

Argued Jan. 8, 1975.

Decided April 16, 1975.

Joseph A. Grasso, Jr., Deputy Asst. Atty. Gen. with whom Robert H. Quinn, Atty. Gen. and Walter H. Mayo, III, Asst. Atty. Gen., Boston, Mass., were on brief, for defendant-appellant.

Robert W. Hagopian, Wrentham, Mass., for plaintiff-appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

The maturation of this action began on April 23, 1973, when a Boston policeman cited plaintiff John Cicchetti for a motor vehicle violation. Subsequently a summons issued commanding Cicchetti to appear before the Roxbury Municipal Court on July 6, 1973. He appeared as ordered, but the case was continued for a week because the complaining policeman was absent. On July 13 the case was tried and Cicchetti was found not guilty. On both occasions he was represented by the counsel that represents him here. After these events the clerk of the Roxbury Municipal Court sent the Registry of Motor Vehicles an abstract of the case records which for some unknown reason reported that Cicchetti had defaulted on July 6. Both parties agree that there was no default, and the district court so found. Because of this mistaken notice, however, the defendant, the Massachusetts Registrar of Motor Vehicles, suspended Cicchetti's driver's license pursuant to Mass.Gen.Laws c. 90C, § 4, ¹ without a pre-suspension hearing for an indefinite period commencing on September 11, 1973.

On September 18, 1973, Cicchetti filed a complaint in federal district court seeking a temporary restraining order restoring his license, a declaratory judgment that c. 90C, § 4 is unconstitutional, injunctive relief, and $50 in damages for each day his license was suspended. At the hearing two days later on the request for a temporary restraining order, the Registrar acknowledged that a mistake had been made and indicated he had offered the license back but it had been refused. The district court granted the motion for a three-judge panel, but denied the temporary restraining order because of the absence of irreparable harm, since Cicchetti could either pick up his license by that afternoon or the Registrar would mail it to him. The district court did not explicitly find the date upon which Cicchetti's license was restored, but it appears that it was either that day, September 20, 1973, or very soon thereafter. On October 4 Cicchetti filed a motion for leave to amend his complaint to state a class action, which the district court allowed on November 12, 1973. ² In the interim the court had advised counsel by letter dated October 12, 1973, that upon reconsideration of the case in light of Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), no three-judge court would be required. On April 1, 1974, the court heard argument on Cicchetti's motion for summary judgment and defendant's motion to dismiss. At this hearing Cicchetti's counsel indicated that if the court would grant his motion for summary judgment, he would waive the request for injunctive relief to avoid any problems on appeal with 28 U.S.C. § 2281 (1970). On May 21, 1974, the court ordered that Cicchetti could sue as the representative in a class action ³ and entered an opinion awarding summary judgment to the plaintiff class on the ground that c. 90C, § 4 is "unconstitutional on its face" because "it denies persons of an important interest without an opportunity for prior hearing." Cicchetti v. Lucey, 377 F.Supp. 215, 218 (D.Mass.1974).

Defendant argues that Cicchetti lacked standing to sue because his complaint, which can be relied on to determine standing, see Schiaffo v. Helstoski, 492 F.2d 413, 423 (3d Cir. 1974), showed that he was outside the scope of the statute because it alleged that he did not default a summons. A party is not necessarily deprived of standing because his complaint alleges that a statute does not apply to him and alternatively that it is unconstitutional if it does apply, though a federal court might lack jurisdiction if the constitutional claim was merely an attempt to get a federal court to construe a state statute. Cf. Ex-Cell-O Corp. v. City of Chicago,115 F.2d 627 (7th Cir. 1940). Cicchetti's claim was not an attempt to overturn a statute which could have no direct impact on him. See, e. g., Sissons v. Office of Selective Service, 454 F.2d 279 (9th Cir. 1972) (female had no standing to attack draft board procedures). Whether correctly or not the statute had in fact been invoked to suspend his license. Even though Cicchetti might have lacked standing to sue for an injunction and still have had standing to sue for damages, cf. Landau v. Chase Manhattan Bank, N.A.,367 F.Supp. 992 (S.D.N.Y.1973), we question the necessity of making a federal case out of what must have been recognized as a mistake on the part of someone in the state bureaucracy. In any event, because the facts of this case raise the issue of mootness more sharply than standing and we decide on mootness grounds that the claim should have been dismissed, we decline to decide whether Cicchetti's complaint should have been dismissed for lack of standing. DaCosta v. Laird, 471 F.2d 1146, 1152 (2d Cir. 1973).

The issue to which we now turn is whether an individual plaintiff challenging a state statute can maintain his action by amending his complaint to state a class action once his alleged injury has ended. We recognize that the claim for nominal damages might have kept Cicchetti's individual action alive despite the return of his license, e. g., Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964), but once the amended complaint was allowed and the damage claim was thereby waived on November 12, 1973, nothing remained to keep the individual action viable. There was then no continuing live dispute between him and defendant Lucey. For the reasons that follow we hold that Cicchetti could not resuscitate his action by amending his complaint to state a class action after his individual case was mooted.

We begin our analysis with Sosna v. Iowa, --- U.S. ---, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). In a dictum in that opinion the Court reiterated " the firmly established requirement that the judicial power of Art. III courts extends only to 'cases and controversies' specified in that Article," and stated that "(t)here must not only be a named plaintiff who has such a case or controversy at the time the complaint is filed," ⁴ but, with a possible exception to which we shall later advert, there must continue to be a live controversy "at the time the class action is certified by the District Court pursuant to Rule 23." Id. at ---, 95 S.Ct. at 559 (footnote 11 omitted). In the instant case the class action was certified on May 21, 1974, some eight months after Cicchetti recovered his license and six months after the amended complaint was allowed. ⁵ Unless some exception to the mootness doctrine applied to keep the controversy alive in May 1974, it appears that the case was moot long before the district court certified a class. ⁶ Thus we now evaluate the possible theories by which this case is not moot.

One line of cases involving a mootness issue embraces instances of future recurrence of past injury. E. g., SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); United States v. Concentrated Phosphate Export Ass'n, Inc., 393 U.S. 199, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (defendant voluntarily resigned from allegedly illegal interlocking directorates). These cases show that a dispute will be held moot if "the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated.' " United States v. W. T. Grant Co., supra at 633, 73 S.Ct. at 897. Even if the burden on the defendant of showing that there was no likelihood of recurrence is "heavy," as it was in W. T. Grant Co., supra at 633, 73 S.Ct. 894, we hold that that burden has been satisfied. A major factor in finding mootness in voluntary cessation cases is whether there are "aspects of the factual situation beyond the defendant's control that make recurrence of the challenged conduct unlikely." Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 384 (1974). Here, Cicchetti has to be summoned to appear in court for violating a traffic regulation before he can default a summons, even by clerical mistake. See Spriggs v. Wilson, 151 U.S.App.D.C. 328, 467 F.2d 382 (1972). ⁷ Therefore Lucey cannot unilaterally engage in the allegedly unconstitutional acts authorized by c. 90C, § 4. In this situation we conclude that "the allegedly wrongful behavior could not reasonably be expected to recur." SEC v. Medical Committee for Human Rights, supra at 406, 92 S.Ct. at 579.

A second line of cases encompasses situations where the challenged conduct is "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911); e. g., Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Assuming that the appropriate inquiry in applying this standard is to the named plaintiff, rather than the purported class, we have already indicated that it is unlikely that the challenged conduct will be repeated. If the appropriate inquiry is to the class, we have no doubt that license suspensions are "capable of repetition." Indeed, the...