                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 96-3176
                                    ___________

Amit Kapoor,                          *
                                      *
           Appellant,                 *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Kathy Walker; Gretchen Schuster; Rick * Southern District of Iowa.
Noyes,                                *
                                      *      [UNPUBLISHED]
           Appellees.                 *
                                 ___________

                          Submitted: November 27, 1997
                              Filed: December 8, 1997
                                  ___________

Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                             ___________

PER CURIAM.

       Amit Kapoor sued three passport officials for damages, claiming they conspired
to delay issuing him a passport and thus deprived him of his right to travel because of
bias against his national origin. The district court1 denied defendants’ motion to
dismiss, but later granted their motion for summary judgment. Kapoor appeals.




      1
       The Honorable Charles R. Wolle, Chief Judge, United States District Court for
the Southern District of Iowa.
        We construe Kapoor’s constitutional claims related to travel and equal protection
as Bivens-type claims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971); Jones v. United States, 16 F.3d 979, 981 (8th Cir.
1994) (42 U.S.C. § 1983 does not apply to persons acting under color of federal law).
Reviewing de novo, see Earnest v. Courtney, 64 F.3d 365, 366-67 (8th Cir. 1995) (per
curiam), we conclude that summary judgment was proper on these claims. First, while
the freedom to travel internationally is protected by the Fifth Amendment’s Due
Process Clause, restrictions on this freedom are granted greater deference than
restrictions on the right to travel within the United States. See Califano v. Aznavorian,
439 U.S. 170, 176-78 (1978) (applying rational-basis scrutiny). Here, defendants
attested they questioned the authenticity of Kapoor’s documentation, but they issued
a temporary passport pending further investigation. We believe that any limitation on
Kapoor’s freedom to travel before issuance of the temporary passport was rationally
related to defendants’ legitimate concerns. See 22 U.S.C. § 213 (person seeking
passport must submit written application containing true recital of each fact required
by law). Second, notwithstanding the attestation of Kapoor’s father that defendants
made statements regarding the tendency of foreigners to falsify documents to obtain
passports, we believe Kapoor failed to create a triable issue on his equal protection
claim. See Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994)
(equal protection claim depends upon different treatment of similarly situated
individuals), cert. denied, 513 U.S. 1185 (1995).

        We also conclude that summary judgment was proper on Kapoor’s statutory
claims. Federal officials acting under color of federal law are subject to liability under
42 U.S.C. §§ 1981 and 1985. See Premachandra v. Mitts, 753 F.2d 635, 641 n.7 (8th
Cir. 1985). We believe, however, that Kapoor failed to demonstrate a genuine issue
of material fact as to whether defendants participated in a conspiracy or deprived him
of his equal rights under the law. See Mian v. Donaldson, Lufkin & Jenrette Securities
Corp., 7 F.3d 1085, 1087-88 (2nd Cir. 1993) (elements of claims under §§ 1981 and
1985), cert. denied, 116 S. Ct. 88 (1995).

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       Kapoor’s res judicata argument is meritless because the district court’s previous
denial of defendants’ motion to dismiss was not a final judgment. Cf. Uhl v.
Swanstrom, 79 F.3d 751, 753-54 (8th Cir. 1996) (denial of motion to dismiss was not
final judgment for collateral estoppel application). Finally, Kapoor had no right to
cross-examine defendants during the hearing on the summary judgment motion. Cf.
L.S.T., Inc. v. Crow, 49 F.3d 679, 684 n.9 (11th Cir. 1995) (“Nothing in Rule 56
requires a district court to conduct a hearing on a motion for summary judgment.”).

      Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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