                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 22, 2010
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                  Clerk of Court



    WESLEY R. BROWN,

                Plaintiff–Appellant,

    v.                                                  No. 09-1144
                                           (D.C. No. 1:06-CV-01092-MSK-CBS)
    M. MICHAEL COOKE, Exec. Dir.                         (D. Colo.)
    CO. Div. of Motor Vehicles; and
    ROBERT MORGAN, Office Manager,
    Aurora Driver’s License Office,

                Defendants–Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.



         Wesley R. Brown, proceeding pro se, appeals from the grant of summary

judgment to defendants on his civil rights claims under 42 U.S.C. § 1983.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I

      Brown claims that his rights to due process and equal protection under the

Fourteenth Amendment were violated when the Colorado Division of Motor

Vehicles (the “Division”) refused to issue him a Colorado identification card in

his common-law name of “Wesley R. Brown.” As summarized by the district

court in its summary judgment order, the salient facts underlying Brown’s claims

are as follows:

             [A]lthough Mr. Brown was given the name “Wesley Ray
      Brown” at birth, since at least age 17, he has primarily identified
      himself as “Wesley R. Brown,” and has obtained a variety of
      identification and other documents bearing his chosen name over the
      years. Mr. Brown contends that these actions are sufficient to
      constitute a legal change of his name at common law.

             On February 6, 2006, Mr. Brown applied for an identification
      card from the Colorado Division of Motor Vehicles. Although he
      produced a California driver’s license with the name “Wesley R.
      Brown” as proof of his identity, the Division of Motor Vehicles
      insisted that he verify his identity with his birth certificate. C.R.S.
      § 42-2-302(2)(a). When he returned to the office to do so on March
      16, 2006, he again requested that the identification card bear his
      chosen name. However, relying on C.R.S. § 42-2-302(1)(a)(I), which
      requires that identification cards be issued in the “true name” of an
      applicant, the Division of Motor Vehicles presented Mr. Brown with
      a card bearing the name “Wesley Ray Brown,” the name shown on
      Mr. Brown’s birth certificate. Mr. Brown refused the tendered card
      and commenced this action.

      In March 2009, in accordance with the extremely thorough and

well-reasoned recommendations of the magistrate judge, the district court entered

an opinion and order granting summary judgment in favor of defendants and


                                        -2-
denying Brown’s motion to amend his complaint. Specifically, the district court

concluded that: (1) Brown did not demonstrate that the Colorado Division of

Motor Vehicles’ refusal to acknowledge his common-law name change deprived

him of a liberty or property interest sufficient to support a due process claim;

(2) the strict scrutiny standard did not apply to Brown’s equal protection claim

because the Division’s actions did not implicate a fundamental right or categorize

persons based on a suspect classification; (3) Brown could not establish a

violation of his equal protection rights under the controlling rational basis

standard because he failed to show that the Division’s policies and actions were

not rationally related to a legitimate government interest; (4) Brown’s

constitutional challenges to Colorado’s ban on the use of judicial name-changing

procedures and the use of certain provisions of the federal REAL ID Act of 2005

by convicted felons were without merit; and (5) Brown would not be granted

leave to file a second amended complaint because, inter alia, his proposed

amendments were futile.

                                          II

         We acknowledge the magistrate judge and district court’s thorough work in

this case, and we affirm the entry of summary judgment in favor of defendants for

substantially the same reasons stated by the district court. Nevertheless, we feel

it is necessary to elaborate on three matters pertaining to Brown’s due process

claim.

                                         -3-
      First, we note that the district court did not specifically state in its opinion

and order whether it considered a procedural due process claim, a substantive due

process claim, or both. This omission is relevant because the court appeared to

inject the more demanding “fundamental rights and liberties” analysis from the

substantive due process sphere into the “liberty interest” analysis that pertains to

the procedural due process inquiry. We need not decide whether this was error,

however, because Brown has failed to adequately assert a procedural due process

claim in his opening brief (even construing his pro se arguments liberally), and

thus any such claim is waived. 1

      Second, the district court concluded that “there is [no] fundamental right of

citizens to compel the Government to accept a common-law name change and

reform its records accordingly.” We agree with this conclusion, but the

substantive due process analysis requires further inquiry. If a proper substantive

due process challenge to Colorado’s identification card statutes was before the


1
       In his fifty-one page opening brief, Brown makes only two statements that
could pertain to a procedural due process claim. First, he quotes In re Knight,
537 P.2d 1085, 1086 (Colo. Ct. App. 1975), for the proposition that “‘[b]efore a
court denies a request for a change of name under the statute, it should conduct an
evidentiary hearing to determine if good and sufficient cause exists to deny the
application.’” Second, he notes that Colo. Rev. Stat. § 42-2-302(3)(b) “gives ‘due
process’ by ‘denial hearing’ and/or ‘judicial review.’” However, Brown makes no
effort to tie these references to his own specific circumstances or to the specific
conduct of the defendants in this case, and thus completely fails to articulate a
procedural due process claim on his own behalf. As a result, even if Brown had
asserted a procedural due process claim below, he has waived the claim in this
appeal. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).

                                          -4-
district court, the court would have been required to examine those statutes under

the rational basis test. See Dias v. City & County of Denver, 567 F.3d 1169,

1182 (10th Cir. 2009) (“Even if [a legislative enactment] does not implicate a

fundamental right, it must nonetheless bear a rational relationship to a legitimate

government interest.”). Nevertheless, the district court’s disposition of Brown’s

due process claim was correct because Brown was challenging the Division’s

policies and actions in his particular case rather than the underlying legislation.

      Finally, to the extent the district court analyzed a substantive due process

challenge to the Division’s policies and actions in refusing to recognize a name

change effected at common law, it considered a challenge to executive action. As

a result, Brown could have established a substantive due process violation in two

ways. First, he could have relied on the “shocks the conscience” standard. See

Seegmiller v. Laverkin City, 528 F.3d 762, 769 (10th Cir. 2008). Second, he

could have proceeded under the two-part “fundamental liberty” test. Id.; see also

Dias, 567 F.3d at 1182 (“We held in Seegmiller that application of a ‘shocks the

conscience’ standard in cases involving executive action is not to the exclusion of

the . . . two-part framework for analyzing substantive due process challenges to

legislation.”). Although the district court did not specifically acknowledge these

distinct tests, such an omission does not rise to the level of reversible error

because Brown’s claim fails under either test.




                                          -5-
                                        III

      The judgment of the district court is AFFIRMED. Brown’s “Notice and

Request for Conference” and “Motion for Action in Interest of Justice” are

DENIED. We further DENY Brown’s request that this court and/or the district

court enter the “Decree” attached to his opening brief.


                                                   Entered for the Court


                                                   Carlos F. Lucero
                                                   Circuit Judge




                                        -6-
