                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                        UNITED STATES CO URT O F APPEALS
                                                                           May 18, 2007
                              FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                           Clerk of Court

    IN A JEA N D EN N Y ,

               Plaintiff-Appellant,

      v.                                                    No. 06-2234
                                                    (D.C. No. 05-CV -415-JP/RH S)
    BILL RICH AR DSON; KEN OR TIZ;                            (D . N.M .)
    NEW M EXICO M OTO R V EHICLE
    DIVISION ; STATE OF NEW
    M EX ICO,

               Defendants-Appellees.



                               OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.




           In this civil rights action brought pursuant to 42 U.S.C. § 1983, Ina Jean

Denny, a resident of New M exico who is proceeding pro se, claims that

defendants violated her right to procedural due process when they refused to

allow her to renew her New M exico driver’s license. Following a bench trial, the


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
district court entered judgement in favor of defendants on M s. Denny’s procedural

due process claim, and she is now appealing that judgment. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that M s. Denny does not

have standing to assert a procedural due process claim. W e therefore dismiss this

appeal for lack of subject matter jurisdiction, and remand w ith instructions to the

district court to vacate its prior judgment and dismiss M s. Denny’s complaint

without prejudice for lack of subject matter jurisdiction.

                                          I.

      At the bench trial, the district court heard testimony from M s. Denny and

defendant K en Ortiz, the Director of the New M exico M otor V ehicle Division.

M s. Denny has not submitted a transcript of the trial to this court. Following the

trial, however, the district court entered written findings of fact and conclusions

of law, and we can resolve the issues in this appeal based on those findings and

conclusions. Specifically, the district court made the following findings of fact:

            1. On November 16, 2003, an Arizona Department of Public
      Safety law enforcement officer stopped Plaintiff in Kingman,
      Arizona because he believed that Plaintiff was driving erratically.

             2. This stop resulted in the State of Arizona issuing Plaintiff a
      traffic citation for failure to provide proof of automobile insurance,
      improper use of a two way left hand turn lane, unsafe lane use, and
      failure to carry an automobile registration card. . . .

             3. The fines and fees associated with the Arizona traffic
      citation total $1,194.24. . . .




                                         -2-
       4. Plaintiff has not paid the fines and fees associated with the
Arizona traffic citation and does not intend to do so because Plaintiff
sincerely believes that she was not driving erratically and that she
did not violate any of the Arizona traffic laws and because she did, in
fact, furnish proof of insurance to the Arizona police officer who
stopped her.

       5. Plaintiff has taken no actions under Arizona procedures in
Arizona to have the traffic citation, fines, and fees nullified or set
aside.

      6. The State of Arizona and the State of New M exico as w ell
as other states have entered into the Nonresident Violator Compact.
NM SA 1978, § 66-8-137.1 to § 66-8-137.4 (1981).

       7. Article IV, section A of the Nonresident Violator Compact
states that:

      Upon receipt of a report of a failure to comply from the
      licensing authority of the issuing jurisdiction, the
      licensing authority of the home jurisdiction shall notify
      the motorist and initiate a suspension action, in
      accordance with the home jurisdiction’s procedures, to
      suspend the motorist’s driver’s license until satisfactory
      evidence of compliance with the terms of the traffic
      citation has been furnished to the home jurisdiction
      licensing authority. Due process safeguards will be
      afforded.

       8. W hen the Plaintiff went to the New M exico M otor Vehicle
Division to renew her driver’s license which expired on September
13, 2004, the New M exico M otor Vehicle Division refused to renew
Plaintiff’s New M exico driver’s license, because it had been notified
by the State of Arizona that Plaintiff had not paid the fines and fees
of the November 16, 2003 Arizona traffic citation. This decision to
not renew Plaintiff’s driver’s license was made in order to comply
with Article IV, section A of the Nonresident Violator Compact.




                                   -3-
             9. The New M exico M otor Vehicle Division will not renew
      Plaintiff’s driver’s license until Plaintiff has paid the outstanding
      Arizona fines and fees.

R., Doc. 50 at 1-2.

      After noting that M s. Denny brought “this lawsuit . . . under 42 U.S.C.

§ 1983 for alleged violations of constitutional rights of due process resulting from

the Defendants’ refusal to renew [her] driver’s license,” id. at 3, the district court

rejected M s. Denny’s due process claim for two reasons. First, the court

concluded that “D efendants State of New M exico and New M exico M otor Vehicle

Division are immune from suit under the Eleventh Amendment of the United

States Constitution.” Id. M s. Denny has not challenged this ruling in this appeal,

and we therefore do not need to consider it. 1 See Lifewise M aster Funding v.

Telebank, 374 F.3d 917, 927 n.10 (10th Cir. 2004) (holding that appellant waived

right to appeal district court rulings that it did not substantively address in its

opening brief). Second, the court found that M s. Denny failed to prove that

defendants Richardson (the Governor of New M exico) and Ortiz were liable under

§ 1983 in their individual capacities. See R., Doc. 50 at 4 (stating that “Plaintiff




1
       M s. Denny has likew ise failed to challenge the district court’s
determination that she failed to comply with the notice requirements in the New
M exico Tort Claims Act and “failed to prove by a preponderance of the evidence
that she is entitled to relief against Defendants Richardson and Ortiz under the
New M exico Tort Claims Act.” R., Doc. 50 at 4. As a result, to the extent that
plaintiff was pursuing tort claims under the New M exico Tort Claims Act in the
district court proceedings, those claims have been waived in this appeal.

                                          -4-
has not proven by a preponderance of the evidence that Defendants Richardson

and Ortiz have violated any of her constitutional rights by following the law as

set forth in the Nonresident Violator Compact”).

                                         II.

      Construing her pro se appellate briefs and district court pleadings liberally,

as we are required to do, see Haines v. Kerner, 404 U .S. 519, 520-21 (1972), M s.

Denny’s main complaint is that the New M exico M otor Vehicle Division did not

provide her w ith a hearing, either before or after the refusal to renew her driver’s

license, so she could prove that she was not guilty of the underlying Arizona

traffic offenses. Like the district court, we will analyze M s. Denny’s due process

claim with the understanding that the M otor Vehicle Division’s refusal to renew

her driver’s license was in effect a de facto suspension of her license. See R.,

Doc. 50 at 2, ¶ 7-8.

      The United States Supreme Court has held without qualification that a state

may not suspend a person’s driver’s license “w ithout that procedural due process

required by the Fourteenth Amendment.” Bell v. Burson, 402 U.S. 535, 539

(1971); accord Dixon v. Love, 431 U.S. 105, 112 (1977); see also M aso v. N.M .

Taxation and Revenue D ep’t, 96 P.3d 286, 289 (N.M . 2004) (“Due process

requires notice and an opportunity for a hearing before the State can suspend or

revoke a person’s driver’s license.”). It is also clear that: (1) “[d]ue process

protections apply to an administrative proceeding [under the Nonresident Violator

                                         -5-
Compact] to suspend . . . a driver’s license,” Davidson v. Colo. Dep’t of Revenue,

981 P.2d 696, 697 (Colo. Ct. App. 1999); and (2) “[d]ue process requires, at a

minimum, that there be notice and an opportunity to be heard at a meaningful

time and in a meaningful manner,” id. W e also note that the N ew M exico driver’s

license suspension statute specifically provides for such procedural protections, as

the statute provides that “[u]pon suspending the license of a person as authorized

by this section, the [M otor Vehicle Division] shall immediately notify the

licensee in writing and upon his request shall afford him an opportunity for a

hearing as early as practicable w ithin not to exceed twenty days.” N.M . Stat.

Ann. § 66-5-30(B).

      In the context of a license suspension action under the Nonresident Violator

Compact, however, the right to a hearing in the driver’s home state does not

include a right to litigate the issue of guilt as to the underlying traffic offense

charged in the other state. Instead, the scope of the hearing is quite limited. As

the Colorado Court of Appeals explained in Davidson:

      Contrary to plaintiff’s arguments, we perceive no basis for
      concluding that a driver facing license suspension pursuant to the
      Compact is entitled to a hearing that is broader in scope than that
      afforded a driver facing license revocation. In neither case does due
      process require that the driver be permitted to litigate the issue of
      guilt as to the offense upon which the suspension or revocation is
      based.

            W e note that this interpretation of the scope of a suspension
      hearing under the Compact is consistent with the procedural manuals
      provided to state agencies that administer the Compact. These

                                           -6-
      manuals indicate that suspension hearings should afford a motorist an
      opportunity to show either that he or she is not the person to whom
      the citation was issued or that the citation has been resolved, but are
      not intended to determine guilt or innocence as to the charged traffic
      violations. See Non-Resident Violator Compact Operations M anual
      13 (1990); Non-Resident Violator Compact (Guidelines for M otor
      Vehicle Adm inistrators) Administrative Procedures M anual 19
      (1994).

Davidson, 981 P.2d at 698.

      There is no indication in the record before this court that M s. Denny was

afforded an opportunity for a hearing to challenge the de facto suspension of her

driver’s license. M s. Denny has never claimed, however, that she is not the

person to w hom the A rizona traffic citation was issued, and it is likew ise

undisputed that M s. Denny has not paid the fines and fees associated with the

citation. Consequently, M s. Denny has failed to assert a cognizable legal basis

for challenging the New M exico M otor Vehicle Division’s de facto suspension of

her driver’s licence. W e therefore conclude that she has no standing to pursue a

procedural due process claim against defendants Richardson and Ortiz. 2 This




2
         Although the parties have not addressed standing in this appeal, “[s]tanding
. . . raises jurisdictional questions and we are required to consider the issue sua
sponte to ensure that there is an Article III case or controversy before us.” Rector
v. City and County of Denver, 348 F.3d 935, 942 (10th Cir. 2003) (quotation
omitted). “The irreducible constitutional minimum of standing requires plaintiffs
to show (1) that they have suffered an injury in fact, (2) that the injury is fairly
traceable to the challenged action of the defendant, and (3) that the injury is
likely to be redressed by a favorable decision.” Doctor John’s, Inc. v. City of
Roy, 465 F.3d 1150, 1155 (10th Cir. 2006) (quotations omitted). As set forth
herein, M s. Denny has failed to satisfy the threshold “injury in fact” requirement.

                                          -7-
result is dictated by our decision in Rector v. City and County of Denver, 348

F.3d 935, 942-45 (10th Cir. 2003), which we have summarized as follow s:

      [In Rector,] plaintiffs brought a § 1983 action challenging the
      adequacy of the due process protections afforded to individuals who
      received parking tickets from the [City of Denver]. Finding one of
      the main plaintiffs lacked standing to maintain her claim, the court
      explained that because that plaintiff presented no basis for
      challenging the ticket on the merits, she sustained no injury in fact
      from a deprivation of due process. Id. at 945.

             In an exceptionally lucid discussion of this issue, the court
      made clear that although the right to due process in connection with a
      deprivation of a property interest is absolute, “the Constitution does
      not protect procedure for procedure’s sake.” Id. at 943. The court
      explained that the determination whether the denial of due process
      constitutes an injury in fact “lies in the adoption of an ex ante
      perspective.” Id. at 944. In other words, because the plaintiff in
      Rector proffered no defense on the merits, due process would not
      have affected the outcome, thus the plaintiff sustained no injury
      through the denial of due process. See M ichael H. v. Gerald D., 491
      U.S. 110, 127 n.5 . . . (1989) (plurality opinion) (holding that right to
      a hearing must be premised upon a claim of substantive entitlement
      to the right sought to be vindicated).

             By contrast, had the plaintiff in Rector offered to defend
      against the parking tickets on the merits, an ex post determination
      that such a defense would not have succeeded would not alleviate the
      injury plaintiff would have sustained by the city’s failure to afford
      due process. See Carey v. Piphus, 435 U.S. 247, 266 . . . (1978). In
      such a case, plaintiff would have sustained an injury in fact through
      her lack of opportunity to convince the city that her ticket was issued
      erroneously.

M organ v. M cCotter, 365 F.3d 882, 888-89 (10th Cir. 2004).

      Like the plaintiff in Rector, M s. Denny has failed to proffer a cognizable

legal basis for challenging the de facto suspension of her driver’s license (i.e., she



                                          -8-
is not the person to whom the Arizona traffic citation was issued or she has paid

the fines and fees associated with the citation). Thus, “[a]ny deficiencies in [the

New M exico procedures] . . . caused her no injury, because there was nothing for

a hearing to decide.” Rector, 348 F.3d at 945. Accordingly, M s. Denny does not

have standing to pursue a procedural due process claim. 3 Id. W e note, however,

that nothing in this order and judgment prevents M s. Denny from attempting to

challenge the Arizona traffic citation in the courts of Arizona, and it would

appear that such a challenge is the only form of relief available to her.

      W e DISM ISS this appeal for lack of subject matter jurisdiction, and

REM AND with instructions to the district court to vacate its prior judgment and

dismiss M s. Denny’s complaint without prejudice for lack of subject matter

jurisdiction.


                                                     Entered for the Court


                                                     M onroe G. M cKay
                                                     Circuit Judge




3
       In light of our determination that M s. Denny lacked standing to pursue her
district court action, we do not need to address M s. Denny’s arguments that the
district court erred by: (1) refusing to grant her a default judgment; (2) refusing to
grant her a jury trial; and (3) refusing to grant her recusal motion.

                                         -9-
