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December 15, 1989

JAMES EDGAR, et al., Defendants

Ilana D. Rovner, United States District Judge.

The opinion of the court was delivered by: ROVNER



 Plaintiff Thomas Markowski brought this action to challenge the constitutionality of 92 Ill.Adm.Code § 100.450(b), pursuant to which the Secretary of State of Illinois does not grant a new hearing to an applicant for certain driving privileges if that applicant has an administrative review case pending concerning a previous denial of driving privileges. Pending is Magistrate Joan Lefkow's Report and Recommendation ("Report") on defendant's motion to dismiss and plaintiff's motion for partial summary judgment. The Magistrate recommended that plaintiff's motion be granted and defendant's motion be granted in part and denied in part. Both parties have submitted objections to various portions of the Report. For the reasons described below, the Court agrees with the conclusions reached by the Magistrate, although not always for the same reasons.


 Plaintiff has worked as a truck driver for the United Parcel Service since 1978. In May of 1984, he was convicted in California of driving while under the influence of alcohol. As a result of that conviction, the Secretary of State of Illinois ("the Secretary") revoked plaintiff's driver's license.

 Under Illinois law, there are two forms of relief available to allow a person to continue driving legally once his license has been revoked. Pursuant to Ill.Rev.Stat. ch. 95 1/2 § 6-208(b), he may apply for a new license (generally after the expiration of one year). Alternatively, pursuant to Ill.Rev.Stat. ch. 95 1/2 § 6-206(c)(3), he may apply for a restricted driving permit ("RDP").

 Upon the revocation of plaintiff's license, he filed a request for an RDP to enable him to continue working as a driver for UPS. A formal hearing was held on June 6, 1985, and the Secretary issued an order on August 5, 1985, denying the application. On August 9, 1985, plaintiff filed a complaint in the Circuit Court of Cook County (Case No. 85 CH 7981) for administrative review of the Secretary's decision, pursuant to Ill.Rev.Stat. ch. 95 1/2 § 6-212 and ch. 110 §§ 3-101 et seq.

 During the pendency of that case, plaintiff filed a new request for an RDP. The Secretary's deputy director informed plaintiff that, pursuant to policy, no new administrative hearing would be held on plaintiff's request while the administrative review case was pending. The deputy director confirmed this by letter to plaintiff's counsel on September 9, 1985. At that time, 92 Ill.Adm.Code § 1001.450, entitled "New Hearings," provided:

If an applicant is denied any relief after a formal hearing conducted pursuant to the Rules of Subpart A hereof, no new hearing will be granted to that applicant until at least four (4) months have elapsed since the date of the hearing.

 As described in the Report, the following events then took place:

In a letter dated September 13, 1985, Markowski's attorney asked the Secretary to rescind the policy of denying a new hearing during the pendency of an administrative review action and threatened to bring suit to invalidate the policy. After four months had passed from Markowski's June hearing date, in a letter dated October 8, 1985, Markowski's attorney made a second request for a new hearing. By letter dated October 17, 1985, the Secretary's deputy director responded by stating that no hearing would be scheduled while the administrative review action was pending in court.
Before Markowski's new hearing before the Secretary, the Circuit Court entered an order on November 7, 1985 reversing the Secretary's order denying plaintiff an RDP. The court remanded the case to the Secretary for issuance of the RDP. Markowski had no driving privileges from March, 1985 until November, 1985, and therefore lost his job. Because of this, Markowski lost about $ 20,000 in wages.
As of November 22, 1985, the Secretary still had not issued to Markowski an RDP. Numerous telephone calls by Markowski's counsel to the Secretary brought no results. Therefore, Markowski filed a motion in state court for order of enforcement, or alternatively for the issuance of a rule to show cause set for hearing on November 25, 1985. At the hearing, the Secretary's counsel stated that the Secretary would issue the RDP that day and mail it from Springfield. Based on the Secretary's statement, Markowski agreed to withdraw the motion. On November 25, the Secretary entered an amended order which provided, inter alia, that
A Restricted Driving Permit will be granted to [Markowski] . . .
This Order is not to be construed as an authorization to operate a motor vehicle. [Markowski] must meet any and all requirements of the Office of the Secretary of State and be in receipt of said Restricted Driving Permit, prior to the operation of any motor vehicle.
The Secretary did not issue an RDP to Markowski.
Upon receiving the above order, Markowski filed an emergency motion for enforcement of order set for hearing on December 3, 1985. On December 3, counsel for the parties agreed to the terms of the RDP, and the court entered this as an Agreed Order. Markowski understood that this order would cause the Secretary to enter an RDP immediately. On December 6, 1985, the Secretary issued a new amended order and mailed the RDP, which was set to expire after six months, on June 6, 1986, although the November 7 court order had not set a duration for the RDP. Markowski went back to work. On December 9, 1985, the Secretary filed a Notice of Appeal of the circuit court's order of November 7.
In March, 1986, Markowski asked the Secretary to schedule a formal hearing for reinstatement of his license. The hearing was held on April 11, 1986. The hearing officer told Markowski that his decision would be rendered in about eight weeks. Markowski asked that his RDP be extended, but the hearing officer said that if the decision was imminent at the time of the expiration of the RDP, Markowski could ask for an extension at that time. In a letter dated May 15, 1986, Markowski's counsel requested guidance as to the procedure to follow for an RDP extension. Albert Coleman, manager of formal hearings in Chicago, sent a letter to Markowski's counsel, dated May 20, 1986, stating that Markowski could proceed as follows:
. . . Meanwhile, Mr. Markowski may apply to renew his current Restricted Driving Permit (which expires April [sic] 6, 1986) at an informal conference hearing, . . . He will need to have a full formal hearing for the purpose of renewing (not extending) his RDP.
As I mentioned in our telephone conversation today, your client should proceed to the informal hearing as soon as possible to avoid any lapse time without driving relief.
This office is in receipt of your recent informal hearing for consideration of your request for driving relief. Your request for a new restricted driving permit (RDP) is denied as your RDP issued December 6, 1985 was issued as a result of a Court Order and not as a result of an Order of the Office of the Secretary of State. The (May 20, 1986) letter from Albert Coleman of this office was in error in this matter, as he did not realize that the RDP issued on December 6, 1985 was a Court issued RDP.
Any further hearings in this matter should be conducted at the formal hearing level after the administrative appeal process has been completed. . . .
Three days later, the Administrator sent another letter, stating additional reasons why Markowski's informal hearing request for renewal of his RDP could not be granted. None of the alleged deficiencies had been cited by the hearing officer at the informal hearing at which the hearing officer recommended renewal of the RDP.
In addition to these letters from the Administrator, the Secretary's counsel responded to Markowski's June 25 letter with a letter dated June 30, 1986. Counsel stated, inter alia,
I regret that it has taken so long to decide upon your client's application for reinstatement, but please be assured it was never our ...

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