McBurney v. Cuccinelli ( 2010 )

Filed: July 30, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1615
(3:09-cv-00044-JRS)
MARK J. MCBURNEY; ROGER W. HURLBERT; BONNIE STEWART,
Professor,
Plaintiffs - Appellants,
v.
KENNETH T. CUCCINELLI, II, Attorney General, Commonwealth
of Virginia; NATHANIEL L. YOUNG, Deputy Commissioner and
Director, Division of Child Support Enforcement,
Commonwealth of Virginia; THOMAS C. LITTLE, Acting Director
of the Real Estate Assessment Division, Henrico County,
Commonwealth of Virginia,
Defendants - Appellees.
O R D E R
The court amends its opinion filed July 27, 2010, as
follows:
On page 10, lines 10 and 11 –- the comma after the
word “whether” and the words “pursuant to” are deleted.
On page 17, line 2 of text – the name “McBurney” is
replaced with the name “Hurlbert.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARK J. M CBURNEY; R OGER W. 
HURLBERT; B ONNIE
STEWART, Professor,
Plaintiffs-Appellants,
v.
KENNETH T. C UCCINELLI, II,
Attorney General, Commonwealth
of Virginia; N ATHANIEL L. Y OUNG,
Deputy Commissioner and  No. 09-1615
Director, Division of Child
Support Enforcement,
Commonwealth of Virginia;
THOMAS C. L ITTLE, Acting Director
of the Real Estate Assessment
Division, Henrico County,
Commonwealth of Virginia,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, Chief District Judge.
(3:09-cv-00044-JRS)
Argued: March 23, 2010
Decided: July 27, 2010
Before GREGORY and AGEE, Circuit Judges, and
Eugene E. SILER, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
2 MCBURNEY v. C UCCINELLI
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Siler wrote the opinion, in which Judge Greg-
ory concurred. Judge Gregory wrote a separate concurring
opinion. Judge Agee wrote a separate opinion concurring in
part and dissenting in part.
COUNSEL
ARGUED: Leah Marie Nicholls, INSTITUTE FOR PUBLIC
REPRESENTATION, Washington, D.C., for Appellants. Ste-
phen R. McCullough, OFFICE OF THE ATTORNEY GEN-
ERAL OF VIRGINIA, Richmond, Virginia, Benjamin
Adelbert Thorp, IV, OFFICE OF THE COUNTY ATTOR-
NEY, Henrico County, Henrico, Virginia, for Appellees. ON
BRIEF: Stephen W. Bricker, BRICKER LAW FIRM, P.C.,
Richmond, Virginia; Brian Wolfman, INSTITUTE FOR
PUBLIC REPRESENTATION, Georgetown University Law
Center, Washington, D.C., for Appellants. Craig M. Burshem,
Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia; Joseph P. Rapisarda, County Attorney, Karen M.
Adams, Senior Assistant County Attorney, OFFICE OF THE
COUNTY ATTORNEY, Henrico County, Henrico, Virginia,
for Appellees.
OPINION
SILER, Senior Circuit Judge:
Mark J. McBurney, Roger W. Hurlbert, and Bonnie Stewart
(collectively, the "Appellants") appeal the district court’s dis-
missal of their 42 U.S.C. § 1983 action seeking declaratory
and injunctive relief against the Attorney General of Virginia,
MCBURNEY v. C UCCINELLI 3
the Deputy Commissioner and Director of Virginia’s Division
of Child Support Enforcement ("DCSE"), and the Director of
the Real Estate Assessment Division in Henrico County, Vir-
ginia (collectively, the "Appellees"). Before the district court,
the plaintiffs alleged that Virginia’s Freedom of Information
Act ("VFOIA" or "the Act") violates the dormant commerce
clause and the Privileges and Immunity Clause of the U.S.
Constitution. The district court dismissed all parties from the
suit on jurisdictional grounds, from which order this appeal
arises.
For the following reasons, we AFFIRM in part,
REVERSE in part, and REMAND.
I.
The VFOIA provides citizens of the Commonwealth of
Virginia with a right of access to all public records held by the
Commonwealth, its officers, employees, or agents. Va. Code
Ann. §§ 2.2-3700 to .2-3714. In relevant part, the Act pro-
vides as follows:
Except as otherwise specifically provided by law, all
public records shall be open to inspection and copy-
ing by any citizens of the Commonwealth during the
regular office hours of the custodian of such records.
Access to such records shall not be denied to citizens
of the Commonwealth, representatives of newspa-
pers and magazines with circulation in the Common-
wealth, and representatives of radio and television
stations broadcasting in or into the Commonwealth.
The custodian may require the requester to provide
his name and legal address. The custodian of such
records shall take all necessary precautions for their
preservation and safekeeping.
§ 2.2-3704(A).
4 MCBURNEY v. C UCCINELLI
On January 21, 2009, McBurney and Hurlbert sued the
Attorney General of Virginia, currently Kenneth T. Cucci-
nelli, II (the "Attorney General"), 1 Nathaniel L. Young, Dep-
uty Commissioner and Director of Virginia’s DCSE (the
"Deputy Commissioner"), and the Director of the Real Estate
Assessment Division in Henrico County, Virginia, currently
Thomas C. Little (the "County Director"), 2 pursuant to 42
U.S.C. § 1983. They sought declaratory and injunctive relief
from the enforcement of the VFOIA, which they claim vio-
lates the Privileges and Immunities Clause and the dormant
commerce clause of the U.S. Constitution. The district court
later allowed the plaintiffs to amend their complaint to add an
additional plaintiff, Bonnie Stewart.
A. Plaintiffs’ Claims
Each plaintiff alleges different facts to support the common
argument that the VFOIA violates the U.S. Constitution.
1. McBurney’s Claims
McBurney, a citizen of Rhode Island, and his wife Lore
Mills were divorced in 2002. McBurney filed an application
for child support with Virginia’s DCSE in July 2006; and, as
a result of DCSE’s alleged failure to file the proper petition,
McBurney claims he was denied "nearly nine months of child
support payments."
1
The complaint named Robert Francis McDonnell, Attorney General at
the time of filing. Pursuant to Federal Rule of Civil Procedure 25(d),
McDonnell’s successor William Cleveland Mims was automatically sub-
stituted before the district court. After oral arguments in this case, the
Appellees substituted the present named Appellee. For clarity, this opinion
will refer to individual Appellees by their office titles.
2
The complaint named Samuel A. Davis, Director at the time of filing.
Prior to oral arguments in this case, the Appellees substituted the current
County Director for Davis. See Fed. R. Civ. P. 25(d).
MCBURNEY v. C UCCINELLI 5
In 2008, McBurney submitted a VFOIA request to the
DCSE seeking disclosure of certain documents that he
believed would help resolve this dispute. Specifically he
requested "all emails, notes, files, memos, reports, policies,
[and] opinions" pertaining to him, his son, or his former wife.
The DCSE denied his request on two grounds: first, because
the information "[was] confidential and protected under the
Virginia Code[,] [§§] 63.2-102 and 63.2-103"; and second,
because he was "not a Citizen of [the] Commonwealth of Vir-
ginia." McBurney sent a second request, identical to the first
except that he listed a Virginia address instead of his Rhode
Island address. The DCSE again denied his request. This time,
the DCSE only listed McBurney’s out-of-state citizenship as
its reason for the denial. However, the DCSE did inform
McBurney of his right to obtain this information under a dif-
ferent statute, the Government Data Collection and Dissemi-
nation Practices Act, Va. Code Ann. §§ 2.2-3800 to .2-3809.
Later, McBurney submitted a request under this act and
obtained over eighty requested documents.
McBurney contends that he did not receive all the docu-
ments he could have received under the VFOIA. He also con-
tends that the DCSE’s denial obstructed his right to advocate
on his own behalf and prohibited him from utilizing Virgin-
ia’s dispute resolution procedures, thus violating the Privi-
leges and Immunities Clause.
2. Hurlbert’s Claims
Hurlbert, a citizen of California, is the sole proprietor of
Sage Information Services. He is in the business of requesting
real estate tax assessment records for his clients from state
agencies across the United States, including Virginia. On June
5, 2008, Hurlbert submitted a VFOIA request to Henrico
County Assessor’s Office, which the office denied on the
basis of his citizenship. On February 17, 2009, after litigation
in this case had commenced, the County provided Hurlbert
with an electronic copy of its 2008 real estate assessment
6 MCBURNEY v. C UCCINELLI
database—the subject of the 2008 VFOIA request. Hurlbert’s
counsel returned this information without reading or review-
ing it.
Hurlbert argues that the denial of his VFOIA request was
unconstitutional, because it prevents him from pursuing his
common calling on an equal basis with Virginia citizens in
violation of the Privileges and Immunities Clause, and
because it gives Virginia citizens an exclusive right of access
to Virginia’s public records, in contravention of the dormant
commerce clause.
3. Stewart’s Claims
Stewart, a citizen of West Virginia and Assistant Professor
of Journalism at West Virginia University, submitted her
VFOIA request in February 2009 to Virginia Commonwealth
University and Virginia Polytechnic Institute and State Uni-
versity ("Virginia Tech"). Stewart’s request sought informa-
tion about the salaries and benefit packages awarded to the
presidents of Virginia’s public universities and was made in
conjunction with a course project on the administration of
public universities in other states. Both institutions denied her
request, because she was not a citizen of Virginia. 3
Stewart claims that the denial of her VFOIA request vio-
lates the Privileges and Immunities Clause because it prevents
her from pursuing her common calling as an educator on an
equal basis with Virginia citizens.
B. District Court’s Opinion
The district court granted the defendants’ motions to dis-
Virginia Tech first claimed that its president operated without a con-
3
tract, but later stated that the university did not possess any responsive
records or, even if it did, it would not release them to her due to her out-
of-state citizenship status.
MCBURNEY v. C UCCINELLI 7
miss. First, it held that the Attorney General was not a proper
party under the Eleventh Amendment. Because Stewart only
alleged claims against the Attorney General, it correspond-
ingly dismissed her as a plaintiff. Second, it held that both
McBurney and Hurlbert lacked standing, and dismissed them
as plaintiffs. Because McBurney was the only plaintiff to
assert claims against the Deputy Commissioner, the district
court also dismissed the Deputy Commissioner as a party.
Similarly, because only Hurlbert had sued the County Direc-
tor, the court dismissed him as well. Consequently, no parties
remained before the court, and it dismissed the case.
II.
"[W]e review de novo a district court’s legal determination
of whether Ex parte Young relief is available." Franks v. Ross,
313 F.3d 184, 192-93 (4th Cir. 2002) (internal quotation
marks and alterations omitted). Similarly, "[w]e review a dis-
trict court’s dismissal for lack of standing de novo." Bishop
v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009) (citations omit-
ted).
III.
This case presents two threshold questions: first, whether
the Attorney General is immune from suit under the Eleventh
Amendment; and second, whether the plaintiffs have standing
to sue. As to the first question, we agree with the district court
that the Attorney General was not a proper party. We dis-
agree, however, with the district court’s ruling on standing, so
we reverse that part of its judgment, and remand for proceed-
ings consistent with this opinion.
A. Sovereign Immunity
The district court concluded that the Attorney General was
not a proper party to the suit under the Eleventh Amendment
and the exception announced in Ex parte Young . The Appel-
8 MCBURNEY v. C UCCINELLI
lants appeal this ruling and the district court’s consequent dis-
missal of Stewart.
The Eleventh Amendment provides that "[t]he Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State." U.S. Const.
amend. XI.
The present suit is thus barred unless it falls within the
exception announced by the Supreme Court in Ex parte
Young, 209 U.S. 123 (1908), which permits a federal court to
issue prospective, injunctive relief against a state officer to
prevent ongoing violations of federal law, on the rationale that
such a suit is not a suit against the state for purposes of the
Eleventh Amendment. Id. at 159-60. "The requirement that
the violation of federal law be ongoing is satisfied when a
state officer’s enforcement of an allegedly unconstitutional
state law is threatened, even if the threat is not yet imminent."
Waste Mgmt. Holdings, Inc. v. Gilmore , 252 F.3d 316, 330
(4th Cir. 2001) (citation omitted). The Ex parte Young excep-
tion is directed at "officers of the state [who] are clothed with
some duty in regard to the enforcement of the laws of the
state, and who threaten and are about to commence proceed-
ings . . . to enforce against parties affected [by] an unconstitu-
tional act." Ex parte Young , 209 U.S. at 155-56 (emphasis
added). Thus, we must find a "special relation" between the
officer being sued and the challenged statute before invoking
the exception. Id. at 157; Gilmore, 252 F.3d at 331. This
requirement of " proximity to and responsibility for the chal-
lenged state action," S.C. Wildlife Fed’n v. Limehouse , 549
F.3d 324, 333 (4th Cir. 2008), is not met when an official
merely possesses "[g]eneral authority to enforce the laws of
the state," id. at 331 (citation omitted). The special-relation
requirement protects a state’s Eleventh Amendment immunity
while, at the same time, ensuring that, in the event a plaintiff
sues a state official in his individual capacity to enjoin uncon-
MCBURNEY v. C UCCINELLI 9
stitutional action, "[any] federal injunction will be effective
with respect to the underlying claim." Id. at 333.
In dismissing the Attorney General because he lacked a
"specific relation" to the VFOIA, the district court took judi-
cial notice of the Attorney General’s Web site, which states
that the Attorney General’s duties include, in pertinent part,
"providing legal advice and representation to the Governor
and executive agencies, state boards and commissions, and
institutions of higher education; defending the constitutional-
ity of state laws when they are challenged in court; and
enforcing state laws that protect businesses and consumers."
The Appellants now contend that the "special relation"
requirement is met, because (1) the Attorney General has a
specific statutory duty to enforce the VFOIA against state
officials; and (2) even if he does not, his authority to issue
official opinions and advice creates the requisite enforcement
connection. In response, the Attorney General disputes the
Appellants’ interpretation of the VFOIA’s enforcement provi-
sion, and posits that his general authority to issue advisory
opinions is not sufficient to abrogate sovereign immunity
under the Eleventh Amendment.
We agree with the Attorney General. First, he does not
have a specific statutory duty to enforce the VFOIA against
state officials. Although the VFOIA contains an enforcement
provision that grants "the attorney for the Commonwealth"
authority to petition for an injunction against a state official
for a violation of the Act, 4 Va. Code Ann. § 2.2-3713(A), as
used throughout the Code, the term "attorney for the Com-
monwealth," id., refers not to the Attorney General, but rather
4
The provision provides, in pertinent part:
Any person, including the attorney for the Commonwealth acting
in his official or individual capacity, denied the rights and privi-
leges conferred by this chapter may . . . enforce such rights and
privileges by filing a petition for mandamus or injunction[.]
Va. Code Ann. § 2.2-3713(A).
10 MCBURNEY v. C UCCINELLI
to the Commonwealth’s Attorneys, who are elected local
prosecutors. Compare Va. Code Ann. § 2.2-500 (stating that
the Attorney General is the "chief executive officer of the
Department of Law") with §§ 15.2-1626, 1627 (providing that
"every county and city shall elect an attorney for the Com-
monwealth," and setting forth the office’s local prosecutorial
duties). See also Va. Code Ann. § 2.2-511 (distinguishing
between the duties of the Attorney General and the "attorney
for the Commonwealth"). See generally In re Hannett , 619
S.E.2d 465 (Va. 2005) (addressing the question of whether
Va. Code Ann. § 19.2-156 provides for the
appointment of a local attorney to serve as the "attorney for
the Commonwealth" due to the prolonged absence of the
elected "Commonwealth’s Attorney"). Thus, contrary to the
Appellants’ characterization, the Attorney General does not
possess a specific statutory duty to enjoin violations of the
Act pursuant to § 2.2-3713(A).
Second, the Attorney General’s duty to issue advisory opin-
ions is, like the Governor’s duty to uphold the state laws in
Gilmore, "not sufficient to make [him] the proper part[y] to
litigation challenging the law." Gilmore, 252 F.3d at 331
(internal quotation marks and citation omitted). Our decision
in Limehouse does not change this result. In Limehouse, the
plaintiffs sought to enjoin the Director of South Carolina’s
Department of Transportation (the "Director") from continu-
ing a project to construct a bridge before the final environ-
mental impact statement ("FEIS") was reconsidered pursuant
to federal law. 549 F.3d at 331. In discussing the contours of
the Ex parte Young doctrine, we stressed the following princi-
ples:
This "special relation" requirement ensures that the
appropriate party is before the federal court, so as
not to interfere with the lawful discretion of state
officials. Primarily, the requirement has been a bar
to injunctive actions where the relationship between
the state official sought to be enjoined and the
MCBURNEY v. C UCCINELLI 11
enforcement of the state statute is significantly atten-
uated. Such cases have been dismissed on the
ground that general authority to enforce the laws of
the state is an insufficient ground for abrogating
Eleventh Amendment immunity. Thus, the Direc-
tor’s connection to the [state statute] need not be
qualitatively special; rather, "special relation" under
Ex parte Young has served as a measure of proximity
to and responsibility for the challenged state action.
This requirement ensures that a federal injunction
will be effective with respect to the underlying
claim.
Id. at 332-33 (internal quotations, citations, and alterations
omitted).
We then rejected the Director’s argument that he did not
have a "special relation" to the National Environmental Policy
Act and its state-law analogues. We noted the Director’s
supervisory authority over the state’s participation in the FEIS
process, his "deep[] involve[ment]" in preparing the chal-
lenged FEIS and procuring permits to proceed with the con-
struction of the bridge on the basis of the FEIS; and, pursuant
to federal law, his authority as head of the "joint lead agency"
with the Federal Highway Administration (FHWA), given
that the two agencies cooperated to draft any environmental
document required for the FEIS for the proposed bridge. Id.
at 333. Thus, we concluded that the Director possessed "a suf-
ficient connection to the alleged violation of federal law" to
establish a "special relation" under Ex parte Young. Id. In
contrast, the Attorney General’s authority over the VFOIA is
"significantly [more] attenuated." Id. As discussed supra, the
Attorney General has no specific statutory enforcement
authority under the VFOIA. In addition, he has not issued any
advisory opinions specifically directing state agencies to deny
VFOIA requests by non-citizens, 5 nor has he participated in
5
Although the Appellants claim that the Attorney General has issued
"hundreds" of advisory opinions on similar facts, they do not point us to
12 MCBURNEY v. C UCCINELLI
the decisionmaking process of those agencies. Thus, his gen-
eral authority to issue advisory opinions, in the abstract, is not
sufficient to establish a "special relation" for Ex parte Young
purposes.
In addition, our holding is consistent with those of our sis-
ter circuits that have dismissed the Attorney General when no
special relation existed between his office and the challenged
statute. See Okpalobi v. Foster , 244 F.3d 405 (5th Cir. 2001)
(en banc) (plurality opinion) (holding that Attorney General
was not a proper party where plaintiffs challenged a Louisiana
statute that provided a private cause of action against doctors
who performed abortions, because the Attorney General did
not have a special enforcement connection to the statute);
Smith v. Beebe , 123 F. App’x 261 (8th Cir. 2005) (holding
that Attorney General was not a proper party in a § 1983
action, because he did not bear a special relation to a chal-
lenged tolling provision). We express no opinion on whether
a special relationship would exist if an agency relies on an
advisory opinion explicitly interpreting VFOIA to apply only
to Virginia citizens. See Gay Lesbian Bisexual Alliance v.
Evans, 843 F. Supp. 1424, 1426 (M.D. Ala. 1993) (holding
that the Attorney General of Alabama was a proper party in
any particular opinion in which the Attorney General has instructed state
agencies not to process VFOIA requests by non-citizens. The opinions
cited by the Appellants—2 Op. Att’y Gen. 95 (2002) (regarding the circuit
court clerk’s duty to provide access to digital copies of the court’s data-
base of judicial or court records), and 2 Op. Att’y Gen. 149 (2003)
(regarding the VFOIA’s exception from disclosure for confidential infor-
mation)—are inapposite, as they merely quote the "citizens of the Com-
monwealth" language in addressing other legal questions under the Act.
Similarly, although the Appellants refer us to the Attorney General’s dis-
cussion of the Act’s procedures on the official Web site, the site does not
specifically direct agencies to deny claims by citizens, again merely par-
roting the broad "citizen" language of the statute. See Va. Coal. for Open
Gov’t, FOIA Overview & FAQs, http://www.opengovva.org/virginias-
foia-the-law/foia-overview-a-faqs-lawmenu-156 (last visited April 12,
2010).
MCBURNEY v. C UCCINELLI 13
a suit challenging an Alabama statute that prohibited universi-
ties from allocating public funds to support any group that
promoted lifestyles prohibited by sodomy and sexual miscon-
duct laws, because the university enforced the statute "alleg-
edly in reliance on an ‘advisory opinion’ from the Attorney
General"),6 aff’d sub nom. Gay Lesbian Bisexual Alliance v.
Pryor, 110 F.3d 1543 (11th Cir. 1997) (affirming, without
discussing, this holding).
Finally, even were we to find a special relation, we cannot
apply Ex parte Young because the Attorney General has not
acted or threatened to act. See Ex parte Young , 209 U.S. at
155-56; Gilmore, 252 F.3d at 330. The Attorney General has
neither personally denied any of the Appellant’s VFOIA
requests nor advised any other agencies to do so. Cf. Minner
v. Lee , 458 F.3d 194, 198-202 (3d Cir. 2006) (holding that
Delaware’s FOIA violated the Privileges and Immunities
Clause and affirming the district court’s injunction barring the
Attorney General from enforcing the law where plaintiff
requested records from the Attorney General). Moreover, the
Appellants do not allege that the Deputy Commissioner or the
County Director relied on the Attorney General’s advice in
denying their VFOIA requests. See Pryor , 110 F.3d 1543
(affirming, without discussing, the district court’s decision
that the Attorney General of Alabama was a proper party,
because the university relied "on a specific ‘advisory opinion’
from the Attorney General"). Because the Attorney General
has not enforced, threatened to enforce, or advised other agen-
cies to enforce the VFOIA against the Appellants, the Ex
6
In Evans, the University of South Alabama requested an Attorney Gen-
eral opinion regarding the disbursement of its funds to a student group, the
Gay Lesbian Bisexual Alliance; received an opinion that stated the funds
should not be released; and acted in reliance on that opinion to deny fund-
ing, an act which, the plaintiffs argued, violated their First Amendment
rights. Evans, 843 F. Supp. at 1426. In the instant case, however, the
Attorney General was not requested for, nor did he issue advice respect-
ing, the denial of claims under the VFOIA based on a claimant’s non-
citizenship.
14 MCBURNEY v. C UCCINELLI
parte Young fiction cannot apply. See Ex parte Young , 209
U.S. at 155-56. We affirm the district court’s dismissal of the
Attorney General and Stewart from the suit.
B. Standing
McBurney and Hurlbert next argue that the district court
improperly dismissed them on standing grounds. The "irre-
ducible constitutional minimum of standing" requires (1) "an
injury in fact—a harm suffered by the plaintiff that is concrete
and actual or imminent, not conjectural or hypothetical"; (2)
"causation—a fairly traceable connection between the plain-
tiff’s injury and the complained-of conduct of the defendant";
and (3) "redressability—a likelihood that the requested relief
will redress the alleged injury." Steel Co. v. Citizens for a Bet-
ter Env’t , 523 U.S. 83, 102-03 (1998) (internal quotation
marks and citations omitted); see Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp. , 204 F.3d 149, 154 (4th Cir.
2000) (en banc) (same). "The standing doctrine, of course,
depends not upon the merits, but on whether the plaintiff is
the proper party to bring the suit." White Tail Park, Inc. v.
Stroube, 413 F.3d 451, 460 (4th Cir. 2005) (internal quotation
marks, citations, and alteration omitted). Indeed, "[i]f a plain-
tiff’s legally protected interest hinged on whether a given
claim could succeed on the merits, then every unsuccessful
plaintiff will have lacked standing in the first place." Id. at
461.
1. McBurney
The VFOIA contains several exemptions to protect confi-
dential information, including an exemption from disclosure
of "[a]ll records . . . that pertain to . . . child support enforce-
ment." Va. Code Ann. § 63.2-102. The district court con-
cluded that McBurney lacked standing because he failed to
allege an injury, based on its conclusion that the records
requested were not available under the VFOIA. Specifically,
the district court concluded that the DCSE denied McBur-
MCBURNEY v. C UCCINELLI 15
ney’s request because all the requested materials were confi-
dential and thus exempt from disclosure under the Act
regardless of his citizenship. McBurney now argues that some
of the requested documents were not confidential documents
and that the DCSE’s denial with respect to these documents
was based solely on the grounds of his non-citizenship.
It is undisputed that although McBurney received more
than eighty documents related to his child support case under
a different statute, he did not receive general policy informa-
tion (i.e., documents discussing how the DCSE administers
cases like his), information that would arguably not fall within
the Act’s exemption for confidential documents. The Deputy
Commissioner insists that McBurney never made a request for
such general policy information. However, McBurney’s
request sought "[a]ny and all treatises, statutes, legislation,
regulations, administrative guidelines, or any other reference
material that the DSS and/or DCSE relies upon in actioning
or administering child support cases where one parent is over-
seas." Thus, he has Article III standing to sue, because he has
shown (1) injury in fact (lack of possession of the requested
general policy information); (2) causation (the Deputy Com-
missioner continues to deny access to these records, although
the basis for such denial is not clear); and (3) redressability
(for which release of the information would remedy). See
Pub. Citizen v. U.S. Dep’t of Justice , 491 U.S. 440, 449
(1989) (recognizing that the Court’s "decisions interpreting
the [FOIA] have never suggested that those requesting infor-
mation under it need show more than that they sought and
were denied specific agency records"). The district court thus
erred in dismissing McBurney.
2. Hurlbert
The district court held that Hurlbert did not have standing
because he failed to plead either (1) monetary relief or (2) an
ongoing injury as required for declaratory or injunctive relief.
The district court acknowledged that "Hurlbert’s counsel in
16 MCBURNEY v. C UCCINELLI
responsive briefs and out-of-court documents alludes to Hurl-
bert making future [V]FOIA requests," but it refused to credit
such assertions and held that the pleadings did not support a
finding of Article III jurisdiction.
On appeal Hurlbert argues that the district court erred. He
asserts that the court should have considered evidence outside
of the pleadings, specifically, his affidavit submitted to sup-
port his cross-motion for a preliminary injunction. In this affi-
davit, he averred that after his VFOIA request was denied he
"was dissuaded from making any further VFOIA requests in
Henrico County." He also contends that even if the court
properly confined its analysis to the pleadings, it ignored por-
tions of his complaint that implied an ongoing injury. The
County Director argues that "[t]he existence of facts not pled
. . . are irrelevant when considering a motion to dismiss," cit-
ing Bishop v. Bartlett , 575 F.3d 419 (4th Cir. 2009), in sup-
port.
Here, the amended complaint itself is best read to plead an
ongoing injury: 7 in paragraph 36 Hurlbert alleged that the Act
"makes it impossible" for him to "pursue his common calling
by obtaining Virginia public records through the VFOIA on
an equal basis with Virginia’s citizens." 8 Given that the com-
7
Because the complaint states an ongoing injury, we do not address
whether the district court should have considered Hurlbert’s affidavit.
8
As the dissent quite rightly points out, this statement is "a conclusion
of law derived from the factual assertions in paragraphs 15 and 16." Infra
at 32. The dissent objects to our "unwarranted" reliance on this "lone alle-
gation," infra at 31, and posits that "[t]here are simply no factual allega-
tions supporting the conclusion that Hurlbert suffered a prospective,
ongoing injury that is ‘concrete and particularized’ as to the amended
complaint," infra at 33 (internal quotation marks omitted). We respectfully
disagree with this characterization. We read the conclusion of law in para-
graph 36 in context with the very facts pled in paragraphs 15 and 16 of
the complaint: (1) Hurlbert "is the sole proprietor of Sage Information Ser-
vices"; (2) his May 2008 request had been denied on the basis of his non-
citizenship; (3) he " is in the business of obtaining real estate tax assess-
MCBURNEY v. C UCCINELLI 17
plaint stated sufficient facts to support standing, 9 the district
court erred in dismissing Hurlbert for lack of standing. 10
ment records"; and (4) he " obtains these records by submitting FOIA
requests to state governmental agencies." We agree with the dissent that
the conclusion of law in paragraph 36, standing alone, would not be suffi-
cient to plead an ongoing injury; however, when read with Hurlbert’s fac-
tual allegations, we find it to be so. The factual allegations demonstrated
that Hurlbert is the sole proprietor of a company that makes a business of
submitting FOIA requests to states and federal agencies. We find that
these facts are "‘sufficiently real and immediate to show an existing con-
troversy.’" Infra at 33 (quoting Comite de Apoyo a los Trabajadores
Agricolas, 995 F.2d 510, 515 (4th Cir. 1993)).
The dissent also states that "[o]nce the Director provided Hurlbert with
the data he sought, Hurlbert failed to plead any additional facts in his
amended complaint indicating that he was likely to make additional
requests for such information in the immediate future." Infra at 33.
Because Hurlbert’s amended complaint "mirrored" his complaint, the dis-
sent concludes that "inferring an ongoing injury from the single sentence
in paragraph 36 is simply too speculative and conjectural." Id. at 34 (inter-
nal quotation marks omitted). Because we read the complaint as a whole
to be sufficient, we respectfully disagree.
9
Bishop does not change this analysis, because in Bishop the plaintiffs
did not allege any injury at all. In Bishop, four North Carolina citizens
challenged the process by which a constitutional amendment was placed
before voters, arguing that it violated the Due Process Clause of the Four-
teenth Amendment. 575 F.3d at 421. The district court dismissed the case
for lack of standing, a decision we affirmed. Id. at 422. First, we noted that
in the complaint the plaintiffs "did not allege that they had actually been
misled by the ballot language." Id. at 422. In fact, they later "acknowl-
edged that even though each of them had voted in the November 2004
election, [not one of them was] misled by the ballot language." Id. Thus,
we agreed with the district court that there was no injury in fact. Id. at 424.
10
The County Director also argues that Hurlbert’s claim is moot,
because he was provided with the requested records. However, because
Hurlbert has pleaded an ongoing injury, the fact that the government pro-
vided him with past records requested does not moot his claim going for-
ward. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs. , 528 U.S. at
167, 190 (2000) ("[A] defendant claiming that its voluntary compliance
moots a case bears a formidable burden of showing that it is absolutely
clear that the allegedly wrongful behavior could not reasonably be
expected to recur." (citation omitted)).
18 MCBURNEY v. C UCCINELLI
C. Constitutional Claims
We decline to address the merits of the Appellants’ claim,
and instead remand for the district court to consider Hurl-
bert’s and McBurney’s claims in light of our holding that they
have standing to sue.
AFFIRMED in part, REVERSED in part, and
REMANDED for the district court to proceed consistent with
this opinion.
GREGORY, Circuit Judge, concurring:
After erroneously concluding that appellant Hurlbert lacked
standing to proceed with his claim, the district court stated
that even if Hurlbert had standing "it is unlikely that [he]
would have succeeded on the merits." McBurney v. Mims, No.
3:09-CV-44, 2009 U.S. Dist. LEXIS 36971, at *23 (E.D. Va.
May 1, 2009). In my view, this conclusion is based on a
clearly incorrect interpretation of the Privileges and Immuni-
ties Clause. So while I join Judge Siler’s opinion in full, I
write separately to address a legal error that appears likely to
recur without further guidance from this Court. See Levy v.
Lexington County, S.C. Sch. Dist. Three Bd. of Tr. , 589 F.3d
708, 716 (4th Cir. 2009).
The Privileges and Immunities Clause in Article IV Section
2 of the Constitution requires that states treat their residents
and nonresidents alike in matters "‘bearing on the vitality of
the Nation as a single entity.’" Sup. Ct. of N.H. v. Piper , 470
U.S. 274, 279 (1985) (quoting Baldwin v. Mont. Fish & Game
Comm’n, 436 U.S. 371, 383 (1978)). The Clause protects sev-
eral rights, including the right of one state’s citizens to engage
in economic activity in another state "on terms of substantial
equality with the citizens of that State." Toomer v. Witsell ,
334 U.S. 385, 396 (1948). Specifically, the Supreme Court
has held that under the Privileges and Immunities Clause,
states may not discriminate against nonresidents when distrib-
MCBURNEY v. C UCCINELLI 19
uting professional licenses, nor may they prohibit nonresi-
dents from engaging in economic activity that residents may
engage in. See Piper, 470 U.S. at 280 (explaining the Court’s
precedent and holding that states may not prohibit nonresi-
dents from practicing law in the state). Stated differently, the
Clause prohibits states from discriminating against nonresi-
dents’ pursuing a "common calling." Baldwin, 436 U.S. at
383; O’Reilly v. Bd. of Appeals , 942 F.2d 281, 284 (4th Cir.
1991).
Though this prohibition is not absolute, a state’s attempt to
burden a right protected by the Privileges and Immunities
Clause triggers heightened judicial scrutiny. A state may only
discriminate against another state’s citizens on matters that
implicate the Privileges and Immunities Clause if it has a
"substantial reason" for the discriminatory practice and that
practice "bears a substantial relationship to the state’s objec-
tives." Piper, 470 U.S. at 284; O’Reilly, 942 F.2d at 284.
Notably, the only circuit to consider an analogous citizens-
only provision found that the provision did violate the Privi-
leges and Immunities Clause. Lee v. Minner , 458 F.3d 194,
195 (3d Cir. 2006). The Third Circuit in Lee held that the
citizens-only provision in Delaware’s Freedom of Information
Act violated the plaintiff’s fundamental right to "engage in the
political process with regard to matters of national importance
on equal terms with state residents."* Id. at 199. Though the
court noted that Delaware had a substantial interest in estab-
lishing and defining its own political community, it dismissed
the state’s argument that the citizens-only provision bore a
substantial relationship to that interest, and held that denying
noncitizens information did nothing to make the citizenry
more cohesive. Id. at 201.
*Though the plaintiff also alleged that Delaware’s provision violated
his right to pursue a common calling, the court declined to address this
argument. Lee, 458 F.3d at 199.
20 MCBURNEY v. C UCCINELLI
The district court apparently gave little or no weight to our
sister circuit’s rationale. Rather, it interpreted our decision in
O’Reilly as requiring a particularly high level of interference
with a noncitizen’s common calling by the state to implicate
the Privileges and Immunities Clause. The district court also
interpreted the Supreme Court’s decision in Piper to mean
that a state must burden the right "with the aim of improving
the competitive advantage of [its] citizens over noncitizens"
in order to violate the Constitution. McBurney, 2009 U.S.
Dist. LEXIS 36971, at *24. Neither of these readings is cor-
rect.
In O’Reilly, we held that a Maryland licensing regulation
burdened the right to pursue a common calling and violated
the Privileges and Immunities Clause where it prohibited non-
resident cab drivers from picking up fares in a specific
county. 942 F.2d at 284. At no point did we suggest that the
state had to severely burden that right in order to implicate the
constitutional protection; instead we invalidated the regulation
simply because it burdened the plaintiff’s right, without
regard to the burden’s severity or degree. Id. The extent of
any burden might well be an appropriate consideration when
analyzing whether the challenged action bears a "substantial
relationship" to a state’s important interest, but generally is
not relevant in deciding whether there is a burden in the first
instance. After all, the Framers did not view one state’s dis-
crimination against another state’s citizens in isolation, but
rather considered the prospect of other states’ responding with
reciprocal and retaliatory burdens that, in the aggregate, could
threaten the Nation’s economic unity. See Toomer , 334 U.S.
at 395-96.
Likewise, nowhere in Piper — nor in any other case of
which I am aware — has the Supreme Court limited applica-
tion of the Privileges and Immunities Clause to those
instances in which a state passes a statute "with the aim of
improving the competitive advantage of its citizens over non-
citizens." McBurney, 2009 U.S. Dist. LEXIS 36971, at *24.
MCBURNEY v. C UCCINELLI 21
(emphasis added). The Court in Piper did not find that New
Hampshire refused to license out-of-state attorneys with "the
aim" of benefiting resident lawyers, but rather found that it
impermissibly burdened nonresidents’ right to pursue their
common calling even assuming the state’s aim was unrelated
to any desire to regulate economic competition. See 470 U.S.
at 283. Again, the state’s goal is surely relevant when deter-
mining whether any burden on nonresidents’ pursuit of a
common calling is justified by the state’s substantial interest,
id. at 285, but is of no moment when determining whether the
challenged statute burdens a fundamental right in the first
instance.
Appellant Hurlbert operates a business in California that
collects and synthesizes information for a particular audience
and sells it for profit. He alleges that from time to time he
seeks access to information contained in Virginia’s official
records as part of the services he provides to clients. And, as
Judge Siler’s opinion quite correctly notes, he claims that Vir-
ginia will continue to deny him access to much of this infor-
mation while providing it to Virginia residents. These
allegations, if true, make out a classic common-calling claim
under the Privileges and Immunities Clause.
The ability to quickly and efficiently gather and dissemi-
nate information is central to a great deal of economic activity
in our aptly-named Information Age. The individual or busi-
ness that can access relevant information quickest and most
efficiently has a distinct advantage when competing in the
advertising, technology, entertainment, and business arenas. A
statute that discriminates against a nonresident’s ability to
access information therefore implicates the right to pursue a
common calling in the Twenty-First century in much the same
way that it would if it burdened an angler’s ability to catch
fish, see Toomer, 334 U.S. at 396-97, or a cabby’s ability to
drive fares in the Twentieth, see O’Reilly , 942 F.2d at 284.
Because such a statute burdens a protected right, it is then
22 MCBURNEY v. C UCCINELLI
incumbent upon the state to prove that the statute withstands
heightened scrutiny.
The district court did not properly engage in this analysis
below. In my view, it must do so on remand when fully con-
sidering the plaintiffs’ substantive legal claims and factual
contentions in order to avoid committing reversible error. As
nothing in Judge Siler’s opinion suggests otherwise, I join in
that opinion.
AGEE, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority opinion except as to section
III(B)(2). I write separately as to that section because I do not
find that Roger W. Hurlbert has adequately pled an ongoing
injury sufficient to confer standing. Accordingly, I respect-
fully dissent as to section III(B)(2) of the majority opinion
and I would affirm the district court’s judgment with respect
to Hurlbert.
I.
In June 2008 Hurlbert made a telephone request pursuant
to VFOIA for real estate records in the possession of the
Director of the Real Estate Assessment Division of Henrico
County, Virginia ("the Director"). When that request was
denied, Hurlbert filed suit against the Director, who filed his
answer to Hurlbert’s initial complaint on February 16, 2009.
By letter dated the next day, February 17, 2009, the Director
provided Hurlbert with the requested data.
On March 10, 2009, the Director filed a motion to dismiss
Hurlbert’s suit pursuant to Rule 12(c) and Rule 12(h)(3)
based, in part, on a "[l]ack of [j]urisdiction." J.A. 54A. In the
memorandum of law accompanying his motion, the Director
specifically argued that Hurlbert lacked standing based on the
incongruence between his allegations of past injury and his
MCBURNEY v. C UCCINELLI 23
request for prospective relief. 1 It is clear from the record that,
at least by March 10, 2009, Hurlbert was aware that his stand-
ing was at issue. Despite this knowledge, the plaintiffs,
including Hurlbert, filed an amended complaint on March 18,
2009 that did not materially alter Hurlbert’s allegations and,
indeed, repeated them almost verbatim. The specific allega-
tions in the amended complaint pertaining to Hurlbert are as
follows:
15. Plaintiff Roger Hurlbert is the sole proprietor
of Sage Information Services. Mr. Hurlbert is in the
business of obtaining real estate tax assessment
records. Mr. Hurlbert obtains these records by sub-
mitting FOIA requests to state governmental agen-
cies.
16. Mr. Hurlbert submitted a FOIA request to the
Henrico County Real Estate Assessor’s Office pursu-
ant to Virginia Code § 2.2-3704. The request was
made by telephone on June 5, 2008. In that tele-
phone conversation, an official from the Assessor’s
Office denied Mr. Hurlbert’s FOIA request. The
only reason the official gave for denying the request
was that Mr. Hurlbert is not a citizen of Virginia.
....
36. A state law that denies non-citizens the right
to pursue their common calling violates Article IV’s
Privileges and Immunities Clause. The Henrico
1
In his memorandum of law submitted to the district court the Director
argued that "[Hurlbert’s] Complaint does not allege that denial of these
materials caused him any particularized harm, nor has he requested mone-
tary damages. More tellingly, Mr. Hurlbert has also failed to allege that
he intends to make a similar request of Mr. Davis in the future or is other-
wise likely to again be denied public records by Mr. Davis or the County
of Henrico’s Real Estate Assessment Division." Dist. Ct. Docket No. 21
at 6.
24 MCBURNEY v. C UCCINELLI
County Assessor’s Office denied Mr. Hurlbert
access to public records based on the citizens-only
provision in Virginia Code § 2.2-3704. Section 2.2-
3704 makes it impossible for Mr. Hurlbert to pursue
his common calling by obtaining Virginia public
records through Virginia’s FOIA on an equal basis
with Virginia’s citizens. This discrimination contra-
venes the Privileges and Immunities Clause.
J.A. 62A-67A.
The final paragraph of the amended complaint contains a
vague general statement alleging irreparable harm:
42. Deprivation of a constitutional right consti-
tutes irreparable harm. The citizens-only provision in
Virginia Code § 2.2-3704 denies the Plaintiffs access
to information. As a result, the provision bars the
Plaintiffs from participating in a range of economic,
political, and social activities . . . .
J.A. 69A.
The Director argues that Hurlbert lacks standing because
"Hurlbert alleged only one discrete instance where his alleged
constitutional rights were violated." Br. of Appellee at 31. In
other words, the Director asserts there is a fatal variance
between the past injury alleged and the prospective remedies
sought. I agree.
II.
A.
"It is elementary that the burden is on the party asserting
jurisdiction to demonstrate that jurisdiction does, in fact,
exist." Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999);
Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982) ("The
MCBURNEY v. C UCCINELLI 25
burden of proving subject matter jurisdiction on a motion to
dismiss is on the plaintiff, the party asserting jurisdiction.").
In this case, the Director challenged Hurlbert’s standing by
filing a motion for judgment on the pleadings pursuant to
Rule 12(c). "[W]e review the district court’s dismissal [under
Rule 12(c)] de novo and in doing so apply the standard for a
Rule 12(b)(6) motion." Edwards v. City of Goldsboro , 178
F.3d 231, 243 (4th Cir. 1999). "The purpose of a Rule
12(b)(6) motion is to test the sufficiency of a complaint;
‘importantly, [a Rule 12(b)(6) motion] does not resolve con-
tests surrounding the facts, the merits of a claim, or the appli-
cability of defenses.’" Id. (quoting Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (alteration in origi-
nal).
Clearly, by moving for judgment on the pleadings, the
Director’s motion to dismiss was designed to test the suffi-
ciency of Hurlbert’s allegations as a basis for subject matter
jurisdiction. In his memorandum of law submitted to the dis-
trict court the Director argued that:
[Hurlbert’s] Complaint does not allege that denial of
[the data] caused him any particularized harm, nor
has he requested monetary damages. More tellingly,
Mr. Hurlbert has also failed to allege that he intends
to make a similar request of Mr. Davis in the future
or is otherwise likely to again be denied public
records by Mr. Davis or the County of Henrico’s
Real Estate Assessment Division.
Dist. Ct. Docket No. 21 at 6. The Director did not challenge
the veracity of the facts pled and, indeed, had already admit-
ted in his answer to the initial complaint that his office had
received a written request from Hurlbert seeking records pur-
suant to VFOIA. J.A. 26A-27A.
On appeal, Hurlbert first puts forth a procedural argument,
claiming "[t]he district court erred when it confined its stand-
26 MCBURNEY v. C UCCINELLI
ing inquiry to the Amended Complaint alone . . . ." Br. of
Appellant at 26. Specifically, Hurlbert avers that the district
court should have considered his declaration, filed after his
initial complaint, in which he stated that after the Director
denied his request for data, he "was dissuaded from making
any further FOIA requests in Henrico County." J.A. 49A.
However, the district court was not obligated to go beyond the
pleadings in resolving the Director’s motion to dismiss.
Hurlbert cites Warth v. Seldin, 422 U.S. 490 (1975) in sup-
port of his position that the district court was required to con-
sider materials outside the pleadings in adjudicating the
motion to dismiss. Warth stands only for the proposition,
clearly in accord with our precedent, that a district court may,
but is not required, to consider such materials. See Warth, 422
U.S. at 501 (explaining that while "both the trial and review-
ing courts must accept as true all material allegations of the
complaint," "it is within the trial court’s power to allow or to
require the plaintiff to supply, by amendment to the complaint
or by affidavits, further particularized allegations of fact
deemed supportive of plaintiff’s standing").
Hurlbert also relies on our statement in Richmond, Freder-
icksburg & Potomac R.R. Co. v. United States , 945 F.2d 765
(4th Cir. 1991) that "[i]n determining whether jurisdiction
exists, the district court is to regard the pleadings’ allegations
as mere evidence on the issue, and may consider evidence
outside the pleadings without converting the proceeding to
one for summary judgment." 945 F.2d at 768 (emphasis
added). Not only did that case also make the district court’s
consideration of non-pleading material permissive rather than
mandatory, it also involved a motion under Rule 12(b)(1)
which, unlike the Rule 12(c) motion to dismiss filed in this
case, is unaffected by Rule 12(d). Rule 12(d) specifically
addresses a district court’s consideration or exclusion of mate-
rials outside the pleadings. 2
2
Rule 12(d) provides:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
MCBURNEY v. C UCCINELLI 27
For the first time on appeal, Hurlbert argues in his reply
brief that "[b]y submitting non-pleading materials with his
motion, [the Director] expanded the scope of the standing
inquiry beyond the logical sufficiency of the complaint to
include factual evidence bearing on the truth of Hurlbert’s
allegations." Reply Br. of Appellant at 8. We need not address
any such argument, however, as any argument raised for the
first time in a reply brief has been abandoned. Edwards, 178
F.3d at 241 n.6; see also U.S. ex rel. Vuyyuru v. Jadhav , 555
F.3d 337, 356 n.8 (4th Cir. 2009) (citing Yousefi v. INS , 260
F.3d 318, 326 (4th Cir. 2001)); United States v. Al-Hamdi ,
356 F.3d 564, 571 n.8 (4th Cir. 2004).
In my view, Hurlbert’s argument would have no merit in
any event. A plain reading of the district court’s opinion
reveals that it did not rely on non-pleading materials submit-
ted by either party in reaching its decision regarding Hurl-
bert’s standing. Therefore, Rule 12(d) simply would not apply. 3
"As is true of practice under Rule 12(b)(6), it is well-settled
that it is within the district court’s discretion whether to
accept extra-pleading matter on a motion for judgment on the
pleadings and treat it as one for summary judgment or to
reject it and maintain the character of the motion as one under
Rule 12(c)." 5C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1371 (3d ed. 2010). As the
Eleventh Circuit has recently explained, "[a] judge need not
convert a motion to dismiss into a motion for summary judg-
ment as long as he or she does not consider matters outside
pleadings are presented to and not excluded by the court , the
motion must be treated as one for summary judgment under Rule
56. All parties must be given a reasonable opportunity to present
all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d) (emphasis added).
3
Moreover, the term "dissuaded" in Hurlbert’s declaration is insuffi-
ciently descriptive to establish an actual or imminent injury-in-fact.
28 MCBURNEY v. C UCCINELLI
the pleadings." Harper v. Lawrence County , 592 F.3d 1227,
1232 (11th Cir. 2010). I agree with our sister circuit’s view
that "‘not considering’ such matters is the functional equiva-
lent of ‘excluding’ them—there is no more formal step
required." Id.
For the reasons set forth above, the district court was not
required to consider Hurlbert’s declaration nor was it required
to convert the proceeding to one for summary judgment.
B.
To possess the constitutional component of standing, a
party must meet three requirements:
(1) [the party] has suffered an "injury in fact" that is
(a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of
the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed
by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan, 504 U.S.
555, 560-61 (1992)); Bishop v. Bartlett , 575 F.3d 419, 423
(4th Cir. 2009). As the party invoking federal jurisdiction,
Hurlbert bears the burden of establishing these elements.
Long Term Care Partners, LLC v. United States , 516 F.3d
225, 231 (4th Cir. 2008).
Of course, Plaintiffs need not "await the consum-
mation of threatened injury to obtain preventive
relief." Blum v. Yaretsky, 457 U.S. 991, 1000 (1982).
Instead, where a party seeks prospective relief, "[t]he
question becomes whether any perceived threat to
[the plaintiff] is sufficiently real and immediate to
show an existing controversy." Id.; see also Lujan ,
MCBURNEY v. C UCCINELLI 29
504 U.S. at 564 (examining imminence of asserted
injury); City of Los Angeles v. Lyons , 461 U.S. 95,
105 (1983) (examining likelihood that plaintiff
would suffer future injury).
Long Beach Area Chamber of Commerce v. City of Long
Beach, 603 F.3d 684, 689 (9th Cir. 2010).
To meet the "injury in fact" requirement, Hurlbert bears the
burden of proving "an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical." Lujan, 504 U.S. at
560 (internal citations and quotations omitted). While Hurl-
bert arguably pled a concrete and actual injury — the denial
of his VFOIA request — sufficient to confer standing at the
time he filed suit, he did not plead any ongoing injury suffi-
cient to maintain standing for declaratory and injunctive
relief.
The allegations in paragraphs 15 and 16 of the amended
complaint clearly indicate that Hurlbert pled only that he suf-
fered an alleged past injury as a result of the Director’s denial
of his June 2008 request. He pled no future harm that he
might reasonably expect to suffer as a result of Virginia’s res-
idency requirement. Even though Hurlbert pled a past injury
and knew that his standing had been challenged, he nonethe-
less filed an amended complaint that did not request compen-
satory damages for his losses arising out of the Director’s
June 2008 denial. Instead, he sought a court order:
1. Declaring that Virginia Code § 2.2-3704 violates
the Privileges and Immunities Clause of Article IV
and the dormant Commerce Clause of the United
States Constitution;
2. Enjoining the Defendants from enforcing the
citizens-only provision of Virginia Code § 2.2-3704;
30 MCBURNEY v. C UCCINELLI
3. Awarding the Plaintiffs their costs and reasonable
attorneys fees pursuant to 42 U.S.C.A. § 1988(b);
and
4. Granting the Plaintiffs such other relief as the
Court may deem just and proper.
J.A. 18A.
The district court was therefore confronted, incongruously,
with pleadings that sought prospective declaratory and injunc-
tive relief based only on a single past (and since remedied)
harm. As a result, I would find the district court correctly
determined "that [Hurlbert] has not adequately pled an ongo-
ing injury, but bases his claims solely on not receiving the
documents he requested" in June 2008. J.A. 84A.
Although Hurlbert’s failure to plead an ongoing injury in
fact is, in and of itself, fatal to his standing, his pleadings also
fail to establish the element of redressability. As the district
court explained:
If [Hurlbert] had alleged a continuing violation or
the imminence of a future violation , the injunctive
relief requested would remedy the alleged harm.
Steel Co. v. Citizens for a Better Env’t , 523 U.S.
108-09 (1998). But no such allegation is made in
either [Hurlbert’s] original or amended complaint,
and therefore the Complaint fails to confer Hurlbert
with standing as an injunction, which provides relief
from a future harm, cannot redress [his] claim of a
singular, past wrong.
J.A. 84A (emphasis added). Once the Director provided Hurl-
bert with the information he sought, the "controversy" Hurl-
bert pled, the denial of information in June 2008, had been
MCBURNEY v. C UCCINELLI 31
resolved. As a result, his allegations lack two of the three ele-
ments required for standing — injury in fact and redressability. 4
The majority relies on Hurlbert’s lone allegation that "Sec-
tion 2.2-3704 makes it impossible for [him] to pursue his
common calling by obtaining Virginia public records through
Virginia’s FOIA on an equal basis with Virginia’s citizens,"
J.A. 17A, 67A, and concludes that "the complaint itself is best
read to plead an ongoing injury . . . ." Supra at 16. In my
view, this reliance is unwarranted. 5
Hurlbert repeated in both his initial and amended com-
plaints that VFOIA "makes it impossible . . . to pursue his
4
Although my dissent is based on the dissonance between Hurlbert’s
allegations of past harm and his request for prospective relief, I would also
find that his claims are moot. Hurlbert argues that "a defendant’s volun-
tary cessation of a challenged practice does not deprive a federal court of
its power to determine the legality of the practice." Friends of the Earth ,
528 U.S. at 189. I find no merit in Hurlbert’s argument because it presup-
poses that declarative and injunctive relief are "[t]he only effective reme-
dies for [his] ongoing injury." Br. of Appellant at 28 (emphasis added). In
finding that he has not pled an ongoing injury but only a past single inci-
dent that has since been remedied, I see no reason why the mootness doc-
trine would not likewise bar his claim.
5
The majority disagrees with my assertion that it relies only on the alle-
gation in paragraph 36 of the amended complaint and avers that it "read[s]
the conclusion of law in paragraph 36 in context with the very facts pled
in paragraphs 15 and 16 of the complaint" and "read[s] the complaint as
a whole." But when read in context, Hurlbert’s statements that he " is the
sole proprietor of Sage Information Services," a company that " is in the
business of obtaining real estate tax assessment records," and that he " ob-
tains these records by submitting FOIA requests to state governmental
agencies" are merely prefatory to his only concrete and particularized alle-
gation of damage. This allegation—alleged in the past tense—asserts only
that he " submitted a FOIA request" that was " denied." J.A. 62A. With
respect to my colleagues, the fact that he "is" in the business of making
such requests and once made such a request that had been denied does not
demonstrate that an additional request was "actual or imminent." The facts
alleged simply did not indicate that any threat to Hurlbert was "sufficiently
real and immediate to show an existing controversy." Blum, 457 U.S. at
1000.
32 MCBURNEY v. C UCCINELLI
common calling by obtaining Virginia public records . . . on
an equal basis with Virginia’s citizens." The majority views
this statement as sufficiently pleading an ongoing injury. I
disagree. Considered in context, I believe the statement is
more appropriately read as a conclusion of law derived from
the factual assertions in paragraphs 15 and 16. Such a reading
comports with the language in the complaints.
First, use of the legal term of art "common calling" evinces
a legal, versus colloquial, meaning. 6 The Supreme Court’s
longstanding jurisprudence establishes that a state may not, in
most circumstances, interfere with a nonresident’s pursuit of
a common calling. In light of this clarity, the sentence at issue
in paragraph 36 is nothing more than a restatement of the
legal determination to be made by the district court – whether
the Director’s denial of Hurlbert’s request in June 2008 vio-
lates the Privileges and Immunities Clause.
Secondly, the specific allegations in paragraph 15 allege a
past, not ongoing or future, injury. At the time the complaint
6
The Supreme Court has repeatedly emphasized that the Privileges and
Immunities Clause of the federal Constitution protects the rights of citi-
zens in one state to transact business in another state "on terms of substan-
tial equality with the citizens of" the other state. Supreme Court of New
Hampshire v. Piper , 470 U.S. 274, 280 (1985); Toomer v. Witsell , 334
U.S. 385, 395 (1948) (stating that the Clause "was designed to insure to
a citizen of State A who ventures into State B the same privileges which
the citizens of State B enjoy"); see e.g. Supreme Court of Va. v. Friedman,
487 U.S. 59, 70 (1988) (holding "that Virginia’s residency requirement for
admission to the State’s bar without examination violates the Privileges
and Immunities Clause"). This has been referred to as the fundamental
right to pursue a common calling. See United Bldg. & Constr. Trades
Council v. Mayor and Council of Camden , 465 U.S. 208, 219 (1984)
("Certainly, the pursuit of a common calling is one of the most fundamen-
tal of those privileges protected by the Clause."); Hicklin v. Orbeck , 437
U.S. 518, 524 (1978) ("Appellants’ appeal to the protection of the Clause
is strongly supported by this Court’s decisions holding violative of the
Clause state discrimination against nonresidents seeking to ply their trade,
practice their occupation, or pursue a common calling within the State.").
MCBURNEY v. C UCCINELLI 33
was drafted and filed, Hurlbert had requested but had not yet
been given the data. Under these circumstances, the statement
in paragraph 22 of the initial complaint understandably
claims, using the present tense, that VFOIA prevents Hurlbert
from pursuing his common calling; however, no such circum-
stance existed for paragraph 36 of the amended complaint.
Hurlbert did not allege that the Act would continue to inter-
fere with his pursuit of a common calling nor indicate whether
or when he expected to make another request for Virginia
records. There are simply no factual allegations supporting
the conclusion that Hurlbert suffered a prospective, ongoing
injury that is "concrete and particularized" as to the amended
complaint.
While we have acknowledged that "prospective challenges
are not per se invalid," we have also explained that "the threat
of injury must be ‘sufficiently real and immediate to show an
existing controversy.’" Comite de Apoyo a los Trabajadores
Agricolas (CATA) v. U.S. Dep’t of Labor , 995 F.2d 510, 515
(4th Cir. 1993) (quoting O’Shea v. Littleton , 414 U.S. 488,
496 (1974)). "The equitable remedy is unavailable absent a
showing of irreparable injury, a requirement that cannot be
met where there is no showing of any real or immediate threat
that the plaintiff will be wronged again—a ‘likelihood of sub-
stantial and immediate irreparable injury.’" City of L.A. v.
Lyons, 461 U.S. 95, 111 (1983)(quoting O’Shea, 414 U.S. at
502).
At the time Hurlbert filed his initial complaint he may have
had standing to sue the Director based on the allegations pled
concerning the denial of his June 2008 VFOIA request, but he
failed to seek compensatory damages flowing from that
denial. Once the Director provided him with the data he
sought, Hurlbert failed to plead any additional facts in his
amended complaint indicating that he was likely to make
additional requests for such information in the immediate
future. He failed to do this even though he was aware that the
Director had challenged his standing to sue. Indeed, the alle-
34 MCBURNEY v. C UCCINELLI
gations pertaining to Hurlbert in the amended complaint mir-
rored those set forth in his initial complaint. As a result, I
would find, contrary to the majority’s holding with respect to
Hurlbert, that inferring an ongoing injury from the single sen-
tence in paragraph 36 is simply too "speculative and conjec-
tural."
Accordingly, I respectfully dissent from section III(B)(2) of
the majority opinion.