Brown v. Smith

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

MELISSA BROWN, )

Plaintiff,

v. 1:24-cv-477 (LMB/IDD)

NELSON SMITH, in his official capacity as

Commissioner of the Virginia Department of )

Behavioral Health and Developmental )

Services,

Defendant.

MEMORANDUM OPINION

On March 26, 2024, plaintiff Melissa Brown (“plaintiff’ or “Brown’”) filed an as-applied

challenge to Va. Code § 37.2-416.1, alleging that the statute violates the Equal Protection, Due

Process, and Privileges or Immunities Clauses of the Fourteenth Amendment to the Constitution

by disqualifying her for a substance-abuse counselor position in a state-licensed facility because

of her two-decades-old conviction for robbery. [Dkt. No. 1] (“Compl.”). On April 19, 2024,

defendant Nelson Smith, in his official capacity as Commissioner of the Virginia Department of

Behavioral Health and Developmental Services (“‘defendant” or “Smith”), filed a Motion to

Dismiss the Complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). [Dkt. No. 11]

(“Motion to Dismiss”). The motion is fully briefed and oral argument has been held. For the

reasons that follow, defendant’s Motion to Dismiss will be granted in part and denied in part.

I. BACKGROUND

A. Plaintiff Melissa Brown

Melissa Brown is a 50-year-old grandmother, currently working as the vice-president of

marketing and operations at a state-licensed addiction treatment facility in Fredericksburg,

Virginia. Compl. at ff 14-15. After a turbulent childhood, Brown became addicted to drugs in

her twenties and began committing crimes to buy drugs. In 1998, she stole $160 in goods from a

Walmart. For that, she was convicted of shoplifting and sentenced to five years’ probation. In

2001, when Brown was 27 years old, she stole a woman’s pocketbook in a grocery store parking

lot and used the credit cards that were in the pocketbook. She was arrested and pled guilty to

robbery, larceny, and possessing a controlled substance. Brown was sentenced to ten years’

imprisonment! and served more than eight years in state prison. Compl. at { 16-21.

Since being convicted in 2002, Brown has gotten clean and has been sober for over

twenty-two years; she has not been charged with, or convicted of, any other crimes since 2002.

Compl. at Jf 22-27. While in prison, she began her college-level studies in psychology and

helped other inmates study for their GEDs. After her release in 2010, she got married, was

reunited with her children, and completed her bachelor’s degree in psychology, cum laude, from

the University of Mary Washington. Brown has undertaken more than 200 hours in addiction-

recovery coursework, performed 2,000 hours of supervised substance-abuse counseling practice,

and applied for, and received, a Certified Substance Abuse Counselor credential from the

Virginia Board of Counseling, which granted the certification based on an individualized

assessment of her character and fitness. That credential has been renewed annually. Compl. at

25-26, 28-34.

In 2014, Brown was hired as a substance-abuse counselor at a state-licensed treatment

facility in Fredericksburg, Virginia. Her employer knew about her criminal history. She worked

' Brown was sentenced to five years’ imprisonment for the robbery offense, plus five years for

violating her probation for the earlier shoplifting offense. Compl. at J 21.

there as a substance-abuse counselor for four years when, in 2018, Brown was promoted to lead

counselor, helping to supervise the facility’s clinical work. Compl. at [J 35-38.

Later in 2018, Brown’s employer was acquired by another rehabilitation facility; the new

ownership determined that Brown could not work in any “direct-care” position at any licensed

treatment facility in Virginia because of Va. Code § 37.2-416.1—the Virginia barrier law at issue

in this litigation. Under Virginia law, there are 176 “barrier crimes” applicable to the hiring and

regulation of substance-abuse counselors and other direct-care positions supervised by the

Virginia Department of Behavioral Health and Developmental Services (the “Department”).

With defined exceptions, the barrier law provides that conviction for any one of the listed crimes

results in a lifetime ban on that type of employment. The list includes robbery as one such

barrier crime. Compl. at §{] 60-67 (citing the barrier law, Va. Code § 37.2-416.1, and the list of

barrier crimes, Va. Code § 19.2-392.02); see also Compl. at J] 39-42.

Thereafter, Brown’s employer transitioned her to a marketing position—a non-direct care

role to which the barrier law does not apply. Outside of her working hours, Brown volunteers as

a substance-abuse counselor at a nonprofit treatment center in Virginia, one that is not subject to

Department licensure and not subject to the barrier law. Brown’s employer has indicated that it

would transfer Brown to a direct-care position, working as both a counselor and supervisor of

other counselors, if it were not subject to the barrier law. Compl. at {J 43-50.

According to the Complaint, between 2018 and 2021, the barrier law blocked

approximately 1,100 people from working in any position regulated by the Department, not just

as substance abuse counselors. Compl. at J 68. It also points out that, in 2016, the Virginia

Department of Health declared opioid addiction a public-health emergency, and, as such, there is

a growing need for substance-abuse counselors in Virginia. Compl. at J 69-70. The

Department has acknowledged that need, explaining that one of its “challenges” is finding

“qualified applicants to help meet the growing behavioral health/developmental services

workforce needs.” Compl. at 112. The Complaint stresses that because many people with the

“invaluable” “first-hand experience” of overcoming addiction will have been convicted of barrier

offenses, the barrier law makes it impossible for them to share their invaluable experience as

counselors. Compl. at § 113. Brown contends that by excluding qualified counselors like

herself, the barrier law worsens substance abuse in Virginia. Compl. at { 75.

B. Statutory Background

The Virginia Department of Behavioral Health and Developmental Services regulates the

treatment and care of persons coping with mental illness, substance abuse, and developmental

disabilities, 12 Va. Admin. Code 35, and the operation of state facilities that provide such

treatment and care for those persons, Va. Code §§ 37.2-700, 37.2-403, 37.2-405.

Under this statutory regime, it is unlawful for a statutorily-defined “provider”? to

establish, conduct, maintain, or operate any statutorily-defined “service”—or to admit, place,

treat, maintain, house, or otherwise keep any person—without a license from the Commissioner.

Va. Code §§ 37.2-405(A), (C). Similarly, it is unlawful for any person to maintain or operate a

statutorily-defined “service” outside of the direct supervision of a licensed “provider.” Va. Code

§ 37.2-413. A licensed provider is subject to ongoing statutory and regulatory requirements,

including licensure renewals, inspections, human-rights reviews, and background checks. See

Va. Code §§ 37.2-410, -411, -412, -416, -416.1.

2 Examples of “providers” include “a hospital as defined in Va. Code § 32.1-123, community

services board, behavioral health authority, private provider, and any other similar or related

person, entity, or organization.” Va. Code § 37.2-403.

Virginia law requires Department-licensed providers to conduct background checks on

individuals working in a “direct care position” and limits service in such roles if the individual

has been convicted of a “barrier crime.”? Va. Code § 37.2-416(B) (substance abuse and mental

health services for minors and developmental services for individuals of any age); Va. Code

§ 37.2-416.1(B) (substance abuse and mental health services for adults). A “direct care position”

is one with responsibility for an individual’s “treatment, case management, health, safety,

development, or well-being” in the provision of substance-abuse, mental-health, or

developmental services or one with responsibility for “immediat[e] supervision[]” over such a

position. Va. Code §§ 37.2-416(A), -416.1(A).

For Department-licensed providers of substance-abuse, mental-health, and developmental

services, there are statutorily-defined “barrier crimes” that are disqualifying, included among

clause (i), (ii), (iii), or (iv)* offenses. See Va. Code. §§ 37.2-416(B)(1)-(4), -416.1(B)(1)-(2).

Robbery is an offense under clause (i) of the “barrier crime” definition,’ and it is a completely-

disqualifying offense. Va. Code § 19.2-392.02(A).

e clause (i): robbery; felony violations of certain protective order provisions;

aggravated murder; felony homicide, voluntary and involuntary manslaughter;

3 In 1999, the General Assembly extended the background check requirement—which until that

time only applied to residential facilities for juveniles—to direct-care positions with Department-

licensed providers for adults, in the interest of detecting and addressing the criminal backgrounds

of volunteers and employees working with vulnerable populations. See Va. State Crime

Comm’n, H. Doc. No. 64: Report on Criminal History Record Checks for Volunteer and

Contract Service Providers (1999), https://rga.lis.virginia.gov/Published/1999/HD64/pdf.

4 Clause (iv) includes felony offenses for possession of a controlled substances, but only if the

offense was committed within the five years preceding the date of application or entry into a

shared-living arrangement or if the applicant remains on probation or parole or has not paid

required court costs for the offense. Va. Code §§ 19.2- 392.02(A), 37.2-416(B)(1)-(4), -

416.1(B)(1)-(2).

>In Virginia, robbery is a common law felony defined as the “taking, with intent to steal, of the

personal property of another, from his person or in his presence, against his will, by violence or

intimidation.” Jay v. Commonwealth, 275 Va. 510, 524 (2008) (cleaned up).

shooting, stabbing, cutting, or wounding in commission of a felony or with

intent to main, disable, disfigure, or kill; assault or battery by mob; felony gang

offenses; terrorism-related offenses; abduction and kidnapping offenses;

malicious wounding offenses; maiming through intoxicated vehicular

operation; strangulation or suffocation; certain offenses related to firearms and

other weapons; poisoning-related offenses; injury of correctional-facility

personnel or probation or parole officials by a prisoner, probationer, or parolee;

felony hazing; assaults and batteries not subject to exceptions; pointing a laser

at a law-enforcement officer, probation or parole officer, correctional officer,

or other correctional personnel; disarming a law-enforcement officer,

correctional officer, or other correctional personnel; carjacking; extortion;

threating the Governor or the Governor’s immediate family; felony stalking;

rape and other sex offenses; prostitution-related offenses not subject to the

above-referenced exceptions; obscenity-related offenses; offenses relating to

bombing, burning, or destroying structures or other property or things; failing

to secure medical attention for an injured child; abuse and neglect of vulnerable

adults or children; felony offenses related to riot or unlawful assembly;

insurrection-related offenses; burning crosses or other objects, using swastikas,

or displaying nooses to intimidate; offenses related to paramilitary activity;

delivering drugs, firearms, or explosives to prisoners or other committed

persons; offenses related to escape from confinement and other felonies by

prisoners; offenses within secure juvenile facilities or detention homes; treason;

and offenses related to the overthrow of government;

e clause (ii): offenses relating to burglary and breaking and entering not subject

to the above-referenced exceptions; and

e clause (iii): offenses relating to the manufacture, sale, gift, distribution, or

possession of certain quantities of mixtures or substances containing controlled

substances.

Certain barrier crimes are not automatically disqualifying, in that they have built-in

statutory exceptions. Va. Code §§ 37.2-416(C), -416.1(C), (D), (F). Barrier crimes with

exceptions include reckless endangerment by throwing objects from above one story,

misdemeanor hazing or reckless handling of firearms, misdemeanor simple assault and battery,

first-offense misdemeanor assault and battery against a family or household member, threat of

death or bodily injury, burglary, breaking and entering a dwelling to commit another

misdemeanor, possession of burglarious tools, misdemeanor brandishing of a firearm or other

weapon, misdemeanor prostitution, misdemeanor solicitation of prostitution, and most of the

“clause (iii)” barrier crimes, which are predominantly concerned with controlled substances. Va.

Code § 37.2- 416.1(C). Licensed providers of adult substance-abuse or mental-health services

may hire or contract individuals convicted of these barrier crimes if a screening assessment

determines that the applicant’s criminal behavior was substantially related to substance abuse or

a mental illness and that the applicant has been successfully rehabilitated and is not a risk to

individuals receiving services from the provider. Va. Code § 37.2- 416.1(C) (screening of

offenses provision).

Additionally, there are two allowances for hiring applicants who might otherwise be

disqualified by a barrier crime. Without requiring a background check or disqualification,

Virginia law allows a Department-licensed provider to (1) “promot{e] from one adult substance

abuse or adult mental health [direct care] position to another such position within the same

licensee” or (2) “new[ly] employ[]” a person “in an adult substance abuse or adult mental health

[direct care] treatment position in another office or program licensed” if that person was

“employed prior to July 1, 1999, in a licensed program” and “had no convictions in the five years

prior to the application date for employment.” Va. Code § 37.2-416.1(A) (referred to as “the

grandfather provision”).

II. DISCUSSION

A. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires a court to

dismiss a claim if the “plaintiffs allegations fail to state a claim upon which relief can be

granted,” Abdelhamid v. Sec’y of the Navy, 525 F. Supp. 3d 671, 681 (E.D. Va. 2021) (quoting

Adams v. NaphCare, Inc., 244 F. Supp. 3d 546, 548 (E.D. Va. 2017)). To survive a Rule

12(b)(6) motion, a complaint’s factual allegations must be more than speculative and must “state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). Although a court must accept all well-pleaded allegations as true and view a complaint

in the light most favorable to the plaintiff, it need not accept “unwarranted inferences,

unreasonable conclusions, or arguments.” Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180

(4th Cir. 2009) (internal citation omitted).

B. Equal Protection Clause Claim

The Equal Protection Clause of the Fourteenth Amendment provides that “{n]o State .. .

shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. To state an equal-protection claim, a complaint must allege facts making a

plausible claim that: 1) the state has treated the plaintiff “differently from others who are

similarly situated to” her; and 2) the state’s “classification” of the plaintiff does not satisfy “the

appropriate level of constitutional scrutiny.” Doe v. Settle, 24 F.4th 932, 939 (4th Cir. 2022).

Here, the parties agree that the appropriate level of constitutional scrutiny is rational basis review

because there is no fundamental right or suspect classification at issue to trigger heightened

scrutiny; thus, the challenged law must be “rationally related to a legitimate state interest,” City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

In his Motion to Dismiss, defendant first argues that the Complaint does not allege

sufficient facts showing that the barrier law treats plaintiff differently from others who are

similarly situated to her. [Dkt. No. 12] at 14; see also id. at 15 (“Brown does not adequately

plead similar situation but, instead, relies on conclusory assertions that ‘[i]n all relevant respects’

she is ‘similarly situated’ to vaguely-characterized classes of ‘substance-abuse counselors’ and

‘other kinds of counselors’ but Virginia law ‘irrationally distinguishes’ them.”).

In opposition, plaintiff argues that the Complaint identifies at least five sets of

comparators to whom she is similarly situated:

1. Aspiring substance-abuse counselors without barrier convictions.

Compl. at { 136.

2. Aspiring substance-abuse counselors who are convicted of barrier

crimes after already being employed as substance-abuse counselors

at licensed treatment facilities. Compl. at 137.

3. Aspiring substance-abuse counselors with barrier crime convictions

but who are exempt from the barrier law because they were already

employed in direct-care positions when the law went into effect in

1999, Compl. at J 138.

4, Substance-abuse counselors who work outside of licensed treatment

facilities who are not categorically banned by the barrier law.

Compl. at | 138.

5. People who provide counseling on topics other than substance abuse

outside of licensed treatment facilities, like independent

professionals counselors, psychologists, or marriage and family

therapists, who are not categorically banned by the barrier law.

Compl. at {J 87, 140.

[Dkt. No. 15] at 33-34 (cleaned up).°

As plaintiff correctly argues, these comparators need not be like Brown in every possible

respect; rather, she must be similarly situated to them in ways relevant to “the goal of” the barrier

law. See Alive Church of the Nazarene, Inc. v. Prince William Cnty., 59 F.4th 92, 113 (4th Cir.

2023). At a minimum, categories 1 and 3, supra, constitute similar groupings sufficient to state a

claim that there are plausible impermissible distinctions being made between plaintiff and those

other categories of persons who would otherwise be eligible to serve in a direct-care role.

Having found that the barrier law plausibly treats plaintiff differently from those similarly

situated to her, the Court must then apply the appropriate level of constitutional scrutiny:

rational-basis review. This test represents a powerful presumption that the state law is valid.

Lyng v. Auto. Workers, 485 U.S. 360, 370 (1988). Although the showing required to overturn

that presumption is steep, Doe, 24 F.4th at 943, the standard is far from “toothless,” Craigmiles

6 Absent from this list of comparators are substance-abuse counselors who have equally serious

convictions that happen to not be barrier convictions or who otherwise lack barrier convictions.

Defendant argues that the Complaint fails to identify what non-barrier crime is “similar enough”

to robbery to be a proper comparator. [Dkt. No. 12] at 15.

v. Giles, 312 F.3d 220, 229 (6th Cir. 2002). A challenger must show there is no “rational

relationship between the disparity of treatment and some legitimate governmental purpose.”

Heller v. Doe, 509 U.S. 312, 320 (1993). The state need not make any showing; no evidence of

any kind is required; reasonable speculation is enough. Fed. Comme’ns Comm’n v. Beach

Comme’ns, Inc., 508 U.S. 307, 315 (1993). As for the justification, any conceivable reason will

do. It does not matter what actually motivated the classification. Id. at 315.

Nor is there any place in rational-basis review to question the wisdom or logic of a state’s

legislation; rough line-drawing, even “illogical” or “unscientific” line drawing, is often a

necessary aspect of governing. Heller, 509 U.S. at 321 (citing Metropolis Theater Co. v. City of

Chicago, 228 U.S. 61, 69-70 (1913)). And unlike higher levels of scrutiny, there is no tailoring

requirement under rational-basis review. Id. All that is needed is an imperfect fit between a

plausible reason and some legitimate end. See also Giarratano v. Johnson, 521 F.3d 298, 303

(4th Cir. 2008); Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973).

Defendant argues that a rational basis supports the challenged classification of robbery as

a barrier crime. Specifically, defendant offers three interrelated bases on which the Court may

find a plausible reason tied to some legitimate end. First, a categorical bar on employment in a

position as sensitive as a direct-care substance-abuse counselor on the basis of a criminal

conviction for robbery, a serious felony, is plainly rational and constitutional. [Dkt. No. 12] at

17. Second, state laws disqualifying convicted felons from certain types of employment deemed

“important to the public interest” have a long history, and “robbery has long been regarded

amongst the most heinous felonies.” Id. at 18 (cleaned up). And third, because robbery is a

felony against “person and property,” and may itself be associated with substance abuse

disorders, “Virginia rationally views such a criminal history as having a negative relation to the

10

objectives of, and sensitivities inherent in, the provision of planned, individualized interventions

through direct care to vulnerable individuals suffering with substance abuse.” Id. at 18. Put

differently, defendant argues that there is nothing irrational in the observation that—in the

interests of public health, safety, and welfare—a state may refer to a criminal conviction in

defining qualifications for one’s fitness and character to enter into an occupation treating health

conditions. In such cases, “it is not for the courts to substitute their judgment for that of the state

legislature.” Id. at 18 (cleaned up).

In opposition, plaintiff attacks the irrationality of the barrier law on four bases: 1) the law

ignores Brown’s circumstances; 2) the law’s prohibition turns on an irrelevant crime; 3) the

law’s prohibition is uncommonly harsh; and 4) the law is “riddled with inexplicable exceptions.”

[Dkt. No. 15] at 14-23. Each argument will be addressed in turn.

Brown first argues that the barrier law disregards consideration of the nature and severity

of the crime for which she was convicted, the time elapsed since her conviction, and the degree

of her rehabilitation over the past twenty-two years. In erecting the barrier law, Brown contends

that the Commonwealth is permanently banning individuals who have achieved the chief aim of

punishment, namely, complete rehabilitation, without any consideration of an individual’s

circumstances since conviction for certain barrier crimes. Although Brown was convicted for

robbery when she was addicted to drugs, she has been sober and not been convicted of any

crimes for more than two decades. Compl. at §§ 22-24, 27. She helped tutor other inmates while

she was incarcerated, and has earned a bachelor’s degree in psychology with honors. Compl. at

47 25, 29-30. She has been certified as, and continues to be, fit for substance-abuse counseling

by the Commonwealth, notwithstanding her decades-old criminal record. Compl. at [] 31-34.

She worked as a well-regarded substance-abuse counselor for years and was promoted to lead

11

counselor. Compl. at § 35-38, 48, 128. She continues to devote herself to helping people

battling addiction, both in her working hours (as vice-president of marketing and operations at a

treatment facility) and in her spare time (as a volunteer counselor at a nonprofit not subject to the

barrier law), Compl. at J 44-47; however, none of these accomplishments can be considered by

the state licensure authorities because the barrier law prohibits individualized consideration of

her rehabilitation given her robbery conviction. [Dkt. No. 15] at 22-23.

Because older convictions are less probative of a future likelihood of recidivism, Brown

contends that the barrier law irrationally treats her twenty-two-year-old robbery conviction as

dispositive of her future behavior—forever. See [Dkt. No. 15] at 23 (citing Fields v. Dep’t of

Early Learning, 434 P.3d 999, 1005 (Wash. 2019) (“Because [her] sole disqualifying conviction

occurred long ago . . . it is highly likely that her permanent disqualification is erroneously

arbitrary.”). Brown supports her argument by pointing to Fields, in which the Washington

Supreme Court considered a case with similar facts. Christal Fields was convicted of attempted

robbery when she “attempted to snatch a purse to help pay for her drug habit.” 434 P.3d at 1001.

Twenty-five years later, Fields, who had “turned her life around,” was disqualified from working

in a childcare facility because of a state law that codified “50 types of permanently disqualifying

convictions,” one of which was attempted robbery. Id. at 1001-03. The Washington Supreme

Court explained that Fields’s “sole disqualifying conviction occurred long ago under

circumstances that no longer exist,” id., and that although she was banned from childcare

facilities, the law did not ban her from providing foster care, a role also “responsible for the

protection, care, supervision, and nurturing of the child.” Id. at 1005-06 (cleaned up). Given this

12

inconsistency, the court held that the state law lacked a “rational basis for doing so” in “the

particular circumstances presented by Fields’s case.” Id. at 1004.’

Brown also cites to Barletta v. Rilling, in which a federal district court invalidated a state

licensure law relating to the qualifications for persons trading precious metals partly because the

state law imposed a permanent ban without accounting for the “nature and severity of the crime,

the nature and circumstances of [a person’s] involvement in the crime, the time elapsed since

conviction, and the degree of the [person’s] rehabilitation.” 973 F. Supp. 2d 132, 139 (D. Conn.

2013). For example, the Court explained that the classification was overbroad because it failed

to distinguish among felons in terms of when they were convicted and how severely they were

sentenced, and because the ban on felons is insufficiently related to the purpose of the statute,

namely, whether there is a meaningful relationship between the absolute bar on felons from

holding a precious metals license and the legitimate state interest of protecting the public from

unscrupulous precious metals dealers. Id. at 139.

Plaintiff argues that although Brown was convicted of robbery because she snatched a

purse in an attempt to fuel her drug addiction, she did not physically assault the victim and there

were no aggravating factors. Compl. at § 20. In short, Brown claims that the lack of case-by-

case analysis ensures that there will be no rational relationship between the “sweeping,

categorical ban” and Brown’s occupational fitness.

Next, Brown argues that the barrier law irrationally bans her for committing “a crime

with no connection to substance-abuse counseling,” because it does not relate to “the objectives

of, and sensitivities inherent in, the provision of planned, individualized interventions through

7 As plaintiff acknowledges, the holding in Fields was couched in terms of procedural due

process; however, a concurring opinion explained that the analysis would be nearly identical

under substantive due process. [Dkt. No. 15] at 11 & n.4 (citing 434 P.3d at 1008-09).

13

direct care to vulnerable individuals suffering with substance abuse.” [Dkt. No. 15] at 25 (citing

[Dkt. No. 12] at 18). Contrary to defendant’s arguments, Brown claims that there is no

reasonable inference that she would rob or attack the people she has dedicated her life to helping,

as demonstrated by the aforementioned rehabilitation. Moreover, the barrier law does not

categorically prevent Brown from coming into contact with people battling addiction because

there is no prohibition on Brown working in a licensed treatment facility. In her marketing and

operations role, she works in a licensed facility that is treating those types of patients every day,

see Compl. at J 14, 44-46; [Dkt. No. 15] at 25-26, and she is also counseling such people as a

volunteer in a non-licensed facility.

Brown also argues that the irrationality of the barrier law is demonstrated by two other

features of the statute, specifically, the barrier law provides for only a five-year ban for those

convicted of drug possession and distribution offenses, Va. Code § 37.2-416.1(B)(1), and

provides for individualized screening for those and many other offenses, Va. Code § 37.2-

416.1(C). As the Complaint alleges, “the barrier-crime statute irrationally makes the crimes

most related to substance abuse counseling, like drug offenses, eligible for individualized

screening.” Compl. at J 94 (emphasis in original).

The Complaint also alleges that the barrier law treats some serious crimes more leniently

than convictions for robbery. For example, someone convicted of burglary—a class three

felony—would be eligible to work as a counselor after completing an individualized screening

assessment, Va. Code § 37.2-416.1(C); however, Brown’s robbery conviction—which, given the

conduct involved, would today result in a lesser class six felony conviction, Va. Code § 18.2-

58(B)(4)—results in a lifetime ban. Other puzzling distinctions between screenable and non-

screenable barrier crimes abound. Reckless endangerment by throwing objects from two stories

14

or higher is screenable; recklessly driving a boat while under the influence is not. Compare Va

Code § 37.2-416.1(C) (allowing screening for convictions under § 18.2-51.3), with Va. Code

§ 37.2-416.1(B)(1) (prohibiting screening for convictions under § 18.2-51.5). Hazing ina

fraternity is screenable; hazing in a gang is not. Compare Va. Code § 37.2-416.1(C) (allowing

screening for convictions under § 18.2-56), with Va. Code § 37.2-416.1(B)(1) (prohibiting

screening for convictions under § 18.2-55.1). Brandishing a firearm in most places is screenable;

brandishing a BB gun at school is not. Va. Code § 37.2-416.1(C) (allowing screening only for

misdemeanor convictions under § 18.2-282). Threatening a teacher is screenable; threatening the

Governor is not. Compare Va. Code § 37.2-416.1(C) (allowing screening for convictions under

§ 18.2-60), with Va. Code § 37.2-416.1(B)(1) (prohibiting screening for convictions under

§ 18.2- 60.1).

Third, Brown argues that the prohibition imposed by the barrier law “is uncommonly

harsh.” [Dkt. No. 15] at 28. She claims that her criminal history would get individualized

consideration if she were pursuing licensure in medicine or law, yet the Commonwealth has

invoked the “sensitivities” present in substance-abuse counseling to categorically ban her from

that work. “So it is at least plausible that a much harsher rule for substance-abuse counselors

could be irrational.” [Dkt. No. 15] at 29. Moreover, Virginia does not have a barrier law for

other types of counselors, such as mental-health counselors, independent professional

counselors, psychologists, or marriage and family therapists.

So if [Brown] wanted to work in a private office helping people have

a better relationship with a spouse or overcome a gambling

addiction, her criminal history would receive individualized

consideration. But because she wants to work in a rehab center

helping people have a better relationship with alcohol or overcome

an opioid addiction, she is barred from working forever. That makes

no sense

15

[Dkt. No. 15] at 30.

Finally, Brown claims that the barrier law is irrational because it is riddled with arbitrary

and inexplicable exceptions. [Dkt. No. 15] at 30. To start, “most substance-abuse counselors

who worked before the barrier law was passed are grandfathered in, regardless of their criminal

history,” because the barrier law does not apply to people employed as substance abuse

counselors on July 1, 1999. See Va. Code § 37.2-416(B)(1); Va. Code § 37.2-416.1(A). The

existence of the grandfather provision demonstrates that if convicted criminals who had been

working before July 1999 were capable of essentially rehabilitating themselves so as to qualify

then there is no reason why other convicted criminals would not also be capable of doing the

same. See Nixon v. Commonwealth, 839 A.2d 277, 289-90 (Pa. 2003) (holding criminal-history

ban on working with “the elderly, disabled, and infirm” irrational as applied because of

grandfathering clause). Defendant responds that the limited allowances provided for in the

barrier law reflect a “gradual approach” adopted by the legislature, which is permissible under

rational-basis review. The “General Assembly reasonably withheld the broader rule of

disqualification as to certain transitions of existing direct-care employees,” taking a “one step at

a time” approach and not attempting to “strike at all evils at the same time.” See [Dkt. No. 16].

As the Court stated during oral argument, Brown has put forward sufficiently compelling

arguments to make out a plausible claim that the Virginia barrier law, as applied to her, may be

irrational. Although the Court is also aware of defendant’s repeated rejoinder that, under rational

basis review, the Court must defer to legislative line-drawing, if rational-basis review is a test

with meaning—f it has “teeth”—it must mean something beyond absolute deference to the

legislature; otherwise it is not review at all. See Barletta, 973 F. Supp. 2d at 136. Rational basis

review “imposes a requirement of some rationality in the nature of the class singled out.”

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Rinaldi v. Yeager, 384 U.S. 305, 308-09 (1966). At bottom, taking all of the factual allegations

in the Complaint as true and viewing them in the light most favorable to Brown, the Complaint

makes a plausible allegation of the irrationality of the barrier law with respect to Brown’s

robbery conviction and attendant circumstances. For these reasons, the Court will decline to

dismiss plaintiffs equal-protection claim at this time. A more complete record, with the benefit

of discovery, will allow the parties to flesh out their arguments at summary judgment.

C. Due Process Clause Claim

Under the Fourteenth Amendment’s Due Process Clause, “[n]o State shall... deprive

any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV,

§ 1. There is no broadly defined fundamental right to work. Prynne v. Settle, 848 F. App’x 93,

104 (4th Cir. 2021). As the Supreme Court has explained, “the Fourteenth Amendment’s Due

Process Clause includes some generalized due process right to choose one’s field of private

employment, but a right which is nevertheless subject to reasonable government regulation.”

Conn v. Gabbert, 526 U.S. 286, 291-92 (1999) (interpreting Meyer v. Nebraska, 262 U.S. 390,

399 (1923)); see also Litmon v. Harris, 768 F.3d 1237, 1242 (9th Cir. 2014) (“[A] restriction on

the conduct of a profession will run afoul of substantive due process rights only if it is

irrational.”) (alteration in original) (quoting In re Crawford, 194 F.3d 954, 961 (9th Cir. 1999)).

Brown’s due process claim attacks the rationality of the barrier law with respect to her

two-decades-old conviction for robbery. The parties agree that the constitutional analysis under

the Due Process Clause is identical to that undertaken in the equal protection context above—

rational basis review applies. See [Dkt. No. 12] at 19-20; [Dkt. No. 15] at 11 n.4. Accordingly,

as explained above in discussing the Equal Protection Clause analysis, because the Court finds

that the Complaint plausibly alleges that the law as-applied to plaintiff has no rational basis, it

will decline to dismiss plaintiff's due-process claim. See Guardian Plans, Inc. v. Teague, 870

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F.2d 123, 125 n.2 (4th Cir. 1989) (addressing “due process and equal protection challenges as

one” because the rational-basis standard “is the same”).

D. Privileges or Immunities Clause Claim

Lastly, plaintiff concedes that her claim under the Privileges or Immunities Clause of the

Fourteenth Amendment is foreclosed under binding precedent.® See [Dkt. No. 15] at 5n.3. She

has included the claim solely for appellate review. Compl. at Jf 155-58. Accordingly, the Court

will dismiss this claim.

II. CONCLUSION

For these reasons, the Court will grant in part and deny in part defendant’s Motion to

Dismiss, [Dkt. No. 11], by an Order to be issued with this Memorandum Opinion.

Entered this 3 bay of June, 2024.

Alexandria, Virginia

Isi

Leonie M. Brinkema

United States District Judge

8 Some Justices of the Supreme Court have expressed interest in revisiting the Court’s

interpretation of the Privileges or Immunities Clause. See, e.g., Timbs v. Indiana, 586 U.S. 146,

157 (2019) (Gorsuch, J., concurring); id. at 157-70 (Thomas, J., concurring in the judgment).

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