McBurney v. Cuccinelli

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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  No. 09-1615

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.



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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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-

3

Virginia Tech first claimed that its president operated without a con-

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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,

pursuant to 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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 17

plaint stated sufficient facts to support standing,9 the district

court erred in dismissing McBurney 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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. CUCCINELLI 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. CUCCINELLI

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.