Mark McBurney v. Nathaniel Young

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK J. MCBURNEY; ROGER W. 

HURLBERT,

Plaintiffs-Appellants,

and

BONNIE STEWART, Professor,

Plaintiff,

v.

NATHANIEL L. YOUNG, Deputy

Commissioner and Director,

Division of Child Support

Enforcement, Commonwealth of

Virginia; THOMAS C. LITTLE, Real

Estate Assessment Division,  No. 11-1099

Henrico County, Commonwealth

of Virginia,

Defendants-Appellees,

and

HON. KENNETH T. CUCCINELLI, II,

Attorney General, Commonwealth

of Virginia; HON. SAMUEL A.

DAVIS, Real Estate Assessment

Division, Henrico County,

Commonwealth of Virginia,

Defendants.



2 MCBURNEY v. YOUNG

THE REPORTERS COMMITTEE FOR 

FREEDOM OF THE PRESS; AMERICAN

SOCIETY OF NEWS EDITORS;

ASSOCIATION OF CAPITOL

REPORTERS AND EDITORS; CITIZEN

MEDIA LAW PROJECT; THE E. W.

SCRIPPS COMPANY; FIRST

AMENDMENT COALITION; HEARST

CORPORATION; MAGAZINE

PUBLISHERS OF AMERICA,

INCORPORATED; MARYLAND D.C.

DELAWARE BROADCASTERS

ASSOCIATION; NBCUNIVERSAL



MEDIA, LLC; THE NATIONAL PRESS

CLUB; NATIONAL PRESS

PHOTOGRAPHERS ASSOCIATION; NPR,

INCORPORATED; NEWSPAPER

ASSOCIATION OF AMERICA; THE

NEWSPAPER GUILD; NORTH JERSEY

MEDIA GROUP, INCORPORATED;

RADIO TELEVISION DIGITAL NEWS

ASSOCIATION; SOCIETY OF

PROFESSIONAL JOURNALISTS;

STUDENT PRESS LAW CENTER; TIME,

INCORPORATED; VIRGINIA

COALITION FOR OPEN GOVERNMENT;

THE WASHINGTON POST,

Amici Supporting Appellants,



MCBURNEY v. YOUNG 3

LOCAL GOVERNMENT ATTORNEYS OF 

VIRGINIA, INCORPORATED; VIRGINIA

MUNICIPAL LEAGUE; VIRGINIA

ASSOCIATION OF COUNTIES,



Amici Supporting 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: October 25, 2011

Decided: February 1, 2012

Before NIEMEYER, GREGORY, and AGEE,

Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opin-

ion, in which Judge Niemeyer and Judge Gregory joined.

COUNSEL

ARGUED: Leah Marie Nicholls, INSTITUTE FOR PUBLIC

REPRESENTATION, Georgetown University Law Center,

Washington, DC, for Appellants. Earle Duncan Getchell, Jr.,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-

ginia; Benjamin Adelbert Thorp, IV, OFFICE OF THE

COUNTY ATTORNEY, Henrico, Virginia, for Appellees.

ON BRIEF: Stephen W. Bricker, BRICKER LAW FIRM,

PC, Richmond, Virginia; Brian Wolfman, INSTITUTE FOR

PUBLIC REPRESENTATION, Georgetown University Law

4 MCBURNEY v. YOUNG

Center, Washington, DC, for Appellants. Kenneth T. Cucci-

nelli, II, Attorney General, Stephen R. McCullough, Senior

Appellate Counsel, Craig M. Burshem, Senior Assistant

Attorney General, OFFICE OF THE ATTORNEY GEN-

ERAL, Richmond, Virginia; Joseph P. Rapisarda, Jr., County

Attorney, Karen M. Adams, Senior Assistant County Attor-

ney, OFFICE OF THE COUNTY ATTORNEY, Henrico,

Virginia, for Appellees. Lucy A. Dalglish, Mark R. Cara-

manica, Christine L. Beckett, THE REPORTERS COMMIT-

TEE FOR FREEDOM OF THE PRESS, Arlington, Virginia,

for Amici Supporting Appellants; Kevin M. Goldberg,

FLETCHER, HEALD & HILDRETH, PLC, Arlington, Vir-

ginia, for American Society of News Editors, Association of

Capitol Reporters and Editors, and Maryland D.C. Delaware

Broadcasters Association; David Ardia, Citizen Media Law

Project, Berkman Center for Internet & Society, Cambridge,

Massachusetts, for Citizen Media Law Project; David M.

Giles, Cincinnati, Ohio, for The E.W. Scripps Company;

Peter Scheer, First Amendment Coalition, San Rafael, Cali-

fornia, for First Amendment Coalition; Jonathan R. Donnel-

lan, HEARST CORPORATION, New York, New York, for

Hearst Corporation; Christopher J. Nolan, New York, New

York, for Magazine Publishers of America, Incorporated;

Beth R. Lobel, NBCUniversal Media, LLC, New York, New

York, for NBCUniversal Media, LLC; Charles D. Tobin,

HOLLAND & KNIGHT LLP, Washington, D.C., for The

National Press Club; Mickey H. Osterreicher, Buffalo, New

York, for National Press Photographers Association; Joyce

Slocum, Denise Leary, Ashley Messenger, Washington, D.C.,

for NPR, Incorporated; Rene P. Milam, Arlington, Virginia,

for Newspaper Association of America; Barbara L. Camens,

BARR & CAMENS, Washington, D.C., for The Newspaper

Guild-CWA; Jennifer Borg, General Counsel, NORTH JER-

SEY MEDIA GROUP INC., Hackensack, New Jersey, for

North Jersey Media Group, Incorporated; Kathleen A. Kirby,

WILEY REIN LLP, Washington, D.C., for Radio Television

Digital News Association; Bruce W. Sanford, Bruce D.

MCBURNEY v. YOUNG 5

Brown, Laurie A. Babinski, BAKER & HOSTETLER LLP,

Washington, D.C., for Society of Professional Journalists;

Frank D. LoMonte, STUDENT PRESS LAW CENTER,

Arlington, Virginia, for Student Press Law Center; Andrew

Lachow, Vice President and Deputy General Counsel-

Litigation, TIME INC., New York, New York, for Time,

Incorporated; Megan Rhyne, VIRGINIA COALITION FOR

OPEN GOVERNMENT, Williamsburg, Virginia, for Virginia

Coalition for Open Government; Eric N. Lieberman, James A.

McLaughlin, Washington, D.C., for The Washington Post,

Amici Supporting Appellants. R. Lucas Hobbs, ELLIOTT

LAWSON & MINOR, PC, Bristol, Virginia, for Amici Sup-

porting Appellees.

OPINION

AGEE, Circuit Judge:

Mark J. McBurney and Roger W. Hurlbert (collectively

"Appellants") appeal the district court’s award of summary

judgment to the Deputy Commissioner and Director of the

Division of Child Support Enforcement for the Common-

wealth of Virginia and the Director of the Real Estate Assess-

ment Division of Henrico County, Virginia (collectively

"Appellees"). The district court held that Virginia’s Freedom

of Information Act, Va. Code Ann. § 2.2-3700 et seq. (2011),

("VFOIA") does not violate the Appellants’ rights under the

Privileges and Immunities Clause (U.S. Const. art. IV, § 2, cl.

1) or Hurlbert’s rights under the dormant commerce clause of

the United States Constitution. For the reasons set forth

below, we affirm the judgment of the district court.

I.

This case is before us for the second time. Our prior deci-

sion concerned certain preliminary jurisdictional matters

6 MCBURNEY v. YOUNG

regarding parties and claims not at issue in the present appeal.

Of relevance in that proceeding was our determination that

the Appellants had standing to sue the Appellees. McBurney

v. Cuccinelli, 616 F.3d 393 (4th Cir. 2010). We remanded the

case for the district court to consider the Appellants’ claims

on the merits. Id. at 404.

We begin by briefly setting out the statutory framework of

the VFOIA because it is central to the proceedings in this

case. In enacting the VFOIA, the Virginia General Assembly

stated its purpose to:

ensure[ ] the people of the Commonwealth ready

access to public records in the custody of a public

body or its officers and employees, and free entry to

meetings of public bodies wherein the business of

the people is being conducted. The affairs of govern-

ment are not intended to be conducted in an atmo-

sphere of secrecy since at all times the public is to

be the beneficiary of any action taken at any level of

government. Unless a public body or its officers or

employees specifically elect to exercise an exemp-

tion provided by this chapter or any other statute,

every meeting shall be open to the public and all

public records shall be available for inspection and

copying upon request. All public records and meet-

ings shall be presumed open, unless an exemption is

properly invoked.

Va. Code Ann. § 2.2-3700(B), para. 1. The statute provides,

in relevant part:

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-

MCBURNEY v. YOUNG 7

pers and magazines with circulation in the Common-

wealth, and representatives of radio and television

stations broadcasting in or into the Commonwealth.

...

Va. Code Ann. § 2.2-3704(A).

McBurney is a citizen of Rhode Island. He has ties to his

former residence of Virginia through divorce, child custody,

and child support decrees adjudicated in the Commonwealth.

When McBurney’s former wife defaulted on child support

obligations, he asked the Virginia Division of Child Support

Enforcement ("DCSE") to file a petition for child support on

his behalf. Although the petition was eventually filed and

granted, there was a nine-month delay in his ability to collect

child support payments. McBurney then filed a VFOIA

request with the DCSE seeking, inter alia, "all emails, notes,

files, memos, reports, policies, [and] opinions" pertaining to

him, his son, and his ex-wife, as well as "all documents

regarding his application for child support" and the handling

of child support claims where one spouse resides in a foreign

country. McBurney asserts the DCSE possessed documents

that would assist him in determining how his petition was pro-

cessed and why the delay occurred.

The DCSE denied McBurney’s VFOIA request on the

grounds that the information was confidential and protected

under Va. Code Ann. §§ 63.2-102 and -103, and because

McBurney was not a citizen of the Commonwealth of Vir-

ginia. A second substantively identical request was also

denied by DCSE solely on the grounds that McBurney was

not a citizen of the Commonwealth. While McBurney later

sought and acquired most of the requested information under

Virginia’s Government Data Collection and Dissemination

Practices Act, Va. Code Ann. §§ 2.2-3800 et seq., he did not

receive all of the information he had requested in his earlier

VFOIA requests.

8 MCBURNEY v. YOUNG

Hurlbert is a citizen of California and the sole proprietor of

Sage Information Services. Hurlbert is in the business of

requesting real estate tax assessment records for his clients

from state agencies across the United States, including Vir-

ginia. Hulbert filed a VFOIA request for assessment records

for certain real estate parcels in Henrico County, Virginia

with the Henrico County Real Estate Assessor’s Office. Hurl-

bert’s request was denied on the ground that he is not a citizen

of the Commonwealth.

The Appellants subsequently filed an amended verified

complaint in the District Court for the Eastern District of Vir-

ginia seeking declaratory and injunctive relief under 42

U.S.C. § 1983. In their complaint they pled that the "citizens-

only provision [of VFOIA] impermissibily discriminates

against [them] by denying them access to public records

solely because [they] are not Virginia citizens." (J.A. 8A.)

Relying on the Privileges and Immunities Clause, the Appel-

lants asserted that VFOIA impermissibly denies them the

"right to participate in Virginia’s governmental and political

processes" by barring them "from obtaining information from

Virginia’s government." (J.A. 15A-16A.)

Hurlbert also raised a separate claim alleging that VFOIA’s

citizens-only provision "violates the dormant Commerce

Clause because it grants Virginia citizens an exclusive right

of access to Virginia’s public records" and thus "bar[s] [him]

from pursuing any business stemming from Virginia public

records on substantially equal terms with Virginia citizens."

(J.A. 18A.)

As noted earlier, after deciding the preliminary matters

concerning jurisdiction and justiciability, we remanded the

case to the district court for consideration on the merits. Upon

remand, the parties filed cross motions for summary judg-

ment. The district court granted summary judgment to the

Appellees, holding that VFOIA’s citizens-only provision did

not violate the Appellants’ rights under the Privileges and

MCBURNEY v. YOUNG 9

Immunities Clause or Hurlbert’s rights under the dormant

Commerce Clause. McBurney v. Cuccinelli, 780 F. Supp. 2d

439 (E.D. Va. 2011).

First, the district court held that the Appellants failed to

show that VFOIA’s citizens-only provision burdened a funda-

mental right protected by the Privileges and Immunities

Clause. The court rejected two of the asserted rights, which it

identified as access to government information and advocacy

for one’s own economic interests, as concepts that did not fall

within the scope of the Privileges and Immunities Clause. Id.

at 447-51.

Separately, the district court determined that Hurlbert was

"engage[d] in a common calling within the meaning of the

Privileges and Immunities Clause." Id. at 447. However, the

district court found that the VFOIA did not infringe Hurl-

bert’s right to pursue a common calling: "VFOIA’s distinction

between citizens and noncitizens is not a regulation of busi-

ness and does not constitute discrimination pertaining to a

common calling. The statute’s effect on Hurlbert’s ability to

practice his common calling is merely incidental." Id.

The district court also noted that VFOIA did not infringe

McBurney’s ability to access Virginia’s courts because "if

McBurney were to file a lawsuit in Virginia, he would be

treated the same as a citizen litigant." Id. at 449. Distinguish-

ing the fundamental right of access to courts under the Privi-

leges and Immunities Clause from the sort of claim

McBurney asserted, the district court noted that access to

"documents to help decide whether he should file a lawsuit,"

was something "the Constitution does not require that nonciti-

zens be given." Id.

Because the district court concluded VFOIA did not violate

the Appellants’ fundamental rights under the Privileges and

Immunities Clause, it did "not reach the issues of whether

Virginia has a substantial reason for discriminating against

10 MCBURNEY v. YOUNG

noncitizens with respect to requesting public records or

whether the discrimination bears a substantial relationship to

the state’s objectives," both of which would also have been

necessary for the Appellants’ claims to succeed. Id. at 451.

The district court then turned to Hurlbert’s contention that

VFOIA violates the dormant commerce clause because it neg-

atively impacts his ability to pursue his business in Virginia

on substantially equal terms as Virginia citizens. Because the

"VFOIA does not implicate principles of economic protec-

tionism" and its "purpose is not to protect in-state business,

but, instead, . . . to hold government officials accountable and

prevent secrecy in government," the court rejected this argu-

ment. Id. at 453. The district court concluded that while the

VFOIA "may have some incidental impact on out-of-state

business, the goal is not to favor Virginia business over non-

Virginia business" and thus the statute did not violate the dor-

mant Commerce Clause. Id.

Having found no infringement of either the Appellants’

rights under the Privileges and Immunities Clause or Hurl-

bert’s rights under the dormant Commerce Clause, the district

court granted the Appellees’ motion for summary judgment.

The Appellants noted a timely appeal and we have jurisdic-

tion under 28 U.S.C. § 1291.

II.

Raising the same arguments they did in the district court,

the Appellants appeal the district court’s rejection of their

claim that the VFOIA’s citizens-only provision violates the

Privileges and Immunities Clause.1 In addition, Hurlbert chal-

1

Appellants do not contend that they fall under the media provision or

otherwise make any argument related to that portion of the VFOIA.

Instead, they direct their contentions to the VFOIA’s general policy of

providing records solely to "citizens of the Commonwealth." Cf. Va. Code

Ann. § 2.2-3704(A).

MCBURNEY v. YOUNG 11

lenges the district court’s determination that the provision

does not violate the dormant Commerce Clause.

We review the constitutionality of a statute de novo,

McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 (4th

Cir. 1995), and now consider the two constitutional arguments

raised by the Appellants in turn.

A. The Privileges and Immunities Clause

The Privileges and Immunities Clause of Article IV of the

United States Constitution provides: "The Citizens of each

State shall be entitled to all Privileges and Immunities of Citi-

zens in the several States."2 U.S. Const. art. IV, § 2, cl. 1.

"The object of the Privileges and Immunities Clause is to

‘strongly . . . constitute the citizens of the United States [as]

one people,’ by ‘plac[ing] the citizens of each State upon the

same footing with citizens of other States, so far as the advan-

tages resulting from citizenship in those States are con-

cerned.’" Lunding v. N.Y. Tax Appeals Tribunal, 522 U.S.

287, 296 (1998) (citing Paul v. Virginia, 75 U.S. (8 Wall.)

168, 180 (1868)). The Clause thus "provides important pro-

tections for nonresidents who enter a State," and while

Amici supporting the Appellants on appeal constitute a number of

media organizations and First Amendment public interest organizations.

While they join the Appellants in arguing that the citizens-only limitation

violates the Privileges and Immunities Clause, some of them also appear

to represent different interests than the Appellants given that they may fall

under the media exception to the VFOIA. Because the contours of the

media exception are not at issue with regard to the Appellants, we need

not consider it, nor do we consider whether Amici could raise distinct

arguments as to the applicability of the citizens-only provision of the

VFOIA to their own situations. This opinion considers only the arguments

the Appellants raise regarding the constitutionality of the VFOIA.

2

In the Privileges and Immunities Clause context, "citizen" and "resi-

dent" are interchangeable terms. Supreme Court of N.H. v. Piper, 470 U.S.

274, 279 n.6 (1985).

12 MCBURNEY v. YOUNG

"[t]hose protections are not ‘absolute,’ . . . the Clause ‘does

bar discrimination against citizens of other States where there

is no substantial reason for the discrimination beyond the

mere fact that they are citizens of other States." Saenz v. Roe,

526 U.S. 489, 502 (1999) (citations omitted).

The Supreme Court has articulated a two-step inquiry to

determine whether "claims that a citizenship or residency

classification offends privileges and immunities protections."

Supreme Court of Va. v. Friedman, 487 U.S. 59, 64 (1988).

First, the activity in question must be sufficiently

basic to the livelihood of the Nation . . . as to fall

within the purview of the Privileges and Immunities

Clause . . . . Second, if the challenged restriction

deprives nonresidents of a protected privilege, [the

court] will invalidate it only if [it] conclude[s] that

the restriction is not closely related to the advance-

ment of a substantial state interest.

Id. at 64-65 (internal citations and quotation marks omitted).

Although the Privileges and Immunities Clause "establishes

a norm of comity," it does not "specify[ ] the particular sub-

jects as to which citizens of one State coming within the juris-

diction of another are guaranteed equality of treatment."

Austin v. New Hampshire, 420 U.S. 656, 660 (1975). It has

been left to the Supreme Court and lower courts to define the

scope of the Privileges and Immunities Clause, as "its con-

tours . . . are not well developed." Baldwin v. Fish & Game

Comm’n of Mont., 436 U.S. 371, 379-80 (1978).

Significantly, the "fundamental rights" protected under the

Privileges and Immunities Clause are not identical to the "fun-

damental rights" protected by other constitutional provisions

and cover a much narrower range of activity. The Privileges

and Immunities Clause is geared toward

MCBURNEY v. YOUNG 13

secur[ing] to citizens of each State in the [United]

States . . . those privileges and immunities which are

common to the citizens in the latter States under

their constitution and laws by virtue of their being

citizens. Special privileges enjoyed by citizens in

their own States are not secured in other States by

this provision.

Paul, 75 U.S. (8 Wall.) at 180. As a result, the Supreme

Court’s jurisprudence has recognized that states are permitted

to distinguish between residents and nonresidents so long as

those distinctions do not "hinder the formation, the purpose,

or the development of a single Union of those States. Only

with respect to those ‘privileges’ and ‘immunities’ bearing

upon the vitality of the Nation as a single entity must the State

treat all citizens, resident and nonresident, equally." Baldwin,

436 U.S. at 383 (emphasis added). Toward that end, the

Supreme Court has "held that certain rights are fundamental

[under the Privileges and Immunities Clause], including the

rights to: (1) practice a trade or profession; (2) access courts;

(3) transfer property; and (4) obtain medical services."

McBurney, 780 F. Supp. 2d at 447 (internal citations omitted).

In arguing for reversal of the grant of summary judgment

to the Appellees, the Appellants contend the VFOIA infringes

on rights they identify as "equal access to information,"

"equal access to courts,"3 and the "ability to pursue their eco-

nomic interests on equal footing." Separately, Hurlbert argues

the VFOIA impermissibly burdens his right to pursue a com-

mon calling. McBurney also posits that the VFOIA infringes

his "ability to advocate for his [political] interests and the

interests of others similarly situated." (Opening Br. 26.) Only

two of these asserted rights — the right to access courts and

the right to pursue a common calling — are among the limited

3

Although Appellants jointly raise this argument in the opening brief,

it appears that McBurney was the only one to advance this claim in the

district court.

14 MCBURNEY v. YOUNG

"fundamental rights" the Supreme Court has previously iden-

tified as protected by the Privileges and Immunities Clause.

1. The Right to Pursue a Common Calling

Hurlbert contends the VFOIA unduly burdens his right to

pursue a common calling because it prevents him from prac-

ticing his trade, which he defines as obtaining records related

to real property on behalf of his clients, in Virginia. Even

though the VFOIA does not regulate professions, Hurlbert

asserts the statute nonetheless burdens his right to pursue a

common calling because it prevents him from using his pri-

mary means of acquiring government records, that is, by per-

sonally filing a freedom of information act request. He further

asserts the district court erred in concluding VFOIA did not

impermissibly infringe on his claimed fundamental right

because any effect was "merely incidental." This is so, Hurl-

bert contends, because upon showing any burden to a funda-

mental right protected by the Privileges and Immunities

Clause, the analysis shifts to whether the state can justify its

action.

The ability to pursue one’s profession or "common calling"

is one of the limited number of foundational rights protected

under the Privileges and Immunities Clause. Toomer v. Wit-

sell, 334 U.S. 385, 396 (1948); see also United Bldg. & Con-

str. Trades Council v. Camden, 465 U.S. 208, 219 (1984)

("Certainly, the pursuit of a common calling is one of the

most fundamental of those privileges protected by the

Clause."). Indeed, "[m]any, if not most, of [the Supreme

Court’s] cases expounding the Privileges and Immunities

Clause have dealt with this basic and essential activity." Cam-

den, 465 U.S. at 219. The Supreme Court has found the fol-

lowing provisions to impermissibly burden an individual’s

right to pursue a common calling — requiring nonresidents to

pay substantially more for annual licenses to trade in goods

(Ward v. Maryland, 79 U.S. (12 Wall.) 418 (1870)); requiring

nonresidents to pay substantially more to engage in a particu-

MCBURNEY v. YOUNG 15

lar profession (Toomer, 334 U.S. 385); requiring nonresident

commercial fisherman to pay ten times more for commercial

fishing licenses (Mullaney v. Anderson, 342 U.S. 415 (1952));

resident-based hiring preferences for employment in the field

of oil and gas development (Hicklin v. Orbeck, 437 U.S. 518

(1978)); limiting admission to the practice of law to residents

(Piper, 470 U.S. 274); local rule limiting admission to the

practice of law within a federal district court bar to individu-

als who lived in or maintained an office in the state, even if

nonresidents could be admitted pro hac vice (Frazier v.

Heebe, 482 U.S. 641 (1987)); and limiting admission by

motion to the practice of law to residents, even if nonresidents

could be admitted by examination (Friedman, 487 U.S. 59).

Similarly, in Tangier Sound Waterman’s Ass’n v. Pruitt, 4

F.3d 264 (4th Cir. 1993), we held that a Virginia statute "tri-

pling the nonresident commercial fisherman’s harverster’s

license fee" "effects a restriction" on the "right to earn a liv-

ing." Id. at 265, 266. And in O’Reilly v. Board of Appeals,

942 F.2d 281 (4th Cir. 1991), we held that the county’s use

of residency as a determining factor in awarding Passenger

Vehicle Licenses, which were required for individuals to

operate taxi services within the county, burdened nonresi-

dents’ rights under the Privileges and Immunities Clause. Id.

at 282, 284.

In each instance cited above, the provision at issue directly

prohibited, restricted, or otherwise regulated the ability of a

nonresident to engage in a certain profession or trade within

the state. Each such regulatory enactment was specifically

directed at a commercial activity and differentiated between

residents and nonresidents solely as to the conduct of that

commercial activity. This fact fundamentally distinguishes the

typical provision that implicates the Privileges and Immuni-

ties Clause in the context of a common calling from the stat-

ute at issue here.

The VFOIA does not regulate anyone’s qualifications or

prerequisites to enter into or engage in any profession or trade

16 MCBURNEY v. YOUNG

within Virginia. It does not act as a wholesale barrier to enter-

ing a business, nor does it establish a license, fee, or other

burden to nonresidents entering or engaging in a profession.

On its face, it is clear the VFOIA addresses no business, pro-

fession, or trade. Simply put, there is something inherently

and qualitatively different about the VFOIA as compared to

any of the provisions considered by the Supreme Court in the

context of the Privileges and Immunities Clause’s right to

pursue a common calling.

Indeed, no Supreme Court case or precedent within this

Circuit has ever held that a statute whose purpose and lan-

guage is unrelated to engaging in a particular profession,

trade, or livelihood implicates the right to pursue one’s com-

mon calling for purposes of the Privileges and Immunities

Clause. Hurlbert nonetheless contends that because he is

unable to file VFOIA requests on behalf of his clients while

Virginia residents could do so for their clients, the VFOIA’s

citizens-only provision implicates nonresidents’ (and specifi-

cally his own) right to pursue a common calling. At bottom,

Hurlbert argues that even if the multiple thousands of VFOIA

requests annually are unrelated to a common calling, the sin-

gle instance of a tangential effect on him is sufficient to inval-

idate the VFOIA’s citizens-only provision. We disagree.

While it may be true that VFOIA coincidentally limits a

method by which Hurlbert conducts some of his business, it

does not follow that the VFOIA impermissibly burdens his

ability to pursue his common calling within the Common-

wealth in a Privileges and Immunities Clause context. As the

district court found, "[t]he statute’s effect on Hurlbert’s ability

to practice his common calling is merely incidental." 780 F.

Supp. 2d at 447. We agree.

Nothing in the language of the VFOIA prohibits Hurlbert

from pursuing his profession in Virginia, or regulates his abil-

ity as a noncitizen to enter or engage in business there. Any

effect on Hurlbert by the VFOIA is by happenstance; a cir-

MCBURNEY v. YOUNG 17

cumstance never recognized by the Supreme Court in its Priv-

ileges and Immunities Clause case law. While the Supreme

Court’s jurisprudence recognizes that burdens short of a

"wholesale restriction[ ]" fall within the right to pursue a com-

mon calling, no case has ever struck down a statute or regula-

tion with such an indirect and tangential relationship to the

practice of a trade or profession. See Friedman v. Supreme

Court of Va., 822 F.2d 423, 427 (4th Cir. 1987), aff’d by

Friedman, 487 U.S. 59. Unlike the provision in Friedman,

which restricted the method by which a noncitizen attorney

could enter into the practice of law in the state, the VFOIA

simply does not regulate Hurlbert’s ability to enter into or

pursue his trade or profession in Virginia. At most, the

VFOIA limits one method by which Hurlbert may carry out

his business and thus has an "incidental effect" on his com-

mon calling in Virginia. But the ease or method of carrying

out one’s work within a state is several steps removed from

the right to work within the state on "terms of substantial

equality" as residents in the first instance. See Toomer, 334

U.S. at 396. As such, we conclude the VFOIA does not impli-

cate Hurlbert’s right to pursue a common calling under the

Privileges and Immunities Clause and the district court did

not err in so holding.

2. Other Claimed Privileges and Immunities Clause Rights

To support their contention that VFOIA infringes a pro-

tected right they enunciate as "equal access to information,"

the Appellants rely on the Third Circuit’s decision in Lee v.

Minner, 458 F.3d 194 (3d Cir. 2006). There, the Third Circuit

held that Delaware’s Freedom of Information Act violated the

Privileges and Immunities Clause by limiting access to public

records to Delaware citizens. Id. at 195. The court concluded

that "[e]ffective advocacy and participation in the political

process" requires "access to public records" and thus is an

"‘essential activity’ which ‘bear[s] upon the vitality of the

Nation as a single entity.’" Id. at 200. The Appellants assert

that VFOIA similarly burdens their ability to obtain public

18 MCBURNEY v. YOUNG

records and "advocate for their interests on equal footing with

Virginia citizens." (Opening Br. 23.)

Appellants’ reliance on Lee is misplaced for at least two

reasons. First, as out-of-circuit authority, it is not binding on

this Court. Although the Third Circuit traced its analysis to

general principles from Privileges and Immunities Clause

jurisprudence, the specific right that Lee identified is not one

previously recognized by the Supreme Court, or any other

court, as an activity within the scope of the Privileges and

Immunities Clause. Second, even were we to follow Lee’s

rationale, that case is materially distinguishable from the situ-

ation presented by the Appellants. The right identified in Lee

— "to engage in the political process with regard to matters

of both national political and economic importance," id. at

199 — is not the same right the Appellants advance. By con-

trast, the Appellants want access to information of personal

import rather than information to advance the interests of

other citizens or the nation as a whole, or that is of political

or economic importance. Thus, the "right" the Third Circuit

identified in Lee, and the basis for concluding it implicates the

Privileges and Immunities Clause, does not apply to the case

at bar. The Appellants assert a generalized right to access

information that reaches far more broadly than even Lee set

forth. For these reasons, we find Appellants’ argument that

Lee’s rationale applies here unpersuasive.

To the extent Appellants urge us to adopt the position that

there is a "broad right of access to information" stemming

from the policy of open government undergirding freedom of

information acts generally and grounded in "the First Amend-

ment’s guarantees of free speech and free press," we are simi-

larly not persuaded. (Cf. Opening Br. 25.) While the

Appellants may well be correct that access to public records

is of "increasing importance . . . in the information age," that

assertion misses the salient inquiry. (See Opening Br. 26 (cita-

tion omitted).)

MCBURNEY v. YOUNG 19

The Supreme Court’s Privileges and Immunities Clause

jurisprudence simply does not lead to the conclusion Appel-

lants advance. As the Supreme Court in Baldwin observed:

It has not been suggested . . . that state citizenship or

residency may never be used by a State to distin-

guish among persons. Suffrage, for example, always

has been understood to be tied to an individual’s

identification with a particular State. No one would

suggest that the Privileges and Immunities Clause

requires a State to open its polls to a person who

declines to assert that the State is the only one where

he claims a right to vote. The same is true as to qual-

ification for an elective office of the State. Nor must

a State always apply all its laws or all its services

equally to anyone, resident or nonresident, who may

request it to do so. Some distinctions between resi-

dents and nonresidents merely reflect the fact that

this is a Nation composed of individual States, and

are permitted; other distinctions are prohibited

because they hinder the formation, the purpose, or

the development of a single Union of those States.

Only with respect to those "privileges" and "immuni-

ties" bearing upon the vitality of the Nation as a sin-

gle entity must the State treat all citizens, resident

and nonresident, equally.

436 U.S. at 383 (internal citations omitted). Access to a

state’s records simply does not "bear[ ] upon the vitality of the

Nation as a single entity" such that VFOIA’s citizen-only pro-

vision implicates the Privileges and Immunities Clause. Cf. id.

A sidebar to this argument is McBurney’s assertion that the

VFOIA burdens his "ability to advocate for his interests and

the interests of others similarly situated." (Opening Br. 26.)

McBurney claims on brief that the district court read his

VFOIA request too narrowly and that because he sought doc-

uments regarding DCSE processing of child support cases

20 MCBURNEY v. YOUNG

generally, and not just as related to his own case, he was not

permitted to "take part in an interstate dialogue regarding state

child support practices that directly affect his life and income,

as well as the life and income of others." (Opening Br. 27.)

However, McBurney’s complaint belies his assertion on

appeal that he was attempting to advance an interest beyond

his personal one. In the complaint, McBurney only asserted a

Privileges and Immunities Clause claim on his own behalf,

noting that without the information he sought, he cannot "par-

ticipate in Virginia’s governmental and political processes,"

"cannot advocate effectively on his own behalf, cannot invoke

any of Virginia’s dispute resolution procedures for dispute

resolution, and cannot resolve the issues surrounding his child

support application." (J.A. 15A-17A.) McBurney did not pur-

port to be acting on behalf of others similarly situated, and

only contended that the VFOIA limited his ability to advance

his own interests. McBurney never argued before the district

court that he sought to advance the interests of those "simi-

larly situated."

McBurney’s argument rests then on the assertion of a right

"to advocate for his interests," a right that has not directly

been recognized under the Privileges and Immunities Clause.

To the extent McBurney’s argument encompasses a general

right of access to public records, that argument fails for the

reasons set forth previously. To the extent it overlaps with a

right to access to courts, that argument fails for the reasons set

forth below. In addition, and contrary to McBurney’s conten-

tion, the VFOIA’s citizen’s-only provision does not bar him

from engaging in the political process, advocating his own

interests, or advancing his political or legal arguments within

the Commonwealth. For all of these reasons, we also reject

McBurney’s argument that VFOIA impermissibly restricts his

ability to advocate his own and others’ interests.

Appellants next contend that VFOIA implicates their "right

of equal access to courts" because "VFOIA denies noncitizens

MCBURNEY v. YOUNG 21

access to public records needed to prepare and file meaningful

legal papers in suits against Virginia public officials." (Open-

ing Br. 28.) However, what the Appellants invoke is some-

thing much different than any court access right previously

recognized under the Privileges and Immunities Clause.

The Supreme Court has long held that the Privileges and

Immunities Clause protects the right of a citizen of one state

to access the courts of another state. Canadian N. Railway Co.

v. Eggen, 252 U.S. 553, 560 (1920) (recognizing the "right of

a citizen of one state . . . to institute and maintain actions of

any kind in the courts of another") (internal quotation marks

and citation omitted). Nothing in VFOIA directly or indirectly

speaks to the Appellants’ ability to file a proceeding in any

court or otherwise enforce a legal right within Virginia.

Access to courts has never been interpreted to mean that states

must provide individuals with access to public records that

may or may not lead to discovery of a potential legal claim.

We decline to do so here. The Privileges and Immunities

Clause is not a mechanism for pre-lawsuit discovery, and

access to public records as part of the preparation for possible

litigation is not "sufficiently basic to the livelihood of the

Nation" so as to fall within the protection of the Privileges

and Immunities Clause. Cf. Friedman, 487 U.S. at 65.

Citing Pruitt, the Appellants also assert that VFOIA

infringes on their "ability to pursue their economic interests

on equal footing with Virginia residents." (Opening Br. 29.)

But Pruitt is a common calling case and does not set forth

some novel generic right to pursue "economic interests" under

the Privileges and Immunities Clause. 4 F.3d at 266. Appel-

lants’ arguments related to a right to pursue economic inter-

ests largely mirror the arguments they make with regard to

other rights — for McBurney, the ability to access courts on

equal footing as Virginia citizens, and for Hurlbert, the right

to pursue a common calling. We find no support in the rele-

vant case law to identify a new right to pursue economic

22 MCBURNEY v. YOUNG

interests within the ambit of the Privileges and Immunities

Clause. Accordingly, this argument also fails.

For the foregoing reasons, we conclude the district court

did not err in concluding that the VFOIA does not infringe on

any of the Appellants’ fundamental rights or privileges pro-

tected by the Privileges and Immunities Clause. Accordingly,

we need not address the parties’ arguments regarding the rest

of the Supreme Court’s test for whether a provision violates

the Clause. Having failed to satisfy the first part of that test,

Appellants’ claim that the VFOIA violates the Privileges and

Immunities Clause cannot succeed as a matter of law.

B. Dormant Commerce Clause

Hurlbert lastly contends the district court erred in conclud-

ing the citizens-only provision of VFOIA does not violate the

dormant Commerce Clause. Dormant Commerce Clause juris-

prudence arises as a "negative implication" of the Constitu-

tion’s Commerce Clause, U.S. Const. art. I, § 8, cl. 3, which

empowers Congress "[t]o regulate Commerce . . . among the

several States." See Dep’t of Revenue of Ky. v. Davis, 553

U.S. 328, 337 (2008) (quoting U.S. Const. art. I, § 8, cl. 3).

The dormant Commerce Clause restrains "the several States"

by limiting "the power of the States to erect barriers against

interstate trade." Dennis v. Higgins, 498 U.S. 439, 446 (1991)

(internal quotation marks omitted). And it "is driven by con-

cern about economic protectionism—that is, regulatory mea-

sures designed to benefit in-state economic interests by

burdening out-of-state competitors." Davis, 553 U.S. at 337-

38 (internal quotation marks omitted) (emphasis added).

There are two "tiers" in analyzing dormant Commerce

Clause claims, depending on the type of burden at issue. The

first tier applies "where a state law discriminates facially, in

its practical effect, or in its purpose" against interstate com-

merce. Envtl Tech. Council v. Sierra Club, 98 F.3d 774, 785

(4th Cir. 1996). Under such first tier review, "‘discrimination’

MCBURNEY v. YOUNG 23

simply means differential treatment of in-state and out-of-

state economic interests that benefits the former and burdens

the latter." United Haulers Ass’n v. Oneida-Herkimer Solid

Waste Mgmt. Auth., 550 U.S. 330, 338 (2007). The principle

is grounded in the belief that "[t]he mere fact of nonresidence

should not foreclose a producer in one State from access to

markets in other States" and it prohibits states from "enact[-

ing] laws that burden out-of-state producers or shippers sim-

ply to give a competitive advantage to in-state businesses."

Granholm v. Heald, 544 U.S. 460, 472 (2005). "Unless dis-

crimination is demonstrably justified by a factor unrelated to

economic protectionism, a ‘discriminatory law is virtually per

se invalid.’" Brown v. Hovatter, 561 F.3d 357, 363 (4th Cir.

2009) (quoting Davis, 553 U.S. at 338).

The second tier of dormant Commerce Clause analysis is

commonly called the Pike test. See Pike v. Bruce Church,

Inc., 397 U.S. 137 (1970). Used in the absence of "discrimina-

tion for the forbidden purpose," the Pike analysis requires

courts to consider "whether the state law[ ] unjustifiably . . .

burden[s] the interstate flow of articles of commerce." Brown,

561 F.3d at 363 (quotation marks and citation omitted). In

second tier analysis, the regulatory measure at issue is not

scrutinized as strictly as under the first method and "will be

upheld unless the burden imposed on [interstate] commerce is

clearly excessive in relation to the putative local benefits." Id.

at 363 (quoting Pike, 397 U.S. at 142).

Hurlbert asserts that the district court erred in applying the

second tier analysis instead of first tier analysis, and that

under the first tier analysis, VFOIA violates the dormant

Commerce Clause. Hurlbert contends VFOIA is per se uncon-

stitutional under first tier analysis because it facially discrimi-

nates by "expressly guarantee[ing] access to public records

only to Virginia citizens and authoriz[ing] the state to bar

noncitizens." (Opening Br. 38.) At the very least, he asserts,

VFOIA discriminates in effect because it "den[ies] access to

records to noncitizens who seek to use public records for

24 MCBURNEY v. YOUNG

commercial purposes while allowing unfettered access to in-

state requestors with similar economic interests." (Opening

Br. 38-39.)

Hurlbert’s argument fails because it is not enough that a

statute discriminates on the basis of citizenship for it to offend

dormant Commerce Clause principles. Rather, the challenged

statute must discriminate "against interstate commerce" or

"out-of-state economic interests." Cf. United Haulers Ass’n,

550 U.S. at 338.4 Although the VFOIA discriminates against

noncitizens of Virginia, it does not discriminate "against inter-

state commerce" or "out-of-state economic interests." The

object of the VFOIA is to provide a mechanism for access and

copying of public records to Virginia citizens to reflect that

"[t]he affairs of government are not . . . conducted in an atmo-

sphere of secrecy . . . ." Va. Code Ann. § 2.2-3700(B), para.

1. The VFOIA is wholly silent as to commerce or economic

interests, both in and out of Virginia. Therefore, the VFOIA

does not facially, or in its effect, discriminate against inter-

state commerce or out-of-state economic interests.

Any effect on commerce is incidental and unrelated to the

4

As we have previously noted, "[t]he clearest example of a state law that

violates the Dormant Commerce Clause is one that facially discriminates

against interstate commerce, such as a protective tariff or customs duty.

Even a facially neutral state law, however, violates the Dormant Com-

merce Clause ‘when its effect is to favor instate economic interests over

out-of-state interests.’" DIRECTV, Inc. v. Tolson, 513 F.3d 119, 122 (4th

Cir. 2008) (emphases added); see also Camps Newfound/Owatonna, Inc.

v. Town of Harrison, Me., 520 U.S. 564, 575-76 (1997) ("It is not neces-

sary to look beyond the text of this statute to determine that it discrimi-

nates against interstate commerce. The Maine law expressly distinguishes

between entities that serve a principally interstate clientele and those that

primarily serve an intrastate market, singling out camps that serve mostly

in-staters for beneficial tax treatment, and penalizing those camps that do

a principally interstate business. As a practical matter, the statute encour-

ages affected entities to limit their out-of-state clientele, and penalizes the

principally nonresident customers of businesses catering to a primarily

interstate market.").

MCBURNEY v. YOUNG 25

actual language of VFOIA or its citizens-only provision. As

we have previously observed:

The dormant Commerce Clause is implicated by bur-

dens placed on the flow of interstate commerce—the

flow of goods, materials, and other articles of com-

merce across state lines. And it is a trade barrier to

the free flow of goods, materials, and other articles

of commerce across state lines that violates the dor-

mant Commerce Clause. The Clause does not pur-

port to . . . protect the participants in intrastate or

interstate markets, nor the participants’ chosen way

of doing business.

Brown, 561 F.3d at 364 (internal citations omitted) (second

emphasis added). Nothing in VFOIA burdens "the flow of

interstate commerce." At most, it prevents Hurlbert from

using his "chosen way of doing business," but it does not pre-

vent him from engaging in business in the Commonwealth.

The VFOIA simply does not fall within the type of provision

to which the first tier test of analyzing dormant Commerce

Clause claims applies. Hurlbert’s argument that the district

court erred in applying the second tier, rather than first tier,

analysis thus fails.

Significantly, Hurlbert’s opening brief does not challenge

the district court’s application of the second tier analysis. It

only contends that the "district court erred by not applying

rigorous scrutiny to VFOIA’s citizens-only provision and

instead applying the Pike balancing analysis reserved for

evenhanded statutes." (Opening Br. 40.) Having rejected the

challenge Hurlbert makes to the district court’s analysis, we

need not go beyond it to consider how the court undertook the

Pike analysis because Hurlbert has waived any challenge to

that component of the district court’s analysis by not raising

it in his opening brief. See Fed. R. App. P. 28(a)(9)(A) (stat-

ing that an appellant’s opening brief must contain the "appel-

lant’s contentions and the reasons for them"); IGEN Int’l, Inc.

26 MCBURNEY v. YOUNG

v. Roche Diagnostics GMBH, 335 F.3d 303, 308 (4th Cir.

2003). The district court therefore did not err in rejecting

Hurlbert’s dormant Commerce Clause claim.

III.

For the reasons set forth above, we affirm the district

court’s judgment.

AFFIRMED