Doe v. Virginia Department of State Police

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANE DOE, 

Plaintiff-Appellant,

v.

VIRGINIA DEPARTMENT OF STATE

POLICE; W. STEVEN FLAHERTY,

Colonel, in his official capacity as

Superintendent of the Virginia  No. 11-1841

Department of State Police;

SPOTSYLVANIA COUNTY SCHOOL

BOARD; J. GILBERT SEAUX, in his

official capacity as the Chairman

of the School Board of the

Spotsylvania County Schools,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

John A. Gibney, Jr., District Judge.

(3:10-cv-00533-JAG)

Argued: September 18, 2012

Decided: April 12, 2013

Before KING, DUNCAN, and KEENAN, Circuit Judges.

2 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

Affirmed by published opinion. Judge Duncan wrote the

majority opinion, in which Judge Keenan joined. Judge Kee-

nan wrote a separate concurring opinion. Judge King wrote a

dissenting opinion.

COUNSEL

ARGUED: Marvin David Miller, Alexandria, Virginia, for

Appellant. Charles Antony Quagliato, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-

ginia, for Appellees. ON BRIEF: Kenneth T. Cuccinelli, II,

Attorney General of Virginia, Richmond, Virginia, for Appel-

lees Virginia Department of State Police and W. Steven

Flaherty; Jennifer Lee Parrish, PARRISH, HOUCK &

SNEAD, PLC, Fredericksburg, Virginia, for Appellees Spot-

sylvania County School Board and J. Gilbert Seaux.

OPINION

DUNCAN, Circuit Judge:

Jane Doe brought a challenge to Va. Code sections 9.1–900

et seq. and 18.2-370.5, which, together, classify her as a sexu-

ally violent offender and prevent her from entering the

grounds of a school or daycare without first gaining permis-

sion from a Virginia circuit court and the school board or the

owner of the daycare. She also challenged the policy of the

Spotsylvania County School Board (the "Board"), which she

alleges does not allow her to petition anonymously for entry

onto school property. The district court dismissed all but one

of her claims on the grounds that they were unripe and that

she lacked standing. It determined that her remaining claim

failed to allege grounds upon which relief could be granted,

and dismissed it under Federal Rule of Civil Procedure

12(b)(6).

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 3

Doe’s complaint includes four counts: she alleges that the

defendants have violated her substantive due process, proce-

dural due process, associational, and free exercise rights. The

injuries she alleges with respect to the first, third, and fourth

of these counts stem from impediments the Virginia statute

and the Board policy place on her ability to access school and

church property. However, because she has not yet attempted

to undertake the requisite steps to access these properties, she

cannot demonstrate that these claims are justiciable at this

juncture. One component of her second count, her challenge

to the law stemming from an alleged denial of procedural due

process, on the other hand, is justiciable. However, she fails

to state a procedural due process claim upon which relief may

be granted. Accordingly, we affirm the district court’s dis-

missal of her claims.

I.

A.

Doe was convicted in 1993 of carnal knowledge of a minor

without the use of force in violation of Va. Code section 18.2-

63. Under Virginia law, she was required to register on the

Virginia Sex Offender and Crimes Against Minors Registry

(the "Registry"), Va. Code section 9.1-902 (formerly Va.

Code section 19.2-298.1), but she would have been able, after

a period of time, to petition a Virginia circuit court to have

her name removed from the Registry, Va. Code section 9.1-

910. However, a 2008 amendment reclassified Doe’s crime as

a "sexually violent offense," 2008 Va. Acts 877; see Va. Code

section 9.1-902(E)(1), and because Virginia law does not pro-

vide an avenue for sexually violent offenders to petition for

removal from the Registry, Doe must now remain on the Reg-

istry for life, Va. Code section 9.1-910(A).

As an individual classified as a sexually violent offender,

Doe is required to register with the Virginia Department of

State Police (the "Department"), which publishes sex offend-

4 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

ers’ names, photographs, and certain other personal informa-

tion on a website accessible to anyone browsing the internet.

This information is indexed by the zip codes in which the

offenders work and live. In addition, and of more conse-

quence in this case, the law prohibits Doe, as a sexually vio-

lent offender, from "entering or being present, during school

hours, and during school-related or school-sponsored activi-

ties upon any property [s]he knows or has reason to know is

a public or private elementary or secondary school or child

day center property." Va. Code section 18.2-370.5(A). She

may, however, gain access through a successful petition to

both (1) a circuit court and (2) a school board or owner of a

private daycare. Va. Code section 18.2-370.5(B).

Doe lives in Spotsylvania County, Virginia with her hus-

band, eleven-year-old stepson, and two children, who are

nearing school age. Unless she gains permission from a Vir-

ginia circuit court and the Board, she is not able to meet with

her stepson’s teachers at school, attend his school functions,

or drop him off at or pick him up from school. She contends

that these restrictions will require her to homeschool her

younger children. According to Doe, the Board provides her

with no procedure whereby she may request permission for

entry onto school property without revealing her identity and

her classification as a violent sex offender. As a result, she

claims, any petition she would make to the Board would

expose her as a sexually violent offender to members of the

school community, which would have dire social conse-

quences for her children. Significantly, Doe may apply under

an anonymous pseudonym to the circuit court. See Va. Code

section 8.01-15.1. She acknowledges that "[a]pplication to the

courts is not at issue." Appellant’s Br. at 19 n.4. Doe also

claims that all the local churches of her faith have Sunday

schools, so the prohibition from entering daycare property

prevents her from going to church.

It is undisputed that Doe has not attempted to gain permis-

sion for entry either from a Virginia circuit court, the Board,

or any church or church Sunday school.

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 5

B.

Rather than petition any of these entities, Doe brought a

complaint under 42 U.S.C. § 1983 against, inter alia, Colonel

W. Steven Flaherty, in his official capacity as Superintendent

of the Department, and the Board.1 She alleged violations of

her substantive due process, procedural due process, associa-

tional, and free exercise rights. Doe claimed that, by maintain-

ing the Registry with her name and information on it and by

failing to provide her with a means of petitioning anony-

mously for access to school grounds, the defendants infringed

upon her fundamental right to raise and educate her children.

See Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v.

Nebraska, 262 U.S. 390 (1923). She also argued that Flaherty

violated her right to procedural due process under the Four-

teenth Amendment by reclassifying her and by publicizing her

status as a sexually violent offender on the Registry without

affording her a procedure through which to challenge this

action, thereby preventing her from entering school and day

center property, and that the Board violated her right to proce-

dural due process by failing to provide her with a procedure

by which she may anonymously petition to enter school prop-

erty. Doe’s third claim was that the defendants violated her

right under the First and Fourteenth Amendments to associate

with members of the school community. Finally, Doe argued

that Flaherty violated her right under the First and Fourteenth

Amendments to the free exercise of religion, because she is

prohibited from entering churches of her faith in her area, all

of which have Sunday schools.

She asked the district court to declare unconstitutional Va.

Code section 18.2–370.5 governing access to schools and the

petition process, the 2008 reclassification, and the Board pol-

icy; to order the Board to implement a procedure by which

she could anonymously petition to enter and remain on school

1

The other parties named in Doe’s original complaint are no longer

involved in the litigation.

6 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

property; to enjoin the Board from exercising its authority to

prevent her from entering school property; to enjoin Flaherty

from enforcing Va. Code section 9.1–900 et seq., classifying

her as a violent sex offender, and collecting, maintaining, and

making publicly available her information in the Registry; and

to order Flaherty to provide her with a procedure to prove that

she is not a dangerous person and, therefore, should not be

classified as a sexually violent offender.2

The district court dismissed all but one of Doe’s claims

because they were unripe and because Doe lacked standing.

It found that her claim against Flaherty challenging her place-

ment on the Registry met the tests for both ripeness and stand-

ing, but ultimately dismissed it under Federal Rule of Civil

Procedure 12(b)(6).3

II.

A.

We review the district court’s dismissal of Doe’s claims de

novo. See Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006)

(de novo review of dismissal for lack of ripeness or standing);

Goldstein v. Moatz, 364 F.3d 205, 211 (4th Cir. 2004) (de

novo review of dismissal for failure to state a claim under

Rule 12(b)(6)). In reviewing the district court’s dismissal, we

must accept all properly pled factual allegations in the com-

plaint as true and construe all facts in the light most favorable

to the plaintiff. See Nemet Chevrolet, Ltd. v. Consumeraf-

fairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).

2

For clarity, this list only includes the defendants that are still involved

in the litigation.

3

Alternatively, it concluded that it must dismiss all of Doe’s claims

under Federal Rule of Civil Procedure 12(b)(6).

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 7

B.

There exist two strands of standing: Article III standing,

which ensures that a suit presents a case or controversy as

required by the Constitution, and "prudential standing," which

encompasses "judicially self-imposed limits on the exercise of

federal jurisdiction." Allen v. Wright, 468 U.S. 737, 751

(1984).

To have Article III standing, Doe must be able to show that

(1) she suffered an actual or threatened injury that is concrete,

particularized, and not conjectural; (2) the injury is fairly

traceable to the challenged conduct; and (3) the injury is

likely to be redressed by a favorable decision. Miller, 462

F.3d at 316 (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61 (1992)). "The party invoking federal jurisdiction

bears the burden of establishing these elements." Lujan, 504

U.S. at 561. With the exception of her procedural due process

claim against Flaherty, Doe’s claims do not satisfy any of

these three prongs.

Federal courts also face judicially imposed prudential limits

on their jurisdiction "founded in concern about the prop-

er—and properly limited—role of the courts in a democratic

society." Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing

doctrine’s prudential dimensions are not as definite as its con-

stitutional dimensions, but the Supreme Court has explained

that "prudential standing encompasses ‘the general prohibi-

tion on a litigant’s raising another person’s legal rights, the

rule barring adjudication of generalized grievances more

appropriately addressed in the representative branches, and

the requirement that a plaintiff’s complaint fall within the

zone of interests protected by the law invoked.’" Elk Grove

Unified School Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quot-

ing Allen, 468 U.S. at 751). Because we conclude that Doe is

unable to meet the requirements for Article III standing for

the bulk of her claims, we need not engage in prudential

standing analysis. We do note that while none of the pruden-

8 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

tial standing limitations appear directly applicable to the cur-

rent case, the types of concerns underlying them are present.4

1.

In this case, federalism concerns and our respect for Virgin-

ia’s processes dictate special caution in evaluating the require-

ment of standing. The principles of federalism and comity

counsel in favor of providing at the least an opportunity for

the processes provided for by Virginia’s statute to address

Doe’s claims before intervening. We have no reason to pre-

sume that Virginia circuit courts are anything but competent,

reasonable, and fair in making determinations regarding

whether and under what conditions individual sex offenders

should be allowed onto school or daycare property. Those

courts, which handle cases such as Doe’s with relative fre-

quency, are much better equipped than we to make such

determinations in the first instance. Furthermore, to prevent

cases such as Doe’s from being heard by Virginia state courts

would threaten to undermine the consistency with which we

presume Virginia courts treat similarly situated sex offenders

petitioning for access to school or daycare property. It would

also deprive us of a developed factual basis on which to

assess her claims.5

4

It should also be noted that some courts have dismissed indirect inju-

ries under a theory of prudential rather than constitutional standing. See

Frank Krasner Enters., Ltd. v. Montgomery County, 401 F.3d 230, 236 n.7

(4th Cir. 2005).

5

Indeed, far from abandoning our judicial mandate, we advance here

only the unremarkable proposition that a plaintiff avail herself of state

remedies at her disposal, and be in a position to benefit from the specific

relief she seeks, before coming into district court. Our insistence that Doe

seek permission from state entities prior to bringing suit in federal court

does not amount to requiring exhaustion of state remedies for her constitu-

tional claims. Rather, we are required to wait until Doe obtains a decision

from the Virginia authorities in order to contend with an injury—if it still

exists after Doe petitions those entities—that affects her with finality. See

Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 9

2.

Doe’s claims challenging the constitutionality of Va. Code

sections 18.2–370.5 and 9.1–900 et seq. based on alleged vio-

lations of her substantive due process, associational, and free

exercise rights fail under the first prong of our standing analy-

sis. She does not allege an injury in fact, because the harm she

alleges is not "actual or imminent," but "conjectural [and]

hypothetical." Lujan, 504 U.S. at 560. When it comes to her

claims regarding her substantive due process, associational,

and free exercise rights, she does not allege harm merely from

being placed on the Registry, but rather from the conse-

quences her categorization entails for her ability to access

school and church property. However, as of yet, these conse-

quences do not affect her with finality, as she has not taken

any of the steps necessary to access those properties. Because

Doe has not attempted to petition a Virginia circuit court, the

Board, or any church, it is far from clear whether she will ulti-

mately be barred from entering these properties. Therefore,

any injury to her substantive due process, associational, or

free exercise rights she would suffer from not being able to

enter a school or a church remains hypothetical. See Valero

Terrestrial Corp. v. Paige, 211 F.3d 112, 122–23 (4th Cir.

2000) (where it was speculative that a referendum would be

called, plaintiff was not injured by provisions allowing for it).

Doe’s substantive due process claim against the Board suf-

fers from a lack of specificity and concreteness that makes it

unsuitable for determination by this court. While, in consider-

City, 473 U.S. 172, 193 (1985) ("While the policies underlying the two

concepts often overlap, the finality requirement is concerned with whether

the initial decisionmaker has arrived at a definitive position on the issue

that inflicts an actual, concrete injury; the exhaustion requirement gener-

ally refers to administrative and judicial procedures by which an injured

party may seek review of an adverse decision and obtain a remedy if the

decision is found to be unlawful or otherwise inappropriate. Patsy [v. Bd.

of Regents, 457 U.S. 497 (1982),] concerned the latter, not the former.").

10 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

ing a motion to dismiss, we accept properly pled factual alle-

gations as true and construe them in the light most favorable

to the plaintiff, "wholly vague and conclusory allegations are

not sufficient to withstand a motion to dismiss." Catholic

League for Religious and Civil Rights v. City and County of

San Francisco, 624 F.3d 1043, 1080 (9th Cir. 2010) (quoting

Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir. 1986)

(per curiam)). We do not have an obligation to make Doe’s

complaint for her.

From a reading of Doe’s complaint, it appears that the

injury she alleges arises from an outright denial of her ability

to enter school property. In her brief to this court and at oral

argument, however, the gravamen of this claim took on a

more nuanced character—she alleged injury arising from the

lack of a policy by which she could petition for entry to the

school anonymously, which she claimed would reveal her to

be a sexually violent offender and cause her children to be

subject to ridicule at school. With such a shifting characteriza-

tion of her injury, "there can be no confidence of ‘a real need

to exercise the power of judicial review’ or that relief can be

framed ‘no (broader) than required by the precise facts to

which the court’s ruling would be applied.’" Warth, 422 U.S.

at 508 (quoting Schlesinger v. Reservists to Stop the War, 418

U.S. 208, 221-222, (1974)). As pled, her alleged substantive

due process injury at the hands of the Board is thus insuffi-

ciently concrete to be addressed by this court.

Doe’s procedural due process claim against Flaherty, on the

other hand, alleges an injury in fact. Doe asserts that Flaherty

violated her right to procedural due process under the Four-

teenth Amendment by reclassifying her as a sexually violent

offender and making her reclassification publicly available in

the Registry without affording her a procedure by which to

challenge these actions. Unlike other consequences of the law,

which have not yet taken effect with finality, Doe has been

reclassified as a sexually violent offender and placed on the

Registry already. She has no mechanism internal to the Vir-

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 11

ginia statutory scheme by which to challenge this reclassifica-

tion. Her alleged injury to her right to procedural due process

is thus in no way hypothetical, and it is sufficiently concrete

for a federal court to address it.

3.

The second and third prongs of our standing inquiry require

us to determine whether Doe’s alleged injuries are fairly

traceable to a defendant’s conduct, and whether a favorable

decision would be likely to redress these injuries.6 Tracea-

bility is established if it is "likely that the injury was caused

by the conduct complained of and not by the independent

action of some third party not before the court." Friends of the

Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149,

154 (4th Cir. 2000) (citing Lujan, 504 U.S. at 561). An injury

is redressable if 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, 181, (2000). Still, "no explicit guarantee

of redress to a plaintiff is required to demonstrate a plaintiff’s

standing." Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d

91, 100 (4th Cir. 2011).

The traceability and redressability prongs become problem-

atic when third persons not party to the litigation must act in

order for an injury to arise or be cured. "An injury sufficient

to meet the causation and redressability elements of the stand-

ing inquiry must result from the actions of the respondent, not

from the actions of a third party beyond the Court’s control."

Mirant Potomac River, LLC v. EPA, 577 F.3d 223, 226 (4th

Cir. 2009) (citing Krasner, 401 F.3d 230 at 234-35); see

Lujan, 504 U.S. at 568–71 (plurality opinion) (no redressa-

bility where other federal agencies not bound by the Secretary

6

We discuss the traceability and redressability prongs of the standing

analysis jointly, because "they rise or fall together in this case." Friends

for Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 323 n.1 (4th Cir. 2002).

12 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

of the Interior’s regulations would have to act in order for the

plaintiffs’ alleged injury to be remedied); Allen, 468 U.S. at

758-59 (conclusion that withdrawal of tax exemptions would

lead to a school changing its policies was "entirely specula-

tive," making "[t]he links in the chain of causation between

the challenged Government conduct and the asserted injury

. . . far too weak for the chain as a whole to sustain [plain-

tiffs’] standing"); Simon v. E. Ky. Welfare Rights Org., 426

U.S. 26, 41-42 (1976) (injury to plaintiffs must "be traced to

the challenged action of the defendant, and not injury that

results from the independent action of some third party not

before the court").

A plaintiff faces a related obstacle to establishing tracea-

bility and redressability when there exists an unchallenged,

independent rule, policy, or decision that would prevent relief

even if the court were to render a favorable decision. For

example, we have held that where the free speech rights of a

fraternity’s members may have been infringed when they

were punished for singing and marching in front of a univer-

sity library, because other "adequate and independent"

grounds for the sanctions existed, the fraternity’s claim was

"not redressable because a ruling on that claim would not alter

that conclusion." Iota Xi Chapter of Sigma Chi Fraternity v.

Patterson, 566 F.3d 138, 148-49 (4th Cir. 2009) (citation

omitted). Similarly, where an unchallenged regulation would

prevent a plaintiff from installing a billboard even if we struck

down the challenged regulation, we have found redressability

lacking. Covenant Media of S.C., LLC v. City Of N. Charles-

ton, 493 F.3d 421, 430 (4th Cir. 2007).

Doe’s challenges to the Virginia statute based on Flaherty’s

alleged violations of her substantive due process, associa-

tional, and free exercise rights fail under the final two prongs

of our standing analysis. Because the harm that forms the

basis for these counts arises from her inability to access

school or church property, and because the statute allows for

third parties to grant her permission to enter these properties,

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 13

she cannot demonstrate traceability or redressability. As Doe

has not yet tried to petition a Virginia circuit court, the Board,

or any church, we have no way of knowing whether she will

ultimately be unable to enter her children’s school or a church

of her faith, and it is purely speculative whether action by this

court would have any effect on her ability to enter school or

church property.7 She has thus failed to establish either tracea-

bility or redressability with respect to the law’s impact on her

substantive due process right to raise and educate her chil-

dren, her right to associate with members of the school com-

munity, and her right to the free exercise of religion.

Doe’s claims against the Board also fail under the tracea-

bility and redressability prongs of our standing inquiry. Doe

alleges that she is injured by not being able to enter school

grounds without going through a process that would reveal

her status as a "sexually violent offender," arguing that she

"ought to be allowed to proceed under a pseudonym with the

School Board so as not to subject her small children to ridi-

cule, debasement, and embarrassment, which they would suf-

fer, if labeled the children of a sex offender by their peers and

in the school community." Appellant’s Br. at 21. Alterna-

tively, one may read her complaint as alleging that she is

harmed by not being able to enter the school at all—that the

Board violated her substantive due process right by exercising

7

It should be noted that where a plaintiff "seek[s] immediate relief from

a federal court as a necessary antecedent to the ultimate relief he seeks

from a different entity, like an administrative agency," that plaintiff can

meet the redressability prong by "demonstrat[ing] that a favorable decision

from the federal court likely would provide him immediate relief, but need

not demonstrate that it likely would provide him the ultimate, discretion-

ary relief sought from the agency." Townes v. Jarvis, 577 F.3d 543, 547-

548 (citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 25 (1998)). Here,

although Doe must obtain permission from both the Virginia circuit court

and the Board, obtaining permission from the Board is not a "necessary

antecedent" to obtaining permission from the court; the statute does not

specify any particular order in which a petitioner must proceed. See Va.

Code section 18.2-370.5(B).

14 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

its "authority to decide whether a registrant classified as a

sexually violent offender . . . may enter school property and

under what conditions," J.A. 15, and by banning her "from

school grounds, parent-teacher conferences, dropping off or

picking up her children from school, and school-sponsored

activities." Appellant’s Br. at 20. She also alleges that the

Board’s policy violates her right to procedural due process

and that being banned from school property violates her right

to associate with members of the school community. Even if

we were to order the Board to implement a procedure by

which she could anonymously petition to enter and remain on

school property, or to require it to admit her without any peti-

tion at all, Doe would still need permission from a Virginia

circuit court. We have no way of knowing, and Doe is obvi-

ously unable to assert, how that court would respond to such

a petition; nor have we any control over its decision. More-

over, Doe does not challenge the requirement that she obtain

permission from the Virginia court. The circumstances here

are thus in line with our precedent declining to find redressa-

bility where an additional, unchallenged rule could prevent a

plaintiff from having her injury cured. It therefore remains

purely speculative whether any action by this court with

respect to the Board’s policy would redress Doe’s alleged

injury of not being able to obtain entry into school property,

or of not being able to do so with anonymity.8

8

We note that if Doe were to successfully petition the Virginia circuit

court, she would be able to demonstrate traceability and redressability

with respect to her claim that the Board’s policy against anonymous peti-

tions to enter school grounds infringes her right to raise and educate her

children. If, on the other hand, her petition to that court were unsuccessful,

the adjudication would leave us with a set of facts that more adequately

crystallizes the issue for federal judicial review. Cf. Nuclear Energy Inst.,

Inc. v. EPA, 373 F.3d 1251, 1313 (D.C. Cir. 2004) ("In examining the fit-

ness of an issue for our consideration, we are primarily concerned with

whether . . . the court and the agency would instead benefit from postpon-

ing review until the agency’s policy has ‘crystallized’ through implemen-

tation in a concrete factual setting."). Neither has occurred, and the injury

is not sufficiently final for our review.

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 15

With respect to her procedural due process claim against

Flaherty, on the other hand, Doe is able to demonstrate tracea-

bility and redressability. She alleges an injury to her right to

adequate process to challenge her reclassification and the pub-

lication of her status as a sexually violent offender on the

Registry. This injury is directly traceable to Va. Code sections

9.1–900 et seq., which Flaherty has implemented. Where the

injury complained of is the reclassification itself, Doe meets

the requirements of traceability and redressability, because

she has already been reclassified and is afforded no procedure

by which to challenge her reclassification.9 If we were to

agree with Doe and hold that the law is unconstitutional, the

alleged injury to her procedural due process right would be

removed.

9

In contrast, a plaintiff cannot establish standing when the alleged injury

stems originally from the law complained of but its effect is mediated by

a third party, see Krasner, 401 F.3d 230 at 234-35, or where we are uncer-

tain whether the injury would be removed were we to rule in the plaintiff’s

favor, see Iota Xi, 566 F.3d at 148-49. Although we find that Doe’s

alleged procedural due process injury is engendered by the challenged law

directly, we cannot agree with the dissent that the alleged injury to her

substantive due process right to raise and educate her children is linked to

the law or to the Board’s policy in a similarly proximate manner. In com-

ing to the conclusion that the alleged substantive due process injury is

directly linked to the challenged law, the dissent’s analysis conflates

Doe’s procedural due process and substantive due process arguments.

While the procedural injury of classification without redress is directly

traceable to the Virginia statute, the intermediate roles that the state’s reg-

ulatory scheme for dealing with sex offenders lays out for the Board and

the Virginia circuit court prevent us from finding traceability or redressa-

bility at this stage of Doe’s travails. Having not sought to anonymously

petition the Board or requested permission from a Virginia circuit court to

enter school property, Doe cannot show that her alleged inability to access

her childrens’ school free of stigma is a result of the Board’s policy or,

directly, of the Virginia statute. Moreover, were we to declare the Board’s

procedure—or lack thereof—unconstitutional, Doe would nonetheless

have to petition a Virginia circuit court for permission to enter school

property. If she were to do so and be denied permission, we would be con-

fronted with an injury traceable to the Board or to officers of the state of

Virginia and, as a result, a firmer factual record upon which to base a

holding.

16 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

C.

Along with lacking traceability and redressability, and for

similar reasons, the majority of Doe’s claims are not ripe for

judicial determination. A claim should be dismissed as unripe

if the plaintiff has not yet suffered injury and any future

impact "remains wholly speculative." Gasner v. Bd. of Super-

visors, 103 F.3d 351, 361 (4th Cir. 1996). In determining ripe-

ness, "we balance the fitness of the issues for judicial decision

with the hardship to the parties of withholding court consider-

ation. A case is fit for judicial decision when the issues are

purely legal and when the action in controversy is final and

not dependent on future uncertainties." Miller, 462 F.3d at

319 (citations and internal quotation marks omitted). Like the

redressability requirement for standing, ripeness doctrine pre-

vents us from considering a controversy until it is presented

in "clean-cut and concrete form." Rescue Army v. Mun. Ct. of

Los Angeles, 331 U.S. 549, 584 (1947).10 As with standing,

the party bringing the suit bears the burden of proving ripe-

ness. See Miller, 462 F.3d at 319.

Where an injury is contingent upon a decision to be made

by a third party that has not yet acted, it is not ripe as the sub-

ject of decision in a federal court. See Franks v. Ross, 313

F.3d 184, 195 (4th Cir. 2002) (where county and state agency

had "interwoven involvement" in a permitting process, con-

troversy was not ripe until the completion of the final step of

the process); Charter Fed. Sav. Bank v. Office of Thrift Super-

vision, 976 F.2d 203, 208-09 (4th Cir. 1992) (where an

agency was required to make multiple decisions and take sev-

10

Ripeness analysis holds much in common with standing analysis. See

Miller, 462 F.3d at 319 (quoting Erwin Chemerinsky, Federal Jurisdiction

§ 2.4 (4th ed. 2003) ("Although the phrasing makes the questions of who

may sue and when they sue seem distinct, in practice there is an obvious

overlap between the doctrines of standing and ripeness.")). While we dis-

cuss ripeness separately from standing, the reasons for which the majority

of Doe’s claims are not ripe are essentially the same as the reasons for

most of her alleged injuries are not redressable.

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 17

eral actions before an injury could occur, the issues at hand

were not ripe for judicial decision). Because Doe has yet to

petition a Virginia circuit court for permission to enter school

or church property, all of her constitutional claims except that

arising from Flaherty’s alleged violation of her right to proce-

dural due process are dependent on future uncertainties and

thus not ripe for judicial decision.

The hardship prong of our ripeness analysis is "measured

by the immediacy of the threat and the burden imposed on the

petitioner who would be compelled to act under threat of

enforcement of the challenged law." Charter Fed. Sav. Bank,

976 F.2d at 208-09. In considering the hardship to be bal-

anced against the fitness of the issues for review, we may con-

sider the cost to the plaintiff of delaying review. Miller, 462

F.3d at 319. While the Virginia law itself is harsh on Doe,

requiring her to wait to bring this case to federal court until

after she has sought permission from a Virginia circuit court

will not cause her undue hardship.11

In concluding that the majority of Doe’s claims are not ripe

for decision, we note the limited nature of our determination:

it would appear that were Doe to petition a Virginia circuit

court, the traceability, redressability, and ripeness concerns

we have noted here would be addressed.12

Doe’s procedural due process claim against Flaherty, on the

other hand, is ripe. Because she has already been reclassified

as a sexually violent offender and this reclassification has

been publicized on the Registry, and because Doe currently

11

This is particularly true when it comes to Doe’s claims stemming from

the Board’s policy. Although we recognize the burden inherent in further

litigation, the fact remains that even if we were to strike down that policy

at this juncture, Doe would have to petition a Virginia court.

12

We note that Doe is a sympathetic plaintiff who may be able to obtain

a mechanism for anonymous process of appeal to the Board when she is

in a position to benefit from it. We expect that if she does not succeed in

doing so, we will see her back in federal court in short order.

18 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

lacks any means internal to Virginia’s statutory scheme to

challenge her reclassification, the injury she alleges has

already occurred and is not merely speculative.

D.

The only claim for which Doe can demonstrate standing

and ripeness is her procedural due process claim against

Flaherty. That claim, however, cannot withstand Flaherty’s

motion to dismiss under Federal Rule of Civil Procedure

12(b)(6).

Doe argues that her reclassification and the publication of

her status as a sexually violent offender on the Registry with-

out an opportunity to challenge these actions violates her right

to due process. The Supreme Court foreclosed this argument

in Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003). In

that case, a sex offender made essentially the same argument

that Doe now makes: that inclusion in an online registry with-

out a hearing violated his right to due process. The Supreme

Court held that "even if [the sex offender] could prove that he

is not likely to be currently dangerous, Connecticut has

decided that the registry information of all sex offend-

ers—currently dangerous or not—must be publicly disclosed.

. . . [A]ny hearing on current dangerousness is a bootless exer-

cise." Id. at 7-9.13 Because Conn. Dep’t of Pub. Safety controls

13

Doe attempts to distinguish this case from Conn. Dep’t of Pub. Safety,

arguing that both the statutory scheme and her claims are distinct. She

posits that Virginia’s law, unlike Connecticut’s, makes an offender’s dan-

gerousness a material part of the statute, citing the section of the Virginia

statute laying out its purpose, which is to protect communities, families

and children from sex offenders. See Va. Code § 9.1-900. The cases are

not distinguishable on this ground: the Supreme Court recognized that the

Connecticut statute was likewise "designed to protect its communities

from sex offenders," Conn. Dep’t of Pub. Safety, 538 U.S. at 4. As with

the Virginia statute, the registry Connecticut’s statute provided for was

based on "an offender’s conviction alone—a fact that a convicted offender

has already had a procedurally safeguarded opportunity to contest." Id. at

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 19

in this case, we must conclude that Doe’s allegation that

Flaherty violated her right to procedural due process fails to

allege grounds upon which relief could be granted.

III.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

BARBARA MILANO KEENAN, Circuit Judge, concurring:

Jane Doe had a sexual relationship with a minor child who

was a student under her supervision. For this offense, Doe

was convicted of the felony of having carnal knowledge of a

minor child between thirteen and fifteen years of age. Va.

Code § 18.2-63.

In 2008, a change in Virginia law resulted in Doe’s offense

being classified as a "sexually violent offense." Va. Code

§ 9.1-902(E). This change had significant adverse conse-

quences for Doe that lie at the heart of this appeal. Notably,

after 2008, individuals classified as sexually violent offenders

in Virginia may enter onto school property during school

hours or school-related activities only after having obtained

permission from a Virginia circuit court and the local school

board or private school owner. Va. Code § 18.2-370.5.

7. Doe further argues that in contrast to the plaintiffs in Conn. Dep’t of

Pub. Safety, she alleges not mere harm to reputation, but infringement on

her fundamental right to rear her children. Conn. Dep’t of Pub. Safety bars

this argument as well. Regardless of the nature of her allegations, Doe has

been afforded due process in the form of a trial for her underlying offense.

See id. ("[E]ven assuming, arguendo, that respondent has been deprived

of a liberty interest, due process does not entitle him to a hearing to estab-

lish a fact that is not material under the Connecticut statute.").

20 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

Doe presently has three children. She alleges that she is

unable to direct their educational upbringing as she sees fit

because she is classified as a sexually violent offender and,

therefore, is prohibited under Virginia law from entering onto

school or daycare property. She also alleges that she will be

forced to "home school" her children due to the logistical dif-

ficulties in transporting them to and from school as a result of

this classification.

Admittedly, this classification may strike some as unfair. It

might appear that Virginia has subjected Doe to additional

punishment after she has "served her time." Or, one might

argue that Doe at least should have had the chance to prove

that she never was "sexually violent," considering the facts of

her conviction and given that she has not been convicted of

any other offenses.

But Doe was not entitled to any such hearing before her

classification. As the majority opinion recognizes, Doe’s pro-

cedural due process argument is foreclosed by the Supreme

Court’s holding in Connecticut Department of Public Safety

v. Doe, 538 U.S. 1 (2003). Moreover, the dissent does not dis-

pute this conclusion. Virginia classified Doe as a sexually vio-

lent offender based solely on the fact of her conviction, and

she received sufficient process regarding her actions when she

initially was convicted. Also, Doe has not asserted that her

classification imposed additional punishment after her convic-

tion, in violation of the Ex Post Facto Clause.1

Instead, Doe’s allegation is limited to her contention that

she cannot raise her children as she sees fit because, having

been classified as a sexually violent offender, she is barred

from entering onto school property. Despite this contention,

Doe has not sought permission from a Virginia court or the

1

We observe that the Supreme Court has rejected an ex post facto chal-

lenge to Alaska’s sex offender registration statute. Smith v. Doe, 538 U.S.

84, 105-06 (2003).

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 21

local school board to obtain access to school property, as per-

mitted by Virginia law. Ante at 4. Rather than avail herself of

these options provided under the very law she challenges, Doe

has filed this suit in federal district court asserting numerous

violations of her substantive and procedural due process

rights, associational rights, and right to exercise her religious

beliefs, all flowing from the effects of her classification.

As the majority opinion explains, before we consider the

merits of Doe’s constitutional claims, we first must be satis-

fied of our jurisdiction. The burden of proof lies squarely on

Doe to show that she has standing to invoke federal jurisdic-

tion, and that her claims are ripe. See David v. Alphin, 704

F.3d 327, 333 (4th Cir. 2013); Miller v. Brown, 462 F.3d 312,

319 (4th Cir. 2006). I fully agree with the majority opinion’s

analysis that Doe has not met her burden in either respect.2

While the nature of the injury that Doe asserts is something

of a moving target, the question whether she suffers from any

injury at all depends on the manner in which Section 18.2-

370.5 applies to the facts and circumstances of her case. The

record in this regard is materially deficient.

Because Doe has not sought relief from a Virginia circuit

court and the local school board, we have no way of knowing

whether Doe ultimately will obtain unconditional access to

her children’s school, whether Doe will be granted access

subject to certain conditions, or whether she will be allowed

any access at all. We cannot conclude that Doe suffers a "con-

crete and particularized" injury necessary to show standing

when her asserted injury may never materialize. See Alphin,

704 F.3d at 333 (citation omitted).

Similarly, due to her failure to seek relief provided by Vir-

2

Doe has shown standing and ripeness with respect to her procedural

due process claim. Ante at 17. Her remaining constitutional claims, how-

ever, encounter these justiciability hurdles.

22 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

ginia law, the controversy lacks finality and remains "depen-

dent on future uncertainties" and, therefore, is not ripe. See

Miller, 462 F.3d at 319. Doe’s claims "rest[ ] upon contingent

future events that may not occur as anticipated, or indeed may

not occur at all," namely, whether she will be denied access

to school property. See Texas v. United States, 523 U.S. 296,

300 (1998) (citation omitted). Accordingly, Doe has not met

her burden of demonstrating standing and ripeness.3

Nor can we ignore the manner in which Doe has chosen to

plead her case and her decision to raise as-applied, rather than

facial, challenges. See Harris v. Mexican Specialty Foods,

Inc., 564 F.3d 1301, 1308 (11th Cir. 2009) ("Because the

question of ripeness depends on the timing of the adjudication

of a particular issue, it applies differently to facial and as-

applied challenges.") (citation omitted). An as-applied chal-

lenge attacks the constitutionality of a statute "based on a

developed factual record and the application of a statute to a

specific person." Richmond Med. Ctr. for Women v. Herring,

570 F.3d 165, 172 (4th Cir. 2009) (en banc). By contrast, a

litigant asserting a facial challenge contends that a statute

always operates in an unconstitutional manner. Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 449

(2008).

Although Doe has asserted as-applied constitutional chal-

lenges, we can do little more than guess at this time how the

Virginia statutes and the school board policy would be

applied to her circumstances. Indeed, the factual record

required for us to render a decision on Doe’s as-applied chal-

lenges cannot be developed without action on her part seeking

relief under Virginia law.4 See Harris, 564 F.3d at 1308 (as-

3

Doe’s challenge to the school board’s lack of a procedure to permit

anonymous applications suffers from the same standing and ripeness infir-

mities, because it is not clear at present that Doe will be unable to petition

the school board anonymously simply based on the absence of a written

policy.

4

A remand for further discovery, which the dissent argues is appropriate

in this case, will not remedy the deficiency in Doe’s failure to show stand-

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 23

applied challenge "necessarily requires the development of a

factual record" on how statute applies "in particular circum-

stances").

The dissent argues, nevertheless, that Virginia law inter-

feres with Doe’s right to raise her children and thus renders

her claims justiciable. In support of this position, the dissent

cites Patsy v. Board of Regents, 457 U.S. 496 (1982), an inap-

posite decision on which Doe has not relied.

The decision in Patsy stands for the principle that plaintiffs

invoking 42 U.S.C. § 1983 generally "need not exhaust state

administrative remedies before filing suit." 457 U.S. at 516.

This principle is undisputed but, tellingly, is immaterial to the

resolution of this appeal.

There is a clear distinction between the requirement that

administrative remedies be exhausted and the requirement

that a challenged action be final before it is judicially review-

able. Williamson Cnty. Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172, 192 (1985). As the

Supreme Court explained in Williamson County,

the finality requirement is concerned with whether

the initial decisionmaker has arrived at a definitive

position on the issue that inflicts an actual, concrete

injury; the exhaustion requirement generally refers to

administrative and judicial procedures by which an

injured party may seek review of an adverse decision

and obtain a remedy if the decision is found to be

unlawful or otherwise inappropriate.

ing and ripeness. Post at 22, 33-34. Further discovery would not enlighten

the parties or this Court on the issue whether and to what extent Doe’s

ability to enter onto school property would be restricted by a Virginia

court and her local school board. Rather, this record can be developed only

upon Doe’s application to those entities.

24 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

473 U.S. at 193. The holding in Patsy addressed the principle

of exhaustion of administrative remedies, not the requirement

before us that a litigant must be aggrieved from a final,

reviewable decision. See Williamson Cnty., 473 U.S. at 193.

Doe is not required to seek a determination in a Virginia

forum that her rights were violated before filing a § 1983

action in federal court. See id. For example, Doe was not

required to file suit in a Virginia court seeking a declaratory

judgment that her classification as a sexually violent offender

was unlawful, or that the Virginia sex offender statutes at

issue here are unconstitutional. Cf. id. (litigant not required to

seek a declaratory judgment in state court to contest zoning

action taken by county authorities). Nor was Doe required to

appeal a rejection from the school board to a Virginia circuit

court. Cf. id. (litigant not required to appeal from planning

commission to the board of zoning appeals).

Doe is required, however, to petition a Virginia circuit

court and the local school board, in their capacities as "initial

decisionmaker[s]," to determine whether and under what con-

ditions she will be granted access to school property. Cf. id.

at 193-94 (litigant required to pursue procedure to obtain vari-

ance, which "would result in a conclusive determination by

the Commission whether it would allow" construction of a

development). Unless Doe resorts to the process afforded her,

those entities will not "arrive at a definitive position on the

issue that inflicts an actual, concrete injury." See id. at 193.

The Virginia legislature expressly has designated the Vir-

ginia circuit courts and the local school boards as the initial

decisionmakers in cases of this nature. The reason underlying

this legislative choice is plain. In considering such issues, the

Virginia circuit courts and the local school boards are

uniquely situated to consider questions of child safety and

school administration. Manifestly, federal courts do not pos-

sess such expertise, and should not serve as vehicles for par-

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 25

ties to circumvent state law by considering premature

constitutional challenges.

Far from "stonewall[ing]" Doe’s access to the courthouse,

post at 27, the majority merely requires that Doe meet her

burden of showing that her injury is concrete, and that her

claim is final, before filing suit in federal court. To date, Doe

has not made this required showing, but need take only lim-

ited additional steps before her claims will be justiciable in

federal court. Ante at 17 n.11. For these reasons, I fully con-

cur in the majority opinion.

KING, Circuit Judge, dissenting:

A Virginia criminal statute forbids carnal knowledge of a

child thirteen or fourteen years old, "without the use of force"

on the part of the offender. See Va. Code § 18.2-63. Not long

ago, we determined that this statutory offense is not, for fed-

eral sentencing purposes, a violent felony. See United States

v. Thornton, 554 F.3d 443 (4th Cir. 2009). Jane Doe was con-

victed of the offense in 1993, for which she was actually

incarcerated a grand total of thirty days. Fifteen years later, in

2008, without further wrongdoing on her part, the Common-

wealth statutorily reclassified Ms. Doe’s 1993 conviction as

one for a "[s]exually violent offense." Va. Code § 9.1-

902(E)(1).

On June 25, 2010, Ms. Doe filed this § 1983 action seeking

declaratory and injunctive relief, and alleging in no uncertain

terms that "[b]ecause of her 2008 reclassification, [she] . . .

is prohibited from ‘entering and being present, during school

hours and during school-related and school-sponsored activi-

ties’ on any property that is a public or private school." Com-

plaint ¶ 16 (emphasis added) (paraphrasing Va. Code § 18.2-

370.5(A)). The prohibition applies to "[e]very adult who is

convicted of a sexually violent offense," with a violation

"punishable as a Class 6 felony." Va. Code § 18.2-370.5(A),

(D).

26 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

Ms. Doe elaborates that she "has two biological minor chil-

dren, James Doe, age four, and Judy Doe, age two, and one

minor stepchild who is under her care and control, John Doe,

age nine." Complaint ¶ 20. Before being reclassified, Ms. Doe

"was involved in John Doe’s education at private and public

schools in the Commonwealth of Virginia, including attend-

ing parent-teacher conferences and school activities." Id. Fol-

lowing her 2008 reclassification, however, Ms. Doe has not

set foot on school property. See id. Apart from no longer

being able to attend school conferences or John’s extracurric-

ular events, Ms. Doe cannot drive John to school when he

misses the school bus or pick him up when he needs to leave

early because of illness or medical appointments, see id. at ¶¶

24-26, a state of affairs that, she insists, will compel her "to

home school James Doe and Judy Doe, contrary to her prefer-

ence that they attend public school." Id. at ¶ 31.

To briefly recap, then, Ms. Doe has alleged (1) state action,

in the form of a specific legislative enactment, that (2) is

interfering — and will continue to interfere — with her pre-

rogative to have her children educated in the manner that she

sees fit. In Meyer v. Nebraska, the Supreme Court long ago

acknowledged "the natural duty of the parent to give his [or

her] children education suitable to their station in life." 262

U.S. 390, 400 (1923). The Court identified the discharge of

this duty as a "fundamental right[ ]," id. at 401, nestled within

those liberties protected by the substantive due process com-

ponent of the Fourteenth Amendment, none of which may "be

interfered with, under the guise of protecting the public inter-

est, by legislative action which is arbitrary or without reason-

able relation to some purpose within the competency of the

state to effect," id. at 400.

Armed with our decision in Thornton, Ms. Doe appears

well positioned to argue her entitlement to § 1983 relief. The

notion that Virginia could recast Ms. Doe as a violent

offender for being convicted of a non-violent offense does,

after all, seem counterintuitive; the legislative action taken by

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 27

the Commonwealth could plausibly be portrayed as arbitrary

and unreasonable. My fine colleagues in the majority, how-

ever, have stonewalled Ms. Doe at the courthouse door, con-

cluding that she lacks standing to pursue her substantive due

process claim, and that, were it otherwise, the claim would yet

be unripe for adjudication. The majority can defend its star-

tling decision only by refusing to acknowledge that the start-

ing point for Ms. Doe’s federal challenge is the state statute

that reclassified her, and not the means afforded by the Com-

monwealth to escape some of the consequences of that reclas-

sification.

The majority makes no effort to conceal that its determina-

tion with respect to standing and ripeness rests solely on its

observation that Ms. Doe has not petitioned the county circuit

court or local school board to secure relief from the entry bar.

The majority’s insistence that Ms. Doe avail herself of state

recourse as a necessary precursor to federal adjudication of

her constitutional claim represents an unprecedented abdica-

tion of our judicial role, and its holding today is directly con-

trary to Patsy v. Board of Regents of the State of Florida, 457

U.S. 496 (1982). Patsy was a civil rights action alleging

reverse discrimination in employment, in which the defendant

state entity contended that it should be afforded the threshold

opportunity to address and resolve the plaintiff’s claim. The

Supreme Court vigorously disagreed, revisiting established

precedent to demonstrate that it had "on numerous occasions

rejected the argument that a § 1983 action should be dis-

missed where the plaintiff has not exhausted state administra-

tive remedies." Id. at 500 (citations omitted).

The majority pays little heed to Patsy, and it offers no justi-

fication for its neglect. The justiciability doctrines of standing

and ripeness, though closely related to each other, are readily

distinguishable from the procedural prerequisite of exhaus-

tion. Following the misbegotten lead of the district court, the

majority has erroneously cloaked a procedural exhaustion

question (and not much of one at that) in the guise of substan-

28 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

tive justiciability, a concept alien and irrelevant to the facts at

hand. As explained in more detail below, I would invoke

Patsy and its progeny to reverse the district court’s judgment

with respect to Ms. Doe’s substantive due process claim,

remanding for discovery on her allegations of constitutional

injury. Because the majority’s decision represents a radical

departure from binding precedent, I respectfully dissent.

I.

A.

Ms. Doe straightforwardly contends that she has been

unlawfully barred from her stepson’s school and daycare

facility. The majority admits as much: "[S]he does not allege

harm merely from being placed on the [offender] Registry,

but rather from the consequences her categorization entails for

her ability to access school . . . property." Ante at 9. Indeed,

the majority elsewhere acknowledges the gravamen of Ms.

Doe’s primary claim: "[O]ne may read her complaint as alleg-

ing that she is harmed by not being able to enter the school

at all." Id. at 13. The majority’s plain statements of Ms. Doe’s

case belie its caterwaul that her substantive due process claim

"suffers from a lack of specificity and concreteness that

makes it unsuitable for determination by this court." Id. at 9.

The majority correctly derives from the Complaint "that the

injury she alleges arises from an outright denial of her ability

to enter school property." Ante at 10. It asserts, however, that

Ms. Doe has abandoned this contention on appeal by main-

taining instead that her injury has arisen "from the lack of a

policy by which she could petition for entry to the school

anonymously." Id. Although Ms. Doe has, without question,

urged our attention to the supposed defects in the school

board’s policy, and in particular the anonymous-petition

aspect, she has done so as part and parcel of her subordinate

procedural due process claim. See Complaint ¶ 45.

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 29

Ms. Doe’s supposed emphasis on the procedure provided

by the Commonwealth to procure an exception to the statu-

tory entry bar cannot be interpreted to suggest that she has

surrendered her substantive due process claim, which, through

repeated mention to this Court, remains alive and well on

appeal. For example: "[Virginia’s statutory] scheme denies

her entry on school grounds . . . because her offense was rede-

fined fifteen years after the case was over." Br. of Appellant

19. Again: "[T]hat Jane Doe has not applied to the School

Board for permission to enter school grounds . . . does not

excuse the statutory scheme’s . . . unconstitutionality." Id.

And again: "Jane Doe’s suit sought to challenge the constitu-

tional validity of the limits placed on her parenting by the

statutory scheme and School Board policy." Id. at 29 (empha-

sis added). Once more: "The district court also never

addressed whether the statutory scheme was narrowly tai-

lored, which is part of Jane Doe’s claim." Id. at 31. Finally,

right off the bat at the argument of this matter, counsel for

Ms. Doe explained the foundation of his client’s grievance:

Fifteen years later, Virginia decides that they’re

going to classify her as a violent sexual offender,

based on the status of her case — nothing to do with

her or the facts of her case or anything else. . . . And

the offense at the time was nonviolent in its own def-

inition. The consequence of that is that there are

restrictions on her for life.

Oral Argument at 1:04, Doe v. Va. Dept. of State Police

(No. 11-1841), available at http://www.ca4.uscourts.gov/

OAaudiotop.htm.

The "statutory scheme" to which Ms. Doe repeatedly refers

no doubt encompasses those discrete provisions requiring her

lifetime registration, excluding her from school property, and

establishing a procedure to permit her reentry. But it also

surely includes Virginia Code section 9.1-902(E)(1), which

reclassified her at the threshold as a violent offender and

30 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

brought each of the aforesaid provisions into play. Although

the majority professes, in quite conclusory terms, that Ms.

Doe’s substantive due process claim "suffers from a lack of

specificity and concreteness," ante at 9, the irony is palpable:

it can point to no specific and concrete reason why that is so.1

B.

1.

The impetus driving the majority’s decisionmaking is no

mystery; the basis therefor is readily discerned from its dis-

cussion. Ms. Doe’s substantive due process claim is nonjusti-

ciable, declares the majority, "because she has not yet

attempted to undertake the requisite steps to access these

properties." Ante at 3 (emphasis added). According to the

majority, the "consequences" to which it refers, suffered by

Ms. Doe as the direct result of her reclassification, "do not

affect her with finality, as she has not taken any of the steps

1

The majority’s failure to properly compartmentalize Ms. Doe’s claims,

and to associate therewith the particular statute to which each relates, is

manifest in my good colleague’s concurring opinion. The concurrence

scolds Ms. Doe for not pursuing the avenues of relief from the entry bar

"provided under the very law she challenges." Ante at 21 (Keenan, J., con-

curring). These avenues of redress before the circuit court and the county

school board are spelled out in Virginia Code section 18.2-370.5. But,

more fundamentally, Ms. Doe also challenges her reclassification pursuant

to Virginia Code section 9.1-902(E)(1). There is no avenue of redress in

the reclassification statute; thus, the only way Ms. Doe can avoid its

effects is to obtain a court injunction. Consequently, the concurrence

misses the mark by maintaining that "the question whether [Ms. Doe] suf-

fers from any injury at all depends on the manner in which Section 18.2-

370.5 applies to the facts and circumstances of her case." Id. at 21. To the

contrary, the nature and extent of Ms. Doe’s injury more proximately

depends on the applicability of section 9.1-902(E)(1). Because a ruling in

Ms. Doe’s favor on her substantive due process claim stemming from her

reclassification would moot the need for redress under section 18.2-370.5,

the concurrence’s protestations as to an underdeveloped factual record on

Ms. Doe’s procedural due process claim, see id. at 22-23, relating primar-

ily to the latter statute, are quite beside the point.

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 31

necessary to access those properties." Id. at 9 (emphasis

added). The majority thus determines that Ms. Doe lacks

standing to sue, and it concludes further that "[b]ecause Doe

has yet to petition a Virginia circuit court for permission to

enter school . . . property, all of her constitutional claims

except [her procedural due process claim against the State

Police Superintendent] are dependent on future uncertainties

and thus not ripe for judicial decision." Id. at 17 (emphasis

added). Thus, the majority surmises that "it would appear that

were Doe to petition a Virginia circuit court, the traceability,

redressability, and ripeness concerns we have noted here

would be addressed." Id. at 17 (emphasis added).

The fatal flaw in the majority’s reasoning is that Patsy v.

Board of Regents of the State of Florida, 457 U.S. 496 (1982),

specifically prohibits interposing any administrative exhaus-

tion requirement — such as petitioning a school board — as

a roadblock to seeking resolution of a constitutional claim in

a federal court. And while "state courts have inherent author-

ity, and are thus presumptively competent, to adjudicate

claims arising under the laws of the United States," Tafflin v.

Levitt, 493 U.S. 455, 458-59 (1990) (citations omitted), those

courts’ concurrent jurisdiction of § 1983 actions has never

been construed, expressly or impliedly, as conferring upon

them exclusive or preferential domain. Hence, though I have

no quarrel with the majority’s presumption that the Virginia

courts are "competent, reasonable, and fair," ante at 8, that is

quite beside the point. It has always been the case that, when

it comes to choosing from among available fora, "the plaintiff

is the master of the complaint." Lincoln Prop. Co. v. Roche,

546 U.S. 81, 91 (2005) (citation and internal quotation marks

omitted).

Exceptions to the rule in Patsy have subsequently been

identified, but none of them applies here. The most significant

development in the law occurred in Ohio Civil Rights Com-

mission v. Dayton Christian Schools, Inc., 477 U.S. 619

(1986), in which the Supreme Court invoked the abstention

32 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

doctrine of Younger v. Harris, 401 U.S. 37 (1971), to deny

federal court access to a faith-based school seeking to enjoin

the advancement of an administrative inquiry instituted by a

state agency charged with investigating and punishing

employment discrimination.

The Court distinguished the coercive proceedings at issue

in Ohio Civil Rights Commission from those in Patsy, in

which the plaintiff had sought recourse in the federal courts

strictly to remedy the alleged discrimination against her. See

Ohio Civil Rights Comm’n, 477 U.S. at 627 n.2. In Moore v.

City of Asheville, 396 F.3d 385 (4th Cir. 2005), we acknowl-

edged the general rule that "claimants bringing suit in federal

court under 42 U.S.C. § 1983 need not exhaust their adminis-

trative remedies," while noting the Supreme Court’s excep-

tion for "pending state administrative proceedings that are

coercive in nature." Id. at 395 n.4 (citing Patsy and Ohio Civil

Rights Comm’n).2

We affirmed in Moore the district court’s reliance on Youn-

ger abstention to forestall federal intervention prior to final

resolution of coercive state criminal proceedings against the

plaintiff. Notwithstanding that no such proceedings were tech-

nically pending — the plaintiff had been issued citations and

paid the fines assessed thereon, but had foregone appeal

beyond the initial stage — we determined the plaintiff’s situa-

tion to be the functional equivalent of that in Ohio Civil

Rights Commission, and we remanded for dismissal of his

2

Patsy similarly does not apply where Congress has explicitly or implic-

itly provided for the exhaustion of state administrative remedies as a pre-

requisite to suit in federal court. See Talbot v. Lucy Corr Nursing Home,

118 F.3d 215, 219 (4th Cir. 1997). Congress’s intent in this regard may

be discerned as implicit whenever it "may be fairly understood from con-

gressional action." Id. (citations and internal quotation marks omitted).

Importantly, "[i]f there is doubt as to whether an exception applies, courts

should refrain from requiring exhaustion in § 1983 suits because Patsy

leaves no doubt that the presumption is strongly in favor of no exception."

Id. (citation and internal quotation marks omitted).

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 33

complaint. See Moore, 396 F.3d at 395-96 ("We find the

rationale behind the Court’s holding . . . equally applicable

where the administrative proceedings are no longer pending

because of the plaintiff’s failure to exhaust his administrative

appellate remedies.").

Here, the majority faults Ms. Doe for declining to pursue

what it considers the mandatory administrative course of fil-

ing a petition with the school board to set aside the entry bar.

In so doing, the majority overlooks that a nonexistent pro-

ceeding could hardly be "pending" for abstention purposes.

Further, seeking the school board’s largesse as prescribed by

the majority is patently a remedial proceeding squarely within

the ambit of Patsy, and not in the nature of a punitive, coer-

cive proceeding that would be governed by Ohio Civil Rights

Commission. Finally, Ms. Doe’s case is not at all like Moore,

in that she has never acquiesced in, then opted out of, a state

administrative regimen. I cannot emphasize enough that the

majority has charted a new course with its decision today, one

that infects with uncertainty any and all potential § 1983

actions in this circuit where any state actor in the decision-

making chain arguably provides resort to even a cursory dis-

pute resolution process.

2.

The majority ventures that Patsy has no application here,

positing that compelling Doe to "seek permission from state

entities prior to bringing suit in federal court does not amount

to requiring exhaustion of state remedies for her constitutional

claims." Ante at 8 n.5. With all respect to the majority, "seek[-

ing] permission from state entities prior to bringing suit in

federal court" precisely describes — to a "T" — the concept

of exhaustion. According to the majority, Ms. Doe is required

to submit to the authority of the school board before she can

be considered to have suffered a "final" injury. Id. The major-

ity relates that finality cannot exist until "‘the initial decision-

maker has arrived at a definitive position on the issue that

34 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

inflicts an actual, concrete injury.’" Id. (quoting Williamson

Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson

City, 473 U.S. 172, 193 (1985)).3

3

As the majority discerns, the requirement of finality, front and center

in Williamson County, is distinguishable from that of exhaustion, around

which Patsy revolved. Exhaustion "‘generally refers to administrative and

judicial procedures by which an injured party may seek review of an

administrative decision and obtain a remedy if the decision is found to be

unlawful or otherwise inappropriate.’" Ante at 9 n.5 (quoting Williamson

Cnty., 473 U.S. at 193). Thus, in Williamson County, the Supreme Court

concluded that a planning commission’s refusal to approve a preliminary

plat was not a final decision, in that the developer had not followed

through with the commission to request variances from the applicable zon-

ing regulations. See 473 U.S. at 193-94. The Court contrasted that situa-

tion with the review procedures provided by the state in the event that the

variances were denied, holding that "those procedures clearly are reme-

dial," and if invoked "would result in a judgment whether the Commis-

sion’s actions violated any of respondent’s rights." Id. at 193. As such, the

respondent in Williamson County "would not be required to resort to those

procedures before bringing its § 1983 action." Id.

The school board petition that the Commonwealth provides to persons

deemed sexually violent offenders is a remedial measure, designed to

afford relief from draconian applications of the entry bar. It is just the sort

of recourse that Williamson County confirms need not be exhausted as a

predicate to federal litigation. Perhaps more importantly, Williamson

County involved a Fifth Amendment takings claim, which is a special type

of civil rights action, one in which "no constitutional violation occurs until

just compensation [by the state] has been denied." Williamson County, 473

U.S. at 194 n.13. Hence, "the nature of the constitutional right

. . . requires that a property owner utilize [state] procedures for obtaining

compensation before bringing a § 1983 action." Id.; see Daniels v. Area

Plan Comm’n of Allen Cnty., 306 F.3d 445, 453 (7th Cir. 2002) (recogniz-

ing that "the additional ripeness requirements of Williamson County create

a takings claim exception to Patsy’s general requirement that exhaustion

is not required in § 1983 suits"). No such exception exists with respect to

claims alleging due process violations. See Front Royal & Warren Cnty.

Indus. Park Corp. v. Town of Front Royal, Va., 135 F.3d 275, 283 n.3 (4th

Cir. 1998) (noting absence of concern whether plaintiff’s "Fourteenth

Amendment due process and equal protection claims are ripe," because

"[s]tate remedies need not be exhausted in order to pursue a § 1983 action

claiming a violation of these federal rights" (citing Patsy)).

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 35

The majority’s general statement of the law — correct as

far as it goes — begs two questions. First, who was this "ini-

tial decisionmaker" that needed to arrive at a definitive posi-

tion? And second, what was "the issue" that needed to have

been definitively decided? In this case, the initial decision-

maker was the Virginia General Assembly, which passed a

law that is alleged to have inflicted actual and concrete injury

on Ms. Doe. The issue before the legislature, which it

answered in the affirmative, was whether a person previously

convicted of the Commonwealth’s carnal knowledge offense

who was more than five years older than his or her victim

should be reclassified as a sexually violent offender. The Gen-

eral Assembly’s decision was definitive, and it was final; no

school board has the authority to overturn it.

Nonetheless, the majority appears to be operating under the

misconception that the school board is properly the initial

decisionmaker for purposes of our finality analysis. The

majority’s assumption might be plausible were Ms. Doe to

concede that she had been accurately reclassified as a violent

offender and simply wished to litigate her eligibility for dis-

pensation from the entry bar. The school board would be

uniquely qualified to decide that particular issue, because it

would possess institutional expertise on such matters as, for

example, Ms. Doe’s reputation within the school community,

the need for and adequacy of security on school grounds and

at school events, and its past experiences in similar situations.

But Ms. Doe has not so conceded. She indeed advances a

constitutional issue with respect to the procedure afforded by

the school board, but that argument is made as an alternative

in the event that we reject her primary contention that she was

unconstitutionally reclassified. Put most simply, if Ms. Doe

should not have been categorized as a sexually violent

offender — which is exactly her claim — then the school

board has no legally cognizable interest in her exclusion from

school grounds, and no business in this case. At the end of the

36 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

day, the majority simply cannot justify its decision to flout

Supreme Court precedent.

II.

Having set forth the reasons why Ms. Doe’s appeal should

be resolved by a pedestrian application of exhaustion (and,

possibly, abstention) principles, I move on to addressing why

this matter has nothing to do with justiciability, and specifi-

cally the doctrines of standing and ripeness. The majority

properly notes that "[r]ipeness analysis holds much in com-

mon with standing analysis," ante at 16 n.10 (citations omit-

ted), but it is no Herculean feat to ascertain the salient

distinction between the two:

When determining standing, a court asks whether

these persons are the proper parties to bring the suit,

thus focusing on the qualitative sufficiency of the

injury and whether the complainant has personally

suffered the harm. . . . When determining ripeness,

a court asks whether this is the correct time for the

complainant to bring the action.

Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1173-74

(11th Cir. 2006) (citation and internal quotation marks omit-

ted); see Texas v. United States, 497 F.3d 491 (5th Cir. 2007)

("[S]tanding is concerned with whether a proper party is

bringing suit, while ripeness is concerned with whether the

suit is being brought at the proper time." (citation omitted)).

A.

The majority acknowledges that if Ms. Doe were to first

avail herself of the remedial options provided under state law,

the second and third standing elements (traceability and

redressability), together with the "ripeness concerns we have

noted here[,] would be addressed." Ante at 17. By conceding

that her case could become ripe under certain circumstances,

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 37

i.e., that the correct time may arrive whereby Ms. Doe can

bring this action, the majority effectively concedes that she is

a proper party and thus has standing.

The majority may have intended, however, to hang its hat

on the first element of standing, that is, "the plaintiff must

have suffered an injury in fact — an invasion of a legally pro-

tected interest which is (a) concrete and particularized, and (b)

actual or imminent, not conjectural or hypothetical." Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and

internal quotation marks omitted). If so, the majority is sorely

in need of a different hook, because Ms. Doe has alleged that

she is now prohibited from entering her stepson’s school to

attend parent-teacher conferences and extracurricular activi-

ties, which means that her ability to offer meaningful input

and support with respect to John Doe’s education is impaired,

right now, at least to a degree. Moreover, Ms. Doe has con-

tended that the defendants’ actions will result in the undesired

homeschooling of her younger children, who, three years fol-

lowing the filing of the Complaint, are now of school age.

We know that the freedom to direct and control the educa-

tion of one’s children is a constitutionally protected funda-

mental right, because the Supreme Court told us so — nearly

a hundred years ago — in Meyer v. Nebraska, 262 U.S. 390

(1923). Ms. Doe’s right in that regard, according to her Com-

plaint, is currently being interfered with in a manner that she

plausibly maintains violates the substantive due process pro-

tections of the Fourteenth Amendment. Moreover, a key com-

ponent of the majority’s suggested remedy for the violation

— petitioning the school board to lift the entry bar — is itself

alleged to be injurious to the degree that Ms. Doe must reveal

her identity as a condition of approach. How could there ever

be a more plain statement of an actual, concrete injury in fact?

The injury-in-fact case primarily relied on by the majority

fails to support its sweeping assertions. In Valero Terrestrial

Corp. v. Paige, 211 F.3d 112 (4th Cir. 2000), we concluded

38 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

that the plaintiff waste disposal company possessed no stand-

ing to challenge a state statutory provision permitting a refer-

endum on the creation of large dumpsites or the expansion of

existing ones. Our decision was founded on the absence of

any allegation that the plaintiff intended to build a qualifying

site; we likewise deemed speculative the prospect that an

expansion referendum would actually occur. The Valero

plaintiff therefore lacked an injury in fact, which is certainly

not the case here. Every act necessary to inflict injury upon

Ms. Doe has already happened: (1) she was reclassified as a

violent offender; (2) one or more of her children began to

attend school; and (3) her ability to meaningfully interact with

her children’s school environment has been encumbered by

the reclassification. Having her petition denied by the state

circuit court or the county school board would not injure her

further; such an outcome would merely represent a withhold-

ing of relief for her injury.

Nor is it difficult to trace the source of Ms. Doe’s injury:

the reclassification of her offense became effective on July 1,

2008, by virtue of the Commonwealth’s amendment of its

statutory scheme relating to sex offenders.4 There is, there-

fore, a direct link between the challenged enactment and the

injury complained of. That direct link is missing in each of the

traceability cases cited by the majority, distinguishing those

authorities. See Allen v. Wright, 468 U.S. 737, 757-59 (1984)

(ruling that plaintiffs were without standing to sue Treasury

Secretary and IRS Commissioner where complaint did not

allege that general neglect to revoke tax-exempt status of

racially discriminatory private schools had directly resulted in

plaintiffs’ children being discriminated against); Simon v. E.

4

The legislators of the Commonwealth are, of course, immune from suit

under § 1983, see Whitener v. McWatters, 112 F.3d 740, 742 (4th Cir.

1997), with the result that the official ultimately responsible for enforcing

the relevant statutes — Colonel W. Stephen Flaherty, Superintendent of

the Virginia Department of State Police — is the appropriate stand-in, and

he is, in fact, a named defendant.

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 39

Ky. Welfare Rights Org., 426 U.S. 26, 42-46 (1976) (directing

dismissal of claims against Secretary and Commissioner

where complaint alleged only that IRS Revenue Ruling

encouraged hospitals generally to withhold indigent services,

without asserting that plaintiffs had been denied treatment as

a direct result); Mirant Potomac River, LLC v. EPA, 577 F.3d

223, 229-30 (4th Cir. 2009) (concluding that plaintiff lacked

standing to challenge federal approval of state environmental

compliance plan where alleged injury traceable instead to sep-

arate state regulatory scheme); Frank Kasner Enters., Ltd. v.

Montgomery Cnty., Md., 401 F.3d 230, 235-36 (4th Cir. 2005)

(ascertaining that injury described in complaint was too indi-

rect to confer standing where gun show promoter and gun

exhibitor alleged county code amendment influenced third-

party venue owner to cease leasing them space).

The majority fares no better on redressability. In both Iota

Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d

138 (4th Cir. 2009), and Covenant Media of South Carolina,

LLC v. City of North Charleston, 493 F.3d 421 (4th Cir.

2007), on which the majority premises its reasoning, the futil-

ity of the sought-after judgments was evident. In Iota Xi, the

plaintiffs contested certain university sanctions imposed upon

their fraternity, some alleged to have been in violation of the

First Amendment. We concluded that those free speech

claims were incapable of redress, inasmuch as "other adequate

grounds existed" justifying the sanctions. 566 F.3d at 148.

Similarly, in Covenant Media, we deemed untenable a chal-

lenge to certain provisions of a city regulation governing bill-

board permits, because the permit at issue had also been

denied on alternative, unchallenged grounds. See 493 F.3d at

429-30.

Ms. Doe, by contrast, seeks a simple declaration from a

federal court that the Virginia statute reclassifying her carnal

knowledge offense as sexually violent is unconstitutional as

applied to her, insofar as it is insufficiently tailored to her cir-

cumstances and thereby impinges upon her substantive, fun-

40 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

damental right under the Due Process Clause of the

Fourteenth Amendment to educate her children in the manner

she would prefer. On the merits of the issue, Ms. Doe either

is or is not entitled to the relief she requests, depending on the

facts of the case yet to be developed; there is no alternative

ground whereby she may be denied her constitutional rights

if she otherwise prevails. The opinion of the school board

cannot alter Ms. Doe’s entitlement. The opinion of the state

circuit court — having not been solicited — has no bearing

upon the question.

A judgment from the district court in Ms. Doe’s favor

would permit her the immediate liberty to enter her children’s

schools without credible threat of prosecution, while also

affording her the means to petition the circuit court to have

her name removed from the offender registry. See Townes v.

Jarvis, 577 F.3d 543, 548-49 (4th Cir. 2009) (rejecting argu-

ment that plaintiff’s habeas claim lacked redressability, in that

federal judgment would provide immediate declaratory relief

as an important precursor to subsequent state proceedings).

Such an outcome would restore Ms. Doe to the position she

enjoyed prior to the reclassification, and that is sufficient

redress under the Constitution to confer standing. A return to

normalcy is, from Ms. Doe’s perspective, the prize at the bot-

tom of the Cracker Jack box.

B.

Given that Ms. Doe need petition neither the state circuit

court nor the school board to begin with, her case at present

is about as ripe as it is ever going to get. The majority’s insis-

tence that Ms. Doe submit to an irrelevant state administrative

procedure will, if anything, risk the dispute becoming over-

ripe. Even if the school board grants Ms. Doe permission to

enter school property, she will still be legally designated a

violent sexual offender, and she will yet be compelled to con-

tinue registering with the State Police for the rest of her life,

with no hope of cessation.

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 41

But even under the majority’s analysis of ripeness, as to

which it employs the traditional framework established by our

precedents, a voluntary petition before the school board is not

a proper contingency that must be resolved as a condition to

suit. The issue of ripeness was only indirectly before us in

Franks v. Ross, 313 F.3d 184 (4th Cir. 2002), a landfill siting

dispute, but it was nonetheless a key component in determin-

ing whether the plaintiffs’ claims had been filed within the

applicable limitations period. We ascertained that the time for

filing suit had not ripened until the permitting agency had

"conclude[d] the decisionmaking process on the project." Id.

at 195-96; accord Charter Fed. Sav. Bank v. Office of Thrift

Supervision, 976 F.2d 203, 209 (4th Cir. 1992) (deeming

plaintiff bank’s claims against FDIC unripe where agency had

not been appointed bank’s conservator or receiver, and where

agency was required to complete administrative process prior

to taking final, definitive action of terminating bank’s status

as insured depository). Ms. Doe’s dispute is not with an

administrative agency — here, the school board. She is await-

ing no final decision affecting her rights. To the contrary, her

rights were affected with finality on July 1, 2008, when the

amendments to the Commonwealth’s sexual offender statu-

tory scheme took effect, as passed by the Virginia General

Assembly.

In determining ripeness, "we balance the fitness of the

issues for judicial decision with the hardship to the parties of

withholding court consideration." Miller v. Brown, 462 F.3d

312, 319 (4th Cir. 2006) (citation and internal quotation

marks omitted). The fitness prong is fulfilled "when the issues

are purely legal and when the action in controversy is final

and not dependent on future uncertainties." Id. at 319 (citing

Charter Fed. Sav. Bank, 976 F.2d at 208). On the other side

of the equation, "‘[t]he hardship prong is measured by the

immediacy of the threat and the burden imposed on the plain-

tiffs.’" Id. (alteration omitted) (quoting Charter Fed. Sav.

Bank, 976 F.2d at 208-09).

42 DOE v. VIRGINIA DEPARTMENT OF STATE POLICE

This case presents the "purely legal" issue of whether the

final action of the Commonwealth of Virginia, as applied to

Ms. Doe’s situation, contravenes her due process guaranty

under the Constitution. The threat to the liberty interest

asserted by Ms. Doe in participating in her children’s educa-

tion is immediate and ongoing, and, she alleges, oppressive.

It is simply beyond cavil that Ms. Doe’s substantive due pro-

cess claim is ripe for adjudication. I would vacate the judg-

ment below and remand for discovery on that claim.5

III.

I must admit that I am nonplused — floored, even — that

we would turn away someone in Ms. Doe’s position, straining

to forgo involvement for the nonce, while affording precious

little hope for the future that her modest request for federal

adjudication of a federal constitutional claim will be fulfilled.

I fully appreciate that, twenty years ago now, Ms. Doe

engaged in a serious offense, though, as the district court

mused, she "seems to have maybe not committed the worst

sex crime in the world." Transcript of May 12, 2011 Motions

Hearing at 54 (J.A. 184). Nonetheless, Ms. Doe is a proper

party — perhaps the archetypical party — to bring a suit of

this nature. Moreover, the time for litigation is plainly now,

and not after precious years have slipped away as Ms. Doe’s

children advance through the elementary and middle-school

grades.

By refusing to insist that this case be decided in a federal

forum, the majority stands one hundred eighty degrees from

Supreme Court precedent, effectively abandoning our consti-

tutional mandate. Our decision today will inevitably rain

chaos down upon our previously settled jurisprudence govern-

ing standing and ripeness.6 I do not think it an overlong

5

Because Ms. Doe would obtain all the relief she seeks were she to pre-

vail on her substantive due process claim, I take no position as to the

majority’s disposition of her remaining claims.

6

One may well suppose that the majority’s groundbreaking decision in

this case will serve to block immediate federal court access for plaintiffs

DOE v. VIRGINIA DEPARTMENT OF STATE POLICE 43

stretch to predict that we will now stand alone among the cir-

cuits as the court that has abdicated its "province and duty . . .

to say what the law is." Marbury v. Madison, 1 Cranch 137,

177 (1803).

I emphatically and wholeheartedly dissent.

seeking to vindicate the full panoply of rights afforded under the Constitu-

tion and laws of the United States. Such claims might include, by way of

example, the extent of the individual right to bear arms under the Second

Amendment, see Durga v. Bryan, No. 3:10-cv-1989, 2011 WL 4594281

at *6 (D.N.J. Sept. 30, 2011) (unpublished) (observing in § 1983 action

that defendants "present no arguments to support that the Firearms License

application and subsequent appeal constitute a coercive proceeding that

requires exhaustion"); the right of racial minorities to be free from dis-

crimination in employment, see Lilly v. Harris-Teeter Supermarket, 720

F.2d 326, 334 (4th Cir. 1983) (recognizing previously settled rule that, as

to discrimination "claims brought under 42 U.S.C. § 1981, exhaustion of

EEOC remedies is not a prerequisite to filing suit"); or the right of dis-

abled children to a free, appropriate public education, see Barron ex rel.

D.B. v. S.D. Bd. of Regents, 655 F.3d 787, 792 (8th Cir. 2011) (concluding

that, in suit brought pursuant to § 1983 to enjoin closing of school for deaf

children, "the parents were not required to exhaust because, if their posi-

tion was well founded and the Board’s actions violated the IDEA, ade-

quate relief likely could not have been obtained through the administrative

process").