Professor v. Cuccinelli, 09-1615.

Citation616 F.3d 393
Decision Date27 July 2010
Docket NumberNo. 09-1615.,09-1615.
PartiesMark J. McBURNEY; Roger W. Hurlbert; Bonnie Stewart, Professor, Plaintiffs-Appellants, v. Kenneth T. CUCCINELLI, II, Attorney General, Commonwealth of Virginia; Nathaniel L. Young, Deputy Commissioner and Director, Division of Child Support Enforcement, Commonwealth of Virginia; Thomas C. Little, Acting Director of the Real Estate Assessment Division, Henrico County, Commonwealth of Virginia, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)




ARGUED: Leah Marie Nicholls, Institute for Public Representation, Washington, D.C., for Appellants. Stephen R. McCullough, Office of the Attorney General of Virginia, Richmond, Virginia, Benjamin Adelbert Thorp, IV, Office of the County Attorney, Henrico County, Henrico, Virginia, for Appellees. ON BRIEF: Stephen W. Bricker, Bricker Law Firm, P.C., Richmond, Virginia; Brian Wolfman, Institute for Public Representation, Georgetown University Law Center, Washington, D.C., for Appellants. Craig M. Burshem, Senior Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia; Joseph P. Rapisarda, County Attorney, Karen M. Adams, Senior Assistant County Attorney, Office of the County Attorney, Henrico County, Henrico, Virginia, for Appellees.

Before GREGORY and AGEE, Circuit Judges, and EUGENE E. SILER, JR., Senior United States Circuit Judge for the Sixth Circuit, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Judge SILER wrote the opinion, in which Judge GREGORY concurred. Judge GREGORY wrote a separate concurring opinion. Judge AGEE wrote a separate opinion concurring in part and dissenting in part.


SILER, Senior Circuit Judge:

Mark J. McBurney, Roger W. Hurlbert, and Bonnie Stewart (collectively, the Appellants) appeal the district court's dismissal of their 42 U.S.C. § 1983 action seeking declaratory and injunctive relief against the Attorney General of Virginia, the Deputy Commissioner and Director of Virginia's Division of Child Support Enforcement (DCSE), and the Director of the Real Estate Assessment Division in Henrico County, Virginia (collectively, the Appellees). Before the district court, the plaintiffs alleged that Virginia's Freedom of Information Act (“VFOIA” or the Act) violates the dormant commerce clause and the Privileges and Immunity Clause of the U.S. Constitution. The district court dismissed all parties from the suit on jurisdictional grounds, from which order this appeal arises.

For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND.


The VFOIA provides citizens of the Commonwealth of Virginia with a right of access to all public records held by the Commonwealth, its officers, employees, or agents. Va.Code Ann. §§ 2.2-3700 to .2-3714. In relevant part, the Act provides as follows:

Except as otherwise specifically provided by law, all public records shall be open to inspection and copying 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 newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television

stations broadcasting in or into the Commonwealth. The custodian may require the requester to provide his name and legal address. The custodian of such records shall take all necessary precautions for their preservation and safekeeping.

§ 2.2-3704(A).

On January 21, 2009, McBurney and Hurlbert sued the Attorney General of Virginia, currently Kenneth T. Cuccinelli, II (the Attorney General), 1 Nathaniel L. Young, Deputy Commissioner and Director of Virginia's DCSE (the Deputy Commissioner), and the Director of the Real Estate Assessment Division in Henrico County, Virginia, currently Thomas C. Little (the County Director), 2 pursuant to 42 U.S.C. § 1983. They sought declaratory and injunctive relief from the enforcement of the VFOIA, which they claim violates the Privileges and Immunities Clause and the dormant commerce clause of the U.S. Constitution. The district court later allowed the plaintiffs to amend their complaint to add an additional plaintiff, Bonnie Stewart.

A. Plaintiffs' Claims

Each plaintiff alleges different facts to support the common argument that the VFOIA violates the U.S. Constitution.

1. McBurney's Claims

McBurney, a citizen of Rhode Island, and his wife Lore Mills were divorced in 2002. McBurney filed an application for child support with Virginia's DCSE in July 2006; and, as a result of DCSE's alleged failure to file the proper petition, McBurney claims he was denied “nearly nine months of child support payments.”

In 2008, McBurney submitted a VFOIA request to the DCSE seeking disclosure of certain documents that he believed would help resolve this dispute. Specifically he requested “all emails, notes, files, memos, reports, policies, [and] opinions” pertaining to him, his son, or his former wife. The DCSE denied his request on two grounds: first, because the information [was] confidential and protected under the Virginia Code[,][§§ ] 63.2-102 and 63.2-103”; and second, because he was “not a Citizen of [the] Commonwealth of Virginia.” McBurney sent a second request, identical to the first except that he listed a Virginia address instead of his Rhode Island address. The DCSE again denied his request. This time, the DCSE only listed McBurney's out-of-state citizenship as its reason for the denial. However, the DCSE did inform McBurney of his right to obtain this information under a different statute, the Government Data Collection and Dissemination Practices Act, Va.Code Ann. §§ 2.2-3800 to .2-3809. Later, McBurney submitted a request under this act and obtained over eighty requested documents.

McBurney contends that he did not receive all the documents he could have received under the VFOIA. He also contends that the DCSE's denial obstructed his right to advocate on his own behalf and prohibited him from utilizing Virginia's dispute resolution procedures, thus violating the Privileges and Immunities Clause.

2. Hurlbert's Claims

Hurlbert, a citizen of California, is the sole proprietor of Sage Information Services. He is in the business of requesting real estate tax assessment records for his clients from state agencies across the United States, including Virginia. On June 5, 2008, Hurlbert submitted a VFOIA request to Henrico County Assessor's Office, which the office denied on the basis of his citizenship. On February 17, 2009, after litigation in this case had commenced, the County provided Hurlbert with an electronic copy of its 2008 real estate assessment database-the subject of the 2008 VFOIA request. Hurlbert's counsel returned this information without reading or reviewing it.

Hurlbert argues that the denial of his VFOIA request was unconstitutional, because it prevents him from pursuing his common calling on an equal basis with Virginia citizens in violation of the Privileges and Immunities Clause, and because it gives Virginia citizens an exclusive right of access to Virginia's public records, in contravention of the dormant commerce clause.

3. Stewart's Claims

Stewart, a citizen of West Virginia and Assistant Professor of Journalism at West Virginia University, submitted her VFOIA request in February 2009 to Virginia Commonwealth University and Virginia Polytechnic Institute and State University (Virginia Tech). Stewart's request sought information about the salaries and benefit packages awarded to the presidents of Virginia's public universities and was made in conjunction with a course project on the administration of public universities in other states. Both institutions denied her request, because she was not a citizen of Virginia. 3

Stewart claims that the denial of her VFOIA request violates the Privileges and Immunities Clause because it prevents her from pursuing her common calling as an educator on an equal basis with Virginia citizens.

B. District Court's Opinion

The district court granted the defendants' motions to dismiss. First, it held that the Attorney General was not a proper party under the Eleventh Amendment. Because Stewart only alleged claims against the Attorney General, it correspondingly dismissed her as a plaintiff. Second, it held that both McBurney and Hurlbert lacked standing, and dismissed them as plaintiffs. Because McBurney was the only plaintiff to assert claims against the Deputy Commissioner, the district court also dismissed the Deputy Commissioner as a party. Similarly, because only Hurlbert had sued the County Director, the court dismissed him as well. Consequently, no parties remained before the court, and it dismissed the case.


[W]e review de novo a district court's legal determination of whether Ex parte Young relief is available.” Franks v. Ross, 313 F.3d 184, 192-93 (4th Cir.2002) (internal quotation marks and alterations omitted). Similarly, [w]e review a district court's dismissal for lack of standing de novo.” Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir.2009) (citations omitted).


This case presents two threshold questions: first, whether the Attorney General is immune from suit under the Eleventh Amendment; and second, whether the plaintiffs have standing to sue. As to the first question, we agree with the district court that the Attorney General was not a proper party. We disagree, however, with the district court's ruling on standing, so we reverse that part of its judgment, and remand for proceedings consistent with this opinion.

A. Sovereign Immunity

The district court concluded that the Attorney General was not a proper party to the suit under the Eleventh Amendment and the exception announced in Ex parte Young. The Appellants appeal this ruling and the district court's consequent...

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