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").