3:10-cv-00533 JANE DOE v. Virginia Department of State Police

Filed: June 20, 2013
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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No. 11-1841
3:10-cv-00533
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JANE DOE,
Plaintiff - Appellant,
v.
VIRGINIA DEPARTMENT OF STATE POLICE; W. STEVEN
FLAHERTY, Colonel, in his official capacity as
Superintendent of the Virginia 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.
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O R D E R
______________
Before the Court is the Plaintiff-Appellant’s petition
for rehearing and rehearing en banc. Judges Duncan and Keenan
voted to deny the petition for panel rehearing, which Judge King

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voted to grant.
A member of the Court requested a poll on the petition
for rehearing en banc. Judges Motz, King, Gregory, Davis, and
Floyd voted to grant rehearing en banc. Chief Judge Traxler and
Judges Wilkinson, Niemeyer, Shedd, Duncan, Agee, Keenan, Wynn,
Diaz, and Thacker voted to deny rehearing en banc.
The petition for panel rehearing is denied, and,
because the poll failed to garner the support of a majority of
judges in active service, the petition for rehearing en banc is
also denied. Judge Duncan wrote an opinion concurring in the
denial of rehearing en banc. Judge King wrote an opinion
dissenting from the denial of rehearing en banc, in which Judge
Floyd joined.
For the Court
/s/ Patricia S. Connor, Clerk

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DUNCAN, Circuit Judge, concurring in the denial of rehearing en
banc:
I respect the fervor of the dissent’s compassion for
Ms. Doe. Because, however, of its continued conflation of
standing and exhaustion of administrative remedies and
misidentification of the basis of the majority opinion, I feel
compelled to reiterate the limited issue on which the majority
actually ruled and which the dissent largely ignores.
Because the substantive due process injury Ms. Doe
alleges arises from her desire to access school property
anonymously, a privilege third parties are in a position to
grant, her alleged injury is not directly traceable to the
challenged law. Furthermore, because she must obtain permission
from both the school board and a Virginia court to enter school
property, a decision ordering the school board to adopt a policy
for her to anonymously petition for entrance would not redress
her injury. Indeed, we did find Ms. Doe’s procedural due
process challenge to her classification under the Virginia law
to be justiciable, but we determined, based squarely on Supreme
Court precedent, that she failed to state a claim upon which
relief could be granted.
In the end, it is not this limited ruling, if
correctly read, that is at odds with precedent from this and

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other Circuits: To the contrary, what would indeed break new
ground is the dissent’s proposal that we o’erleap questions of
justiciability to allow registered sex offenders to challenge
policies regulating their entry into schools without our knowing
whether those policies in fact constrain them.

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KING, Circuit Judge, dissenting from the denial of rehearing en
banc:
I have previously expressed my disagreement with the
views of my good friends in the panel majority, see Doe v. Va.
Dep’t of State Police, 713 F.3d 745, 763-74 (4th Cir. 2013)
(King, J., dissenting), and it is mostly for the reasons I
detailed there that I dissent from the Court’s denial of en banc
consideration. Nonetheless, I write again to emphasize that the
majority’s decision sets our court of appeals apart from all
others with respect to the authority afforded the federal
district courts to hear and consider challenges to state
statutes and regulations that may contravene the Constitution.
The majority has identified nothing remarkable about
the particular procedures of which it insists Ms. Doe partake
prior to filing suit. Indeed, it is largely the mundane nature
of the remedies prescribed by the Commonwealth that threatens
the upheaval of constitutional litigation there and in its
sister states of the Fourth Circuit. There is simply no
principled basis to distinguish the roadblocks Ms. Doe now faces
from any others that might be erected in another case to defeat
federal jurisdiction. Each state within our purview seeking to
reduce the costs and expenses of federal litigation can now, by
simply enacting a statute or promulgating a regulation, require

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that any cause of action cognizable pursuant to 42 U.S.C. § 1983
be first presented to a Board of Claims, interposing such myriad
levels of administrative and judicial appeals as may be
necessary to frustrate and defeat all but the most tenacious of
claimants.
Of course, those sorts of maneuvers are strictly
forbidden by Patsy v. Board of Regents of the State of Florida,
457 U.S. 496 (1982), but that case now holds no sway in our
Circuit, and I can only hope that the Supreme Court will grant
review to reassert its clear precedent and save us from our own
folly. Otherwise, I fear that litigants will suffer serious
repercussions. Just recently, for example, we decided Woollard
v. Gallagher, 712 F.3d 865 (4th Cir. 2013), a § 1983 challenge
to a Maryland handgun permit restriction alleged to have
violated the Second Amendment. One of the plaintiffs was denied
a permit, and, although it seems clear that he could have
immediately sought federal relief, see Moore v. City of
Asheville, 396 F.3d 385, 395 n.4 (4th Cir. 2005), he instead
chose to pursue an administrative appeal to the state review
board. Denied there, the plaintiff elected to forgo proceedings
in the state courts in favor of the federal action. Such a
choice is now foreclosed in the wake of the majority’s decision,

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which abridges our jurisdiction in a manner unforeseen by
Congress and unsanctioned by the Supreme Court. Plainly, that
is not how civil rights litigation is supposed to work.
Suppose the General Assembly had passed a different
statute — or some agency of the executive had promulgated a
regulation — barring access to public school property based on a
person’s race or gender. Would the majority have insisted that
Ms. Doe first plead her case before the school board prior to
seeking intervention from the federal courts? Assuming that
such a statute or regulation, as applied to Ms. Doe, were ab
initio repugnant to the Constitution, the Commonwealth ought
possess no prerogative to compel her, as a federal
jurisdictional predicate, to resort to administrative or
judicial remedies devised at the whim of its legislative or
executive branches.
Section 1983 and Patsy are unquestionably the law of
the land, but the opinions authored by the prevailing panel
members have made a poor outcome worse by refusing to confront
the Supreme Court’s binding precedent. Instead, my colleagues
in the majority have inaptly analyzed this dispute as one
involving constitutional standing, needlessly unsettling that
doctrine as well. Ms. Doe’s is not a difficult case when

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properly viewed in the context of exhaustion, but, evidently,
easy cases can make bad law too.*
* Judge Duncan insists that “the limited issue on which the
majority actually ruled” was “the substantive due process injury
Ms. Doe alleges aris[ing] from her desire to access school
property anonymously.” Ante at 3. If the issue of Ms. Doe’s
preferred anonymity is indeed the only one that the majority
decided, then it needs to go back and finish the case. As I
explained in detail in my dissent from the panel opinion, Ms.
Doe challenged her reclassification as a sexually violent
offender under the substantive due process component of the
Fourteenth Amendment. See Doe, 713 F.3d at 763-64 (King, J.,
dissenting). The majority flatly acknowledged that to be so:
“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 consequences her categorization entails for her ability
to access school and church property.” See id. at 754 (emphasis
added).
In the face of the majority’s offhand, unsupported
supposition that Ms. Doe’s threshold claim had been abandoned, I
demonstrated why it remained very much alive on appeal, see id.
at 765-66 (King, J., dissenting). I was convinced that my
rationale was irrefutable. Evidently it was too much so, in
that the majority made not the slightest attempt to refute it.
Somewhat ironically, I now stand accused of ignoring the
majority’s discussion of Ms. Doe’s anonymity claim. See ante at
3. I am constrained to plead not guilty by reason of
irrelevancy, in that the majority had no occasion to decide how
Ms. Doe could obtain a variance from the consequences of her
reclassification until it actually addressed and determined
whether the initial act of reclassification gave rise to a
constitutional claim to begin with. It would certainly make our
lives easier as judges if we were free to resolve only the easy
issues in a case and disregard the hard ones, but, alas, we
cannot do so and remain faithful to our constitutional charge to
decide cases and controversies as they are presented to us.
Judge Duncan’s concurrence does lend some insight as to how
future panels may attempt to marginalize this precedent, but to
say that Ms. Doe’s case is merely about whether and how she may

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That said, my position has not prevailed. So I can
only sympathize with future panels of this Court, which will
find it all but impossible to distinguish the majority’s
decision as an outlier. There will come a day — sooner rather
than later — when at last we perceive the need to overrule this
panel precedent, but that day will have come too late for Ms.
Doe and her children.
I would grant rehearing en banc. My good friend and
colleague Judge Floyd joins in this dissenting opinion.
be excepted under state law from the consequences of her
reclassification requires one to swallow hard and refuse to
accept at face value the facts even as the majority has
described them.

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