Colin Andrew v. MATT LOHR, Commissioner, Department of Agriculture & Consumer Services

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1086
COLIN ANDREW,
Plaintiff – Appellant,
v.
MATT LOHR, Commissioner, Department of Agriculture &
Consumer Services; THOMAS MOOREHEAD, President, Sterling
BMW; SALLY WOODSON SPIGLE, President, Rick Woodson Honda;
RICK HOLCOMB, Commissioner, DMV; KENNETH T. CUCCINELLI, II,
Attorney General of Virginia, in his official capacity;
JONATHAN BLANK; TOM HAYMORE; LYNN HOOPER; TK HUGHES; HENRY
JONES; MATT QUEEN; KEVIN REILLY; VINCE SHEEHY; LARRY SHELOR;
D.B. SMIT; DAVID LACY; WANDA LEWARK; CHIP LINDSAY; HUGH
MCCREIGHT; PAT PATRICK; FRANK POHANKA; JOE TATE; JIMMY
WHITTEN; ROBERT WOODALL; TOMMY WOODSON,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:10-cv-00353-HEH)
Submitted: August 15, 2011 Decided: September 2, 2011
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas C. Willcox, Washington, D.C., for Appellant. Kenneth T.
Cuccinelli, II, Attorney General of Virginia, Charles E. James,
Jr., Chief Deputy Attorney General, E. Duncan Getchell, Jr.,

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Solicitor General of Virginia, Stephen R. McCullough, Senior
Appellate Counsel, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Colin Andrew appeals the district court’s order
dismissing his 42 U.S.C. § 1983 (2006) action without prejudice
as unripe for review.* We affirm.
“Ripeness reflects constitutional considerations that
implicate ‘Article III limitations on judicial power,’ as well
as ‘prudential reasons for refusing to exercise jurisdiction.’”
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758,
1767 n.2 (2010) (quoting Reno v. Catholic Soc. Servs., Inc.,
509 U.S. 43, 57 n.18 (1993)). While standing determines who may
bring suit, ripeness dictates when the suit may be brought. See
Miller v. Brown, 462 F.3d 312, 318-19 (4th Cir. 2006). To
determine whether a case is ripe for review, courts consider
“‘the fitness of the issues for judicial decision’ and ‘the
hardship to the parties of withholding court consideration.’”
Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev.
Comm’n, 461 U.S. 190, 200 (1983) (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 149 (1967)). We review de novo a
district court’s dismissal for lack of ripeness. Va. Soc’y for
Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 385-86
* Although Andrew’s brief presents arguments concerning the
“plaintiff class,” he never obtained class certification and,
accordingly, the only interests at stake are his own. See
Baxter v. Palmigiano, 425 U.S. 308, 310 n.1 (1976).

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(4th Cir. 2001). The burden of proving ripeness falls on the
party bringing suit. Miller, 462 F.3d at 319.
We agree with the district court that this case is not
ripe for review. First, the case is not fit for review because
the constitutional violation Andrews alleges “rests upon
contingent future events that may not occur as anticipated, or
indeed may not occur at all.” Texas v. United States, 523 U.S.
296, 300 (1998) (internal quotation marks omitted). Second,
Andrew has demonstrated no hardship. We determine hardship in
this context by considering “the immediacy of the threat and the
burden imposed on the [plaintiffs] who would be compelled to act
under threat of enforcement of the challenged law.” Miller, 462
F.3d at 319. Judged by this standard, this case is clearly
distinguishable from cases where courts have entertained pre-
enforcement statutory challenges. See, e.g., Virginia v. Am.
Booksellers Ass’n, 484 U.S. 383, 386-87 (1986) (permitting pre-
enforcement challenge to statute where plaintiffs were directly
targeted by the statute, would incur significant costs to
comply, and might engage in unnecessary self-censorship); Pierce
v. Soc’y of Sisters, 268 U.S. 510 (1925) (permitting pre-
enforcement challenge to state law requiring students to attend
public school at a future date because of immediate effect in
shifting students to public schools).

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Andrew argues that the doctrine of Ex parte Young, 209
U.S. 123 (1908), provides the district court with jurisdiction
to provide prospective relief. The doctrine is not relevant
here. The Ex parte Young doctrine “permits a federal court to
issue prospective, injunctive relief against a state officer to
prevent ongoing violations of federal law, on the rationale that
such a suit is not a suit against the state for purposes of the
Eleventh Amendment.” McBurney v. Cuccinelli, 616 F.3d 393, 399
(4th Cir. 2010). Virginia has not raised an Eleventh Amendment
defense and the doctrine does not displace ordinary principles
of justiciability.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and would not aid the decisional process.
AFFIRMED

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