Mark McBurney v. Nathaniel Young

Certiorari granted, October 5, 2012
Affirmed by Supreme Court, April 29, 2013
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARK J. MCBURNEY; ROGER W. 
HURLBERT,
Plaintiffs-Appellants,
and
BONNIE STEWART, Professor,
Plaintiff,
v.
NATHANIEL L. YOUNG, Deputy
Commissioner and Director,
Division of Child Support
Enforcement, Commonwealth of
Virginia; THOMAS C. LITTLE, Real
Estate Assessment Division,  No. 11-1099
Henrico County, Commonwealth
of Virginia,
Defendants-Appellees,
and
HON. KENNETH T. CUCCINELLI, II,
Attorney General, Commonwealth
of Virginia; HON. SAMUEL A.
DAVIS, Real Estate Assessment
Division, Henrico County,
Commonwealth of Virginia,
Defendants.

2 MCBURNEY v. YOUNG
THE REPORTERS COMMITTEE FOR 
FREEDOM OF THE PRESS; AMERICAN
SOCIETY OF NEWS EDITORS;
ASSOCIATION OF CAPITOL
REPORTERS AND EDITORS; CITIZEN
MEDIA LAW PROJECT; THE E. W.
SCRIPPS COMPANY; FIRST
AMENDMENT COALITION; HEARST
CORPORATION; MAGAZINE
PUBLISHERS OF AMERICA,
INCORPORATED; MARYLAND D.C.
DELAWARE BROADCASTERS
ASSOCIATION; NBCUNIVERSAL

MEDIA, LLC; THE NATIONAL PRESS
CLUB; NATIONAL PRESS
PHOTOGRAPHERS ASSOCIATION; NPR,
INCORPORATED; NEWSPAPER
ASSOCIATION OF AMERICA; THE
NEWSPAPER GUILD; NORTH JERSEY
MEDIA GROUP, INCORPORATED;
RADIO TELEVISION DIGITAL NEWS
ASSOCIATION; SOCIETY OF
PROFESSIONAL JOURNALISTS;
STUDENT PRESS LAW CENTER; TIME,
INCORPORATED; VIRGINIA
COALITION FOR OPEN GOVERNMENT;
THE WASHINGTON POST,
Amici Supporting Appellants,

MCBURNEY v. YOUNG 3
LOCAL GOVERNMENT ATTORNEYS OF 
VIRGINIA, INCORPORATED; VIRGINIA
MUNICIPAL LEAGUE; VIRGINIA
ASSOCIATION OF COUNTIES,

Amici Supporting Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, Chief District Judge.
(3:09-cv-00044-JRS)
Argued: October 25, 2011
Decided: February 1, 2012
Before NIEMEYER, GREGORY, and AGEE,
Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Niemeyer and Judge Gregory joined.
COUNSEL
ARGUED: Leah Marie Nicholls, INSTITUTE FOR PUBLIC
REPRESENTATION, Georgetown University Law Center,
Washington, DC, for Appellants. Earle Duncan Getchell, Jr.,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-
ginia; Benjamin Adelbert Thorp, IV, OFFICE OF THE
COUNTY ATTORNEY, Henrico, Virginia, for Appellees.
ON BRIEF: Stephen W. Bricker, BRICKER LAW FIRM,
PC, Richmond, Virginia; Brian Wolfman, INSTITUTE FOR
PUBLIC REPRESENTATION, Georgetown University Law
4 MCBURNEY v. YOUNG
Center, Washington, DC, for Appellants. Kenneth T. Cucci-
nelli, II, Attorney General, Stephen R. McCullough, Senior
Appellate Counsel, Craig M. Burshem, Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia; Joseph P. Rapisarda, Jr., County
Attorney, Karen M. Adams, Senior Assistant County Attor-
ney, OFFICE OF THE COUNTY ATTORNEY, Henrico,
Virginia, for Appellees. Lucy A. Dalglish, Mark R. Cara-
manica, Christine L. Beckett, THE REPORTERS COMMIT-
TEE FOR FREEDOM OF THE PRESS, Arlington, Virginia,
for Amici Supporting Appellants; Kevin M. Goldberg,
FLETCHER, HEALD & HILDRETH, PLC, Arlington, Vir-
ginia, for American Society of News Editors, Association of
Capitol Reporters and Editors, and Maryland D.C. Delaware
Broadcasters Association; David Ardia, Citizen Media Law
Project, Berkman Center for Internet & Society, Cambridge,
Massachusetts, for Citizen Media Law Project; David M.
Giles, Cincinnati, Ohio, for The E.W. Scripps Company;
Peter Scheer, First Amendment Coalition, San Rafael, Cali-
fornia, for First Amendment Coalition; Jonathan R. Donnel-
lan, HEARST CORPORATION, New York, New York, for
Hearst Corporation; Christopher J. Nolan, New York, New
York, for Magazine Publishers of America, Incorporated;
Beth R. Lobel, NBCUniversal Media, LLC, New York, New
York, for NBCUniversal Media, LLC; Charles D. Tobin,
HOLLAND & KNIGHT LLP, Washington, D.C., for The
National Press Club; Mickey H. Osterreicher, Buffalo, New
York, for National Press Photographers Association; Joyce
Slocum, Denise Leary, Ashley Messenger, Washington, D.C.,
for NPR, Incorporated; Rene P. Milam, Arlington, Virginia,
for Newspaper Association of America; Barbara L. Camens,
BARR & CAMENS, Washington, D.C., for The Newspaper
Guild-CWA; Jennifer Borg, General Counsel, NORTH JER-
SEY MEDIA GROUP INC., Hackensack, New Jersey, for
North Jersey Media Group, Incorporated; Kathleen A. Kirby,
WILEY REIN LLP, Washington, D.C., for Radio Television
Digital News Association; Bruce W. Sanford, Bruce D.
MCBURNEY v. YOUNG 5
Brown, Laurie A. Babinski, BAKER & HOSTETLER LLP,
Washington, D.C., for Society of Professional Journalists;
Frank D. LoMonte, STUDENT PRESS LAW CENTER,
Arlington, Virginia, for Student Press Law Center; Andrew
Lachow, Vice President and Deputy General Counsel-
Litigation, TIME INC., New York, New York, for Time,
Incorporated; Megan Rhyne, VIRGINIA COALITION FOR
OPEN GOVERNMENT, Williamsburg, Virginia, for Virginia
Coalition for Open Government; Eric N. Lieberman, James A.
McLaughlin, Washington, D.C., for The Washington Post,
Amici Supporting Appellants. R. Lucas Hobbs, ELLIOTT
LAWSON & MINOR, PC, Bristol, Virginia, for Amici Sup-
porting Appellees.
OPINION
AGEE, Circuit Judge:
Mark J. McBurney and Roger W. Hurlbert (collectively
"Appellants") appeal the district court’s award of summary
judgment to the Deputy Commissioner and Director of the
Division of Child Support Enforcement for the Common-
wealth of Virginia and the Director of the Real Estate Assess-
ment Division of Henrico County, Virginia (collectively
"Appellees"). The district court held that Virginia’s Freedom
of Information Act, Va. Code Ann. § 2.2-3700 et seq. (2011),
("VFOIA") does not violate the Appellants’ rights under the
Privileges and Immunities Clause (U.S. Const. art. IV, § 2, cl.
1) or Hurlbert’s rights under the dormant commerce clause of
the United States Constitution. For the reasons set forth
below, we affirm the judgment of the district court.
I.
This case is before us for the second time. Our prior deci-
sion concerned certain preliminary jurisdictional matters
6 MCBURNEY v. YOUNG
regarding parties and claims not at issue in the present appeal.
Of relevance in that proceeding was our determination that
the Appellants had standing to sue the Appellees. McBurney
v. Cuccinelli, 616 F.3d 393 (4th Cir. 2010). We remanded the
case for the district court to consider the Appellants’ claims
on the merits. Id. at 404.
We begin by briefly setting out the statutory framework of
the VFOIA because it is central to the proceedings in this
case. In enacting the VFOIA, the Virginia General Assembly
stated its purpose to:
ensure[ ] the people of the Commonwealth ready
access to public records in the custody of a public
body or its officers and employees, and free entry to
meetings of public bodies wherein the business of
the people is being conducted. The affairs of govern-
ment are not intended to be conducted in an atmo-
sphere of secrecy since at all times the public is to
be the beneficiary of any action taken at any level of
government. Unless a public body or its officers or
employees specifically elect to exercise an exemp-
tion provided by this chapter or any other statute,
every meeting shall be open to the public and all
public records shall be available for inspection and
copying upon request. All public records and meet-
ings shall be presumed open, unless an exemption is
properly invoked.
Va. Code Ann. § 2.2-3700(B), para. 1. The statute provides,
in relevant part:
Except as otherwise specifically provided by law, all
public records shall be open to inspection and copy-
ing by any citizens of the Commonwealth during the
regular office hours of the custodian of such records.
Access to such records shall not be denied to citizens
of the Commonwealth, representatives of newspa-
MCBURNEY v. YOUNG 7
pers and magazines with circulation in the Common-
wealth, and representatives of radio and television
stations broadcasting in or into the Commonwealth.
...
Va. Code Ann. § 2.2-3704(A).
McBurney is a citizen of Rhode Island. He has ties to his
former residence of Virginia through divorce, child custody,
and child support decrees adjudicated in the Commonwealth.
When McBurney’s former wife defaulted on child support
obligations, he asked the Virginia Division of Child Support
Enforcement ("DCSE") to file a petition for child support on
his behalf. Although the petition was eventually filed and
granted, there was a nine-month delay in his ability to collect
child support payments. McBurney then filed a VFOIA
request with the DCSE seeking, inter alia, "all emails, notes,
files, memos, reports, policies, [and] opinions" pertaining to
him, his son, and his ex-wife, as well as "all documents
regarding his application for child support" and the handling
of child support claims where one spouse resides in a foreign
country. McBurney asserts the DCSE possessed documents
that would assist him in determining how his petition was pro-
cessed and why the delay occurred.
The DCSE denied McBurney’s VFOIA request on the
grounds that the information was confidential and protected
under Va. Code Ann. §§ 63.2-102 and -103, and because
McBurney was not a citizen of the Commonwealth of Vir-
ginia. A second substantively identical request was also
denied by DCSE solely on the grounds that McBurney was
not a citizen of the Commonwealth. While McBurney later
sought and acquired most of the requested information under
Virginia’s Government Data Collection and Dissemination
Practices Act, Va. Code Ann. §§ 2.2-3800 et seq., he did not
receive all of the information he had requested in his earlier
VFOIA requests.
8 MCBURNEY v. YOUNG
Hurlbert is a citizen of California and the sole proprietor of
Sage Information Services. Hurlbert is in the business of
requesting real estate tax assessment records for his clients
from state agencies across the United States, including Vir-
ginia. Hulbert filed a VFOIA request for assessment records
for certain real estate parcels in Henrico County, Virginia
with the Henrico County Real Estate Assessor’s Office. Hurl-
bert’s request was denied on the ground that he is not a citizen
of the Commonwealth.
The Appellants subsequently filed an amended verified
complaint in the District Court for the Eastern District of Vir-
ginia seeking declaratory and injunctive relief under 42
U.S.C. § 1983. In their complaint they pled that the "citizens-
only provision [of VFOIA] impermissibily discriminates
against [them] by denying them access to public records
solely because [they] are not Virginia citizens." (J.A. 8A.)
Relying on the Privileges and Immunities Clause, the Appel-
lants asserted that VFOIA impermissibly denies them the
"right to participate in Virginia’s governmental and political
processes" by barring them "from obtaining information from
Virginia’s government." (J.A. 15A-16A.)
Hurlbert also raised a separate claim alleging that VFOIA’s
citizens-only provision "violates the dormant Commerce
Clause because it grants Virginia citizens an exclusive right
of access to Virginia’s public records" and thus "bar[s] [him]
from pursuing any business stemming from Virginia public
records on substantially equal terms with Virginia citizens."
(J.A. 18A.)
As noted earlier, after deciding the preliminary matters
concerning jurisdiction and justiciability, we remanded the
case to the district court for consideration on the merits. Upon
remand, the parties filed cross motions for summary judg-
ment. The district court granted summary judgment to the
Appellees, holding that VFOIA’s citizens-only provision did
not violate the Appellants’ rights under the Privileges and
MCBURNEY v. YOUNG 9
Immunities Clause or Hurlbert’s rights under the dormant
Commerce Clause. McBurney v. Cuccinelli, 780 F. Supp. 2d
439 (E.D. Va. 2011).
First, the district court held that the Appellants failed to
show that VFOIA’s citizens-only provision burdened a funda-
mental right protected by the Privileges and Immunities
Clause. The court rejected two of the asserted rights, which it
identified as access to government information and advocacy
for one’s own economic interests, as concepts that did not fall
within the scope of the Privileges and Immunities Clause. Id.
at 447-51.
Separately, the district court determined that Hurlbert was
"engage[d] in a common calling within the meaning of the
Privileges and Immunities Clause." Id. at 447. However, the
district court found that the VFOIA did not infringe Hurl-
bert’s right to pursue a common calling: "VFOIA’s distinction
between citizens and noncitizens is not a regulation of busi-
ness and does not constitute discrimination pertaining to a
common calling. The statute’s effect on Hurlbert’s ability to
practice his common calling is merely incidental." Id.The district court also noted that VFOIA did not infringe
McBurney’s ability to access Virginia’s courts because "if
McBurney were to file a lawsuit in Virginia, he would be
treated the same as a citizen litigant." Id. at 449. Distinguish-
ing the fundamental right of access to courts under the Privi-
leges and Immunities Clause from the sort of claim
McBurney asserted, the district court noted that access to
"documents to help decide whether he should file a lawsuit,"
was something "the Constitution does not require that nonciti-
zens be given." Id.Because the district court concluded VFOIA did not violate
the Appellants’ fundamental rights under the Privileges and
Immunities Clause, it did "not reach the issues of whether
Virginia has a substantial reason for discriminating against
10 MCBURNEY v. YOUNG
noncitizens with respect to requesting public records or
whether the discrimination bears a substantial relationship to
the state’s objectives," both of which would also have been
necessary for the Appellants’ claims to succeed. Id. at 451.
The district court then turned to Hurlbert’s contention that
VFOIA violates the dormant commerce clause because it neg-
atively impacts his ability to pursue his business in Virginia
on substantially equal terms as Virginia citizens. Because the
"VFOIA does not implicate principles of economic protec-
tionism" and its "purpose is not to protect in-state business,
but, instead, . . . to hold government officials accountable and
prevent secrecy in government," the court rejected this argu-
ment. Id. at 453. The district court concluded that while the
VFOIA "may have some incidental impact on out-of-state
business, the goal is not to favor Virginia business over non-
Virginia business" and thus the statute did not violate the dor-
mant Commerce Clause. Id.Having found no infringement of either the Appellants’
rights under the Privileges and Immunities Clause or Hurl-
bert’s rights under the dormant Commerce Clause, the district
court granted the Appellees’ motion for summary judgment.
The Appellants noted a timely appeal and we have jurisdic-
tion under 28 U.S.C. § 1291.
II.
Raising the same arguments they did in the district court,
the Appellants appeal the district court’s rejection of their
claim that the VFOIA’s citizens-only provision violates the
Privileges and Immunities Clause.1 In addition, Hurlbert chal-
1
Appellants do not contend that they fall under the media provision or
otherwise make any argument related to that portion of the VFOIA.
Instead, they direct their contentions to the VFOIA’s general policy of
providing records solely to "citizens of the Commonwealth." Cf. Va. Code
Ann. § 2.2-3704(A).
MCBURNEY v. YOUNG 11
lenges the district court’s determination that the provision
does not violate the dormant Commerce Clause.
We review the constitutionality of a statute de novo,
McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 (4th
Cir. 1995), and now consider the two constitutional arguments
raised by the Appellants in turn.
A. The Privileges and Immunities Clause
The Privileges and Immunities Clause of Article IV of the
United States Constitution provides: "The Citizens of each
State shall be entitled to all Privileges and Immunities of Citi-
zens in the several States."2 U.S. Const. art. IV, § 2, cl. 1.
"The object of the Privileges and Immunities Clause is to
‘strongly . . . constitute the citizens of the United States [as]
one people,’ by ‘plac[ing] the citizens of each State upon the
same footing with citizens of other States, so far as the advan-
tages resulting from citizenship in those States are con-
cerned.’" Lunding v. N.Y. Tax Appeals Tribunal, 522 U.S.
287, 296 (1998) (citing Paul v. Virginia, 75 U.S. (8 Wall.)
168, 180 (1868)). The Clause thus "provides important pro-
tections for nonresidents who enter a State," and while
Amici supporting the Appellants on appeal constitute a number of
media organizations and First Amendment public interest organizations.
While they join the Appellants in arguing that the citizens-only limitation
violates the Privileges and Immunities Clause, some of them also appear
to represent different interests than the Appellants given that they may fall
under the media exception to the VFOIA. Because the contours of the
media exception are not at issue with regard to the Appellants, we need
not consider it, nor do we consider whether Amici could raise distinct
arguments as to the applicability of the citizens-only provision of the
VFOIA to their own situations. This opinion considers only the arguments
the Appellants raise regarding the constitutionality of the VFOIA.
2
In the Privileges and Immunities Clause context, "citizen" and "resi-
dent" are interchangeable terms. Supreme Court of N.H. v. Piper, 470 U.S.
274, 279 n.6 (1985).
12 MCBURNEY v. YOUNG
"[t]hose protections are not ‘absolute,’ . . . the Clause ‘does
bar discrimination against citizens of other States where there
is no substantial reason for the discrimination beyond the
mere fact that they are citizens of other States." Saenz v. Roe,
526 U.S. 489, 502 (1999) (citations omitted).
The Supreme Court has articulated a two-step inquiry to
determine whether "claims that a citizenship or residency
classification offends privileges and immunities protections."
Supreme Court of Va. v. Friedman, 487 U.S. 59, 64 (1988).
First, the activity in question must be sufficiently
basic to the livelihood of the Nation . . . as to fall
within the purview of the Privileges and Immunities
Clause . . . . Second, if the challenged restriction
deprives nonresidents of a protected privilege, [the
court] will invalidate it only if [it] conclude[s] that
the restriction is not closely related to the advance-
ment of a substantial state interest.
Id. at 64-65 (internal citations and quotation marks omitted).
Although the Privileges and Immunities Clause "establishes
a norm of comity," it does not "specify[ ] the particular sub-
jects as to which citizens of one State coming within the juris-
diction of another are guaranteed equality of treatment."
Austin v. New Hampshire, 420 U.S. 656, 660 (1975). It has
been left to the Supreme Court and lower courts to define the
scope of the Privileges and Immunities Clause, as "its con-
tours . . . are not well developed." Baldwin v. Fish & Game
Comm’n of Mont., 436 U.S. 371, 379-80 (1978).
Significantly, the "fundamental rights" protected under the
Privileges and Immunities Clause are not identical to the "fun-
damental rights" protected by other constitutional provisions
and cover a much narrower range of activity. The Privileges
and Immunities Clause is geared toward
MCBURNEY v. YOUNG 13
secur[ing] to citizens of each State in the [United]
States . . . those privileges and immunities which are
common to the citizens in the latter States under
their constitution and laws by virtue of their being
citizens. Special privileges enjoyed by citizens in
their own States are not secured in other States by
this provision.
Paul, 75 U.S. (8 Wall.) at 180. As a result, the Supreme
Court’s jurisprudence has recognized that states are permitted
to distinguish between residents and nonresidents so long as
those distinctions do not "hinder the formation, the purpose,
or the development of a single Union of those States. Only
with respect to those ‘privileges’ and ‘immunities’ bearing
upon the vitality of the Nation as a single entity must the State
treat all citizens, resident and nonresident, equally." Baldwin,
436 U.S. at 383 (emphasis added). Toward that end, the
Supreme Court has "held that certain rights are fundamental
[under the Privileges and Immunities Clause], including the
rights to: (1) practice a trade or profession; (2) access courts;
(3) transfer property; and (4) obtain medical services."
McBurney, 780 F. Supp. 2d at 447 (internal citations omitted).
In arguing for reversal of the grant of summary judgment
to the Appellees, the Appellants contend the VFOIA infringes
on rights they identify as "equal access to information,"
"equal access to courts,"3 and the "ability to pursue their eco-
nomic interests on equal footing." Separately, Hurlbert argues
the VFOIA impermissibly burdens his right to pursue a com-
mon calling. McBurney also posits that the VFOIA infringes
his "ability to advocate for his [political] interests and the
interests of others similarly situated." (Opening Br. 26.) Only
two of these asserted rights — the right to access courts and
the right to pursue a common calling — are among the limited
3
Although Appellants jointly raise this argument in the opening brief,
it appears that McBurney was the only one to advance this claim in the
district court.
14 MCBURNEY v. YOUNG
"fundamental rights" the Supreme Court has previously iden-
tified as protected by the Privileges and Immunities Clause.
1. The Right to Pursue a Common Calling
Hurlbert contends the VFOIA unduly burdens his right to
pursue a common calling because it prevents him from prac-
ticing his trade, which he defines as obtaining records related
to real property on behalf of his clients, in Virginia. Even
though the VFOIA does not regulate professions, Hurlbert
asserts the statute nonetheless burdens his right to pursue a
common calling because it prevents him from using his pri-
mary means of acquiring government records, that is, by per-
sonally filing a freedom of information act request. He further
asserts the district court erred in concluding VFOIA did not
impermissibly infringe on his claimed fundamental right
because any effect was "merely incidental." This is so, Hurl-
bert contends, because upon showing any burden to a funda-
mental right protected by the Privileges and Immunities
Clause, the analysis shifts to whether the state can justify its
action.
The ability to pursue one’s profession or "common calling"
is one of the limited number of foundational rights protected
under the Privileges and Immunities Clause. Toomer v. Wit-
sell, 334 U.S. 385, 396 (1948); see also United Bldg. & Con-
str. Trades Council v. Camden, 465 U.S. 208, 219 (1984)
("Certainly, the pursuit of a common calling is one of the
most fundamental of those privileges protected by the
Clause."). Indeed, "[m]any, if not most, of [the Supreme
Court’s] cases expounding the Privileges and Immunities
Clause have dealt with this basic and essential activity." Cam-
den, 465 U.S. at 219. The Supreme Court has found the fol-
lowing provisions to impermissibly burden an individual’s
right to pursue a common calling — requiring nonresidents to
pay substantially more for annual licenses to trade in goods
(Ward v. Maryland, 79 U.S. (12 Wall.) 418 (1870)); requiring
nonresidents to pay substantially more to engage in a particu-
MCBURNEY v. YOUNG 15
lar profession (Toomer, 334 U.S. 385); requiring nonresident
commercial fisherman to pay ten times more for commercial
fishing licenses (Mullaney v. Anderson, 342 U.S. 415 (1952));
resident-based hiring preferences for employment in the field
of oil and gas development (Hicklin v. Orbeck, 437 U.S. 518(1978)); limiting admission to the practice of law to residents
(Piper, 470 U.S. 274); local rule limiting admission to the
practice of law within a federal district court bar to individu-
als who lived in or maintained an office in the state, even if
nonresidents could be admitted pro hac vice (Frazier v.
Heebe, 482 U.S. 641 (1987)); and limiting admission by
motion to the practice of law to residents, even if nonresidents
could be admitted by examination (Friedman, 487 U.S. 59).
Similarly, in Tangier Sound Waterman’s Ass’n v. Pruitt, 4
F.3d 264 (4th Cir. 1993), we held that a Virginia statute "tri-
pling the nonresident commercial fisherman’s harverster’s
license fee" "effects a restriction" on the "right to earn a liv-
ing." Id. at 265, 266. And in O’Reilly v. Board of Appeals,
942 F.2d 281 (4th Cir. 1991), we held that the county’s use
of residency as a determining factor in awarding Passenger
Vehicle Licenses, which were required for individuals to
operate taxi services within the county, burdened nonresi-
dents’ rights under the Privileges and Immunities Clause. Id.
at 282, 284.
In each instance cited above, the provision at issue directly
prohibited, restricted, or otherwise regulated the ability of a
nonresident to engage in a certain profession or trade within
the state. Each such regulatory enactment was specifically
directed at a commercial activity and differentiated between
residents and nonresidents solely as to the conduct of that
commercial activity. This fact fundamentally distinguishes the
typical provision that implicates the Privileges and Immuni-
ties Clause in the context of a common calling from the stat-
ute at issue here.
The VFOIA does not regulate anyone’s qualifications or
prerequisites to enter into or engage in any profession or trade
16 MCBURNEY v. YOUNG
within Virginia. It does not act as a wholesale barrier to enter-
ing a business, nor does it establish a license, fee, or other
burden to nonresidents entering or engaging in a profession.
On its face, it is clear the VFOIA addresses no business, pro-
fession, or trade. Simply put, there is something inherently
and qualitatively different about the VFOIA as compared to
any of the provisions considered by the Supreme Court in the
context of the Privileges and Immunities Clause’s right to
pursue a common calling.
Indeed, no Supreme Court case or precedent within this
Circuit has ever held that a statute whose purpose and lan-
guage is unrelated to engaging in a particular profession,
trade, or livelihood implicates the right to pursue one’s com-
mon calling for purposes of the Privileges and Immunities
Clause. Hurlbert nonetheless contends that because he is
unable to file VFOIA requests on behalf of his clients while
Virginia residents could do so for their clients, the VFOIA’s
citizens-only provision implicates nonresidents’ (and specifi-
cally his own) right to pursue a common calling. At bottom,
Hurlbert argues that even if the multiple thousands of VFOIA
requests annually are unrelated to a common calling, the sin-
gle instance of a tangential effect on him is sufficient to inval-
idate the VFOIA’s citizens-only provision. We disagree.
While it may be true that VFOIA coincidentally limits a
method by which Hurlbert conducts some of his business, it
does not follow that the VFOIA impermissibly burdens his
ability to pursue his common calling within the Common-
wealth in a Privileges and Immunities Clause context. As the
district court found, "[t]he statute’s effect on Hurlbert’s ability
to practice his common calling is merely incidental." 780 F.
Supp. 2d at 447. We agree.
Nothing in the language of the VFOIA prohibits Hurlbert
from pursuing his profession in Virginia, or regulates his abil-
ity as a noncitizen to enter or engage in business there. Any
effect on Hurlbert by the VFOIA is by happenstance; a cir-
MCBURNEY v. YOUNG 17
cumstance never recognized by the Supreme Court in its Priv-
ileges and Immunities Clause case law. While the Supreme
Court’s jurisprudence recognizes that burdens short of a
"wholesale restriction[ ]" fall within the right to pursue a com-
mon calling, no case has ever struck down a statute or regula-
tion with such an indirect and tangential relationship to the
practice of a trade or profession. See Friedman v. Supreme
Court of Va., 822 F.2d 423, 427 (4th Cir. 1987), aff’d by
Friedman, 487 U.S. 59. Unlike the provision in Friedman,
which restricted the method by which a noncitizen attorney
could enter into the practice of law in the state, the VFOIA
simply does not regulate Hurlbert’s ability to enter into or
pursue his trade or profession in Virginia. At most, the
VFOIA limits one method by which Hurlbert may carry out
his business and thus has an "incidental effect" on his com-
mon calling in Virginia. But the ease or method of carrying
out one’s work within a state is several steps removed from
the right to work within the state on "terms of substantial
equality" as residents in the first instance. See Toomer, 334
U.S. at 396. As such, we conclude the VFOIA does not impli-
cate Hurlbert’s right to pursue a common calling under the
Privileges and Immunities Clause and the district court did
not err in so holding.
2. Other Claimed Privileges and Immunities Clause Rights
To support their contention that VFOIA infringes a pro-
tected right they enunciate as "equal access to information,"
the Appellants rely on the Third Circuit’s decision in Lee v.
Minner, 458 F.3d 194 (3d Cir. 2006). There, the Third Circuit
held that Delaware’s Freedom of Information Act violated the
Privileges and Immunities Clause by limiting access to public
records to Delaware citizens. Id. at 195. The court concluded
that "[e]ffective advocacy and participation in the political
process" requires "access to public records" and thus is an
"‘essential activity’ which ‘bear[s] upon the vitality of the
Nation as a single entity.’" Id. at 200. The Appellants assert
that VFOIA similarly burdens their ability to obtain public
18 MCBURNEY v. YOUNG
records and "advocate for their interests on equal footing with
Virginia citizens." (Opening Br. 23.)
Appellants’ reliance on Lee is misplaced for at least two
reasons. First, as out-of-circuit authority, it is not binding on
this Court. Although the Third Circuit traced its analysis to
general principles from Privileges and Immunities Clause
jurisprudence, the specific right that Lee identified is not one
previously recognized by the Supreme Court, or any other
court, as an activity within the scope of the Privileges and
Immunities Clause. Second, even were we to follow Lee’s
rationale, that case is materially distinguishable from the situ-
ation presented by the Appellants. The right identified in Lee
— "to engage in the political process with regard to matters
of both national political and economic importance," id. at
199 — is not the same right the Appellants advance. By con-
trast, the Appellants want access to information of personal
import rather than information to advance the interests of
other citizens or the nation as a whole, or that is of political
or economic importance. Thus, the "right" the Third Circuit
identified in Lee, and the basis for concluding it implicates the
Privileges and Immunities Clause, does not apply to the case
at bar. The Appellants assert a generalized right to access
information that reaches far more broadly than even Lee set
forth. For these reasons, we find Appellants’ argument that
Lee’s rationale applies here unpersuasive.
To the extent Appellants urge us to adopt the position that
there is a "broad right of access to information" stemming
from the policy of open government undergirding freedom of
information acts generally and grounded in "the First Amend-
ment’s guarantees of free speech and free press," we are simi-
larly not persuaded. (Cf. Opening Br. 25.) While the
Appellants may well be correct that access to public records
is of "increasing importance . . . in the information age," that
assertion misses the salient inquiry. (See Opening Br. 26 (cita-
tion omitted).)
MCBURNEY v. YOUNG 19
The Supreme Court’s Privileges and Immunities Clause
jurisprudence simply does not lead to the conclusion Appel-
lants advance. As the Supreme Court in Baldwin observed:
It has not been suggested . . . that state citizenship or
residency may never be used by a State to distin-
guish among persons. Suffrage, for example, always
has been understood to be tied to an individual’s
identification with a particular State. No one would
suggest that the Privileges and Immunities Clause
requires a State to open its polls to a person who
declines to assert that the State is the only one where
he claims a right to vote. The same is true as to qual-
ification for an elective office of the State. Nor must
a State always apply all its laws or all its services
equally to anyone, resident or nonresident, who may
request it to do so. Some distinctions between resi-
dents and nonresidents merely reflect the fact that
this is a Nation composed of individual States, and
are permitted; other distinctions are prohibited
because they hinder the formation, the purpose, or
the development of a single Union of those States.
Only with respect to those "privileges" and "immuni-
ties" bearing upon the vitality of the Nation as a sin-
gle entity must the State treat all citizens, resident
and nonresident, equally.
436 U.S. at 383 (internal citations omitted). Access to a
state’s records simply does not "bear[ ] upon the vitality of the
Nation as a single entity" such that VFOIA’s citizen-only pro-
vision implicates the Privileges and Immunities Clause. Cf. id.A sidebar to this argument is McBurney’s assertion that the
VFOIA burdens his "ability to advocate for his interests and
the interests of others similarly situated." (Opening Br. 26.)
McBurney claims on brief that the district court read his
VFOIA request too narrowly and that because he sought doc-
uments regarding DCSE processing of child support cases
20 MCBURNEY v. YOUNG
generally, and not just as related to his own case, he was not
permitted to "take part in an interstate dialogue regarding state
child support practices that directly affect his life and income,
as well as the life and income of others." (Opening Br. 27.)
However, McBurney’s complaint belies his assertion on
appeal that he was attempting to advance an interest beyond
his personal one. In the complaint, McBurney only asserted a
Privileges and Immunities Clause claim on his own behalf,
noting that without the information he sought, he cannot "par-
ticipate in Virginia’s governmental and political processes,"
"cannot advocate effectively on his own behalf, cannot invoke
any of Virginia’s dispute resolution procedures for dispute
resolution, and cannot resolve the issues surrounding his child
support application." (J.A. 15A-17A.) McBurney did not pur-
port to be acting on behalf of others similarly situated, and
only contended that the VFOIA limited his ability to advance
his own interests. McBurney never argued before the district
court that he sought to advance the interests of those "simi-
larly situated."
McBurney’s argument rests then on the assertion of a right
"to advocate for his interests," a right that has not directly
been recognized under the Privileges and Immunities Clause.
To the extent McBurney’s argument encompasses a general
right of access to public records, that argument fails for the
reasons set forth previously. To the extent it overlaps with a
right to access to courts, that argument fails for the reasons set
forth below. In addition, and contrary to McBurney’s conten-
tion, the VFOIA’s citizen’s-only provision does not bar him
from engaging in the political process, advocating his own
interests, or advancing his political or legal arguments within
the Commonwealth. For all of these reasons, we also reject
McBurney’s argument that VFOIA impermissibly restricts his
ability to advocate his own and others’ interests.
Appellants next contend that VFOIA implicates their "right
of equal access to courts" because "VFOIA denies noncitizens
MCBURNEY v. YOUNG 21
access to public records needed to prepare and file meaningful
legal papers in suits against Virginia public officials." (Open-
ing Br. 28.) However, what the Appellants invoke is some-
thing much different than any court access right previously
recognized under the Privileges and Immunities Clause.
The Supreme Court has long held that the Privileges and
Immunities Clause protects the right of a citizen of one state
to access the courts of another state. Canadian N. Railway Co.
v. Eggen, 252 U.S. 553, 560 (1920) (recognizing the "right of
a citizen of one state . . . to institute and maintain actions of
any kind in the courts of another") (internal quotation marks
and citation omitted). Nothing in VFOIA directly or indirectly
speaks to the Appellants’ ability to file a proceeding in any
court or otherwise enforce a legal right within Virginia.
Access to courts has never been interpreted to mean that states
must provide individuals with access to public records that
may or may not lead to discovery of a potential legal claim.
We decline to do so here. The Privileges and Immunities
Clause is not a mechanism for pre-lawsuit discovery, and
access to public records as part of the preparation for possible
litigation is not "sufficiently basic to the livelihood of the
Nation" so as to fall within the protection of the Privileges
and Immunities Clause. Cf. Friedman, 487 U.S. at 65.
Citing Pruitt, the Appellants also assert that VFOIA
infringes on their "ability to pursue their economic interests
on equal footing with Virginia residents." (Opening Br. 29.)
But Pruitt is a common calling case and does not set forth
some novel generic right to pursue "economic interests" under
the Privileges and Immunities Clause. 4 F.3d at 266. Appel-
lants’ arguments related to a right to pursue economic inter-
ests largely mirror the arguments they make with regard to
other rights — for McBurney, the ability to access courts on
equal footing as Virginia citizens, and for Hurlbert, the right
to pursue a common calling. We find no support in the rele-
vant case law to identify a new right to pursue economic
22 MCBURNEY v. YOUNG
interests within the ambit of the Privileges and Immunities
Clause. Accordingly, this argument also fails.
For the foregoing reasons, we conclude the district court
did not err in concluding that the VFOIA does not infringe on
any of the Appellants’ fundamental rights or privileges pro-
tected by the Privileges and Immunities Clause. Accordingly,
we need not address the parties’ arguments regarding the rest
of the Supreme Court’s test for whether a provision violates
the Clause. Having failed to satisfy the first part of that test,
Appellants’ claim that the VFOIA violates the Privileges and
Immunities Clause cannot succeed as a matter of law.
B. Dormant Commerce Clause
Hurlbert lastly contends the district court erred in conclud-
ing the citizens-only provision of VFOIA does not violate the
dormant Commerce Clause. Dormant Commerce Clause juris-
prudence arises as a "negative implication" of the Constitu-
tion’s Commerce Clause, U.S. Const. art. I, § 8, cl. 3, which
empowers Congress "[t]o regulate Commerce . . . among the
several States." See Dep’t of Revenue of Ky. v. Davis, 553
U.S. 328, 337 (2008) (quoting U.S. Const. art. I, § 8, cl. 3).
The dormant Commerce Clause restrains "the several States"
by limiting "the power of the States to erect barriers against
interstate trade." Dennis v. Higgins, 498 U.S. 439, 446 (1991)
(internal quotation marks omitted). And it "is driven by con-
cern about economic protectionism—that is, regulatory mea-
sures designed to benefit in-state economic interests by
burdening out-of-state competitors." Davis, 553 U.S. at 337-
38 (internal quotation marks omitted) (emphasis added).
There are two "tiers" in analyzing dormant Commerce
Clause claims, depending on the type of burden at issue. The
first tier applies "where a state law discriminates facially, in
its practical effect, or in its purpose" against interstate com-
merce. Envtl Tech. Council v. Sierra Club, 98 F.3d 774, 785
(4th Cir. 1996). Under such first tier review, "‘discrimination’
MCBURNEY v. YOUNG 23
simply means differential treatment of in-state and out-of-
state economic interests that benefits the former and burdens
the latter." United Haulers Ass’n v. Oneida-Herkimer Solid
Waste Mgmt. Auth., 550 U.S. 330, 338 (2007). The principle
is grounded in the belief that "[t]he mere fact of nonresidence
should not foreclose a producer in one State from access to
markets in other States" and it prohibits states from "enact[-
ing] laws that burden out-of-state producers or shippers sim-
ply to give a competitive advantage to in-state businesses."
Granholm v. Heald, 544 U.S. 460, 472 (2005). "Unless dis-
crimination is demonstrably justified by a factor unrelated to
economic protectionism, a ‘discriminatory law is virtually per
se invalid.’" Brown v. Hovatter, 561 F.3d 357, 363 (4th Cir.
2009) (quoting Davis, 553 U.S. at 338).
The second tier of dormant Commerce Clause analysis is
commonly called the Pike test. See Pike v. Bruce Church,
Inc., 397 U.S. 137 (1970). Used in the absence of "discrimina-
tion for the forbidden purpose," the Pike analysis requires
courts to consider "whether the state law[ ] unjustifiably . . .
burden[s] the interstate flow of articles of commerce." Brown,
561 F.3d at 363 (quotation marks and citation omitted). In
second tier analysis, the regulatory measure at issue is not
scrutinized as strictly as under the first method and "will be
upheld unless the burden imposed on [interstate] commerce is
clearly excessive in relation to the putative local benefits." Id.
at 363 (quoting Pike, 397 U.S. at 142).
Hurlbert asserts that the district court erred in applying the
second tier analysis instead of first tier analysis, and that
under the first tier analysis, VFOIA violates the dormant
Commerce Clause. Hurlbert contends VFOIA is per se uncon-
stitutional under first tier analysis because it facially discrimi-
nates by "expressly guarantee[ing] access to public records
only to Virginia citizens and authoriz[ing] the state to bar
noncitizens." (Opening Br. 38.) At the very least, he asserts,
VFOIA discriminates in effect because it "den[ies] access to
records to noncitizens who seek to use public records for
24 MCBURNEY v. YOUNG
commercial purposes while allowing unfettered access to in-
state requestors with similar economic interests." (Opening
Br. 38-39.)
Hurlbert’s argument fails because it is not enough that a
statute discriminates on the basis of citizenship for it to offend
dormant Commerce Clause principles. Rather, the challenged
statute must discriminate "against interstate commerce" or
"out-of-state economic interests." Cf. United Haulers Ass’n,
550 U.S. at 338.4 Although the VFOIA discriminates against
noncitizens of Virginia, it does not discriminate "against inter-
state commerce" or "out-of-state economic interests." The
object of the VFOIA is to provide a mechanism for access and
copying of public records to Virginia citizens to reflect that
"[t]he affairs of government are not . . . conducted in an atmo-
sphere of secrecy . . . ." Va. Code Ann. § 2.2-3700(B), para.
1. The VFOIA is wholly silent as to commerce or economic
interests, both in and out of Virginia. Therefore, the VFOIA
does not facially, or in its effect, discriminate against inter-
state commerce or out-of-state economic interests.
Any effect on commerce is incidental and unrelated to the
4
As we have previously noted, "[t]he clearest example of a state law that
violates the Dormant Commerce Clause is one that facially discriminates
against interstate commerce, such as a protective tariff or customs duty.
Even a facially neutral state law, however, violates the Dormant Com-
merce Clause ‘when its effect is to favor instate economic interests over
out-of-state interests.’" DIRECTV, Inc. v. Tolson, 513 F.3d 119, 122 (4th
Cir. 2008) (emphases added); see also Camps Newfound/Owatonna, Inc.
v. Town of Harrison, Me., 520 U.S. 564, 575-76 (1997) ("It is not neces-
sary to look beyond the text of this statute to determine that it discrimi-
nates against interstate commerce. The Maine law expressly distinguishes
between entities that serve a principally interstate clientele and those that
primarily serve an intrastate market, singling out camps that serve mostly
in-staters for beneficial tax treatment, and penalizing those camps that do
a principally interstate business. As a practical matter, the statute encour-
ages affected entities to limit their out-of-state clientele, and penalizes the
principally nonresident customers of businesses catering to a primarily
interstate market.").
MCBURNEY v. YOUNG 25
actual language of VFOIA or its citizens-only provision. As
we have previously observed:
The dormant Commerce Clause is implicated by bur-
dens placed on the flow of interstate commerce—the
flow of goods, materials, and other articles of com-
merce across state lines. And it is a trade barrier to
the free flow of goods, materials, and other articles
of commerce across state lines that violates the dor-
mant Commerce Clause. The Clause does not pur-
port to . . . protect the participants in intrastate or
interstate markets, nor the participants’ chosen way
of doing business.
Brown, 561 F.3d at 364 (internal citations omitted) (second
emphasis added). Nothing in VFOIA burdens "the flow of
interstate commerce." At most, it prevents Hurlbert from
using his "chosen way of doing business," but it does not pre-
vent him from engaging in business in the Commonwealth.
The VFOIA simply does not fall within the type of provision
to which the first tier test of analyzing dormant Commerce
Clause claims applies. Hurlbert’s argument that the district
court erred in applying the second tier, rather than first tier,
analysis thus fails.
Significantly, Hurlbert’s opening brief does not challenge
the district court’s application of the second tier analysis. It
only contends that the "district court erred by not applying
rigorous scrutiny to VFOIA’s citizens-only provision and
instead applying the Pike balancing analysis reserved for
evenhanded statutes." (Opening Br. 40.) Having rejected the
challenge Hurlbert makes to the district court’s analysis, we
need not go beyond it to consider how the court undertook the
Pike analysis because Hurlbert has waived any challenge to
that component of the district court’s analysis by not raising
it in his opening brief. See Fed. R. App. P. 28(a)(9)(A) (stat-
ing that an appellant’s opening brief must contain the "appel-
lant’s contentions and the reasons for them"); IGEN Int’l, Inc.
26 MCBURNEY v. YOUNG
v. Roche Diagnostics GMBH, 335 F.3d 303, 308 (4th Cir.
2003). The district court therefore did not err in rejecting
Hurlbert’s dormant Commerce Clause claim.
III.
For the reasons set forth above, we affirm the district
court’s judgment.
AFFIRMED