IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

(Charlottesville Division)

__________________________________________

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DAMIAN STINNIE,

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DEMETRICE MOORE,

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ROBERT TAYLOR, and

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NEIL RUSSO,

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Individually, and on behalf of all others

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similarly situated

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Plaintiffs,

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v.

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Civ. No: __3_:__1_6__C_V_0__0_0__4

RICHARD D. HOLCOMB,

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4

in his official capacity as the Commissioner

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of the VIRGINIA DEPARTMENT OF

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MOTOR VEHICLES

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Defendant.

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__________________________________________)

CLASS ACTION COMPLAINT

Preliminary Statement

1. The Plaintiffs in this lawsuit are indigent Virginia residents who have suffered indefinite suspension of their driver’s licenses for failure to pay court costs and fines that they could not afford.
2. The Commonwealth of Virginia relies upon driver’s license suspension to coerce payment of money owed to the courts.
3. Those who can afford to pay, generally do.

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4. For those who cannot pay, suspension of their driver’s licenses is automatic and mandatory upon default, without inquiry into the reasons for nonpayment, or consideration of the debtor’s financial circumstances.
5. Hundreds of thousands of people have lost their licenses simply because they are too poor to pay, effectively depriving them of reliable, lawful transportation necessary to get to and from work, take children to school, keep medical appointments, care for ill or disabled family members, or, paradoxically, to meet their financial obligations to the courts.
6. The named Plaintiffs, Damian Stinnie, Demetrice Moore, Robert Taylor, and Neil Russo (collectively, “the Plaintiffs”), for themselves individually and on behalf of a class of additional unnamed plaintiffs similarly situated (“Class” or “Class Members”), submit this Complaint seeking declaratory and injunctive relief against Defendant Richard D. Holcomb, in his official capacity as Commissioner of the Virginia Department of Motor Vehicles (DMV), to address and remedy the systemic, pervasive, and ongoing failure of the Commonwealth to provide basic protections afforded by the Due Process and Equal Protection Clauses of the United States Constitution before taking the harsh enforcement measure of suspending driver’s licenses against indigent people whose poverty prevents them from paying debts owed to courts.
7. The Plaintiffs seek relief from the Commonwealth’s unconstitutional scheme that unfairly punishes them for being poor.
Jurisdiction and Venue 8. The named Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. 9. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. §
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1343(a)(3), because it seeks to redress the deprivation, under color of State law, of rights, privileges, and immunities secured to the named Plaintiffs and Class Members by the Constitution and laws of the United States.
10. This Court has authority to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure.
11. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the named Plaintiffs’ claims occurred in this judicial district, or a substantial part of the property that is the subject of this action (namely, Plaintiffs’ driver’s licenses) is situated in this judicial district.
Parties Plaintiffs
12. Plaintiff Damian Stinnie is a 24-year-old African American man who lives in Charlottesville, Virginia.
13. Mr. Stinnie is indigent within the meaning of Va. Code § 19.2-159. 14. Plaintiff Demetrice Moore is a 33-year-old African American woman who lives in Richmond, Virginia. 15. Ms. Moore is indigent within the meaning of Va. Code § 19.2-159. 16. Plaintiff Robert Taylor is a 28-year-old African American man who lives in Richmond, Virginia. 17. Mr. Taylor is indigent within the meaning of Va. Code § 19.2-159. 18. Plaintiff Neil Russo is a 61-year-old white man who lives in Fluvanna County, Virginia. 19. Mr. Russo is indigent within the meaning of Va. Code § 19.2-159.
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Defendant 20. Defendant Richard D. Holcomb is the Commissioner of the Virginia Department
of Motor Vehicles (“the DMV”). 21. Mr. Holcomb is sued in his official capacity as Commissioner of the DMV. 22. The DMV is the entity responsible for the issuance, suspension, and revocation of
driver’s licenses. 23. As Commissioner of the DMV, Mr. Holcomb is the chief executive officer
responsible for the supervision and management of the DMV and has authority to do all acts necessary or convenient to carry out the powers and duties of the DMV. Va. Code Ann. §§ 46.2200-224.
24. At all times relevant to the events, acts, and/or omissions alleged in this Complaint, Mr. Holcomb has acted under color of State law, pursuant to his authority and responsibility as an official of the Commonwealth of Virginia.
Facts Introduction
25. In order to fund its basic operations, the Commonwealth has steadily increased the amounts that may be taxed as costs against convicted criminal and traffic defendants and tacked on various additional fees.
26. Assessments against criminal and traffic court defendants have risen from $281.5 million in fiscal year 1998 to $618.8 million in 2014. Compensation Board, FY 2014 Fines & Fees Report 2 (2015), http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/RD1792016/$file/RD179.pdf.
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27. Indigent defendants who, because of their inability to afford a lawyer, are appointed an attorney to represent them, are required to reimburse the state for their lawyer’s fees, which can easily run into thousands of dollars.
28. In addition to these and other costs, convicted defendants may also be assessed fines, restitution, and other penalties.
29. Pursuant to § 46.2-395 of the Code of Virginia, the failure of a person to pay fines, costs, forfeitures, restitution, or penalties (collectively, “court debt”) assessed against him or her in a criminal or traffic proceeding automatically results in the indefinite suspension of the person’s driver’s license. See H.J. 69, 2016 Gen. Assembly, Reg. Sess. (Va. 2016).
30. The possession of a valid driver’s license is often essential for people to secure and maintain employment, and the loss of a driver’s license often results in hardship for individuals and their families. Id.
31. Research has consistently found that having a driver’s license can be crucial to an individual’s ability to maintain a job, pursue educational opportunities, and care for family. See “Letter to Colleague” from Vanita Gupta & Lisa Foster, U.S. Department of Justice (Mar. 14, 2016), https://www.justice.gov/crt/file/832461/download.
32. Each year since fiscal year 2010, the Virginia DMV issued more than 360,000 orders of suspension for failure to pay court costs and fines.
33. Currently, more than 940,000 people have a suspended license for nonpayment of court costs and fines.
34. Suspended licenses can trap the poor in an impossible situation: inability to reinstate their licenses without gainful employment, yet inability to work without a license.
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35. Paying off court debt is particularly hard for the nearly one million people living below the federal poverty threshold in Virginia and the many thousands of others living just above it.
36. Suspending licenses as a means of debt collection also puts public safety at risk, because law enforcement resources are devoted to stopping, investigating, and prosecuting suspended drivers who do not present a danger behind the wheel instead of pursuing individuals who do present a danger behind the wheel.
37. Public safety also is put at risk when formerly incarcerated persons leave prison or jails with licenses that are suspended due to court debt, and who therefore often have no source of legal, reliable transportation for finding and maintaining a job. The Named Plaintiffs’ Debts
38. Each of the named Plaintiffs is currently suffering under the indefinite suspension of his or her driver’s license for failure to pay money owed to the Commonwealth’s courts.
39. The Plaintiffs’ licenses were suspended by the Defendant immediately upon their default, without any inquiry into their individual financial circumstances, or the reasons underlying their failure to pay.
40. The Defendant will not reinstate the Plaintiffs’ licenses until they satisfy their court debt entirely, or obtain payment plans from each court to which they are indebted.
41. The Plaintiffs are not able to enter into or maintain payment plans with each court in which they owe because they cannot afford the one-size-fits-all terms that do not take into account their individual financial circumstances.
42. The Plaintiffs were not offered community service, or any other alternatives that would enable them to reinstate their licenses, and are not eligible for restricted licenses.
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43. Should the Plaintiffs ever become eligible to reinstate their licenses, they would first have to pay to the Defendant a reinstatement fee of at least $145.
44. The Plaintiffs would pay their debts and reinstate their licenses if they could afford to do so, but have been unable to acquire the resources to pay and have suffered considerable hardship as a result.
45. The Plaintiffs’ debts continue to increase daily, as interest accrues at an annual rate of 6%. Damian Stinnie
46. Plaintiff Damian Stinnie is 24 years old. 47. Along with his twin brother, Mr. Stinnie grew up in the foster care system in Virginia. 48. Mr. Stinnie graduated from high school with a 3.9 GPA. 49. Mr. Stinnie and his twin have lived together since they both aged out of foster care in 2010. 50. In 2012, Mr. Stinnie was working nearly full-time at Walmart as a retail sales clerk. 51. Mr. Stinnie earned close to minimum wage with no benefits. 52. Mr. Stinnie lost this job in December 2012. 53. During the time he was searching for new employment, Mr. Stinnie received four traffic citations: two in Henrico General District Court (“GDC”) and two in Goochland GDC. 54. In April 2013, after four months of job-searching, Mr. Stinnie found a job as a retail sales clerk at the clothing store Abercrombie & Fitch.
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55. Mr. Stinnie’s hours varied, but he consistently worked less than full time and always earned minimum wage.
56. At most, Mr. Stinnie earned approximately $300 per week. 57. At three separate hearings on different dates between April 2013 and July 2013, Mr. Stinnie was convicted on three of the four traffic citations. 58. The courts did not give Mr. Stinnie any jail time as a result of these convictions. 59. However, the convictions did result in $314 in fines and $187 in costs owed to Henrico GDC and $400 in fines and $101 in costs owed to Goochland GDC. 60. In Goochland, the Goochland GDC found Mr. Stinnie in compliance on one of the two charges, but nevertheless ordered him to pay $10 in costs. 61. All told, the four traffic charges resulted in obligations to pay $1,002.00 in costs and fines, equaling nearly three weeks or more of wages at Mr. Stinnie’s new job, depending on how many hours he was given. 62. At the time these fines and costs were assessed, no court inquired into his ability to pay or took into account the debts he owed to the other court. 63. Mr. Stinnie was not able to pay any of these costs and fines within thirty days. 64. Neither court informed Mr. Stinnie of any alternative options for payment, such as installment or deferred payment plans or community service. 65. Upon information and belief, the Goochland County GDC notified the Defendant of Mr. Stinnie’s default. 66. On May 20, 2013, the Defendant suspended his driver’s license for nonpayment of the $501.00 in costs and fines imposed on April 15, 2013.
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67. The Defendant did not offer Mr. Stinnie an opportunity to demonstrate that he was unable to pay either before or after suspending his license.
68. On May 27, 2013, Mr. Stinnie was stopped by police and cited for violating Va. Code § 46.2-301, driving with a suspended license.
69. At the time, Mr. Stinnie did not know his license was suspended. 70. Mr. Stinnie received a summons to appear in Chesterfield GDC on September 19, 2013. 71. On September 11, 2013, Mr. Stinnie was diagnosed with lymphoma. 72. Mr. Stinnie began receiving treatment immediately, including chemotherapy. 73. On September 19, 2013, and while Mr. Stinnie was in the hospital, the Chesterfield GDC found him guilty in absentia of driving with a suspended license. 74. The court ordered Mr. Stinnie to pay costs of $117.00, including a $35 trial in absence fee, and a fine of $150.00. 75. Upon information and belief, the court did not assess Mr. Stinnie’s ability to pay. 76. In November 2013, Mr. Stinnie left the hospital and moved in with his former foster parents in Louisa County. 77. From November 2013 through the present, Mr. Stinnie has undergone numerous medical treatments, including chemotherapy and radiation and a stem cell transplant during the summer of 2014. 78. Following the stem cell transplant, Mr. Stinnie’s health improved but remained fragile.
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79. Mr. Stinnie and his brother moved in with his great aunt in Charlottesville to be closer to UVA Hospital, until they secured charitable donations to get temporary housing of their own in the Charlottesville area.
80. However, between April and June 2015 the brothers were not able to find housing, even with this assistance.
81. While they were looking for somewhere to stay permanently, they bounced around among the homes of friends and family members.
82. During this time, the brothers lacked a way to travel from bed to bed because they had no access to a vehicle of their own.
83. The brothers pooled their resources to enter into a financing agreement to purchase a used car, which they used to travel between temporary places of residence and medical appointments.
84. Mr. Stinnie’s brother used the car to travel to and from the limited work he was able to find, mostly doing odd jobs.
85. Occasionally, the brothers had to sleep in the car when they were unable to find another place to stay for the night.
86. In July 2015, Mr. Stinnie and his brother entered a housing assistance program with The Haven, a homelessness services agency in Charlottesville.
87. Due to Mr. Stinnie’s still fragile health and homelessness, he received a slot in a program that guaranteed housing assistance for a year.
88. Mr. Stinnie and his brother have used that program to rent an apartment in Charlottesville from July 2015 until the present.
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89. On January 1, 2016, Mr. Stinnie was pulled over at 5:00 AM for speeding on Interstate 64.
90. Mr. Stinnie was driving home after visiting friends and family for the holiday with his brother.
91. The officer cited Mr. Stinnie for reckless driving and driving with a suspended license.
92. On January 8, 2016, the Albemarle County GDC found Mr. Stinnie to be indigent under Va. Code § 19.2-159 and appointed a lawyer to represent him on the charge of driving with a suspended license, which is a class 1 misdemeanor and carries the possibility of incarceration for up to a year.
93. On January 19, 2016, Mr. Stinnie pled guilty to reckless driving and driving while suspended.
94. For the driving while suspended conviction, the court ordered: (1) a period of incarceration for 30 days, with 26 days suspended; (2) a period of driver’s license suspension for 90 days; and (3) payment of $151.00 in costs.
95. The court did not order any fines. 96. For the reckless driving conviction, the court ordered $96.00 in fines and $10 in costs, but no jail time. 97. The court ordered Mr. Stinnie to pay these costs and fines—totaling over $250.00—even though it had already determined he was indigent and too poor to pay for a lawyer to defend him. 98. As is standard practice in this court anytime it orders a defendant who appears in court to pay costs and fines, the court gave Mr. Stinnie 90 days to pay in full.
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99. Mr. Stinnie did not receive any information about alternative payment arrangements.
100. As a result of his conviction, Mr. Stinnie served a weekend in the regional jail. 101. Mr. Stinnie was not able to timely pay the costs and fines he owed from the convictions in Albemarle. 102. Upon information and belief, the Albemarle County GDC notified the Defendant of Mr. Stinnie’s default. 103. On April 19, 2016, the Defendant suspended Mr. Stinnie’s driver’s license for nonpayment of the $257 in costs and fines imposed on January 19, 2016. 104. The Defendant did not offer Mr. Stinnie an opportunity to demonstrate that he was unable to pay either before or after suspending his license. 105. For the past several years, Mr. Stinnie’s only sources of income have been food stamps and Supplemental Security Income (“SSI”), a federal program intended to help people with serious disabilities who have little or no income to meet their basic needs of food, clothing, and shelter. 106. At most, Mr. Stinnie’s SSI payment has reached approximately $750 per month, but at times he has received half this amount to account for housing assistance. 107. Currently, Mr. Stinnie’s housing assistance does not include utility subsidies, and so a portion of his limited income must go towards paying for electricity. 108. In addition, except for the $16 in food stamps he receives monthly, Mr. Stinnie must also cover all of his food and other expenses associated with daily living. 109. Mr. Stinnie also owes approximately $5,000 on the used car.
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110. Mr. Stinnie frequently misses his monthly car payments of $250, but knows that he may have to use it for shelter should he be unable to find housing once his current placement ends in July 2016.
111. As of the filing of this Complaint, Mr. Stinnie owes at least $1,531 in fines and costs to GDCs in Albemarle, Chesterfield, Goochland and Henrico.
112. Mr. Stinnie has been and still is unable to get on a payment plan in any of these courts because they each have highly restrictive payment plan policies that prevent his entry.
113. Goochland GDC does not allow payment plans for debts as old as his. 114. Henrico GDC requires him to pay 20% of the total amount he owes in order to receive a 60-day payment extension, subject to another 60-day extension if he is able to pay another 20% of the total. 115. Additionally, Mr. Stinnie’s debts in Henrico have been sent to a collection agency, and collection agencies have no authority to certify the debtor’s eligibility for license reinstatement to DMV. 116. Chesterfield GDC requires 10% down to receive an additional 90 days to pay, which is based not on his ability to pay but instead on the size of his debt. 117. Albemarle GDC requires a $10 fee to get a six-month extension on payment, subject to court approval. 118. Mr. Stinnie is not eligible for a restricted license because he is not employed, a prerequisite for obtaining a restricted license. Demetrice Moore 119. Plaintiff Demetrice Moore is 33 years old and a resident of Richmond, Virginia.
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120. Ms. Moore is the mother of two children, who are both minors, reside with her, and depend upon her for support.
121. Ms. Moore was convicted in 2002 in Chesterfield County Circuit Court of grand larceny, and later in 2002 of a show cause associated with this same conviction.
122. She served the jail time to which she was ordered. 123. As a result of the 2002 conviction, Ms. Moore was not ordered to pay any restitution or fines, but she was assessed court costs. 124. The biggest component of court costs was reimbursement for the cost of the lawyers that were appointed to represent her because she was indigent. 125. At sentencing, the court did not assess Ms. Moore’s ability to pay these costs. 126. In or around 2004, Ms. Moore relocated from Virginia to New York, and then returned to Virginia in or around 2010. 127. Ms. Moore held a valid New York driver’s license. 128. Once she returned to Virginia, Ms. Moore requested and obtained a compliance summary from the Defendant so that she could learn what she needed to do to obtain a Virginia driver’s license. 129. The compliance summary stated that Ms. Moore was ineligible to drive in Virginia. Upon information and belief, the Defendant suspended Ms. Moore’s eligibility to drive due to Ms. Moore’s inability to pay the 2002 court debt. 130. Upon information and belief, the Defendant did not assess Ms. Moore’s ability to pay before or after suspending her license. 131. Since returning to Virginia, Ms. Moore has attempted to maintain employment in support of her family.
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132. Her employment has included work as a sales associate (clerk) at 7-11, and, more recently, as an in-home certified nursing assistant (CNA) providing care for elderly or disabled people in their homes.
133. Ms. Moore’s most recent placement as an in-home CNA was 30 hours per week for $8 per hour.
134. Ms. Moore’s work as an in-home CNA required her to drive extensively throughout Chesterfield County, Virginia, to private residences.
135. Public transportation is limited in Chesterfield County. 136. Ms. Moore has been convicted several times of driving on a suspended license. 137. Each of these convictions – rooted in Ms. Moore’s suspension for inability to pay court debt – has placed additional court debt on Ms. Moore. 138. When she has faced jail time on driving while suspended charges, Ms. Moore has regularly qualified for court-appointed counsel on the basis of her limited income; yet, no court took her indigence into account when assessing costs and fines or before notifying the Defendant that she had defaulted. 139. When she inquired at Chesterfield County Circuit Courts about payment options, a representative at the court clerk’s office told her that they maintained a one-size-fits-all payment plan of at least $100 per month. 140. Ms. Moore cannot afford the Chesterfield County Circuit Court plan. 141. Ms. Moore filled out a CC-1379 form in Chesterfield County Circuit Court on January 8, 2016, which set up a payment plan of $100 per month effective on that date. 142. No consideration of Ms. Moore’s ability to pay was made, either at the time of setting up this payment plan or otherwise in conjunction with establishing it.
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143. She has since defaulted, due to her inability to keep up with these payments. 144. The notice (“Deferred Payment or Installment Payment Plan Order Conditions”) that the Chesterfield Circuit Court provided to her states that, if she defaults, “[her] license will be suspended and [her] license will not be reinstated until [her] entire fines, costs, forfeitures, restitution and/or penalties are paid in full.” 145. In Chesterfield County General District Court, Ms. Moore was told that a payment plan would require payment of at least $100 per month for that court. 146. Ms. Moore is unable to make such payments. 147. Ms. Moore is currently saddled with substantial debt, in addition to her debt related to unpaid court costs. 148. Ms. Moore accrued $35,000 in student loan debt that she borrowed in pursuit of a medical assistant degree, and additional debt to obtain a vehicle to make her employment-related travel possible. 149. As of the date of filing this complaint, and in addition to this debt, Ms. Moore owes approximately $4,467.08 in costs and fines (and associated interest) to various Virginia courts, including Chesterfield County GDC, Chesterfield County Circuit Court, Hanover County GDC, and Richmond City GDC. 150. Ms. Moore’s most recent conviction for driving on a suspended license was from Chesterfield County GDC on April 7, 2016. 151. Upon information and belief, Chesterfield County General District Court notified the Defendant of Ms. Moore’s default. 152. On or about May 6, 2016, the Defendant suspended Ms. Moore’s driver’s license for nonpayment of the $232 in costs imposed on April 7, 2016.
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153. The Defendant did not offer Ms. Moore an opportunity to demonstrate that she was unable to pay either before or after suspending her license.
154. Ms. Moore was incarcerated for 23 days as a result of this conviction. 155. After she was released from jail, she stopped driving, as she does not want to risk even more incarceration and additional costs and fines for driving while suspended. 156. Ms. Moore does not currently have a job. 157. Ms. Moore cannot take in-home CNA placements in Chesterfield County, because she cannot get to the clients’ homes anymore based on her decision not to drive and be convicted again for driving on a suspended license, rooted in her inability to pay. 158. Ms. Moore’s family’s sole sources of income now are her daughter’s SSI check (roughly $731 per month) and a monthly allocation of food stamps. Robert Taylor 159. Plaintiff Robert Taylor is 28 years old, a resident of Richmond, Virginia, and a veteran who enlisted with the National Guard in 2008 at age twenty. 160. In 2011, Mr. Taylor left the National Guard. 161. Mr. Taylor worked for a temporary work agency from January 2012 through May 2013, and then attended classes at Virginia Commonwealth University (“VCU”) from fall 2013 through May 2014 in pursuit of his bachelor’s degree. 162. In 2014, Mr. Taylor encountered problems with coordinating financial aid to continue his schooling. 163. Mr. Taylor dropped out of school and sought employment so that he could continue paying his rent.
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164. In 2014, Mr. Taylor secured a new part-time job as a customer service representative with T-Mobile.
165. As part of his part-time job with T-Mobile, he was given 18 to 34 hours per week and was paid $9.62 per hour, and later (and at most) $9.93 per hour.
166. On April 20, 2014, Mr. Taylor was pulled over and cited for running a red light. 167. Mr. Taylor was also cited for driving on a license that was suspended for unpaid court debt related to a 2013 conviction for improper license plates. 168. On May 5, 2014, Mr. Taylor managed to have his driver’s license reinstated. 169. On July 9, 2014, Mr. Taylor was found guilty of the April 20, 2014, driving on a suspended license charge. 170. This conviction triggered additional court debt, which Mr. Taylor was unable to pay, as well as a statutory license suspension period of ninety days associated with his prior inability to pay court debt (and the resulting suspension of his driver's license). 171. The court did not assess Mr. Taylor’s ability to pay at sentencing. 172. When Mr. Taylor inquired about payment options, and informed the court of his limited income, the representative at the court clerk’s office suggested to him that they maintained a one-size-fits-all payment plan. 173. Mr. Taylor could not afford this plan. 174. On August 8, 2014, Defendant suspended Mr. Taylor’s driver’s license, based on his inability to pay the July 9, 2014, court debt. 175. The Defendant did not assess Mr. Taylor’s ability to pay before or after suspending his license.
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176. On October 9, 2014, Mr. Taylor was found guilty of the red light charge arising on April 20, 2014.
177. He was not able to pay the resulting court costs and fines within 30 days and was not offered a payment plan that he could afford.
178. Upon information and belief, the Richmond City GDC notified the Defendant of Mr. Taylor’s default.
179. On November 14, 2014, the Defendant again suspended Mr. Taylor’s driver’s license for nonpayment of the $192 in costs and fines imposed on October 9, 2014.
180. The Defendant did not offer Mr. Taylor an opportunity to demonstrate that he was unable to pay either before or after suspending his license.
181. In March 2015, Mr. Taylor finally saved enough money to pay off his debts related to the traffic ticket (October 2014) and the driving while suspended conviction (July 2014) in Richmond City GDC, and paid these debts.
182. However, Mr. Taylor could not reinstate his license due to two additional convictions for driving on a suspended license that he received before he could pay in full.
183. Those convictions resulted in additional court costs and fines that Mr. Taylor could not afford, causing the Defendant to log additional orders of suspension for nonpayment against Mr. Taylor's license.
184. Mr. Taylor lost his job at T-Mobile in November 2015, due to exhaustion of a medical leave of absence.
185. Mr. Taylor has not had a regular income since June 2015, when he first took medical leave, and has had to rely on the kindness of friends to put a roof over his head.
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186. Mr. Taylor is currently saddled with substantial debt, in addition to his debt related to unpaid court debt.
187. Mr. Taylor has accumulated approximately $5,000 in medical expenses from emergency room visits and other hospitalizations during particularly debilitating episodes of mania or depression associated with bipolar disorder.
188. Additionally, he accrued $13,000 in student loan debt that he borrowed to attend VCU.
189. Mr. Taylor’s entire 2015 federal tax refund was withheld for payment toward his educational debt; however, Mr. Taylor still owes nearly $10,700 on his student loans.
190. Mr. Taylor has approximately $5,000 to $6,000 of outstanding credit card debt. 191. In addition to these debts, Mr. Taylor owes approximately $4,386 in costs and fines (and associated interest) to various Virginia courts, including Arlington GDC, Chesterfield County GDC, Henrico County GDC, and Richmond City Circuit Court. 192. Mr. Taylor has been unable to get on a payment plan in the courts in which he owes because he cannot afford their one-size-fits-all terms. 193. For example, Mr. Taylor attempted to a secure a payment plan with the Henrico County GDC, but was told that he was required first to make a substantial down payment before a structured payment plan would be put in place. 194. Mr. Taylor could not afford this initial lump sum payment, and he was denied any payment scheme that he could realistically afford. 195. Similar barriers to payment plans exist in Chesterfield County GDC and Richmond City Circuit Court.
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196. Without a driver’s license, Mr. Taylor has been unable to obtain employment because of difficulties getting to and from job interviews outside of Richmond and because he cannot guarantee prospective employers that he will have reliable transportation if hired.
197. For example, in January 2016, Mr. Taylor applied for a position at an AT&T service location as a customer representative.
198. The position would have been compensated with an annual salary and comprehensive employee benefits.
199. However, Mr. Taylor could not find a way to travel to the interview in Colonial Heights, Virginia, and he was not hired.
200. Mr. Taylor received a tentative job offer from CVS in or about March 2016 to work in one of its stores, but was declined after a background check revealed a pending driving while suspended case against him.
201. Due to Mr. Taylor’s lack of employment, he does not qualify for a restricted license.
202. Mr. Taylor has qualified as indigent since at least 2014, and remains so as of the date of filing this complaint.
203. When he has appeared in court facing the possibility of jail time on driving while suspended charges pending against him, he has qualified repeatedly in multiple jurisdictions for court-appointed counsel on the basis of his limited income.
204. Despite finding him eligible for court-appointed counsel, multiple courts assessed costs and fines against him without taking his ability to pay into account.
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205. Each time the Defendant was notified by a court that Mr. Taylor had defaulted, the Defendant noted an additional order of suspension against Mr. Taylor’s license without conducting any inquiry into the reasons for his default, including Mr. Taylor’s ability to pay.
206. In January 2016, Mr. Taylor was again convicted of driving while suspended, as well as an accompanying failure to appear.
207. Because he had several prior convictions for driving on a suspended license (rooted in his inability to pay court debt), he faced a mandatory minimum of ten days in jail under Virginia law.
208. Because he faced jail time and qualified as indigent, he was assigned a public defender.
209. The judge imposed jail time on Mr. Taylor, as is required by Virginia law, which imposes a mandatory minimum term of confinement of ten days for third and subsequent convictions for driving on a suspended license.
210. Mr. Taylor appealed his two convictions in Richmond City GDC to the Richmond City Circuit Court, lost, and was sentenced to twenty days in jail.
211. The Richmond City Circuit Court also assessed $750 in additional costs. 212. Without a driver’s license, Mr. Taylor cannot obtain or maintain stable employment and will likely remain indigent into the foreseeable future and incapable of making payments against his court debt. Neil Russo 213. Plaintiff Neil Russo is a 61-year-old cancer survivor who suffers from Wilson’s disease.
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214. For Mr. Russo, Wilson’s disease and its treatment has led to kidney problems, weight gain, chronic fatigue, and daily pain.
215. Mr. Russo’s only income is a monthly check from the Social Security Disability Insurance program for $482.
216. Mr. Russo uses this money exclusively to buy food and pay other personal expenses, such as clothing and other items necessary for daily living.
217. In 2006, Mr. Russo was working as a chef at the National Counterterrorism Center in McLean, Virginia, when he was diagnosed with stage 3 prostate cancer.
218. This resulted in a radical prostatectomy, which was complicated by his Wilson’s disease, and ongoing medical treatment that continues today.
219. By late 2006, Mr. Russo had lost his job, was struggling to pay his bills, and had accumulated over $300,000 in medical debt.
220. Mr. Russo was still contractually obligated by a lease agreement to pay $1,000 a month in rent.
221. Mr. Russo also had outstanding credit card debt of $5,000 and outstanding student loan debt of $12,000.
222. Mr. Russo also maintained private medical insurance costing $375 per month, necessary to defray some of the costs of his cancer treatment.
223. Mr. Russo had zero income and few prospects of being gainfully employed because of his ongoing serious medical condition.
224. Since late 2006, Mr. Russo has been convicted of several criminal and traffic offenses: obtaining money by false pretenses (Va. Code § 18.2.178); receiving stolen property (Va. Code § 18.2-108); issuing bad checks (Va. Code § 18.2-181); assault and battery against a
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household member (Va. Code § 18.2-57.2); speeding to elude (Va. Code § 46.2-817); and driving without an operator’s license (Va. Code § 46.2-300).
225. For each offense, Mr. Russo was ordered to pay costs and fines that he could not afford.
226. At no point did any court consider Mr. Russo’s individual financial circumstances, or whether he was indigent as defined by Va. Code § 19.2-159 when assessing these costs and fines.
227. For each outstanding debt, the Defendant suspended Mr. Russo’s license indefinitely.
228. At no point did the Defendant assess Mr. Russo’s ability to pay his costs and fines before or after suspending his license.
229. Mr. Russo was charged in Fairfax County with driving with a suspended license on July 30, 2013.
230. Mr. Russo was represented by a court-appointed attorney in connection with this charge.
231. On December 17, 2013, Fairfax GDC found Mr. Russo guilty under Va. Code § 46.2-300 of driving without an operator’s license, a class 2 misdemeanor.
232. The court sentenced him to pay a fine of $150, and costs totaling $202, even though the court had already determined he was indigent for purposes of eligibility for a courtappointed attorney.
233. The costs imposed include the Fixed Misdemeanor fee ($61), Internet Crimes Against Children fee ($10), Local Training Academy fee ($1), and a Courthouse Security fee ($10).
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234. The court also imposed a fee of $120 for a court-appointed attorney. 235. Additionally, the court sentenced him to jail for 90 days, which was suspended for a period of 12 months. 236. Additionally, the court suspended his driver’s license for a period of 90 days. 237. The court did not inquire into Mr. Russo’s ability to pay the costs and fines. 238. As of the date of filing this Complaint, Mr. Russo owes debts approaching $5,000 in costs and fines to various Virginia courts, including Arlington Circuit Court, Fairfax County Circuit Court, Fairfax County GDC, Fairfax County Juvenile and Domestic Relations Court, and Loudoun County Circuit Court. 239. A portion of this outstanding balance is derived from fines associated with driving with a suspended license. 240. The Defendant will not reinstate Mr. Russo’s driver’s license unless he pays his various court debts in full or convinces each separate court to enter into a payment plan, and pays the license reinstatement fee and the “multiple order” fee required by the Defendant. 241. Mr. Russo was able to obtain a payment plan with Fairfax on July 20, 2009, in which he was required to pay $50 per month. 242. Mr. Russo defaulted on this plan shortly after he entered into it, due to the relatively high monthly payment and his very limited income. 243. In 2014, Mr. Russo inquired about a monthly payment plan from Arlington Circuit Court. 244. At the time and presently, the Arlington Circuit Court payment plan policy required (and continues to require) a minimum monthly payment of $100. 245. At the time and at present, Mr. Russo was and is unable to pay $100 monthly.
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246. Mr. Russo pays Arlington Circuit Court $25 per month by sending a money order via certified mail to the court.
247. Mr. Russo also attempted to create payment plans in the two other courts holding the largest debts: Fairfax Circuit Court and Loudon County Circuit Court.
248. Mr. Russo was unable to establish a plan with Loudoun County because Loudoun required a down payment of ten percent of the balance due, or $213, to initiate a plan.
249. The Loudoun County requirement is an amount Mr. Russo was, and is, unable to afford.
250. Upon information and belief, the Loudoun County Circuit Court notified the Defendant of Mr. Russo’s default.
251. On July 17, 2014 the Defendant suspended Mr. Russo’s driver’s license for nonpayment of the $2,130 in costs imposed on July 17, 2009. The Defendant did not offer Mr. Russo an opportunity to demonstrate that he was unable to pay either before or after suspending his license.
252. Mr. Russo remains indigent. 253. Mr. Russo is unable to pay the remaining balance in full, or to enter into payment plans that he can afford with each court. 254. Accordingly, Mr. Russo has no likelihood of reinstating his driver’s license in the foreseeable future. 255. Because Mr. Russo has been unemployed since the suspension of his driver’s license, he has never qualified for a restricted license. 256. Without a driver’s license, Mr. Russo has to rely on others for transportation to and from vital medical appointments.
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257. Moreover, Mr. Russo cannot seek employment that requires him to have reliable transportation to and from work.
258. Without suitable employment and the income it would provide, Mr. Russo has no hope of ever paying his debt to the courts, much less the license reinstatement fee required by the Defendant. The Commonwealth’s License-for-Payment Scheme Assessment of Costs and Fines
259. Upon conviction of a criminal offense, or placement on probation pending a deferred disposition, Virginia law imposes a mandatory duty on court clerks to issue a statement of “all the expenses” incident to an individual’s prosecution. Va. Code Ann. §§ 19.2-335 and 19.2-336.
260. Upon information and belief, the procedure described in the preceding paragraph applies equally to traffic convictions.
261. Virginia law sets “as court costs” fixed fees for traffic, misdemeanor, drug misdemeanor, and felony offenses of $51, $61, $136, and $375, respectively, that must be paid when a person is convicted of an offense or receives a deferral of proceedings. Va. Code Ann. §§ 16.1-69.48:1 and 17.1-275.1.
262. Regardless of the type of offense, local courts may tack on additional fixed “add on” fees, such as $3 for a courthouse construction fee, $10 for a courthouse security fee, $5 for an electronic summons fee, $15 for an Internet Crimes Against Children fee, and other fees.
263. Depending on the case, additional costs and fees may include witness fees; reimbursement for expenses incurred by public defenders or for the fees of, and expenses incurred by, court-appointed attorneys ($120 per misdemeanor charge; $445 per most felony
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charges); reimbursement for the costs of psychological or medical testing ($400-$750); trial in absence fee ($35); jail admission fee (up to $25); and other various fees.
264. In circuit court, a convicted defendant who requested a jury must also pay $30 per day per juror, including not only members of the jury, but also prospective jurors not impaneled and alternates, and any additional costs of the jury approved by the court.
265. In 1989, courts costs for all misdemeanor or traffic violations were $20. 266. In 2015, a non-drug misdemeanor could cost as much as $99 (including local option fixed fees) and a drug misdemeanor as much as $169 (including local option fees) before adding in any charges for specific “services” such as blood withdrawal, jail admission, or a court-appointed attorney. This means that a misdemeanor conviction could easily cost at least five (non-drug) or eight (drug) times as much as it did in 1989. 267. The cost of living during the same time period has only increased by a factor of two. See The Cost of Living Calculator, American Inst. for Econ. Research, https://www.aier.org/cost-living-calculator (last visited June 29, 2016). 268. In each case, court clerks create a statement of costs and fees to be taxed against each defendant in accordance with uniform schedules developed by the Office of the Executive Secretary of the Supreme Court of Virginia. 269. Copies of these schedules are attached to this Complaint as Exhibits A (Circuit Court) & B (General District Court) and are incorporated herein by reference. 270. The amounts assessed do not vary in accordance with a person’s financial resources, other demands on the person’s financial resources, or the hardships the person or the person’s family will endure if payment is required.
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271. The Circuit Court Clerk’s Manual exhorts clerks to “recapture” from defendants “as much of the court-appointed attorney fee as possible” within the maximum allowable fees set by state law, but makes no mention of taking into account the defendant’s ability to pay. See Ex. A at B-12.
272. The total amount assessed in the statement of costs created by the clerk operates as if the court had entered judgment “as a fine” against the defendant for that amount. Va. Code Ann. § 19.2-336.
273. The total amount is also docketed as a civil judgment against the defendant in favor of the Commonwealth. Va. Code Ann. § 17.1-275.5.
274. In addition to the costs and fees of the proceeding, courts are permitted to assess fines up to the applicable statutory cap as part of the penalty for a traffic or criminal offense. Driver’s License Suspension
275. At the time of trial, the clerk is instructed to provide the debtor with Form DC210 (General District Court) or CC-1379 (Circuit Court) indicating that nonpayment of costs and fines will result in the suspension of the person’s driver’s license.
276. Copies of these forms are attached to this Complaint as Exhibits C (General District Court) & D (Circuit Court) and are incorporated herein by reference.
277. Form DC-225 is mailed to debtors convicted on criminal or traffic cases in absentia, and indicates that nonpayment of costs and fines will result in the suspension of the person’s driver’s license.
278. Form DC-225 contains no reference to the possibility of obtaining a payment plan or other alternatives in lieu of payment; it indicates that the total must be paid in full before a
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listed suspension date, and indicates that the failure to do so will lead to a suspended license, the possibility of jail time and a further fine, and further enforcement activity.
279. A person owing costs, fees, fines, or restitution must pay the balance in full within thirty days of the entry of judgment, or otherwise enter into a deferred or installment payment plan, or community service plan, offered and approved by the court to pay the balance in full. Va. Code § 19.2-354.
280. On the forty-first (41st) day after entry of judgment, interest begins accruing at a rate of 6% and continues accruing on unpaid amounts related to any charges for which the person is not incarcerated or on a payment plan. Va. Code Ann. § 19.2-353.5.
281. Prior to July 1, 2016, the law prohibited interest from accruing only on court debt associated with the reason for a person’s present incarceration; interest on all other court debt continued to accrue during incarceration.
282. In 2016, the General Assembly amended the law, effective July 1, 2016, to allow for waiver of any interest accruing on any and all of a person’s court debt during a period in which he or she is incarcerated. 2016 Va. Acts, Ch. 282, http://lis.virginia.gov/cgibin/legp604.exe?161+ful+CHAP0282+pdf .
283. Interest otherwise cannot be waived or compromised. Va. Code Ann. § 19.2353.5.
284. Upon failure or refusal of a person to make “immediate payment in full” of all debts owed to the court, or a person’s default on a payment plan, the statute provides that the person’s driver's license shall be suspended. Va. Code Ann. § 46.2-395.
285. The suspension is automatic, and no inquiry is made into the reasons for the person’s default.
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286. The court transmits a person’s record of nonpayment to the DMV electronically via the Court Automated Interface System (CAIS) or manually via an amended abstract of conviction.
287. For individuals who owe in courts using the CAIS, the system defaults to suspending the license whenever a payment is due and no payment is entered.
288. In other words, the court clerk must enter payment before the due date in order to prevent the system from telling DMV to suspend the individual’s license.
289. When the suspension is “received” from the court, the DMV employee follows data entry protocols to issue the order of suspension.
290. Virginia law does not require the DMV to give any notice prior to suspending a person’s license for nonpayment. See Va. Code Ann. § 46.2-395.
291. Typically, the only information that the person receives is through Forms DC210, DC-225, or CC-1379 indicating, at the time of trial, that nonpayment would result in automatic suspension.
292. The information given at the time of trial is generic and prospective. 293. It does not advise the defendant of a pending suspension of his or her driver’s license for nonpayment of court debt, or the right to have indigency or the reasons for nonpayment considered in determining whether or not his or her license should be suspended for nonpayment; under current statutory law, these rights do not exist. 294. The Defendant does not conduct a review of a person’s financial condition prior to—or indeed at any point related to—suspending a person’s license for failure to pay, or otherwise inquire as to the reasons for the default.
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295. Upon information and belief, the Defendant employs hearing officers who conduct informal fact-finding proceedings when taking adverse action against a driver’s license holder for reasons other than court debt, such as when a license is suspended or revoked due to medical impairments. Reinstatement
296. In order to remove a license suspension, a person must either pay monies owed to the court in full (including any interest that has accrued) or establish a payment plan acceptable to the court. Va. Code Ann. § 19.2-354.
297. The person must also pay to DMV a reinstatement fee of $145, with an additional $5 per order if the person has multiple orders of suspension.
298. If a person owes court debt to multiple courts, each court’s judgment must be satisfied, or each court must agree to the establishment of a payment plan on terms it finds acceptable, to remove each individual order of a license suspension. Va. Code Ann. § 46.2-395.
299. Similarly, in order to obtain a restricted license, a debtor must obtain permission from each court to which he is indebted.
300. A restricted license is only valid for six months, making it nearly impossible for those who owe in multiple jurisdictions to qualify by stringing together enough overlapping periods of approval from each court.
301. Moreover, a restricted license is not available at all to those who are unemployed, including job-seekers, people whose disabilities prevent them from working, and people who are home caring for young children. Va. Code Ann. § 46.2-395.
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One-Size-Fits-All Payment Plans 302. Each of the Commonwealth’s cities and counties has its own circuit court, general
district court, and juvenile and domestic relations court, and each such court has the authority to adopt its own payment plan policies.
303. Effective July 1, 2016, payment agreements are supposed to be consistent with the Rules of the Supreme Court of Virginia; however, no such Rules have been promulgated as of the filing of this complaint.
304. When a person is unable to pay court costs and fines in full within thirty days, courts sometimes require them to fill out the DC-210 form.
305. The DC-210 form asks only for employer name and “monthly income.” The DC210 form fails to capture other pertinent information such as expenses, other court-ordered financial obligations, and household size.
306. On information and belief, courts often disregard the financial information reported by the debtor on the DC-210 form, and instead impose the court’s standard payment plan, despite the debtor’s inability to pay.
307. In many jurisdictions, payment schedules are driven by the total amount owed or provide for a fixed number of months to pay (e.g., six months), and do not consider the debtor’s financial circumstances.
308. Often, plans require down payments and/or set a standard periodic payment amount unrelated to the person’s financial condition.
309. If the debtor defaults on the payment plan, some policies do not allow the debtor to establish a new payment plan, and many other policies require substantial down payments in order to reinstate the payment plan.
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310. According to Virginia’s Auditor of Public Accounts, from 2008-2012, 55% of all court cases resulted in on-time payment without a payment plan, and only 4% resulted in a payment plan.
311. Thus, 41% of all cases resulted in default—and automatic license suspension— without ever entering into a payment plan.
312. Very few payment plan policies consider the debtor’s financial obligations in other courts when setting payment plans, which serves both as a barrier to entry and as a recipe for failure.
313. When payment plans do not take into account an individual’s ability to pay, they often become unrealistic and unsustainable.
314. Approximately 66% of the small number of payment plans established by all Virginia courts in fiscal years 2008-2012 resulted in default.
315. By law, courts are required to establish a program of community service to allow debtors to discharge all or part of their court debt, but they are not required to offer it. Va. Code § 19.2-354.
316. Upon information and belief, many courts do not have the resources to supervise a community service program and therefore do not offer it as an option.
317. Where programs have been established, many debtors are never told that community service is an option.
318. Other debtors cannot meet the requirements due to lack of transportation, disability, inability to find child care, or other reasons.
319. Most low-income debtors are offered no meaningful alternatives to fulfill their financial obligations to the court before their licenses are suspended.
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The Harsh Realities of a Suspended License One in Six Virginia Drivers Suspended for Nonpayment
320. Originally, the license-for-payment system applied only to unpaid court debt related to motor vehicle infractions.
321. In 1987, an interagency team from the Virginia Department of Planning and Budget, Virginia Department of Criminal Justice Services, and Office of the Executive Secretary of the Supreme Court of Virginia released a report on “Unpaid Fines, Court Costs, and Restitution in District and Circuit Courts of the Commonwealth,” recommending, inter alia, expanding driver’s license suspension as a means of improving collection of court debt, unless the defendant is “truly indigent and/or unable to make necessary payments.” Dep’t of Planning and Budget, Unpaid Fines, Court Costs, and Restitution in District and Circuit Courts of the Commonwealth IV-11 (1987).
322. In 1993, the Office of the Executive Secretary of the Supreme Court of Virginia transmitted a report to the General Assembly rejecting a proposal to extend amnesty to defendants with unpaid court debt and recommending expansion of the use of driver’s license suspension for failure to pay outstanding fines and costs related to criminal convictions. Office of the Exec. Sec’y, Assessing the Need for a Fines Amnesty Program for Virginia’s District and Circuit Courts, House Doc. No. 39 (1993), http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/HD391993/$file/HD39_1993.pdf.
323. The Report also found that “[m]any offenders are poor and without obvious means to satisfy court judgments.” Id. at 3.
324. In 1994, after requesting a study on amnesty, the General Assembly enacted legislation expanding the license-for-payment system to apply to all kinds of unpaid court debt
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with full knowledge that the impact would fall on many defendants who are too poor to pay their debts.
325. The 1994 legislation also removed language from the existing Virginia Code requiring the Commonwealth’s Attorney to investigate the reasons for nonpayment of court debt and authorizing the Commonwealth’s Attorney to proceed with collection efforts only if it appears from that investigation that the debtor may be able to pay.
326. The combined effect of removing the ability-to-pay examination and expanding automatic license suspension has impacted hundreds of thousands of Virginians who are too poor to pay and have lost their ability to drive as a result.
327. In 2015, DMV ran a report showing that the licenses of 914,450 individual DMV customers were suspended for nonpayment of court costs and fines related to criminal and traffic convictions.
328. In that snapshot in time, approximately one in six Virginia drivers was unable to legally drive a car to and from work, to buy groceries, attend medical appointments, or go anywhere else the needs of their families required.
329. Many individuals carry multiple orders of suspension. 330. As of September 2015, there were nearly 2.6 million orders of suspension due to unpaid court costs and fines in effect in Virginia. 331. In every fiscal year between 2010 and 2015, the Defendant processed at least 360,000 orders of driver’s license suspension due to unpaid court costs or fines, with a high of 423,100 suspension orders in fiscal year 2011.
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332. In fiscal year 2015, the Defendant issued 366,773 orders of driver’s license suspension due to unpaid court costs and fines; roughly 38% of these suspension orders (140,252) were due to unpaid court costs or fines related to non-motor vehicle convictions.
333. As of September 2015, 65% of all outstanding suspension and revocation orders were for failure to pay court debt, rather than for any other reason or for being dangerous behind the wheel. Hardship on Low-Income Individuals and Their Families
334. Given their inability to pay monetary penalties, low-income drivers are likely to be over-represented in the pool of suspended drivers when compared to their representation in the larger population of licensed drivers.
335. The Commonwealth’s license-for-payment system imposes significant hardship on individual debtors and their families, often forcing them to choose between paying for survival resources such as food, shelter, health care, and clothing, or paying their court costs and fines.
336. The possession of a valid driver’s license is often essential for persons to secure and maintain employment, get to and from medical and other appointments, and otherwise provide for themselves and their families.
337. Without the ability to drive, most jobs are inaccessible to people living in rural areas of Virginia.
338. Even in urban areas, getting to and from work without the ability to drive is extremely challenging and time-consuming, if even possible at all.
339. For example, in the Richmond area, transportation experts estimate that only 27% of all jobs are accessible by public transportation within 90 minutes of travel time. Metropolitan
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Policy Program, Missed Opportunity: Transit and Jobs in Metropolitan America, Richmond, VA Metro Area, Brookings Inst., http://www.brookings.edu/~/media/Series/jobs-andtransit/RichmondVA.PDF (last visited June 29, 2016).
340. In Virginia Beach-Norfolk-Newport News, only 15% of all jobs are accessible by public transportation within 90 minutes of travel time. Metropolitan Policy Program, Missed Opportunity: Transit and Jobs in Metropolitan America, Virginia Beach-Norfolk-Newport News, VA-NC Metro Area, Brookings Inst., http://www.brookings.edu/~/media/Series/jobs-andtransit/VirginiaBeachVA.PDF (last visited June 29, 2016).
341. In many cases, the Commonwealth’s license-for-payment system forces suspended drivers to choose between driving illegally and losing their jobs.
342. Indeed, a rigorous study of New Jersey drivers found that 42% of drivers lost their jobs after their driving privileges were suspended. Jon A. Carnegie, Ian M. Voorhees Transportation Center, Rutgers, The State University of New Jersey, Driver’s License Suspensions, Impacts and Fairness Study 56 (2007), http://www.nj.gov/transportation/refdata/research/reports/FHWA-NJ-2007-020-V1.pdf (last visited June 29, 2016).
343. Of those drivers, 45% were unable to find new employment. Id. 344. Of those that were able to find another job, 88% reported a decrease in income. Id. 345. In Virginia, driving on a suspended license is a criminal offense carrying up to twelve months of imprisonment and a $2,500 fine.
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346. A third or subsequent offense of driving while suspended carries a mandatory minimum term of imprisonment for ten days, regardless of the reason for the underlying suspension. Va. Code Ann. § 46.2-301.
347. In summary, the loss of a driver’s license often results in personal and familial hardship, such as reduced employment and educational opportunities, reduced capacity to care for one’s family, increased barriers to successful reentry after a criminal offense, and increased indebtedness as interest on costs and fines accumulates.
348. The high cost to one’s family of losing a driver’s license inevitably results in a terrible dilemma: drive—and risk being charged with driving while suspended, which itself can lead to additional costs, fines, and periods of incarceration; or refrain from driving—and lose access to gainful employment and medical care. Unsafe and Counterproductive
349. The Defendant is the Chairman of the American Association of Motor Vehicle Administrators (AAMVA), an organization which was founded in 1933 to represent state and provincial officials from the United States and Canada who administer and enforce motor vehicle laws.
350. The AAMVA develops model programs in motor vehicle administration, law enforcement, and highway safety, and serves as both information clearinghouse and institutional voice for those issues.
351. In a 2013 report, Best Practices Guide to Reducing Suspended Drivers, the AAMVA concluded that suspending driver’s licenses for reasons unrelated to traffic safety increases the threat to public safety by diverting law enforcement officer time from more important activities like responding to 911 calls, investigating crashes, and investigating more
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serious crimes. http://www.aamva.org/workarea/DownloadAsset.aspx?id=3723 (last visited June 29, 2016).
352. A 2012 study cited by the AAMVA in its 2013 report found that drivers suspended for traffic safety-related reasons are three times more likely to be involved in a crash than drivers suspended for social non-conformance reasons like nonpayment of costs and fines. Id. at 2.
353. Drivers suspended for non-driving reasons also have fewer moving violations and crashes while their licenses are suspended, compared to drivers whose licenses are suspended for driving reasons.
354. Studies also indicate that the safety records of drivers whose licenses are suspended for non-driving reasons may not differ significantly from the average driver.
355. The AAMVA further noted that drivers whose licenses are suspended for nontraffic related reasons “are often trapped within the system” because their inability to afford to pay the original fines causes them to lose their ability to legally get to and from work, which results in increased financial obligations such as reinstatement fees, court costs related to driving while suspended, and other penalties. Id. at 6.
356. All of these conditions make it even less likely that a debtor whose license is suspended will be able to ever pay off his or her court debts.
357. The AAMVA cited a 2011 study of 114,626 driver records finding that despite the serious consequences of driving on a suspended license, 75% of suspended drivers continue to do so. Id. at 4-5.
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358. The AAMVA concluded that driver’s license suspension does not provide effective, sustainable motivation to encourage individuals to comply with court-ordered or legislative mandates in order to avoid suspension.
359. Accordingly, the AAMVA recommends the repeal of laws requiring the suspension of driving privileges for non-traffic safety related reasons.
360. In 2013, AAMVA released an educational video summarizing its position. The video found at https://www.youtube.com/watch?v=qUSKhQUW2do was created by AAMVA. Best Practices for Reducing Suspended and Revoked Drivers, AAMVA Communications (Mar. 27, 2013), https://www.youtube.com/watch?v=qUSKhQUW2do.
361. The video found at https://www.youtube.com/watch?v=qUSKhQUW2do is a true and authentic copy of AAMVA’s educational video.
362. The statements made in the video found at https://www.youtube.com/watch?v=qUSKhQUW2do are true and accurate.
363. The video found at https://www.youtube.com/watch?v=qUSKhQUW2do is a policy statement of AAMVA.
364. Recently, in April 2016, AAMVA issued a policy statement reiterating its position on license suspension for non-traffic safety reasons.
365. In Virginia, courts collected just over half of the approximately $350 million in court costs and fines they assessed each year from 2008 to 2012.
366. In 2012, approximately 60% of the orders of suspension issued for unpaid court debt remained in place twelve months later, suggesting that suspension does not operate as an effective incentive to elicit payments from drivers without the ability to pay.
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367. Ironically, in Virginia, drivers suspended for safety reasons can often reinstate their licenses faster than those suspended for nonpayment.
368. For example, a person convicted of reckless driving risks no more than a sixmonth suspension of his or her license. Va. Code Ann. § 46.2-393.
369. If a person is killed as a result of another person’s reckless driving, the driver’s license may be suspended for up to twelve months. Va. Code Ann. § 46.2-396.
370. In contrast, failure to pay court costs and fines requires the Defendant to suspend a debtor’s license indefinitely, and it is common for such suspensions to last for years.
Class Action Allegations
371. The named Plaintiffs bring this action for themselves individually and on behalf of all others similarly situated, pursuant to the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
372. A class action is the only practicable means by which Plaintiffs and unknown Class Members can challenge the Commonwealth’s unlawful court debt collection scheme.
373. The named Plaintiffs seek to represent a class consisting of all persons whose Virginia driver’s licenses are suspended due to unpaid court debt and who, at the time of the suspension, were not able to pay due to their financial circumstances.
374. The named Plaintiffs seek certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure in order to represent a class of persons requesting declaratory and injunctive relief to terminate the ongoing course of conduct on the part of the Defendant that is depriving the named Plaintiffs and the Class Members of their constitutional rights to Due Process and Equal Protection, and to enjoin the Defendant from issuing orders of driver’s license
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suspension against the Plaintiffs and the Class Members until such time as the Commonwealth implements a system that complies with the United States Constitution.
375. The Defendant has acted, or failed and/or refused to act, on grounds that apply generally to the proposed Class, such that final injunctive and declaratory relief is appropriate with respect to the Class as a whole.
376. As set forth more fully in the following paragraphs, this action satisfies the numerosity, commonality, typicality, and adequacy requirements of Rule 23. Numerosity
377. In 2015, DMV reported that the licenses of 914,450 individual DMV customers were suspended for nonpayment of court costs and fines related to criminal and traffic convictions.
378. Upon information and belief, well over 100 of those individuals holding suspended licenses would be too poor to pay their court debt without imposing manifest hardship on themselves and their families.
379. Virginia issues over 360,000 orders suspending driver’s licenses for nonpayment of court costs and fines each year, affecting thousands of individual debtors.
380. Approximately 60% of those orders remain in place twelve months later, suggesting that a large percentage of suspension orders were issued to people without the means to pay to get the suspension removed.
381. Based on data collected by the Supreme Court of Virginia over a thirteen-month period between November 2013 and December 2014, there were 87,937 misdemeanor convictions in which the person convicted met the definition of indigency under § 19.2-159 of the Virginia Code and was appointed an attorney.
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382. All 87,937 convictions would have resulted in costs (including court-appointed
attorney fees) and likely also would have resulted in fines.
383. This number does not include felony convictions, nor does it include convictions
that did not carry jail time and thus would not have entitled the defendant to a court-appointed
attorney.
384. Accordingly, the proposed class is so numerous that the joinder of all Class
Members is impracticable.
Commonality
385. All persons comprising the proposed Class are equally subject to the provisions of
Va. Code §§ 16.1-69.48:1, 19.2-335, 19.2-336, and 46.2-395, which together operate to deprive
indigent Virginia debtors of their driver’s licenses for non-compliance caused by their indigence.
386. Thus, common questions of law and fact exist as to all Class Members.
387. Among the most important, but not the only, common questions of fact are:
• Whether the Commonwealth has a policy and practice of punishing poor people more harshly than wealthy people for failing to pay court debt;
• Whether the Commonwealth, acting by and through the Defendant, has a policy and practice of suspending driver’s licenses without conducting meaningful inquiries into the ability of a person to pay before taking such action; and
• Whether the Commonwealth, acting by and through the Defendant, exploits its governmental status to avail itself of forms of enforcement in the collection of court debts not available to most private civil creditors.
388. Among the most important, but not the only, common questions of law are:
• Whether fundamental principles of due process and equal protection require the Commonwealth to take into account the ability of a person to pay court costs and fines;
• Whether suspending a person’s driver’s license solely because she or he cannot afford to make a monetary payment toward court costs and fines previously imposed, is lawful;
• Whether a person is entitled to notice and a meaningful inquiry into his or her present ability to pay court costs and fines previously imposed, before the Commonwealth suspends his or her license for nonpayment; and
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• Whether depriving persons encumbered with court debt of the protections afforded other Virginia debtors when taking the harsh action of suspending their driver’s licenses for nonpayment, violates the Equal Protection Clause.
Typicality 389. The named Plaintiffs’ claims are typical of the claims of the proposed Class as a
whole. 390. As summarized in Paragraphs 38 through 45, each of them suffered injuries from
the failure of the Commonwealth to comply with the basic constitutional provisions detailed below.
391. The answer to whether the Commonwealth’s license-for-payment scheme is unconstitutional will determine the claims of the named Plaintiffs and every other Class Member.
392. The named Plaintiffs and Class Members have suffered direct injuries, and will continue to be directly injured, due to the Defendant’s unlawful and unconstitutional pattern and practice of suspending driver’s licenses without due process and without consideration of the hardship imposed on people who cannot afford to pay. Adequacy
393. The named Plaintiffs will fairly and adequately represent the interests of the proposed Class.
394. The named Plaintiffs have no interests separate from or in conflict with those of the Class as a whole and seek no relief other than the declaratory and injunctive relief, which is sought on behalf of the entire Class.
395. The named Plaintiffs are represented by competent legal counsel with substantial experience in complex civil rights litigation matters, including class actions.
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396. Plaintiffs’ counsel have devoted enormous time and resources to becoming intimately familiar with the Commonwealth’s court debt scheme and with all of the relevant state and federal laws and procedures that govern it.
397. Counsel has also developed relationships with many of the individuals and families victimized by the Commonwealth’s practices.
398. Accordingly, the interests of the members of the Class will be fairly and adequately protected by the Plaintiffs and their attorneys.
Claims for Relief Count I: Violation of Due Process (Fundamental Fairness)
399. The Plaintiffs incorporate the allegations in Paragraphs 1-398 above with the same force and effect as if herein set forth.
400. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
401. The Due Process Clause prohibits the state from subjecting individuals to processes and penalties that fail to comport with principles of due process and fundamental fairness.
402. The United States Supreme Court has repeatedly held that punishing a person solely for his or her inability to pay, rather than willful refusal to pay or make bona fide efforts to acquire the resources to pay, violates principles of due process and fundamental fairness.
403. The Commonwealth’s court debt payment system automatically and mandatorily requires all convicted criminal and traffic defendants to pay the costs of their prosecutions without regard to their individual financial circumstances.
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404. The statutory scheme also automatically and mandatorily requires courts to transmit to Defendant Holcomb a record of any person’s “failure or refusal to pay all or part” of any fines or costs owed to the court, or a record of default on a payment plan, without inquiry into the reasons for nonpayment, or consideration of whether the requirement to repay will exact manifest hardship on that person or the person’s family. See Va. Code Ann § 46.2-395(C) (emphasis added).
405. Acting through Defendant, the Virginia license-for-payment scheme automatically and mandatorily, (without consideration of financial circumstances, the total amount owed to one or more courts, or any alternatives) suspends the driver’s license of any person whose failure to comply is owing to his or her inability to pay court costs and fines, rather than a willful refusal to pay.
406. In this regard, the Virginia license-for-payment scheme inevitably results in individuals being punished for their inability to pay.
407. Punishing an individual solely for his or her inability to pay violates principles of due process and fundamental fairness.
408. Accordingly, the Commonwealth’s license-for-payment system violates the Due Process Clause of the U.S. Constitution. Count II: Violation of Procedural Due Process (Lack of Ability-to-Pay Hearing)
409. The Plaintiffs incorporate the allegations in Paragraphs 1-408 above with the same force and effect as if herein set forth.
410. A person’s driver’s license and its attendant government-sanctioned ability to drive is widely recognized as a property interest that may not be taken away without due process of law.
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411. Due process requires the Commonwealth to conduct ability-to-pay inquiries at each stage in a case, including the point at which it proposes to take coercive action to punish nonpayment.
412. As described above, the Commonwealth’s license-for-payment system automatically and mandatorily imposes costs without consideration of ability to pay, and automatically and mandatorily requires Defendant Holcomb to suspend a person’s driver’s license upon receipt from the court of a record of default, all without taking ability to pay into account.
413. It is common for a person’s financial circumstances to fluctuate throughout his or her lifetime, and a person who is not indigent at the time of trial may become indigent prior to satisfying all financial obligations to various courts.
414. Prior to executing an order suspending a debtor’s driver’s license, the Defendant provides no notice, oral or written, to the debtor of his or her right to an ability-to-pay determination evaluating his or her present financial condition.
415. Moreover, the Defendant conducts no independent review of the debtor’s ability to pay, including the amounts owed to all courts in the Commonwealth and the debtor’s present financial condition, prior to—or indeed, after—taking the harsh enforcement action of suspending the debtor’s driver’s license.
416. The purpose of the Commonwealth’s license-for-payment system is to coerce payment, and not to protect public safety on the roads; therefore, Plaintiffs are entitled to predeprivation notice and a hearing prior to license suspension.
417. In the absence of notice and hearing, which do not presently exist under Virginia law in relation to driver’s license suspension for unpaid court debt, the risk is very high that an
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indigent debtor will be deprived of his or her driver’s license for reasons attributable to his or her poverty.
418. The high risk of deprivation created by the Defendant’s automatic, one-size-fitsall driver’s license suspension system violates the Due Process Clause of the United States Constitution. Count III: Violation of Equal Protection Clause (Equal Justice and Punishing Poverty)
419. The Plaintiffs incorporate the allegations in Paragraphs 1-418 above with the same force and effect as if herein set forth.
420. The United States Supreme Court has repeatedly endorsed the principle that punishing a person solely for his or her poverty, rather than willful refusal to pay or to make bona fide efforts to acquire the resources to pay, violates principles of fundamental fairness embedded in the Fifth and Fourteenth Amendments of the United States Constitution.
421. State recoupment laws, notwithstanding the state interests they may serve, may not blight the hopes of indigent people for self-sufficiency and self-respect.
422. Acting through Defendant Holcomb, the Virginia license-for-payment scheme automatically and mandatorily (without consideration of financial circumstances, the total amount owed to one or more courts, or any alternatives) suspends the driver’s licenses of indigent persons whose failure to comply is owing to their inability to pay court costs and fines, rather than a willful refusal to pay.
423. The resulting cascade of hardship—job loss, mounting interest, convictions for driving while suspended, additional costs and fines, and even jail time—keeps low-income people in a perpetual state of disadvantage, a state that people with means can avoid simply by paying in full.
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424. In this way, the Commonwealth takes coercive action against people whose poverty makes it impossible for them to comply.
425. The fundamental principle of “equal justice” requires states to consider the differential impact of harsh enforcement action on people who are impoverished.
426. The Commonwealth’s scheme inevitably results in enforcing financial obligations on people who lack the foreseeable ability to meet them.
427. Indeed, the modern version of the Commonwealth’s license-for-payment system was enacted with full knowledge that many defendants are too poor to pay their debts to the court.
428. Accordingly, the Commonwealth’s license-for-payment system violates the Equal Protection Clause of the U.S. Constitution. Count IV: Violation of Due Process Clause (No Rational Basis)
429. The Plaintiffs incorporate the allegations in Paragraphs 1-428 above with the same force and effect as if herein set forth.
430. The Due Process Clause protects against arbitrary and capricious government action even when the decision to take action follows adequate procedures.
431. A person has protected property and liberty interests in a driver’s license and its attendant government-sanctioned ability to drive.
432. The Commonwealth’s license-for-payment scheme is not rationally related to any legitimate governmental objective because suspending driver’s licenses for nonpayment of court debt makes highways less safe, impedes reentry of convicted persons, and is counterproductive as applied to people who need a driver’s license to obtain or maintain employment in order to meet their financial obligations to the court.
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433. A driver’s license is often essential in the pursuit of a livelihood, and its suspension threatens important interests of the people who hold them.
434. The purpose of licensing drivers is to promote safety on Virginia’s roads and highways by keeping drivers off the roads who present a danger behind the wheel.
435. Suspending licenses for non-driving reasons produces no traffic safety benefit, and distracts law enforcement resources from investigating criminal and traffic violations that present true threats to public safety.
436. For people returning to their communities from jails and prisons, lack of a driver’s license threatens their successful reentry when they cannot obtain or maintain stable employment.
437. For low-income debtors, avoidance of driver’s license suspension does not operate as an incentive to pay when they must choose between paying the court and paying rent, buying medications, putting food on the table, and meeting other necessary expenses.
438. Indeed, as to people who lack the ability to pay court debt, a suspended license is not only not rational, but instead fundamentally irrational and counterproductive; suspension not only fails as an incentive (because such people are unable to avoid suspension under current law), but also makes it less likely – rather that more likely – that they will be able to pay court debt.
439. The loss of a license often means the loss of reliable transportation to and from work, which makes debtors less likely to be able to meet their financial obligations to the court.
440. The Commonwealth’s license-for-payment system violates the Due Process Clause of the U.S. Constitution because it causes substantial hardship to low-income drivers and bears no rational relationship to any important or legitimate governmental objective.
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Count V: Violation of the Equal Protection Clause (Extraordinary Collection Efforts) 441. The Plaintiffs incorporate the allegations in Paragraphs 1-440 above with the
same force and effect as if herein set forth. 442. The United States Supreme Court has held that, when governments seek to recoup
the costs of prosecution from indigent defendants, they may not take advantage of their position to utilize unduly harsh methods of debt collection solely because the debt is owed to the government and not to a private creditor.
443. Unlike fines, which are imposed as a penalty for unlawful behavior, or restitution, which is imposed to compensate a victim, court costs assessed to subsidize the court proceedings (such as, e.g., court-appointed attorney fee reimbursement) are no different in character than ordinary private consumer debts incurred for services rendered.
444. When a private creditor seeks to enforce a judgment against a debtor via garnishment or lien, the law provides procedural and substantive protections for poor debtors against being deprived of certain basic necessities and the ability to maintain a livelihood.
445. The private creditor may coerce payment only to the extent permitted by those protections. The Commonwealth’s license-for-payment system does not treat indigent defendants, to the extent that they owe court costs, like other judgment debtors.
446. The Commonwealth’s license-for-payment system provides for suspension of the debtor’s driver’s license and the possibility of imprisonment.
447. When the Commonwealth, acting through Defendant Holcomb, takes advantage of its position at the controls of the machinery of government to peremptorily strip debtors of their driver’s licenses, it executes a form of coercion not available to private creditors for debts unrelated to driving.
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448. When the Commonwealth, acting through Defendant Holcomb, takes advantage of its position at the controls of the machinery of government to peremptorily strip debtors of their driver’s licenses, it denies court debtors owing court costs the procedural and substantive statutory protections that other Virginia debtors may invoke against a private creditor in ordinary debt collection proceedings.
449. Despite knowledge that many defendants are too poor to pay their debts to the court, the Commonwealth’s license-for-payment system fails to offer poor debtors even a modicum of the substantive and procedural protections it deems necessary to prevent private creditors from stripping the debtor of the ability to maintain a livelihood and meet his or her basic needs.
450. The Commonwealth’s severe and coercive collection policies and practices constitute invidious discrimination and violate the fundamental principle of equal protection of the laws embedded in the United States Constitution.
Requested Relief Wherefore, the Plaintiffs respectfully request that this Court provide the following relief:
a. Issue an order certifying this action to proceed as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2);
b. Approve the undersigned to serve as class counsel pursuant to Fed. R. Civ. P. 23(a)(4) and 23(g);
c. Issue a judgment declaring that the Defendant’s policies, practices, acts, and/or omissions as described herein are unlawful and violate Plaintiffs’ and Class Members’ rights under the Constitution and laws of the United States;
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d. Preliminarily and permanently enjoin the Defendant, his subordinates, agents, employees, representatives, and all others acting or purporting to act in concert with him or on his behalf from issuing or processing orders of driver’s license suspension for unpaid court debt against the Plaintiffs and Class Members, until such time as the Commonwealth implements a system that complies with the United States Constitution;
e. Preliminarily and permanently issue an injunction ordering the Defendant to reinstate the Plaintiffs’ and Class Members’ driver’s licenses (insofar as they are suspended based on unpaid court debt and/or on driving on licenses suspended due to unpaid court debt) and enjoining the Defendant from requiring the Plaintiffs and Class Members to pay the DMV reinstatement fees as a condition of such reinstatement;
f. Award Plaintiffs their reasonable attorneys’ fees and litigation costs pursuant to 42 U.S.C. § 1988 and other applicable law; and
g. Grant all such other and further relief as this Court may deem necessary and/or appropriate in the interests of justice.
DATED: July 6, 2016
Respectfully submitted, /s/ Jonathan T. Blank Jonathan T. Blank (VSB No.: 38487) MCGUIREWOODS LLP Court Square Building 310 Fourth Street NE, Suite 300 Post Office Box 1288
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Charlottesville, Virginia 22902 Ph: (434) 977-2509 Fax: (434) 980-2258 jblank@mcguirewoods.com Mary Bauer (VSB No.: 31388) Angela A. Ciolfi (VSB No.: 65337) Pat Levy-Lavelle (VSB No.: 71190) Mario Salas (VSB No.: 87974) LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 Ph: (434) 529-1810 Fax: (434) 977-0558 angela@justice4all.org David P. Baugh (VSB No.: 22528) DAVID P. BAUGH, ESQ., PLC 2025 E. Main Street, Suite 114 Richmond, VA 23223 Ph: (804) 743-8111 Fax: (804) 225-8035 dpbaugh@dpbaugh.com Leslie Kendrick (VSB No.: 90104) 580 Massie Rd. Charlottesville, VA 22903 Ph: (434) 243-8633 Fax: (434) 924-7536 kendrick@virginia.edu
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
(Charlottesville Division)

DAMIAN STINNIE, et al., Plaintiffs, v.
RICHARD D. HOLCOMB, Defendant.

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Case No.: 3:16-CV-00044

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STATEMENT OF INTEREST OF THE UNITED STATES A driver’s license is often essential to a person’s well-being, including a person’s ability to maintain a job, pursue educational opportunities, or care for children or other family. Accordingly, the Supreme Court has recognized a driver’s license as a constitutionally protected interest. Plaintiffs allege that Virginia officials unconstitutionally deprive people of this important interest by automatically suspending the driver’s licenses of those who fail to pay court fines or fees, without providing adequate process and without assessing whether the failure to pay was willful or the result of a defendant’s inability to pay. The United States files this Statement of Interest to assist the Court in considering the important constitutional questions presented. It is the position of the United States that the suspension of a person’s driver’s license in response to the failure to pay court debt without providing a person with adequate notice and a meaningful opportunity to be heard prior to the suspension constitutes a deprivation of a protected interest without due process in violation of the Fourteenth Amendment. Further, suspending the driver’s licenses of those who fail to pay fines or fees without inquiring into whether that failure to pay was willful or instead the result of an

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inability to pay may result in penalizing indigent individuals solely because of their poverty, in violation of the due process and equal protection clauses of the Fourteenth Amendment.
INTEREST OF THE UNITED STATES The United States has authority to file this Statement of Interest pursuant to 28 U.S.C. § 517, which permits the Attorney General to attend to the interests of the United States in any case pending in federal court. The United States has a strong interest in ensuring that state and local criminal justice systems operate in a manner that is consistent with constitutional requirements. The United States enforces the law enforcement misconduct provisions of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, which authorizes the Attorney General to file lawsuits seeking declaratory and injunctive relief to reform law enforcement conduct that deprives individuals of rights protected by the Constitution or federal law. Pursuant to this statute, the United States has conducted investigations and secured injunctive relief in civil cases to ensure that local justice systems respect the due process and equal protection rights of those charged with offenses. See, e.g., Dep’t of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (2015) at 50-51, 101 (specifically identifying harms of imposing driver’s license suspensions in response to nonpayment of fines and fees); Consent Decree, United States v. City of Ferguson, Mo., 16-cv-180 (E.D. Mo. filed Feb. 10, 2016) [ECF No. 41] at ¶¶ 351-52 (setting forth requirements regarding driver’s license suspensions). The United States has also taken other action to address the specific problem of inequality in the imposition and enforcement of court fines and fees. In December 2015, the Department’s Office for Access to Justice, Civil Rights Division, and Office of Justice Programs convened a meeting of policymakers, judges, prosecutors, defense attorneys, and advocates to
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discuss how certain practices with respect to the imposition and enforcement of criminal justice fines and fees—including the use of license suspensions as a means of coercing the payment of criminal justice fines and fees—can result in unlawful and harmful conduct. In September 2016, the Department held a second convening on these issues in order to highlight positive measures that have been implemented and identify continuing areas of concern.
Additionally, in March 2016, the Department provided a package of resources, including a grant solicitation, to state and local courts to support the ongoing work of state judges, court administrators, policymakers, and advocates to ensure equal justice for all, regardless of a person’s financial circumstances. Together with the announcement of the grant program and other support, the Department also issued a guidance letter for state and local courts to clarify the legal framework that governs the enforcement of court fines and fees. Within that guidance, the Department raised concerns regarding using driver’s license suspensions as a debt collection tool, and made clear that “[i]f a Defendant’s driver’s license is suspended because of failure to pay a fine, such a suspension may be unlawful if the defendant was deprived of his due process right to establish inability to pay.”1
BACKGROUND Some jurisdictions in the United States authorize the suspension of driver’s licenses not only in situations in which a driver poses a risk to public safety, but also as a consequence for failing to pay court debt.2 In California, for instance, reports show that over a recent eight-year period more than 4.2 million individuals, or 17 percent of California’s driving population, have

1

Principal Deputy Assistant Attorney General of the Civil Rights Division Vanita Gupta and

Director of the Office of Access to Justice Lisa Foster, Dear Colleague Letter (Mar. 14, 2016)

(hereinafter “March 14, 2016 Dear Colleague Letter”), available at

https://www.justice.gov/crt/file/832461/download.

2

For clarity and consistency with the terminology used in the Complaint, the United States uses the

term “court debt” herein to refer to all “fines, costs, forfeitures, restitution, or penalties” assessed by a

court against a person resulting from a traffic or criminal proceeding. Complaint at ¶ 29.

3

Case 3:16-cv-00044-NKM-JCH Document 27 Filed 11/07/16 Page 3 of 22 Pageid#: 366

had their driver’s licenses suspended as a result of a failure to appear or pay fines and fees.3 In Virginia, the Department of Motor Vehicles reported that as of 2015, the driver’s licenses of approximately 900,000 individuals, or one in six licensed drivers, were under suspension for nonpayment of fines and court costs. See Complaint [ECF No. 1] at ¶¶ 327-28.4
While driver’s license suspensions vary in both process and scope across different jurisdictions, using driver’s license suspensions to compel the payment of outstanding court debt, and the resulting punishment of people who cannot afford to pay, has received significant attention in recent years. As the Department noted in its March 14, 2016 Dear Colleague Letter, researchers have raised concerns regarding the substantial harm this practice imposes on individuals, as well as its efficacy—including that it undermines public safety interests and inhibits a person’s ability to pay owed fines and fees.5 Some jurisdictions have enacted, or are actively considering, legislation or other measures to limit the circumstances in which a driver’s license may be suspended. See, e.g., Mo. Ann. Stat. § 302.341 (limiting scope of Missouri’s practice of suspending driver’s licenses for nonpayment to cases involving non-minor moving violations); Wash. Rev. Code Ann. § 46.20.289 (ending Washington’s practice of suspending licenses for nonpayment in cases involving non-moving traffic violations). And specific license

3

Lawyers’ Committee for Civil Rights, Not Just a Ferguson Problem: How Traffic Courts Drive

Inequality in California 13-14 (2015), available at http://www.lccr.com/not-just-ferguson-problem-how-

traffic-courts-drive-inequality-in-california/.

4

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),

quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The United States therefore assumes the

facts presented in the Plaintiffs’ Complaint to be true for purposes of this Statement of Interest.

5

See March 14, 2016 Dear Colleague Letter, supra note 1, at 6-7, n.7 (citing Am Ass’n of Motor

Veh. Adm’rs., Best Practices Guide to Reducing Suspended Drivers 3 (2013)) (recommending that

“legislatures repeal state laws requiring the suspension of driving privileges for non-highway safety

related violations” and citing research supporting view that fewer driver suspensions for non-compliance

with court requirements would increase public safety); Shaila Dewan, Driver’s License Suspensions

Create Cycle of Debt, N.Y. Times, April 14, 2015, available at

http://www.nytimes.com/2015/04/15/us/with-drivers-license-suspensions-a-cycle-of-debt.html

(comparing driver’s license suspension practices and detailing impact of those practices).

4

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suspension practices have been challenged on the grounds that they violate state or federal law. See, e.g., Hernandez v. California Dep’t of Motor Vehicles, No. RG16836460 (Super. Ct. of Alameda Cnty., filed Oct. 25, 2016); Rubicon Programs v. Solano County Superior Court, No. FCS047212 (Super. Ct. of Solano Cnty., filed June 15, 2016).
Plaintiffs, four individuals whose driver’s licenses have been suspended due to their failure to pay fines, fees, or costs assessed by Virginia courts, filed a Complaint in July 2016 against Richard D. Holcomb in his official capacity as the Commissioner of the Virginia Department of Motor Vehicles (hereinafter, “Defendant”), alleging that the specific practices Virginia employs to suspend the driver’s licenses of those who fail to pay fines or fees violates the Constitution. See generally Complaint. In part, Plaintiffs allege that Defendant automatically suspends the driver’s licenses of those who miss court payments (regardless of whether those payments are related to a traffic or non-traffic offense) without providing an adequate opportunity to be heard, and without any inquiry into whether the missed payment was the result of an inability to pay. Id. at ¶¶ 409-28. Plaintiffs seek declaratory relief, as well as injunctive relief prohibiting Defendant from suspending driver’s licenses due to nonpayment of fines and fees until Virginia can do so in a constitutional manner. Complaint at 54-55.
On October 3, 2016, Defendant moved to dismiss Plaintiffs’ Complaint. Motion to Dismiss [ECF No. 9]. In addition to arguing that Plaintiffs’ Complaint is procedurally barred, Defendant also argues that Plaintiffs’ due process and equal protection claims fail to state a claim upon which relief can be granted. Memorandum in Support of Defendant’s Motion to Dismiss [ECF No. 10] (hereinafter, “Defendant’s Memorandum”) at 30-40.6

6

The United States does not take any position on Defendant’s claim that the Complaint is

procedurally barred, or any other issue in this litigation not addressed herein.

5

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DISCUSSION A. The Fourteenth Amendment Guarantee of Procedural Due Process Prohibits the
Automatic Suspension of a Driver’s License for Failure to Pay Court Debt Absent Notice and a Meaningful Opportunity to be Heard The cornerstone of due process is that when the deprivation of a protected property interest is at stake, the state must provide notice and the opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965); see also Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Fuentes v. Shevin, 407 U.S. 67, 80-82 (1972); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-315 (1950) (“An elementary and fundamental requirement of due process in any proceeding . . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”) (citations omitted). A driver’s license is a protected interest that, once issued, cannot be revoked or suspended “without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U.S. 535, 539 (1972) (citations omitted). As with all deprivations of protected interests, the specific process that must be afforded in suspending a person’s driver’s license varies depending on what “the particular situation demands.” Mathews, 424 U.S. at 334 (internal quotation marks and citation omitted). The Supreme Court has articulated a three-part inquiry for evaluating the constitutional sufficiency of the process provided when a protected interest is affected: (1) the nature of the private interest that will be affected by the governmental action; (2) the risk of erroneous deprivation and the probable value of requiring additional procedural safeguards; and (3) the government’s interest, including the fiscal and administrative burdens that additional procedural safeguards would entail. Id. at 335 (citations omitted). Applying these factors in cases involving driver’s license suspensions, the Supreme Court has found varying degrees of process due depending on the nature and circumstances of the
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suspension.7 In Bell, the Court considered a challenge to a statutory scheme requiring the suspension of the driver’s license of any uninsured driver who failed to post security following an accident, regardless of whether that driver was at fault for the accident. Bell, 402 U.S. at 53537. The Court held that, in light of the fact that there was no emergency circumstance requiring the immediate suspension of the driver’s license, due process required the driver to be provided with a meaningful opportunity to be heard (though not necessarily a full evidentiary hearing) before the license suspension occurred.8 Id. at 540-42. In other circumstances where suspensions are more directly related to a state’s interest in maintaining public safety on its roads and highways, the Court has found that a post-suspension hearing is sufficient. In Dixon v. Love, 431 U.S. 105, 113-15 (1977), for instance, the Court upheld a statute requiring the suspension or revocation of a driver’s license if a driver is repeatedly involved in accidents or convicted of traffic offenses. Id. In those circumstances, the Court held, the statute’s provision of a full evidentiary hearing as soon as practicable was sufficient. Id. at 114-15. In Mackey v. Montrym, 443 U.S. 1, 13-17 (1979), the Court upheld the suspension of a driver’s license after an individual was arrested for driving under the influence and refused to take a breath-analysis test, because suspension “substantially served” the government’s interest in public safety.
Whereas Bell, Dixon, and Mackey involved challenges to the timing or scope of the opportunity to be heard regarding a driver’s license suspension, here Plaintiffs allege that

7

Citing to Davis v. Williams (4th Cir. Va. Apr. 3 1996) (unpublished), Defendant argues that the

driver’s license suspension statute at issue in this litigation has already been found to comport with

procedural due process requirements. See Defendant’s Memorandum at 32. However, the unpublished,

four-paragraph decision in Davis relies on the fact that the claims were procedurally barred and does not

address the procedural due process claims at issue in this case.

8

While the Supreme Court decided Bell four years before it decided Mathews, the Court’s analysis

in these cases was grounded in similar considerations. Compare Bell, 402 U.S. at 539-40 (weighing

individual interest, sufficiency of existing process, and government interest), with Mathews, 424 U.S. at

335 (instructing that courts consider individual interest, risk of erroneous deprivation and benefits of

additional process, and government interest).

7

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Defendant suspends the driver’s licenses of those who miss required court payments without providing an opportunity to be heard at all. Complaint at ¶ 39. Rather, Plaintiffs allege that individuals are only provided with basic notice of the license suspension and no means to challenge that suspension. Complaint at ¶¶ 275, 277. Specifically, Plaintiffs allege that after fines, costs, and fees are assessed, courts provide individuals with a form to acknowledge that the failure to pay the identified amount will result in the automatic suspension of the person’s driver’s license. Id. Plaintiffs further allege that the form provided does not notify people of any availability of a hearing regarding the suspension, nor is a hearing available in fact. Id. at ¶¶ 291-93. If, after 30 days, payment has not been received, Plaintiffs allege that the court automatically transmits a record of nonpayment to the Virginia Department of Motor Vehicles (DMV). Id. at ¶¶ 279, 284, 286. According to Plaintiffs, upon receipt of such a record, the DMV immediately suspends the individual’s driver’s license without any further notice and without conducting any separate inquiry into the reason for the default or the appropriateness of the suspension. Id. at ¶¶ 285-90. Plaintiffs state that suspensions remain in effect until all outstanding court debt is paid in full, or a payment plan is secured. Id. at ¶ 296. Finally, Plaintiffs allege that a reinstatement fee of at least $145 must also be paid before the suspension is lifted. Id. at ¶ 297.
Assuming these allegations to be true, as required at the motion to dismiss stage, and based upon relevant precedent and consideration of the Mathews factors, the driver’s license suspension practices employed by Defendant fail to comport with due process requirements. Turning to the first Mathews factor, a person’s interest in continuing to hold a valid driver’s license “is a substantial one.” Mackey, 443 U.S. at 11; see also Dixon, 431 U.S. at 113; Bell, 402 U.S. at 539. License suspensions can impose significant harm on the well-being of individuals
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and their families. Bell, 402 U.S. at 539. Depriving individuals of the use of their vehicle can imperil their ability to earn a living, pursue educational opportunities, and care for family.9 These harms may be particularly acute in rural areas of Virginia where there is limited public transportation and where essential services, such as health care and schools, may well be long distances from people’s homes. A driver’s license suspension is thus a significant interest, the deprivation of which can impose substantial harm. Cf. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18 (1978) (noting that utility service “is a necessity of modern life” and that the discontinuance of service “for even short periods of time may threaten health and safety” in holding that due process required greater procedural protections than were afforded); Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (citations omitted) (noting that welfare benefits provided “the means to obtain essential food, clothing, housing, and medical care” in holding that due process required hearing before termination of benefits).
The Supreme Court has also instructed that the duration of any potentially wrongful deprivation is an important part of assessing “the impact of official action on the private interest involved.” Mackey, 443 U.S. at 12 (citation omitted); Mathews, 424 U.S. at 341. Here, Plaintiffs allege that under Virginia’s statutory scheme a driver’s license suspension for a missed payment remains in effect until the debt triggering the suspension is paid in full (along with a

9

See, e.g., Robert Cervero, et al., Transportation as a Stimulus of Welfare-to-Work: Private versus

Public Mobility, 22 J. PLAN. EDUC. & RES. 50 (2002); Alan M. Voorhees, et al., Motor Vehicles

Affordability and Fairness Task Force: Final Report, at xii (2006), available at

http://www.state.nj.us/mvc/pdf/About/AFTF_final_02.pdf (a study of suspended drivers in New Jersey,

which found that 42 percent of people lost their jobs as a result of the driver’s license suspension, that 45

percent could not find another job, and that this had the greatest impact on seniors and low-income

individuals). Cf. Pew Research Center, The Fading Glory of The Television and Telephone 1 (2014),

http://assets.pewresearch.org/wp-content/uploads/sites/3/2011/01/Final-TV-and-Telephone.pdf (last

accessed October 17, 2016) (noting 2010 study showing that 86 percent of Americans believe that a car is

a necessity).

9

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reinstatement fee), which may result in a prolonged deprivation, particularly for indigent defendants. Complaint at ¶¶ 296-97.10
With respect to the second Mathews factor, there is a significant risk that the alleged practices will result in erroneous deprivations of driver’s licenses. Plaintiffs allege that driver’s licenses are automatically suspended on the basis of determinations by court clerks that are susceptible to clerical errors that may result in wrongful revocation, Complaint at ¶¶ 286-89— e.g., because the license suspension was requested against the wrong person or because fines and fees were actually paid but improperly recorded. Additionally, there are a number of situations where a person may not have paid the fine, but revocation may nonetheless be inappropriate— e.g., if a person never received notice of the payment due, if a person was hospitalized or otherwise incapacitated for the duration of the time period during which payment could be made, or because financial circumstances made it impossible to pay, see infra at 14-19. Indeed, Plaintiffs allege that several of these things happened in their cases. Complaint at 12-13, 15, 19, 24-25.
Virginia’s existing procedures are insufficient to protect against these erroneous deprivations and do not serve as an adequate substitute for a meaningful pre-deprivation hearing and appropriate notice of that hearing. Defendant argues that the “due process that is provided in connection with these Plaintiffs’ underlying criminal and traffic convictions afford them all the process that is due.” Defendant’s Memorandum at 33. Yet the process provided during the adjudication of individuals’ underlying offenses is targeted at ensuring that they have notice of

10

Defendant’s reliance on the availability of a “restricted license” for those who have had their

licenses suspended as evidence that these individuals may secure the ability to drive is misplaced.

Defendant’s Memorandum at 11. According to the Complaint, none of the named plaintiffs were in fact

eligible for this restricted license, in part because they are not currently employed. Complaint at ¶¶ 42,

118. Further, even for those eligible and able to secure a restricted license, such licenses are only valid

for six months. Va. Code § 46.2-395(E). Restricted licenses are thus unavailable in many cases and an

inadequate protection against wrongful driver’s license suspensions.

10

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the charges against them and a meaningful opportunity to be heard with respect to those charges. That process does not provide any opportunity to be heard regarding the event that triggers the driver’s license suspension—namely, a person’s failure to pay the court debt that stems from the underlying conviction. Indeed, courts do not assess fines or fees until the end of the process provided in connection with the underlying traffic or criminal offense; a person’s failure to pay those fines or fees thus necessarily occurs after the conclusion of that process. The circumstances here are therefore distinct from those in Dixon, 431 U.S. at 113-14. While the Dixon Court concluded that the risk of erroneous deprivation was low in part because due process was afforded in the underlying convictions, there the convictions themselves—and not any other event, like a person’s failure to pay—automatically triggered the driver’s license suspension. Id.11
By not providing any forum for individuals facing the suspension of their licenses to be heard, any errors that do occur are likely to persist, with compounding collateral consequences. As the Supreme Court has recognized, erroneous deprivations of driver’s licenses are particularly troubling because the state “will not be able to make a driver whole for any personal inconvenience and economic hardship suffered by reason of any delay in redressing an erroneous

11

Similarly, the availability of appellate review of a defendant’s underlying conviction does not

satisfy the Commonwealth’s obligation to provide a hearing regarding the defendant’s failure to pay fines

and costs that resulted from that conviction. Defendant’s Memorandum at 32. Plaintiffs do not seek to

re-litigate the facts related to the underlying conviction, but rather the appropriateness of the license

suspension itself. See Warner v. Trombetta, 348 F. Supp. 1068, 1071 (M.D. Pa. 1972) (requiring

administrative hearing for license suspension that resulted from guilty plea because even if the underlying

conviction cannot be contested, there still remains the possibility of error, including misidentification of

licensee, miscalculation of fine by the court, or errors on the report of conviction form), aff’d, 410 U.S.

919 (1973).

Defendant also points to the availability of a post-conviction “show cause” hearing to challenge

outstanding fines and fees. Defendant’s Memorandum at 32-33. However, these show-cause hearings

can be convened only by the court or a prosecuting attorney and are not required by statute. Va. Code

Ann. § 19.2-358(A). Nor does it appear any show-cause hearing was provided to any Plaintiff. See

generally Complaint. Additionally, the hearings address defaults of deferred payments or installment

plans, not erroneous deprivations of driver’s licenses. See Va. Code Ann. § 19.2-358(A).

11

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suspension through post-suspension review procedures.” Mackey, 443 U.S. at 11. To be clear, due process does not require that the process afforded to individuals is entirely free of error. See id. at 13; Mathews, 424 U.S. at 344. Nonetheless, absent basic procedural protections— including a meaningful pre-deprivation hearing that includes an assessment of the reason for nonpayment—the risk of error under the circumstances alleged by Plaintiffs is substantial and not easily redressed.
Turning to the third Mathews factor, the Commonwealth’s relevant interests and the fiscal and administrative burdens of additional or substitute procedural requirements do not outweigh the importance of providing more substantial procedural protections. Courts have recognized that states have a strong interest in using driver’s license suspensions as a way to protect public safety by preventing drivers with habitually unsafe driving records from continuing to drive. See Dixon, 431 U.S. at 113-14; Mackey, 443 U.S. at 13-17. Here, however, license suspensions are not imposed in response to an identified threat to public safety, but rather in response to missed payments and in order “to compel future compliance with a court order.” Defendant’s Memorandum at 36. Indeed, research shows that suspending driver’s licenses for nonpayment of fines and fees actually undermines public safety by diverting law enforcement resources away from traffic violations that do pose a risk to the public and by leading to more unlicensed and uninsured drivers on the roads. See supra note 5.
To be sure, the state has an interest in ensuring that offending drivers comply with court orders and bear responsibility for any offense of which they are convicted. But courts have found that this interest is not on par with the state’s interest in protecting public safety, and thus does not provide as strong a justification for failing to provide basic procedural protections. See, e.g., Dixon, 431 U.S. at 113-14 (finding that “the important public interest in safety on the roads
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and highways, and in the prompt removal of a safety hazard . . . . fully distinguishes” the case from Bell v. Burson, where the purpose “was to obtain security from which to pay any judgments against the licensee”) (citations and internal quotation marks omitted); Mackey, 443 U.S. at 1317 (1979) (noting that “the paramount interest the Commonwealth has in preserving the safety of its public highways, standing alone, fully distinguishes this case from Bell,” as courts have “accorded the states great leeway in adopting summary procedures to protect public health and safety”) (citations omitted); cf. Tomai-Minogue v. State Farm Mut. Aut. Ins. Co., 770 F.2d 1228, 1235 (4th Cir. 1985) (finding post-deprivation hearing to be adequate where statute required driver’s license suspensions against those who failed to satisfy automobile accident judgments).12
Further, automatic driver’s license suspensions do not further the Commonwealth’s interest in ensuring compliance with court orders—particularly with respect to indigent defendants, who remain unable to pay court-ordered fines and fees after their driver’s license suspension and may become less able to pay in light of the adverse impact of the suspension on their employment and their lives. Nor would the Commonwealth’s interest in compelling the payment of outstanding court debt be substantially compromised by providing individuals at risk of having their licenses suspended with a meaningful pre-deprivation opportunity to be heard.

12

Although the Commonwealth’s interest in Tomai-Minogue, as here, focused on the collection of

money, the court’s analysis makes clear that a license suspension for failure to pay a traffic accident

judgment is directly related to public safety because it ensures that drivers can be held responsible, and

injured parties made whole, for harms occurring on roadways, which in turn deters reckless driving. See

Tomai-Minogue, 770 F.2d at 1235 (acknowledging that public safety concerns heighten the state’s interest

in swift suspension of a driver’s license, as the interest in ensuring that motorists satisfy judgments “is

anything but trivial when accidents involve loss of human life, injury to other motorists, and extensive

property damage.”). No such heightened interest exists in the present case, where license suspensions are

used to compel the payment of court debts regardless of whether those debts are connected in any way to

road safety. Further, the court’s determination that a post-deprivation hearing satisfied due process in

Tomai-Minogue was also influenced by the particular procedural posture of that case, namely the

administrative complexities of requiring a pre-deprivation forum to challenge personal jurisdiction as the

plaintiff sought. Id. at 1236.

13

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Cf. Mackey, 443 U.S. at 18 (finding that “[t]he summary and automatic character of the suspension sanction available under the statute is critical to attainment of [the statutory] objectives” because a “pre-suspension hearing would substantially undermine the state interest in public safety by giving drivers significant incentive to refuse the breath-analysis test”).
Given the importance of driver’s licenses to those who possess them, the significant risk of erroneous suspensions due to the lack of a meaningful opportunity for individuals to be heard regarding the facts giving rise to a driver’s license suspension, and the nature of the Commonwealth’s interest as well as the impact additional procedural protections would have on that interest, Defendant’s driver’s license suspension practices fail to comport with procedural due process requirements. B. Automatically Suspending an Individual’s Driver’s License for Failure to Pay Court
Debt Without Any Assessment of the Individual’s Ability to Pay or Alternative Means of Securing the Government’s Interest Violates the Fourteenth Amendment The Fourteenth Amendment prohibits “punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983). Here, Defendant’s practice of automatically suspending the driver’s license of any person who fails to pay outstanding court debt—without inquiring into ability to pay—violates that constitutional principle. Its result is that indigent defendants who cannot afford their fines and fees have their driver’s licenses suspended, while defendants who can afford to pay do not. In a long line of cases beginning with Griffin v. Illinois, 351 U.S. 12, 16 (1956), the Supreme Court has made clear that conditioning access or outcomes in the justice system solely on a person’s ability to pay violates the Fourteenth Amendment. In Griffin, the Supreme Court held that a criminal appellant could not be denied the right to appeal based on an inability to pay a fee, finding that “[i]f [the state] has a general policy of allowing criminal appeals, it cannot
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make lack of means an effective bar to the exercise of this opportunity.” Id. at 24 (Frankfurter, J., concurring). In Williams v. Illinois, 399 U.S. 235 (1970), the Court found that a state could not incarcerate an indigent individual beyond the statutory maximum term on account of missed fine and fee payments, because if that incarceration “results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability to pay.” Id. at 240-41. And in Tate v. Short, 401 U.S. 395 (1971), the Court found that a state could not convert a defendant’s unpaid fine for a fine-only offense to incarceration because that would subject him “to imprisonment solely because of his indigency.” Id. at 397-98.
In Bearden, the Court elaborated on this principle in holding that the Fourteenth Amendment prohibits a state from revoking an indigent defendant’s probation for failure to pay a fine and restitution without first “inquir[ing] into the reasons for the failure to pay.” Bearden, 461 U.S. at 672. The Court also concluded that, for defendants who could not afford to pay fines or fees imposed for the purposes of punishment, “it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.” Bearden, 461 U.S. at 668-69.
While Griffin, Williams, Tate, and Bearden were cases in which a criminal defendant’s liberty interest was directly implicated, “Griffin’s principle has not been confined to cases in which imprisonment is at stake.” M.L.B. v. S.L.J., 519 U.S. 102, 111 (1996). Rather, the constitutional principle reaffirmed by these cases prohibits the imposition of adverse consequences against indigent defendants solely because of their financial circumstances, regardless of whether those adverse consequences take the form of incarceration, reduced access to court procedures, or some other burden. The Supreme Court has, for instance, held that an
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indigent defendant convicted of nonfelony offenses could not be denied an appellate record even though his convictions resulted in fines, not incarceration. See Mayer v. Chicago, 404 U.S. 189, 197 (1971) (noting that the “invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed”). The Supreme Court has also applied this principle in cases arising in entirely non-criminal contexts. See, e.g., M.L.B., 519 U.S. at 124 (indigent person could not be denied appeal of decision terminating parental rights due to inability to pay court costs); Boddie v. Connecticut, 401 U.S. 371, 382-83 (1971) (a married couple’s divorce could not be denied based on inability to pay court costs).
Despite the clearly established constitutional principle of equal access to justice articulated in Bearden and other cases, Defendant argues that even if its practices resulted in indigent defendants having their driver’s licenses suspended because they could not afford to pay outstanding court debt, this practice would fall outside of the Fourteenth Amendment’s prohibition on disparate treatment. See Defendant’s Memorandum at 36-40. Specifically, Defendant asserts that Plaintiffs have failed to allege either discriminatory effect or discriminatory intent as required by equal protection clause doctrine. Id. This argument is misplaced. In Bearden, the Supreme Court explained that because “[d]ue process and equal protection principles converge in the Court’s analysis in these cases,” the traditional equal protection framework does not apply. Bearden, 461 U.S. at 665. Given that “indigency in this context is a relative term rather than a classification, fitting the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished.” Id. at 666 n.8 (citation and internal quotation marks omitted); see also M.L.B., 519 U.S. at 127 (explicitly declining to apply traditional equal protection clause framework in holding Constitution requires
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availability of appellate review of the termination of parental rights). Instead, in determining

whether a particular practice violates the constitutional prohibition on “punishing a person for his

poverty,” courts must assess “the nature of the individual interest affected, the extent to which it

is affected, the rationality of the connection between legislative means and purpose, [and] the

existence of alternative means for effectuating the purpose.” Bearden, 461 U.S. at 666-67

(citation omitted; brackets in original).

Applying these factors here, and assuming the facts alleged in the Complaint,

Defendant’s practice of automatically suspending the driver’s license of a defendant who fails to

pay owed court debt without any inquiry into the defendant’s financial circumstances—i.e.,

whether the nonpayment was willful or the result of an inability to pay—violates the Fourteenth

Amendment.

The individual interest in maintaining possession of a driver’s license “is a substantial

one,” Mackey, 443 U.S. at 11, and the practices at issue significantly impair that interest. As set

forth in detail supra at 8-10, driver’s licenses are often crucial to a person’s well-being. Indeed,

the interest in a driver’s license may be even greater for indigent persons without means to secure alternate methods to provide care for themselves or their families.13 See Mayer, 404 U.S.

at 197 (noting that penalty other than incarceration “may bear as heavily on an indigent accused

as forced confinement[,]” and stressing that “[t]he collateral consequences of conviction may be

even more serious”). Further, suspending a person’s driver’s license entirely deprives that

person of the lawful ability to drive, as every state prohibits driving without a license or with a

suspended license. Additionally, Virginia is one of 41 states, as well as the District of Columbia,

where a first conviction for driving with a suspended license may carry a sentence of

13

See, e.g., Mikayla Bouchard, Transportation Emerges as Crucial to Escaping Poverty, N.Y.

Times, May 7, 2015, http://www.nytimes.com/2015/05/07/upshot/transportation-emerges-as-crucial-to-

escaping-poverty.html.

17

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incarceration. See Va. Code Ann. §§ 46.2-301, 18.2-11; see also Driving While Revoked, Suspended, or Otherwise Unlicensed: Penalties By State, National Conference of State Legislatures, http://www.ncsl.org/research/transportation/driving-while-revoked-suspended-orotherwise-unli.aspx (last accessed October 31, 2016). This risk is all too real for people who have no other option but to drive unlawfully in order to work, care for their children, or attend crucial medical appointments.
Further, the automatic suspension of driver’s licenses for failure to pay fines or fees does not advance a state’s inherent interest in promoting public safety, see supra at 12-13, nor is it an effective means of achieving the identified purpose of this practice, see supra at 13-14—namely compelling “future compliance with a court order.” Defendant’s Memorandum at 36. This is particularly true with respect to defendants who have failed to pay fines or fees because they could not afford to do so; they will not have any greater ability to pay after their license is suspended. See Bearden, 461 U.S. at 670 (“Revoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming.”). Indeed, in light of the impact a driver’s license suspension can have on a person’s ability to maintain employment, see supra at 9, in many cases suspending a person’s license may impair that person’s ability to satisfy outstanding court debt and thus frustrate, rather than advance, the interest identified here.14
Further, as the Court made clear in Bearden, there are alternative means, other than attempting to compel the payment of fines or fees through driver’s license suspensions, for

14

See Arthur W. Pepin, Conference of State Court Administrators, 2015-2016 Policy Paper, The

End of Debtors’ Prisons: Effective Court Policies for Successful Compliance with Legal Financial

Obligations 5 (2016), citing Alicia Bannon, Mitali Nagrecha and Rebekah Diller, Criminal Justice Debt:

A Barrier to Reentry 19 (2010) (“Because of the detrimental effects suspensions have on the employment

prospects of indigent people and because debt-related suspensions have no relation to driver safety, the

practice of suspending licenses for failure to pay fees is completely lacking in rehabilitative or deterrent

value.”).

18

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securing the Commonwealth’s underlying interest in punishing crimes and traffic violations of indigent defendants. These alternatives include reducing fines or fees to a manageable amount in accordance with a person’s ability to pay, offering community service programs, or requiring the completion of coursework, such as traffic safety classes.15 See Bearden, 461 U.S. at 672 (noting that “[t]he State is not powerless to enforce judgments against those financially unable to pay a fine” and highlighting alternative mechanisms available to states, such as community service) (citation and internal quotation marks omitted; alteration in original). Absent the use of these alternative mechanisms, indigent defendants who are unable to pay the fines and fees they owe face the suspension of their driver’s license, while defendants who can afford to pay do not. This disparity is “wholly contingent on one’s ability to pay” in violation of constitutional requirements. M.L.B., 519 U.S. at 127 (citing Williams, 399 U.S. at 242) (internal quotation marks omitted).
In light of these factors and Plaintiffs’ factual allegations, the practice of automatically suspending an indigent person’s driver’s license for failure to pay money owed to a court without adequate consideration of the person’s ability to pay violates the Fourteenth Amendment.
CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court conclude that Plaintiffs have set forth a plausible claim for relief that the alleged driver’s license

15

As the Department of Justice has recognized, in certain circumstances payment plans may be one

appropriate alternative for individuals who cannot afford to pay the entire amount owed during the

required time period. See Dear Colleague Letter, supra note 1, at 4. Defendant asserts that courts in

Virginia provide the opportunity for people to enter “deferred payment schemes” in order to avoid

automatic license suspension upon default. Defendant’s Memorandum at 33. However, if, as Plaintiffs

allege, there are conditions restricting access to payment plans, including criminal history requirements,

inflexible minimum payments, or substantial down payments, payment plans may be insufficient to

adequately alleviate impairment of ineligible individuals’ constitutional rights. Additionally, some

individuals may lack the ability to pay any money for the foreseeable future. For these persons, states

must consider alternative options that do not require monetary payment.

19

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suspension practices violate the Fourteenth Amendment by failing to (1) comport with procedural due process requirements and (2) consider defendants’ ability to pay.

Respectfully submitted,

JOHN P. FISHWICK, JR. United States Attorney Western District of Virginia
/s/ Anthony P. Giorno ANTHONY P. GIORNO (VA 15830) Assistant United States Attorney Western District of Virginia Post Office Box 1709 Roanoke, Virginia 24008-1709 Telephone: (540) 857-2906 anthony.giorno@usdoj.gov
LISA FOSTER (CA 122178) Director Office for Access to Justice Telephone: (202) 514-7073 lisa.foster3@usdoj.gov
KAREN LASH (CA 132133) Deputy Director Office for Access to Justice Telephone: (202) 307-3573 karen.lash@usdoj.gov
ROBERT B. BULLOCK (CA 219942) Senior Counsel Office for Access to Justice Telephone: (202) 514-5324 bob.bullock@usdoj.gov
PAUL KILLEBREW (LA 32176) Office for Access to Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530 Telephone: (202) 514-7086

VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division
ROBERT MOOSSY Deputy Assistant Attorney General Civil Rights Division
CHIRAAG BAINS Senior Counsel to the Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Section Chief Civil Rights Division Special Litigation Section
JUDE VOLEK (NY 10041483N) Special Counsel Civil Rights Division Special Litigation Section Telephone: (202) 353-1077 jude.volek@usdoj.gov
/s/ Maureen Johnston MAUREEN JOHNSTON (WA 50037) Trial Attorney Civil Rights Division Special Litigation Section Telephone: (202) 353-1146 maureen.johnston@usdoj.gov
/s/ Seth Wayne SETH WAYNE (LA 34144) Trial Attorney

20 Case 3:16-cv-00044-NKM-JCH Document 27 Filed 11/07/16 Page 20 of 22 Pageid#: 383

paul.killebrew2@usdoj.gov

Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, D.C. 20530 Telephone: (202) 353-3539 seth.wayne@usdoj.gov

21 Case 3:16-cv-00044-NKM-JCH Document 27 Filed 11/07/16 Page 21 of 22 Pageid#: 384

CERTIFICATE OF SERVICE I hereby certify that on November 7, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system. All participants in the case are CM/ECF users, and the CM/ECF system will provide electronic service.
/s/ Anthony P. Giorno ANTHONY P. GIORNO (VA 15830) Assistant United States Attorney Western District of Virginia Post Office Box 1709 Roanoke, Virginia 24008-1709 Telephone: (540) 857-2906 anthony.giorno@usdoj.gov
22 Case 3:16-cv-00044-NKM-JCH Document 27 Filed 11/07/16 Page 22 of 22 Pageid#: 385

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

DAMIAN STINNIE, ET AL.,

Plaintiffs,

v.

RICHARD D. HOLCOMB, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE VIRGINIA DEPARTMENT OF MOTOR VEHICLES,

Defendant.

CASE NO. 3:16–cv–00044 MEMORANDUM OPINION JUDGE NORMAN K. MOON

Damian Stinnie owes fees, fines, and costs to Virginia’s courts. He cannot pay them, so Virginia law requires that his driver’s license be suspended until he pays. But the suspension makes it difficult to get and keep a job. In other words, because he cannot pay the fees, his license is suspended, but because his license is suspended, he cannot pay the fees. Caught in this cycle, Stinnie and others have sued the Commissioner of Virginia’s Department of Motor Vehicles (“DMV”). They argue that the Commissioner suspended their licenses and that those suspensions violated their federal constitutional rights to due process and equal protection.
Because jurisdiction is absent from the current iteration of this lawsuit, the Constitution prevents this Court from ruling on the substance of Plaintiffs’ due process and equal protection challenges, however meritorious they may prove to be when decided in a proper forum.
First, Congress and the Constitution have not granted federal district courts the authority to hear appeals from state courts. The U.S. Supreme Court is the only federal court authorized to do so. Because this case involves allegedly unconstitutional suspension orders of Virginia state courts, Plaintiffs must seek relief from Virginia’s appellate courts and ultimately the U.S. Supreme Court, not this Court.

Second, the Constitution empowers a federal court to hear a case only if the court could fix the harm plaintiffs allegedly suffered at the hands of the defendant. Here, because the state courts (not the Commissioner) suspended the licenses, the complained-of injury is not fairly traceable to the Commissioner and cannot be fixed by a court order against him.
Third, the Constitution’s Eleventh Amendment forbids certain kinds of lawsuits in federal court against States. The Supreme Court has recognized, however, that the Eleventh Amendment does not prohibit lawsuits seeking to stop a state official from violating federal law. But this exception applies only when the state official has a special relationship to the supposedly unlawful conduct. Because that special relationship is absent here, the exception is inapplicable, and the Eleventh Amendment bars the case against the Commissioner.
This Court reiterates it is not deciding whether Virginia’s license suspension scheme is unconstitutional. All this Court is deciding (indeed, all it has the legal authority to decide) is that it lacks the lawful ability to rule on the merits of Plaintiffs’ challenge, at least as this lawsuit is currently constituted. Thus, the Commissioner’s motion to dismiss will be granted.
OVERVIEW Part I of this Opinion explains the standard of review. In Part II, the Court broadly outlines the allegations in Plaintiffs’ Complaint. Part III discusses the exact nature of Plaintiffs’ constitutional challenge. Plaintiffs make clear that they challenge their license suspensions issued (in their view) by the Commissioner pursuant to Va. Code § 46.2-395(B). Next, Part IV analyzes the text, structure, and meaning of § 46.2-395. This analysis reveals that a suspension under § 46.2-395 is done by the state court, not the Commissioner, for failure to pay court costs and fines.
2

Part V explains that this case is barred from federal district court by the Rooker-Feldman doctrine. Generally speaking, that doctrine holds that federal courts (other than the Supreme Court) cannot hear challenges to state court orders, like those at issue here.
In Part VI, the Court concludes that Plaintiffs lack constitutional standing in this case to challenge their suspensions. The harm they complain of (unconstitutional license suspensions) was not caused by the Commissioner. Ordering the Commissioner to “reinstate” the licenses would neither be related to the constitutional violation nor remedy the underlying suspensions.
Part VII finds that the Commissioner is not sufficiently responsible for and associated with the suspensions, and as such he is entitled to Eleventh Amendment immunity.
Finally, Part VIII notes other jurisdictional issues. I. STANDARD OF REVIEW
The Commissioner argues that the Complaint fails to allege a claim for relief. Under the associated standard, the Court assumes the truth of the Complaint’s factual allegations and draws reasonable inferences in Plaintiffs’ favor, but it does not adhere to the Complaint’s legal conclusions, unadorned labels, conclusory statements, and formulaic recitation of the elements. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 680–81 (2009). The Court may consider attachments to the Complaint. Leichling v. Honeywell Int’l, Inc., 842 F.3d 848, 851 (4th Cir. 2016).
The Commissioner, though, also seeks dismissal for lack of jurisdiction. He does not specify whether he mounts a “facial” challenge to the Complaint or a “factual” one based on additional evidence. As his only submissions were judicially noticeable state court orders (dkts. 10-1, 30-1) and the parties did not seek an evidentiary hearing, the Court concludes it is a facial one. See 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 629 (4th Cir. 2016) (distinguishing facial from factual challenges to jurisdiction). Accordingly, the Court applies the
3

familiar Twombly/Iqbal standard, taking care not to accord the “presumption of truth to conclusory statements and legal conclusions contained in [the] complaint.” Beck v. McDonald, No. 15-1395, -- F.3d --, 2017 WL 477781, at *4 (4th Cir. Feb. 6, 2017). Importantly, this rule applies even when legal conclusions are couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986); SD3, LLC v. Black & Decker, Inc., 801 F.3d 412, 422 (4th Cir. 2015).1 II. THE ALLEGATIONS
A. The Plaintiffs Plaintiffs Damian Stinnie, Demetrice Moore, Robert Taylor, and Neil Russo are indigent Virginians who have suspended driver’s licenses “for failure to pay court costs and fines that they could not afford.” (Complaint ¶ 1). They allege that their suspensions were “automatic and mandatory upon default.” (Id. ¶ 4). They request declaratory and injunctive relief against the Commissioner to: address and remedy the systemic, pervasive, and ongoing failure of the Commonwealth to provide basic protections afforded by the Due Process and Equal Protection Clauses of the United States Constitution before taking the harsh enforcement measure of suspending driver’s licenses against indigent people whose poverty prevents them from paying debts owed to courts. (Id. ¶ 6). Plaintiffs “seek to represent a class consisting of all persons whose Virginia’s driver’s licenses are suspended due to unpaid court debt and who, at the time of the suspension, were not able to pay due to their financial circumstances.” (Id. ¶ 373 (emphasis added)).

1

E.g., Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198–99 (4th Cir. 2014); Cook

v. Howard, 484 F. App’x 805, 810 (4th Cir. 2012) (disregarding “legal conclusions

masquerading as factual allegations” which were “inaccurate legal conclusions at that”). While

not deferring to the Complaint’s legal conclusions and “naked assertions,” Iqbal, 556 U.S. at

678, the Court—in recounting the Complaint—will nonetheless at times refer to them to provide

context for the reader.

4

They contend that “DMV is the entity responsible for the issuance, suspension, and revocation of driver’s licenses.”2 (Complaint ¶ 22). A driver’s license is critical for life functions such as employment, education, and family care. (Id. ¶¶ 30–31). In recent years, hundreds of thousands of Virginians allegedly have had their licenses suspended for failure to pay court costs and fines. (Id. ¶¶ 32–33). Such suspensions “can trap the poor in an impossible situation: inability to reinstate their licenses without gainful employment, yet inability to work without a license.” (Id. ¶ 34).
“Plaintiffs’ licenses,” they claim, “were suspended by the Defendant[3] immediately upon their default, without any inquiry into their individual financial circumstances, or the reasons underlying their failure to pay.” (Complaint ¶ 39 (emphasis added)). They cannot enter into repayment installment plans, either because the state courts to which they own money do not have such plans or because they cannot afford the plans that are offered. (Id. ¶ 41).
Mr. Stinnie is the lead named plaintiff. He received four traffic citations in late 2012 or early 2013, three of which resulted in conviction and over $1,000 in fines and court costs. (Complaint ¶¶ 53–54, 57, 61). Earning only $300 per week, he was unable to pay off this debt, leading—according to him—the Commissioner to suspend his license on May 20, 2013, without assessing whether he had the ability to pay. (Id. ¶¶ 61–67). Stinnie was cited seven days later for driving on a suspended license. (See id. ¶ 68; Va. Code § 46.2-301). He was convicted of

2

This statement of law is discussed later. Virginia Code § 46.2-200 does provide that the

DMV generally “shall be responsible for . . . the issuance, suspension, and revocation of driver’s

license,” but it does not grant the DMV exclusive authority to suspend licenses. In more specific

circumstances, courts are instead granted that authority. See infra pages 15–16 and footnote 19;

e.g., Va. Code § 46.2-395(B) (providing that “the court shall forthwith suspend” a convict’s

license if fines and costs are not “immediate[ly] pa[id] in full”); Va. Code § 46.2-301(D)

(providing that “the court shall suspend” the license of person convicted of driving on a

suspended license).

3

See supra footnote 1 and accompanying text.

5

this offense on September 19, 2013, while still hospitalized for lymphoma. (Complaint ¶ 73). He incurred additional fines and court costs for that conviction, further hampering his financial situation, as did medical treatments he needed to fight lymphoma. (Id. ¶¶ 68–78).
This cycle repeated itself in 2016 when—after battling poor health, homelessness, and a dire financial situation—he received more fines and costs for reckless driving and driving on a suspended license. (Complaint ¶¶ 89–99). As of July 2016, Stinnie owed $1,531 in costs and fines to various state courts. (Id. ¶¶ 111–18). He cannot afford to pay this amount given his limited income and payments for his car, which doubles as shelter when he cannot procure housing. (See id. ¶¶ 105–10).
As for Plaintiffs Moore, Taylor, and Russo, their particular circumstances differ somewhat from Stinnie (e.g., their underlying charges of conviction, the severity of their indigency and causes thereof), but the basic pattern is the same. All were convicted of some traffic violation or crime, thus incurring court costs, fees, and fines they could not afford to pay.4 Their licenses were suspended as a result, frustrating their ability to provide for themselves and creating a risk of additional convictions if they drove in an effort to do so. (See Complaint ¶ 341). Additional convictions (for driving suspended or other infractions) followed, compounding their financial situation and providing further bases for suspension.
B. The Alleged “License-for-Payment Scheme”5 Under Virginia law, a judge in a criminal case resulting in conviction notifies the clerk of the costs incident to the proceeding. Complaint ¶ 259; Va. Code § 19.2-335. The clerk then aggregates this information into a statement; the total is considered both a criminal fine and a

4

See, e.g., Complaint ¶¶ 123–24, 136, 140, 152, 166–70, 173, 176–77, 182–83, 192, 212,

224–25, 229, 231–34, 252–53.

5

See supra footnote 1 and accompanying text.

6

judgment in favor of the Commonwealth. Id. ¶¶ 259 (citing Va. Code § 19.2-336), 272–73

(citing Va. Code §§ 17.1-375.5, 19.2-336). Interest begins to accrue on the 41st day after the

final judgment. (Id. ¶ 280; Va. Code § 19.2-353.5). Particular kinds of costs and fees may be

assessed depending on the nature of the case. (Complaint ¶¶ 261–64). However, Virginia’s general district and circuit courts6 have uniform cost-and-fee schedules that do not vary based on

the ability to pay. (Id. ¶¶ 268–71; dkts. 1-1 & 1-2).

At trial (or by mail to those convicted in absentia), the general district and circuit courts

provide defendants with forms (Form DC-210 in the general district court and Form CC-1379 in

the circuit court, hereinafter “Suspension Forms”) explaining that nonpayment of costs or fines

results in a suspended license; these Suspension Forms—which are attached to and referenced in

the Complaint—do not mention the ability to pay. (Complaint ¶¶ 275, 277–78; see dkts. 1-3 &

1-4). Significantly, both Suspension Forms indicate that the defendant:

can avoid this suspension [of his driver’s license] going into effect only if the court actually receives payment in full . . . by the effective date of this suspension . . . . If payment in full is not received by the Court within 30 days of sentencing, the suspension goes into effect . . . .

(Dkt. 1-3 at ECF 3, Part I; dkt. 1-4 at ECF 3, Part I (emphasis added)).

If “immediate payment” is not received, the person’s driver’s license is suspended

“automatically,” without any inquiry into the reasons for default. (Complaint ¶¶ 284–85 (citing Va. Code § 46.2-395)). According to Plaintiffs, the Commissioner suspends the licenses.7 (Id.

¶¶ 66, 103, 129, 152, 174, 179, 227). Through administrative channels, the suspension is

6

These are two trial-level courts in Virginia. To simplify, general district court operates

largely as a small claims and traffic offense court, whereas circuit courts are the forum for larger

civil claims, criminal prosecutions, and de novo appeals from rulings of the general district

courts. See generally Va. Code §§ 16.1-77, 17.1-513.

7

As discussed infra, however, the statute unambiguously states that “the court shall

forthwith suspend” the license, a point supported by the Suspension Forms. Va. Code § 46.2-

395(B) (emphasis added); see supra footnote 1 and accompanying text.

7

communicated to the DMV, where an employee makes a data entry concerning it. (See id. ¶¶ 286–89, 294). Individuals who cannot pay their costs or fines within 30 days may make alternative payment arrangements with the state court to toll the effectiveness of their suspensions; the contours of these payment plans, however, vary and are not available in all of Virginia’s trial courts. (See id. ¶¶ 296, 302–19). III. The Nature of Plaintiffs’ Challenge
The Complaint is often critical of Virginia’s courts’ failure to consider Plaintiffs’ indigency or ability to pay fines and costs. (Complaint ¶¶ 62, 64, 75, 99, 125, 138, 171, 204, 226). Plaintiffs also oppose Virginia’s overall legal structures and procedures for assessing court costs, suspending licenses, communicating the suspensions, and reinstating licenses: They bundle these aspects together and label them collectively as a “payment-for-license scheme” or “system,” or an “unlawful court debt collection scheme” or “system.” (See id. ¶¶ 259–320, 335, 341, 372, 403, 405–06, 412, 416, 422, 427–28, 432, 440, 445–46, 449).
The true gravamen of the Complaint, though, is the suspension of Plaintiffs’ licenses, which Plaintiffs repeatedly assert was done by the Commissioner without notice or consideration of their ability to pay. (Complaint ¶¶ 39, 66, 67, 103, 129–30, 152–53, 174–75, 179–80, 227–28, 251, 370, 412; see dkt. 21 (hereinafter Pls’ Br.) at 11 (“the gravamen of Plaintiffs’ Complaint [is] Va. Code § 46.2-395’s automatic suspension of driver’s licenses”). Thus, Plaintiffs ask the Court “to enjoin the [Commissioner] from issuing orders of driver’s license suspension against the Plaintiffs and the Class Members,” and to declare “that the [Commissioner’s] policies, practices, acts, and/or omissions as described herein” are unlawful. (Id. ¶¶ 374, Prayer for Relief (c); see also id. Prayer for Relief (d), (e)).
8

While these requests are somewhat broad (given the number and scope of the “policies, practices, and acts” the Complaint recounts), Plaintiffs have specified what this case boils down to and what they challenge as unconstitutional: Virginia Code § 46.2-395, entitled “Suspension of license for failure or refusal to pay fines or costs.” Specifically, they:
seek injunctive and declaratory relief against Defendant Richard D. Holcomb in his official capacity for his actions in suspending their licenses pursuant to Va. Code § 46.2-395(B). (Pls’ Br. at 7 (emphasis added); see id. at 11, 22, 24–25, 29–30, 42–43; dkt. 55 (Hr’g Tr.) at 24 (Plaintiffs’ counsel: “This is about the driver’s licenses.”), 49–50 (“Plaintiffs are challenging an unconstitutional statute,” § 46.2-395). Plaintiffs emphasize this repeatedly.8 And the Class they seek to represent is comprised of individuals who both (A) have suspended licenses for nonpayment of court costs and (B) could not pay their costs at the time of suspension. (Complaint ¶ 373). Plaintiffs maintain they “are simply asking this Court to order Defendant to stop engaging in an unconstitutional practice—the automatic suspension of driver’s licenses without notice, without a hearing, and without regard for inability to pay.” (Pls’ Br. at 3). They “simply ask that Defendant cease suspending driver’s licenses” and reinstate their own. (Id. at 15). But an examination of Va. Code § 46.2-395 reveals the matter is not as simple as Plaintiffs contend.

8

See, e.g., Pls’ Br. at 10 (“Plaintiffs challenge as unconstitutional Va. Code § 46.2-395’s

automatic and mandatory suspension of driver’s licenses.”), 11 (“the gravamen of Plaintiffs’

Complaint [is] Va. Code § 46.2-395’s automatic suspension of driver’s licenses”), 14

(“Plaintiffs’ requested relief [is] enjoining the Defendant from suspending driver’s licenses

automatically under Va. Code § 46.2-395. . .”), 19 (“Defendant . . . suspends their licenses

without providing any post-default notice or hearing regarding their ability to pay the fines and

costs”), 20 (“the harm results from Defendant’s independent act of suspending the driver’s

license”), 34 (“They are challenging the automatic suspension of their driver’s licenses by

Defendant for being unable to pay”).

9

IV. THE TEXT AND MEANING OF VIRGINIA CODE § 46.2-395
The foundational principle of statutory interpretation is that the examination of a law
must begin with its text. See United States v. Neuhauser, 745 F.3d 125, 128 (4th Cir. 2014). The
analysis often concludes there too: “When the text of the statute is clear, our interpretive inquiry
ends.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 538 (1994); e.g., Octane Fitness, LLC v. ICON
Health & Fitness, Inc., 134 S. Ct. 1749, 1755 (2014). The Court applies the “fundamental canon
of statutory construction that words will be interpreted as taking their ordinary, contemporary,
common meaning.” United States v. Serafini, 826 F.3d 146, 149 (4th Cir. 2016).
A. The Framework
1. Subsection (B)
Plaintiffs challenge the constitutionality of their suspensions under Va. Code 46.2-
395(B), which reads in critical part as follows:
In addition to any penalty provided by law and subject to the limitations on collection under §§ 19.2-340 and 19.2-341, when any person is convicted of any violation of the law of the Commonwealth . . .[9] and fails or refuses to provide for immediate payment in full of any [fines or costs10] lawfully assessed against him, or fails to make deferred payments or installment payments as ordered by the court[11], the court shall forthwith suspend the person’s privilege to drive a motor vehicle on the highways in the Commonwealth. The driver’s license of the person shall continue suspended until the [fines or costs] ha[ve] been paid in full. However, if the defendant, after having his license suspended, pays the reinstatement fee to the [DMV] and enters into an agreement under § 19.2-354 that is acceptable to the court to make deferred payments or installment payments of unpaid [fines or costs] as ordered by the court, the defendant’s driver’s license shall thereby be restored . . . .

9

The omitted language refers to convictions for violating the laws “of the United States or

of any valid local ordinance.” That language is not relevant to this case.

10 The full text is “any fine, costs, forfeitures, restitution, or penalty.” For brevity, the Court uses the phrase “fines or costs” throughout this Opinion.

11 Virginia courts are authorized to arrange deferred payments or installment plans to help individuals pay off court fines and costs. See Va. Code § 19.2-354.

10

(boldface and italicized emphasis added). Several points about this passage merit attention. First, at the moment of conviction in a Virginia criminal case, full payment of any
assessed fines and costs is due “immediate[ly].” Second, if the defendant does not make immediate payment, his driver’s license is
suspended “forthwith”—meaning immediately or without delay.12 Plaintiffs acknowledge that the suspension is “automatic” and “immediate” upon nonpayment. (See Complaint ¶¶ 284–85; Pls’ Br. at 2, 4, 10). Every conviction involving a fine or costs thus effectively includes the suspension of the person’s license (see Suspension Forms), although in many instances the defendant may make payment shortly thereafter.13 In other words, the suspension may be brief, but it continues “until the fines, costs, forfeiture, restitution, or penalty has been paid in full.” (As discussed shortly, however, the effective date of the suspension is difference from the date of the suspension itself.)
Third and critically, the suspension is unequivocally and unambiguously ordered by the court. As the statute plainly says: “the court shall forthwith suspend the person’s privilege to drive a motor vehicle.” Va. Code § 46.2-395(B) (emphasis added); see Pls’ Br. at 4 n.2 (“it is the court that issues the order of suspension . . .”). This cuts to the heart of Plaintiffs’ case, which rests on their licenses being suspended by the Commissioner.
12 See Black’s Law Dictionary (10th ed. 2014) (“immediately; without delay”); Merriam Webster’s Collegiate Dictionary 458 (10th ed. 1994) (“immediately”); Webster’s New World Dictionary 241 (1984) (“without delay”); American Heritage Dictionary of the English Language (1976) (William Morris, ed.) (“at once; immediately; without delay”). 13 While a defendant may have his license restored by reaching an alternative payment plan with the sentencing court pursuant to Va. Code § 19.2-354 and then paying DMV an administrative reinstatement fee, this process occurs only “after having his license suspended” in the first place. Va. Code § 46.2-395(B) (emphasis added).
11

2. Subsection (C)
The subsequent portion of the statute, Subsection (C), dovetails with Subsection (B) and
further explains how the statute operates.
Before transmitting to the Commissioner a record of the person’s failure or refusal to pay all or part of any [fines or costs] or a failure to comply with an order issued pursuant to § 19.2-354, the clerk of the court that convicted the person shall provide or cause to be sent to the person written notice of the suspension . . . , [which is] effective 30 days from the date of conviction, if the [fine or cost] is not paid prior to the effective date of the suspension as stated on the notice.
Notice shall be provided to the person at the time of trial or shall be mailed by first-class mail to the address certified on the summons or bail recognizance document as the person’s current mailing address, or to such mailing address as the person has subsequently provided to the court as a change of address. If so mailed on the date of conviction or within five business days thereof, or if delivered to the person at the time of trial, such notice shall be adequate notice of the license suspension and of the person’s ability to avoid suspension by paying the [fines or costs] prior to the effective date. No other notice shall be required to make the suspension effective. A record of the person’s failure or refusal and of the license suspension shall be sent to the Commissioner if the [fine or cost] remains unpaid on the effective date of the suspension specified in the notice or on the failure to make a scheduled payment.
Va. Code § 46.2-395(C) (boldface and italicized emphasis added). This provision distinguishes
several concepts, including: the suspension itself; the effective date of the suspension; and a
“record” of nonpayment.
Subsection (C) requires the court clerk to provide the person with “notice of the
suspension” made by the court pursuant to Subsection (B). But Subsection (C) also makes clear
that the suspension is not “effective [until] 30 days from the date of conviction.” If the fines and
costs are paid during this 30-day grace period, then—as Subsection (B) contemplates—the
suspension is lifted before ever going into effect.
12

If, however, payment is not made within the 30-day window, two things occur. First, the suspension order becomes effective, that is, legally “enforceable.”14 So, for instance, a defendant could be charged and successfully prosecuted anew with driving on a suspended license if he drives on the 31st day, but not before.
Second, nonpayment after 30 days results in the court clerk transferring certain information to the Commissioner. The clerk transmits a record of the defendant’s nonpayment. But the clerk also sends a record “of the license suspension” to the Commissioner. Va. Code § 46.2-395(C). In other words, the suspension is a legal reality that preexists any involvement whatsoever from the Commissioner. This comports perfectly with Subsection (B), which made clear that the state court (not the Commissioner) suspends the license.
3. The Suspension Forms The Suspension Forms used by Virginia’s courts and attached to the Complaint also affirm the correct understanding of the statute. (See dkts. 1-3 & 1-4). Both Suspension Forms include a “PART I” which is an “ACKNOWLEDGMENT OF SUSPENSION OR REVOCATION OF DRIVER’S LICENSE.” (Dkt. 1-3 at ECF 2, 3; dkt. 1-4 at ECF 3 (boldface and capitalization in original)). The Forms allow for identification of the following basis for suspension: I acknowledge that I have been notified that my driver’s license/driving privilege . . . has been suspended . . . effective thirty day from the date of sentencing . . . pursuant to Va. Code § 46.2-395 as a result of my failure to pay all or part of my fines, costs, forfeiture, restitution, and/or penalty of $ ___ plus any additional court-appointed attorney fee, if applicable.
14 Black’s Law Dictionary (10th ed. 2014); see Merriam Webster’s Collegiate Dictionary 368 (10th ed. 1994) (defining “effective” as “being in effect; operative,” as in “the tax becomes effective next year”); American Heritage Dictionary of the English Language (1976) (William Morris, ed.) (“Operative; in effect” as in “The law is effective immediately”).
13

(Dkt. 1-3 at ECF 2; see dkt. 1-4 at ECF 2 (using similar language)). The circuit court Form even refers to itself as an “Order and Notice” and includes blanks for the circuit judge’s signature. (Dkt. 1-3 at ECF 2, 3). Each Form includes space for the defendant’s signature and then affirms:
I understand that I can avoid this suspension [of my driver’s license] going into effect only if the court actually receives payment in full of such [fines and costs] by the effective date of this suspension . . . . If payment in full is not received by the Court within 30 days of sentencing, the suspension goes into effect . . . . ((Dkt. 1-3 at ECF 3; dkt. 1-4 at ECF 3 (emphasis added)). Accordingly, the Forms track the distinction between a suspension—issued by courts under Subsection (B)—and its effective date 30 days later (which triggers the clerk’s obligation under Subsection (C) to send the Commissioner a record both of the suspension and of nonpayment). B. Plaintiffs’ Position Plaintiffs repeatedly contend that the Commissioner suspended their licenses. Yet they concede in a footnote that the Commissioner “correctly points out that, under Va. Code § 46.2395, it is the court that issues the order of suspension . . . .” (Pls’ Br. at 4 n.2). Plaintiffs do not yield completely, though. Rather, they argue that they: have alleged (Compl. ¶¶ 286-89) that the ‘order of suspension’ is nothing more than a transmittal of a record of non-payment and that it is the Defendant who actually suspends the license, which only he has the authority to do under § 46.2200. (Id. (emphasis added)). This argument is unavailing. It misstates both the cited allegations of the Complaint (which do not equate a record of nonpayment with a suspension order) and the law (which distinguishes between the two). For one, a record of nonpayment and the suspension order are two separate things. Plaintiffs do allege that “the court transmits a person’s record of nonpayment” to the DMV. (Complaint ¶ 286). But the Complaint does not allege—as the above-quoted portion of Plaintiffs’
14

brief contends—that the record of nonpayment is the same thing as a suspension order. (See id.
¶¶ 287–89). The allegation recounts only part of the Subsection (C), which makes plain that the
court also transmits a (preexisting) record “of the license suspension,” not just a record of
nonpayment. Va. Code § 46.2-395(C).15 This, of course, reaffirms what Subsection (B)
expressly states: That the court issues the suspension order. The point is further substantiated
by Plaintiffs’ attachments to the Complaint: the Suspension Forms apprising defendants of the
distinction between the suspension and its subsequent effective date. (See dkts. 1-3 & 1-4).
Plaintiffs’ other assertion—that “only” the Commissioner has authority to suspend
licenses16—also is unsupported. The statute cited in support of Plaintiffs’ position says that the
DMV, “under the supervision and management of the Commissioner,” generally “shall be
responsible for . . . the issuance, suspension, and revocation of driver’s licenses.” Va. Code §
46.2-200.17 Yet nowhere does § 46.2-200 assign the power to suspend licenses “only” or
exclusively or solely or entirely to the Commissioner or DMV, and for good reason.
The General Assembly not only granted Virginia’s courts the power to suspend licenses
for nonpayment of court costs and fees, it obliged them to do so. Va. Code § 46.2-395(B) (“the
15 This distinction fits logically with the rest of the statute. Because the defendant has a 30day grace period during which to pay his fines (and thus avoid the effectiveness of the suspension, though not the suspension itself), it makes good sense to statutorily distinguish the suspension, on one hand, from proof of nonpayment after 30 days (which triggers the suspension’s legal enforceability). Plaintiffs’ view—which treats the suspension and nonpayment as the same thing—renders meaningless this statutory distinction. 16 Pls’ Br. at 4 n.2; see id. at 10, 11 (claiming DMV has “sole” responsibility for suspensions); see also Hr’g Tr. at 53–54, 58–59. 17 The dissonance of relying on § 46.2-200 is notable. On one hand, Plaintiffs assert they are challenging suspensions made (ostensibly) by the Commissioner pursuant to § 46.2-395(B). (See Complaint ¶¶ 284–85, 290; Pls’ Br. at 4 (“suspension . . . is automatic and mandatory . . . [u]nder Va. Code § 46.2-395(B)”), 7 (seeking relief from Commissioner’s “actions in suspending their licenses pursuant to Va. Code § 46.2-395(B)”); id. at 11, 14). But if that is so, why resort to a different statute to show the Commissioner’s suspension authority? The reason is obvious: The Commissioner has no authority to suspend anything pursuant to § 46.2-395(B), courts do.
15

court shall forthwith suspend . . .” (emphasis added)). This implicates a basic canon of statutory interpretation: That a statute speaking specifically on a subject (as § 46.2-395(B) does regarding suspension for nonpayment) prevails over one phrased in general terms (like § 46.2-200).18 In fact, § 46.2-395(B) is one of many statutes—including several in Title 46.2—granting specific suspension authority to the courts instead of the Commissioner in certain situations.19 This reflects the General Assembly’s conscious choice to vest—in specified circumstances like those implicated here—suspension authority in the courts rather than the Commissioner.
Finally, while Plaintiffs would ignore Subsection (B)’s unambiguous command to “the court,” their approach would also reduce other portions of the law to irrelevance. Recall Subsection (C)’s function, supra Part IV.A.2, which requires the court clerk—on the effective date of the suspension—to provide the Commissioner with a record of both the suspension order and of nonpayment. Plaintiffs’ theory of Subsection (B) would make Subsection (C) both illogical and superfluous. See Cty. of Albemarle v. Camirand, 285 Va. 420, 424–25 (2013) (avoiding “absurd result[s]” and employing “basic canon[] of statutory construction [that] statutes should be interpreted, if possible, to avoid rendering words superfluous”); United States v. Joshua, 607 F.3d 379, 386–87 (4th Cir. 2010).
If the Commissioner is who suspends licenses for nonpayment, why would the General Assembly command that a “record” of “the license suspension shall be sent” to him by the clerk?
18 See Credit Union Ins. Corp. v. United States, 86 F.3d 1326, 1333 (4th Cir. 1996); Gas Mart Corp. v. Bd. of Sup’rs of Loudoun Cty., 269 Va. 334, 350 (Va. 2005); Virginia ex rel. Dep’t of Corr. v. Brown, 259 Va. 697, 706 (Va. 2000). 19 E.g., Va. Code §§ 46.2-301(D) (providing that “the court shall suspend” the license of person convicted of driving on a suspended license), 46.2-392, 46.2-393(A), 46.2-397; see also Reittinger v. Virginia, 260 Va. 232, 234 (2000) (“The court also suspended Reittinger’s driver’s license for a period of six months, pursuant to the provisions of Code § 18.2–259.1.”); Rivenbank v. Virginia, No. 1970-07-4, 2009 WL 1514494, at *1 (Va. Ct. App. June 2, 2009) (same).
16

Va. Code § 46.2-395(C). There is no apparent reason for a court clerk to send the Commissioner
a record of a suspension that he himself (supposedly) issued, and Plaintiffs have proffered none.
Indeed, the clerk’s statutorily mandated effort would be not only fruitless, but impossible.
In Plaintiffs’ view, the Commissioner creates the suspension. But if that is right, then Subsection
(C)’s command that the court clerk transmit a “record . . . of the license suspension” to the
Commissioner asks the clerk to do the impossible: There can be no “record” of something that does not yet exist.20
Courts, of course, attempt to give meaning to every word in a statute, strive to avoid
absurd results, and presume that the legislature does not write laws that require impossible or vain acts.21 Plaintiffs’ understanding would violate these well-established principles, creating
discord and disunity in the statute where none exists.
C. Summary
To review, Virginia Code § 46.2-395 functions as follows. When a defendant is
convicted in state court, his fines and costs are due immediately. When payment (as here) is not made immediately, his license is suspended immediately (“forthwith”) by the court.22 The
20 See, e.g., Black’s Law Dictionary (10th ed. 2014) (defining “record” as a “documentary account of past events, usu[ally] designed to memorialize those events”) (emphasis added); Webster’s New World Dictionary 500 (1984) (“any registered evidence of an event, etc.”). 21 Camirand, 285 Va. at 424–25; PKO Ventures, LLC v. Norfolk Redevelopment & Hous. Auth., 286 Va. 174, 183 (2013) (“when interpreting and applying a statute [courts assume] that the General Assembly chose, with care, the words it used in enacting the statute, and we are bound by those words”); Branch v. Virginia, 14 Va. App. 836, 839 (Va. Ct. App. 1992) (“a statute should never be construed so that it leads to absurd results”). 22 When a suspension is initially lifted by obtaining a court-approved payment plan pursuant to Va. Code § 19.2-354, then the court forthwith issues a new suspension if “he fails to make deferred payments or installment payments . . . .” Va. Code § 46.2-395(B). In this scenario, the clerk notifies the person of the (new) suspension by mail rather than at his criminal proceeding, even though the Order approving the payment plan also informed the person that a missed payment triggers suspension. See Va. Code § 46.2-395(C); dkt. 1-4 (Circuit Court
17

suspension, however, does not take effect until 30 days later. Thus, the defendant has a 30-day
grace period to pay his fines and costs in full (or arrange a payment plan with the court). If he
pays, the suspension is lifted by operation of law before ever going into effect. If he does not
pay, his suspension then becomes effective on Day 31. At that point, the court clerk sends the
Commissioner a record of both his nonpayment and of the suspension itself for administrative
and data-entry purposes. V. THE ROOKER-FELDMAN DOCTRINE BARS THE CASE FROM THIS COURT.
A. Basic Rooker-Feldman Principles The Rooker-Feldman doctrine “holds that lower federal courts are precluded from
exercising appellate jurisdiction over final state-court judgments.” Thana v. Bd. of License
Commissioners for Charles Cty., Md., 827 F.3d 314, 319 (4th Cir. 2016). “Review of such
judgments may be had only in” the superior state courts, as well as the U.S. Supreme Court
pursuant to 28 U.S.C. § 1257(a). D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983);
see id. at 486; Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000). The
doctrine is jurisdictional. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
283–86 (2005); Am. Reliable Ins. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003).
Analytically, Rooker-Feldman is rooted in the constitutional principles of federalism and
separation of powers: State courts are generally able to decide questions of federal law, and
federal district courts exercise jurisdiction over only specific genres of cases identified by
Suspension Form) at ECF 3, Part II(1) (requiring defendant on payment plan to provide changes in address) & Part II(5) (“Order and Notice of Deferred Payment or Installment Payments” apprising defendant that “if the Court has ordered deferred or installment payments, I must make all required payments on time and if I fail to make a scheduled payment, my driver’s license shall immediately be suspended forthwith pursuant to Virginia Code §46.2-395”); see also dkt. 1-3 (General District Court Suspension Form) at ECF 2–3, Part II(2) & (6) (imposing similar requirement as a condition for granting a “Petition” for deferred payment, installment payments, or community service).
18

Congress. See Washington v. Wilmore, 407 F.3d 274, 279 (4th Cir. 2005); Brown & Root, Inc. v.
Breckenridge, 211 F.3d 194, 198–99 (4th Cir. 2000); see also Feldman, 460 U.S. at 483 n.16;
Tafflin v. Levitt, 493 U.S. 455, 458–59 (1990) (“state courts have inherent authority, and are thus
presumptively competent, to adjudicate claims arising under the laws of the United States”); 28 U.S.C. § 1257(a).23
The doctrine thus incentivizes state litigants to—rather than rush to federal court after
losing—press their constitutional claims in state court and appeal an adverse ruling up the judicial hierarchy, all the way to the U.S. Supreme Court if necessary.24 See 28 U.S.C. 1257(a).
This structure has the added benefit of affording “the state court the first opportunity to consider
a state statute or rule in light of federal constitutional arguments” and perhaps “give the statute a
saving construction in response to those arguments.” Feldman, 460 U.S. at 483 n.16.
In recent years, appellate courts have clarified that Rooker-Feldman is not an expansive
doctrine. See Exxon, 544 U.S. at 283–84. It does not create a jurisdictional bar to concurrent
litigation, or to lawsuits challenging state administrative or executive actions (although
abstention doctrines, res judicata, limitations periods, or other impediments may apply). See id.
at 292–93; Thana, 827 F.3d at 320–21. Nevertheless, its core application has been reaffirmed:
23 Rooker-Feldman “does not bar review of a ruling of a state court in habeas corpus proceedings.” Plyler v. Moore, 129 F.3d 728, 732 (4th Cir. 1997). The reason is that, through habeas, Congress created a system of federal collateral review of state court criminal judgments against a “person in custody pursuant to [an allegedly unconstitutional] judgment of a State court.” 28 U.S.C. § 2254(a); see In re Gruntz, 202 F.3d 1074, 1079 (9th Cir. 2000). No party plausibly suggests that this proceeding sounds in habeas, the Complaint alleges claims under 42 U.S.C. § 1983, and Plaintiffs have not contended that they are in custody pursuant to the suspension orders they challenge. Thus, the habeas carevout to Rooker-Feldman does not apply. 24 In this way, Rooker-Feldman is a cousin of the Younger abstention doctrine, whereby a federal court will abstain from hearing a constitutional challenge to ongoing state criminal proceeding. See generally Younger v. Harris, 401 U.S. 37 (1971). As a result, the litigant must raise his constitutional defense in state court, and appeal up the judicial chain to his state’s highest court and, eventually, the U.S. Supreme Court.
19

i.e., “cases brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon, 544 U.S. at 284.
B. Application to This Case The Supreme Court has reviewed the archetypal situation to which the doctrine
historically and currently applies. In both Rooker and Feldman:
the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment. Plaintiffs in both cases, alleging federalquestion jurisdiction, called upon the District Court to overturn an injurious statecourt judgment. Exxon, 544 U.S. at 291–92. So too here. As explained in Part IV, supra, license suspension
orders are issued by the state court pursuant to Va. Code § 46.2-395(B). This is apparent from
the statute’s text and structure, as well as the Suspension Forms used by Virginia’s trial courts.
And now, Plaintiffs ask this Court to undo those very judgments as violations of due process and
equal protection. See Complaint ¶¶ 399–450, Prayer for Relief. But a plaintiff “may not escape
the jurisdictional bar of Rooker–Feldman by merely refashioning its attack on the state court
judgments as a § 1983 claim.” Jordahl v. Democratic Party of Va., 122 F.3d 192, 202 (4th Cir. 1997); see Am. Reliable Ins. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003).25
To be sure, Plaintiffs—insisting that their suspensions were not issued by a court—say
they are not challenging anything done by a state court. (See, e.g., Pls’ Br. at 3, 19, 34). But
their own statements reveal the true nature of the case. “At issue here,” Plaintiffs observe, “is the
Commonwealth’s own justice system.” (Id. at 30; see id. at 4 n.2 (conceding that state courts
issue suspension orders)). They “simply challenge the suspension of their licenses with no 25 Other Circuits agree. E.g., Southerland v. City of N.Y., 681 F.3d 122, 124 n.1 (2d Cir. 2012); Prince v. Ark. Bd. of Examiners in Psychology, 380 F.3d 337, 340 (8th Cir. 2004); Remer v. Burlington Area Sch. Dist., 205 F.3d 990, 997 (7th Cir. 2000).
20

notice, no hearing, and no determination of their ability to pay.” (Id. at 19). But the matter is not so simple. Plaintiffs overlook the imperative question (Suspended by whom?) answered by the text (“the court shall forthwith suspend . . .”) and structure of the law (Va. Code § 46.2-395) they challenge, as well as by the Suspension Forms.26
The situation thus is akin to Jordahl v. Democratic Party of Virginia, 122 F.3d 192 (4th Cir. 1997). There, as here, plaintiffs challenged “an unconstitutional scheme” of Virginia statutes; but the Fourth Circuit found that the alleged harm—like the alleged harm here—“is the result of the state court” orders, not of the named defendant. Id. at 203. “If the state courts did not issue the injunctions, the [plaintiff] would have no harm of which to complain.” Id.
Plaintiffs’ brief does try to avoid Rooker-Feldman by casting this case as involving a state “administrative” action to which the doctrine does not apply. See Thana, 827 F.3d at 320– 21. Plaintiffs write: “Defendant receives a list of defaulted debtors and suspends their licenses without providing any post-default notice or hearing regarding their ability to pay the fines and costs. It is this administrative act that forms the basis of the claims.” (Pls’ Br. at 19 (emphasis added)). “[I]n this case,” they claim, “the harm results from Defendant’s independent act of suspending the driver’s licenses without providing any notice or hearing on the ability to pay.” (Id. at 20 (emphasis added)).
The Court need not further belabor the central flaw in this argument, discussed above: The text and structure of § 46.2-395 (as well as the Suspension Forms attached to the Complaint)

26

There are sound strategic reasons for Plaintiffs’ disclaimers: “If [a plaintiff] is not

challenging the state-court decision, the Rooker–Feldman doctrine does not apply. If, on the

other hand, he is challenging the state-court decision, the Rooker–Feldman doctrine applies.”

Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718–19 (4th Cir. 2006). Thus they must argue

that the Commissioner, not the state courts, suspended their licenses—while nevertheless also

acknowledging what the statute actually says. (Pls’ Br. at 4 n.2).

21

make plain that the state court suspends the licenses, not the Commissioner. The suspension is a judicial one, not an independent administrative or executive act.27
C. The Existence of Alternative Forums
Lastly, Plaintiffs argue they have no other forum in which to raise their constitutional
objections to suspension, thus implying that this Court must have jurisdiction. (See Pls’ Br. at 16,
34–35 & n.10). The absence of alternative forums is a poor reason to decide an otherwise
jurisdictionally defective case. Regardless, the contention illustrates how Rooker-Feldman’s
underlying principles and function are frustrated by this Complaint, so the Court will discuss it.
Plaintiffs assert that they “have no other remedy” (Pls’ Br. at 16; see id. (“if this case is
dismissed, the Plaintiffs have no alternative remedy”)), and that “only this Court can hold Va.
Code § 46.2-395 unconstitutional.” (Dkt. 35 at 2; see id. at 6 (“Only a decision of this Court can . . . fix the constitutional injuries suffered by Plaintiffs and the class members”).28 The Supreme
Court has long rejected that stance, holding that state courts are capable of deciding questions of
federal law. See Tafflin v. Levitt, 493 U.S. 455, 458 (1990); Maine v. Thiboutot, 448 U.S. 1, 3
n.1 (1980). Thus, indigent individuals (or anyone) challenging their suspension orders can press
their arguments in the state trial and appellate courts, and before the U.S. Supreme Court.
27 Plaintiffs’ reliance on Powers v. Hamilton Cty. Public Defender Com’n, 502 F.3d 592 (2007), is misplaced because Powers is not analogous to this case. There, the state court assessed Mr. Powers a fine, nonpayment of which led to his incarceration. Id. at 596. He sued his state-employed public defenders for their “policy of not asking for an indigency hearing before a probationer is incarcerated for failure to pay a fine,” essentially turning a malpractice claim into a § 1983 claim. Id. at 598. Thus, the constitutional attack in Powers was against the Public Defender’s failure “to ask for an indigency hearing” before punishment for nonpayment, not against the judicial order itself that imposed the punishment (in Powers, an incarceration; here, license suspension). 28 To the extent these statements speak not to the alleged unavailability of another forum, but of Plaintiffs’ inability to prevail there due to a doctrinal impediment (e.g., statute of limitations, res judicata, failure to timely note an appeal), that consideration is not relevant.
22

“All citizens are presumptively charged with knowledge of the law.” Othi v. Holder, 734 F.3d 259, 270 (4th Cir. 2013). Virginia law states that—for any conviction resulting in fines or costs—payment is due “immediately” and, when not immediately made, the court suspends the license immediately (or in statutory parlance, “forthwith”). Va. Code § 46.2-495(B). Armed with this knowledge, there is no reason a defendant could not present in state court the very constitutional arguments pressed in this case. All he need do is raise them during the proceeding (for instance, after a finding of guilt, like any other objection to a sentence or punishment).29
If the state trial court rejects his arguments, the defendant may then file an appeal within 10 days (from the general district court) or 30 days (from the circuit court). See Va. Code §§ 8.01-675.3, 16.1-132, 16.1-136 (permitting de novo appeal from general district court); see also Va. Code §§ 16.1-69.5(a), 16.1-131.1 (providing “[p]rocedure when constitutionality of a statute is challenged in” general district court). If still dissatisfied, he can petition the Virginia Court of Appeals to hear the case, then the Supreme Court of Virginia, and then the United States Supreme Court. See Va. Sup. Ct. Rules 5A:12, 5:14, 5:17; Va. Code §§ 8.01-675.3, 16.1-132; 28 U.S.C. § 1257(a); e.g., Williams v. Virginia, 270 Va. 580, 583–84 (Va. 2005) (considering challenge to legality of punishment, not to underlying guilt); see also Va. Code § 16.1-131.1.
In fact, this Court is aware that Virginia’s appellate courts have heard appeals of allegedly unconstitutional, automatic license suspensions before. See, e.g., Walton v. Virginia, 24 Va. App. 757, 758–59 (1997) (Moon, C.J.) (considering due process challenge to “automatic suspension of a person’s driver’s license” triggered by a court’s “judgment of conviction” pursuant to Va. Code § 18.2-259.1(A)), aff’d 255 Va. 422, 424, 427 (1998).
29 This approach also comports with § 46.2-395(B)’s statement that suspension is “[i]n addition to” other penalties resulting from conviction, as well as Plaintiffs’ understanding of the suspension orders as a punishment. (See, e.g., Complaint ¶ 7; Pls’ Br. at 1, 2, 3, 4, 28, 29, 30–31, 37, 38, 40, 41).
23

Plaintiffs’ objection to this route—one contemplated by Rooker-Feldman and the
federalism and separation of powers principles that animate it—again ignores the text of § 46.2-
395. They maintain that they could not:
raise issues concerning the constitutionality of Va. Code § 46.2-395’s mandatory and automatic license suspension provision in such an appeal because their licenses would not have been suspended by the time they note their appeal [i.e., 10 or 30 days after conviction in a general district or circuit court, respectively].
. . . .
Driver’s license suspension is not reviewable on appeal of the underlying conviction.[30] The suspension of the driver’s license occurs at the same time as, or after, the deadline to appeal the underlying conviction has passed.
(Pls’ Br. at 16, 34–35 (emphasis added); see Hr’g Tr. at 56–57). This position conflates the
suspension order—issued “forthwith” “when any person is convicted” if “immediate” full
payment is not made, Va. Code § 46.2-395(B)—with its effective date: “30 days from the date
of conviction, if” payment is still outstanding. Id. § 46.2-395(C).31 Thus, the premise of the
30 Plaintiffs identify no authority for this proposition, and the law indicates otherwise. See Walton, 24 Va. App. at 758–59, aff’d 255 Va. 422, 424, 427 (1998). Basic principles regarding judgments likewise support the appealability of courts’ suspension orders. See Va. Code § 8.01669 (defining judgment as an “order” or “decree”); Starrs v. Virginia, 287 Va. 1, 7 (Va. 2014) (explaining that a judgment is a court’s determination of party’s rights). 31 Indeed, the law routinely distinguishes the date of an order from the date of its effectiveness or enforceability. See, e.g., Fed. R. Civ. P. 62(a); Fed. R. Crim. P. 38(b)(1); Va. Code §§ 8.01-676(C), 19.2-319; Wilson v. Virginia, 67 Va. App. 82, 91 (Va. Ct. App. 2016) (discussing state courts’ authority to delay imposition or execution of judgment).
Moreover, the time to appeal an order is commonly dependent on its issuance but independent of its enforceability. Compare Fed. R. App. P. 4(a)(1)(A) (30-day deadline to appeal civil judgment), and Fed. R. App. P. 4(b)(A) (14-day deadline to appeal criminal judgment), and Va. Code § 8.01-671 (three month deadline to appeal to Virginia Supreme Court with Fed. R. Civ. P. 62(a) (civil judgment not enforceable until 14 days after entry), and Fed. R. Crim. P. 38(a)(b)(1), and Va. Code § 8.01-676.1(C).
24

block-quoted argument above—that the time to appeal runs before the suspension itself occurs— is inaccurate.32
In sum, Plaintiffs had an opportunity to present their constitutional claims to the state
courts and, eventually, the U.S. Supreme Court. Now, however, they are—in the words of the
Thana Court—paradigmatic “state-court losers” who want “the process for appealing a state
court judgment to the Supreme Court under 28 U.S.C. § 1257(a) [to be] sidetracked by an action
filed in a district court specifically to review that state court judgment.” 827 F.3d at 320. The
Rooker-Feldman doctrine therefore applies.
VI. PLAINTIFFS LACK CONSTITUTIONAL STANDING.
Additionally, the Court holds that Plaintiffs lack constitutional standing. The
Constitution extends the “judicial power” of federal courts to only “cases” or “controversies.”
U.S. Const. art. III § 2. The Supreme Court has cautioned that “no principle is more fundamental
to the judiciary’s proper role in our system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 341 (2006). Inherent in that role—and derived from “the Constitution’s central
mechanism of separation of powers”—is the concept of “standing,” which “is part of the
common understanding of what it takes to make a justiciable case.” Steel Co. v. Citizens for a
32 At oral argument, a slightly different hypothetical was raised: A defendant in general district court fails to appeal in 10 days because he can pay by the effective date (i.e., 30 days), but—after the time to appeal lapses yet before the effective date—he fails to pay. (See Hr’g Tr. at 28, 29–30, 64–66, 70–71). Thus, his reason to appeal arose after his chance to appeal expired.
First, the Complaint does not implicate that situation, as Plaintiffs seek to represent a class of persons who could not pay “at the time of the suspension” (i.e., Day 0) and who thus had reason to appeal within 10 days. (Complaint ¶ 373). Second, if a person becomes indigent after the 10-day deadline to appeal but before the suspension takes effect on Day 30, he can petition the general district court to reopen his case. See Va. Code § 16.1-133.1.
As for a hypothetical, subsequent suspension imposed for a missed payment under a payment plan (see Hr’g Tr. at 29), Plaintiffs have offered no explanation why that suspension would not be a new, independent, appealable order. See supra footnote 30.
25

Better Env’t, 523 U.S. 83, 102 (1998). Plaintiffs bear the burden of establishing that they have standing, which they have failed to do. Id. at 104.33
To have standing, a plaintiff must meet three requirements. First, she must allege “injury
in fact—a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural
or hypothetical.” Steel Co., 523 U.S. at 102 (internal quotations omitted). This requirement is
not in dispute, as Plaintiffs contend they have suffered harm: the allegedly-unconstitutional
suspensions of their licenses.
“Second, there must be causation—a fairly traceable connection between the plaintiff’s
injury and the complained-of conduct of the defendant.” Steel Co., 523 U.S. at 103 (emphasis
added). Third, “there must be redressability—a likelihood that the requested relief will redress
the alleged injury.” Id. “An injury sufficient to meet the causation and redressability elements
of the standing inquiry must result from the actions of the [defendant], not from the actions of a
third party beyond the Court’s control.” Doe v. Virginia Dep’t of State Police, 713 F.3d 745, 755
(4th Cir. 2013). This case implicates the second and third requirements.
A. Causation/Traceability The traceability analysis is straightforward. “Traceability 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.” Doe, 713 F.3d at 755 (emphasis added). Plaintiffs challenge
the constitutionality of Va. Code § 46.2-395(B). (E.g., Pls’ Br. at 7, 22, 24, 25, 29, 30, 42, 43,
33 The parties debate whether the Commissioner is the proper defendant and whether the state court clerks must be present as defendants under Federal Rule of Civil Procedure 19. (E.g., dkt. 10 at 14–21; dkt. 31 at 13–17). Although not strictly jurisdictional, see Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119–22 (1968); Koehler v. Dodwell, 152 F.3d 304, 309 n.7 (4th Cir. 1998), the issue encompasses concerns analogous to those presented by standing. In any event, the Court must address standing sua sponte if the issue is in doubt. E.g., Juidice v. Vail, 430 U.S. 327, 331 (1977); United States v. Bullard, 645 F.3d 237, 246 (4th Cir. 2011).
26

45; Hr’g Tr. at 46, 52). As explained at length in Part IV, the state courts suspend licenses under that statute. Thus, the injury Plaintiffs complain of was caused not by the Commissioner, but by the “independent action of some third party,” Doe, 713 F.3d at 755—in this case, the Virginia judiciary. Put differently, assuming that the suspensions were unconstitutional, they were unconstitutional due to something the state courts (which are not parties here) did or failed to do.
B. Redressability “An injury is redressable if it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Doe, 713 F.3d at 755 (internal quotations omitted). A judgment in Plaintiffs’ favor against the Commissioner would not redress the injury of their suspensions; only an order invalidating the state court suspensions would do that. See S.C. Coastal Conservation League v. U.S. Army Corps of Engineers, 789 F.3d 475, 483 (4th Cir. 2015) (holding that “nonredressability” was “plain” when vacating decision by defendant still would not affect the complained-of harm). The Commissioner’s marginal role—overseeing the entry or “processing” of the court suspension orders into statewide databases (Complaint, Prayer for Relief (d); see Va. Code § 46.2-395(C); Complaint ¶ 289; Pls’ Br. at 5; dkt. 31 at 2–3)—illustrates the lack of redressabilty. Suppose this Court ordered the Commissioner to disregard the notices of suspension and nonpayment he received from the court clerks pursuant to Va. Code § 46.2-395(C). (See Complaint, Prayer for Relief (d)). The suspensions consequently would not appear in statewide databases he administers. Yet that would not affect the existence and validity of the state courts’ suspension orders under Subsection (B), as Plaintiffs concede.34 Legally, the licenses are still
34 “THE COURT: . . . What I’m getting at, if we order the Commissioner to change his record, what does that do to the court record? [PLAINTIFFS’ COUNSEL]: Your Honor, I don’t think that it addresses the court record.” (Hr’g Tr. at 49).
27

suspended. The inaccurate databases may decrease the likelihood Plaintiffs will be charged with
driving on suspended licenses. See Barden v. Virginia, 64 Va. App. 700, 702 (Va. Ct. App.
2015) (indicating that police check DMV’s database to ascertain driver’s status). But the legal
reality of their suspensions would be unchanged. An officer with notice of the suspensions and
the true state of affairs—e.g., he has a copy of the suspension order (see dkts. 1-3 & 1-4), or was
present when the court announced it—could justifiably issue a driving-suspended citation.35
Plaintiffs, of course, also seek a mandatory injunction against the Commissioner
requiring him to reinstate their licenses without a reinstatement fee.36 (Complaint, Prayer for
Relief (e); Pls’ Br. at 14; see Complaint ¶¶ 40, 43). The futility of this remedy is demonstrated
by Barden v. Virginia, and the fact that Virginia distinguishes the reinstatement of a license from
the cessation of a suspension. See Va. Code § 46.2-100 (defining “suspension”). Those separate
concepts map onto separate criminal offenses: driving without a valid license and driving on a
suspended one. Compare Va. Code 46.2-300 with Va. Code § 46.2-301.
In Barden, the defendant appealed his 2013 arrest for driving on a suspended license.
Mr. Barden had several pre-2013 suspensions, including indefinite ones for (like Plaintiffs here)
failure to pay court costs. 64 Va. App. at 702–03, 709. The undisputed evidence showed that—
35 The inverse situation further illustrates the disconnect between the Commissioner and the suspensions. Suppose the state court does not issue a suspension order, but—through a clerical error or bureaucratic oversight—the Commissioner’s databases reflect that it did. An officer might—reasonably relying on the (incorrect) databases—cite a citizen for driving suspended. But the charge is faulty and the citizen has a complete defense, because her license was not suspended at all. See, e.g., Barden, 64 Va. App. at 702–05, 710–11 (overturning conviction for driving on suspended license because all suspensions had expired, even though defendant’s failure to apply for reinstatement of license could be prosecuted under different statute as driving without a valid license). 36 Aside from redressability issues, this request circles back into the problem of causation and traceability. Plaintiffs ask the Court to craft a constitutional remedy (against the Commissioner) for the constitutional harm they suffered at the hands of nonparties, the state courts. There is no fit between ordering the Commissioner to reinstate licenses when it was the state courts that (by hypothesis) unconstitutionally suspended them.
28

before his 2013 arrest—either the terms of the suspensions lapsed or Mr. Barden had paid the fees underlying the indefinite suspensions, thus lifting them. Id. at 703, 708. He admitted, though, “that he had not paid any reinstatement fees; nor had he applied for a new or renewal driver’s license at the time he was stopped.” Id.; see id. at 704–05 (“appellant concedes that he did not formally reapply to have his license reinstated or renewed”).
The Court of Appeals overturned the conviction because suspension and reinstatement are two legally and analytically distinct events, which track two distinct crimes. The Court’s analysis relied on the statutory definition of “suspension” in Va. Code § 46.2-100, which applies throughout Title 46.2.
[P]eriods of suspension . . . come about independent of the Commissioner’s reinstatement . . . of one’s driver’s license. Code § 46.2–100 clarifies this point. Under that provision, the legislature has defined ‘suspension’ to ‘mean[ ] that the document or privilege suspended has been temporarily withdrawn, but may be reinstated following the period of suspension’ . . . . In other words, Code § 46.2– 100 references the reinstatement . . . of a suspended . . . license as an event separate from (and in this context, subsequent to) the termination of the period of suspension . . . . Thus, Code § 46.2–100 makes reinstatement . . . of a driver’s license contingent upon the termination of the period of suspension or revocation—not vice versa, as the Commonwealth contends. Barden, 64 Va. App. at 707 (second emphasis in original). Mr. Barden, then, could have been convicted of driving without a valid license, see Va. Code § 46.2-300, because he failed to have his license reinstated by the Commissioner after his suspensions lapsed. Barden, 64 Va. App. at 709–10. But his conviction for driving on a suspended license could not stand. Plaintiffs’ position in this case—like the Commonwealth’s position in Barden—rests on the (incorrect) belief that reinstatement and the end of a suspension go hand-in-hand. But as Barden held, it “is the termination of the period of suspension . . . that triggers an individual’s eligibility for reinstatement . . . .” Id. at 711. The Complaint admits this point, recognizing that
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one must first “become eligible” for reinstatement before a license can be reinstated. (Complaint ¶ 43).
A “period of suspension . . . terminates independent of reinstatement” by the Commissioner of a person’s driver’s licenses. Barden, 64 Va. App. at 711 (emphasis added). That independence reveals the absence of redressability, because Fourth Circuit “precedent declin[es] to find redressability where an additional, unchallenged rule could prevent a plaintiff from having her injury cured.” Doe, 713 F.3d at 757.
So here’s the point: Even if—notwithstanding traceability difficulties—this Court ordered the Commissioner to reinstate Plaintiffs’ licenses, that ruling would (at most) protect them from prosecution for driving without a valid license. But reinstatement would not cure Plaintiffs’ suspensions. See S.C. Coastal, 789 F.3d at 482–83 (affirming dismissal for lack of redressability because granting relief sought would not prevent complained-of harm); Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 149 (4th Cir. 2009) (holding fraternity’s constitutional “claim is not redressable because a ruling on that claim would not alter” university’s discipline supported by other grounds). It would not undo the state courts’ suspension orders. And it would not allow Plaintiffs to legally drive on the Commonwealth’s roads, because they would still possess suspended licenses. See Doe, 713 F.3d at 755–57; 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 633 (4th Cir. 2016) (lack of redressability where third party’s actions would prevent effective relief even if constitutional challenge succeeded); Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 430 (4th Cir. 2007) (no redressability when unchallenged law still banned noncompliant billboard, even if challenged law was overturned).
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The Suspension Forms attached to the Complaint further convey the distinction between the end of a suspension and reinstatement, explaining that an individual cannot legally drive until his suspension ends and his license subsequently is reinstated by the DMV. Specifically, the Forms inform a defendant that he “may not operate a motor vehicle in the Commonwealth of Virginia until:”
(1) All periods of suspension . . . have expired, AND (2) [He] ha[s] paid all unpaid fines, costs, forfeiture, restitution, and/or penalty (if any) and the period of suspension (if any) has expired, AND (3) The [DMV] reinstates [his] license (if suspended) . . . after:
(a) [He] ha[s] paid the reinstatement fee (if any) to the [DMV], AND [other administrative requirements are met.]
(Dkt. 1-3 at ECF 3, Part I(1)–(3); dkt. 1-4 at ECF 3, Part I(1)–(3) (boldface emphasis added). * * *
Because Plaintiffs allege a harm (their license suspensions and concomitant inability to legally drive) that is not traceable to the Commissioner and would not be remedied by an order against him, they lack standing under Article III of the Constitution. VII. ELEVENTH AMENDMENT IMMUNITY PRECLUDES THIS LAWSUIT.
The Commissioner also asserts Eleventh Amendment immunity. (Dkt. 10 at 21–22). Under Ex parte Young, a suit to enjoin unconstitutional acts of a state official may proceed against him without running afoul of the Eleventh Amendment’s prohibition on federal lawsuits filed by citizens against a State. 209 U.S. 123, 159–60 (1908). The Commissioner, however, maintains that the Young exception to Eleventh Amendment immunity does not apply to just any state official. (Dkt. 10 at 21–22). Rather, the sued official must have a “special relation” with the challenged statute or action.
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The Fourth Circuit expounded upon this requirement in McBurney v. Cuccinelli, which considered whether Virginia’s Attorney General was entitled to Eleventh Amendment immunity in a lawsuit challenging the constitutionality of Virginia’s FOIA statute. 616 F.3d 393, 396 (4th Cir. 2010). The Court emphasized that the “special relation” test requires both “proximity to and responsibility for the challenged state action.” Id. at 399 (emphasis in original); see Wright v. North Carolina, 787 F.3d 256, 262 (4th Cir. 2015). The McBurney Court held that the relevant statutory language—“contrary to the [plaintiffs’] characterization”—did not refer to the Attorney General but to local Commonwealth’s Attorneys. 616 F.3d at 400 (citing Va. Code § 2.23713(A)).
So too in this case. Plaintiffs sue the Commissioner in his official capacity for his supposed actions “in suspending their licenses pursuant to Va. Code § 46.2-395(B).” (Pls’ Br. at 7; see id. at 2, 4, 11, 29, 30, 42, 43, 45). But “contrary to [Plaintiffs’] characterization,” the Commissioner under Subsection (B) does not suspend the licenses—state courts do—and so he is not “responsib[le] for the challenged state action.” McBurney, 616 F.3d at 399, 400. Subsection (B) barely mentions the DMV, referencing only its role in collecting fees for license reinstatement, which—as discussed supra, Part VI.B—is different from suspension.
Applying the Eleventh Amendment bar to this suit also comports with additional Circuit precedent. In a constitutional challenge to a South Carolina law mandating employee contributions to pension plans, the Fourth Circuit found that Eleventh Amendment immunity applied to state officials who administered, managed, and invested the collected funds. Hutto v. S.C. Ret. Sys., 773 F.3d 536, 540–41, 549–51 (4th Cir. 2014). The Hutto plaintiffs sought an injunction to prohibit enforcement of the law (i.e., prevent deductions from their paychecks). Id.
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at 550. But state law “nowhere” gave the sued officials the responsibility of ensuring deductions were made. Id. at 551. Instead:
the role of the state officials named in the complaint is merely to wait passively for the funds to be transmitted . . . and, once the funds have arrived, to manage and invest them. As such, the complaint seeks to enjoin the Retirement System’s trustees and administrators from participating in a process in which they actually have no role. Id. Just as the Hutto plaintiffs challenged the constitutionality of action (the deductions) required of someone by state law, Plaintiffs here contest the constitutionality of action (license suspensions) they admit someone is “automatically” required to carry out under state law.37 But the Hutto plaintiffs did not sue those responsible under South Carolina law for ensuring the deductions take place, and so too Plaintiffs have not sued those responsible under Va. Code § 46.2-395(B) for their suspensions. See also Wright, 787 F.3d at 261–62 (holding that proposed defendants were not sufficiently connected to challenged law because state law “clearly assigns” authority to others). Likewise, the Commissioner—who awaits, from the court clerk, a record of nonpayment and of the suspension, see Va. Code § 46.2-395(C)—is analogous to the Hutto defendants, whose role was “merely to wait passively for the funds to be transmitted to the Retirement System and, once [there], to manage and invest them.” Hutto, 773 F.3d at 551. McBurney and Hutto reveal that the Ex parte Young does not apply to the Commissioner in this particular instance, and thus the suit is barred by the Eleventh Amendment. VIII. OTHER JURISDICTIONAL ISSUES In supplemental briefing, the parties debated whether Virginia Supreme Court Rule 1:24—issued on November 1, 2016, and effective February 1, 2017—moots this case. See
37 See, e.g., Complaint ¶¶ 4, 29, 284–85, 403, 405, 412, 418; Pls’ Br. at 1, 2, 3, 4, 10, 11, 17, 30.
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http://www.courts.state.va.us/courts/scv/amendments/2016_1101_rule_1_24.pdf. The Court
lacks jurisdiction over this case for three other, clearer reasons, so it need not decide the issue.38
The Commissioner also argues that the statute of limitations bars some of the Plaintiffs’
claims for declaratory relief. (Dkt. 10 at 26–30). The limitations period for a claim under 42
U.S.C. § 1983 is two years, which begins to run when the plaintiff had reason to know of the
injury. See Abeles v. Metro. Washington Airports Auth., No. 16-1330, 2017 WL 374741, at *6
(4th Cir. Jan. 26, 2017). The limitations period in this case may be entwined with additional
standing concerns.39 The complex entanglement of these issues—along with the independent
38 Rule 1:24 effectuates Va. Code § 19.2-354’s command that Virginia courts offer payment plans to those who cannot pay their court costs after thirty days, i.e., by the suspension’s effective date. Va. Sup. Ct. R. 1:23(b). Notice of this option is required. Va. Sup. Ct. R. 1:23(c). Courts must consider a person’s financial resources (including indigency) when fashioning a plan, and the down payment amount a court may impose as part of a plan is capped. Va. Sup. Ct. R. 1:23(d). The Rule, however, does not negate Va. Code § 46.2-395(B)’s mandate that courts must forthwith suspended licenses if immediate payment in full is not made.
Several bills to amend § 46.2-395 were introduced during the 2017 session of Virginia’s General Assembly. State Senator Adam Ebbin offered a proposal with significant changes to § 46.2-395(B). S.B. 1280, 2017 Gen. Assemb. Sess. (Va. Jan. 11, 2017). The bill first would have moved the payment due date from “immediately” to 90 days after assessment of costs and fines. Second, it would have eliminated mandatory suspension, instead permitting state courts to issue show cause orders why a license should not be suspended for nonpayment. Third, state courts then would have discretion to suspend licenses for nonpayment, but only upon a finding of intentional refusal to pay or failure to make good faith efforts.
The amended version of SB1280 that passed the Senate, however, includes only the first of these changes. See S.B. 1280, 2017 Gen. Assemb. Sess. (Va. Jan. 25, 2017). And even that version failed to pass the House. See http://lis.virginia.gov/cgi-bin/legp604.exe?ses=171 &typ=bil&val=sb1280&submit=GO (indicating SB1280 tabled in committee).
39 For instance, suppose a plaintiff’s license was suspended more than two years prior to this lawsuit and then suspended again within two years prior to its filing. See Complaint ¶¶ 66– 68, 129, 224–27, 238, 241–42. Assuming each suspension is a completed constitutional violation rather than an ongoing one, A Soc’y Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011); Miller v. King George Cty., 277 F. App’x 297, 299–300 (4th Cir. 2008), the limitations period would bar challenges to the first suspension but not the second. Yet that dichotomy creates a redressability problem: Even a favorable ruling on the second suspension would not affect the validity of the first.
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reasons jurisdiction is lacking—persuades the Court that deciding the mixed limitations/standing question would be imprudent.
SUMMARY Virginia law leads state judges to automatically suspend a defendant’s driver’s license for nonpayment of court fees and fines, regardless of his ability to pay. That unflinching command may very well violate Plaintiffs’ constitutional rights to due process and equal protection. But the Constitution does not allow a federal district court to decide the matter at this time. At least on this record, jurisdiction is absent for three separate reasons: the RookerFeldman doctrine; a lack of Article III standing; and Eleventh Amendment immunity. That conclusion, of course, does not forever insulate Virginia’s driver’s license suspension law from challenge. Claims like the ones in this case can be pressed in the state courts and eventually in the U.S. Supreme Court, and it may be possible to reconstitute them in a form and against a defendant such that a lower federal court would have jurisdiction. For now, though, this Court is empowered only to dismiss this case without prejudice for lack of jurisdiction. An appropriate order will issue. The Clerk of the Court is hereby directed to send a certified copy of this memorandum opinion and the accompanying order to all counsel of record. Entered this _1_3_t_h____ day of March, 2017.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-1740
DAMIAN STINNIE, Individually, and on behalf of all others similarly situated; DEMETRICE MOORE, Individually, and on behalf of all others similarly situated; ROBERT TAYLOR, Individually, and on behalf of all others similarly situated; NEIL RUSSO, Individually, and on behalf of all others similarly situated,
Plaintiffs - Appellants,
v.
RICHARD D. HOLCOMB, in his official capacity as the Commissioner of the Virginia Department of Motor Vehicles,
Defendant - Appellee.
------------------------------
THE INSTITUTE FOR JUSTICE; LAW PROFESSORS; VIRGINIA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; ALABAMA APPLESEED CENTER FOR LAW AND JUSTICE; AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA; CENTER FOR CIVIL JUSTICE; CENTER FOR JUSTICE; COLORADO CENTER ON LAW AND POLICY; EQUAL JUSTICE UNDER LAW; FLORIDA LEGAL SERVICES, INC.; KANSAS APPLESEED CENTER FOR LAW AND JUSTICE; LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW; MISSISSIPPI CENTER FOR JUSTICE; NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE; NORTH CAROLINA JUSTICE CENTER; PUBLIC JUSTICE CENTER; SOUTH CAROLINA APPLESEED CENTER FOR LAW AND JUSTICE; TEXAS APPLESEED; TZEDEK DC; WASHINGTON LAWYERS' COMMITTEE OF CIVIL RIGHTS AND URBAN AFFAIRS; WESTERN CENTER OR LAW & POVERTY,
Amici Supporting Appellant.

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Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior U.S. District Judge. (3:16-cv-00044-NKMJCH)

Argued: January 23, 2018

Decided: May 23, 2018

Before GREGORY, Chief Judge, and DUNCAN and FLOYD, Circuit Judges.

Dismissed and remanded by unpublished opinion. Judge Floyd wrote the majority opinion, in which Judge Duncan joined. Chief Judge Gregory wrote a dissenting opinion.
ARGUED: Tennille Jo Checkovich, MCGUIREWOODS LLP, Richmond, Virginia, for Appellants. Trevor Stephen Cox, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Jonathan T. Blank, MCGUIREWOODS LLP, Charlottesville, Virginia; Angela A. Ciolfi, Patrick S. LevyLavelle, Mario D. Salas, LEGAL AID JUSTICE CENTER, Charlottesville, Virginia; Leslie Kendrick, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellants. Mark R. Herring, Attorney General, Matthew R. McGuire, Acting Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. William R. Maurer, Bellevue, Washington, Jeffrey Redfern, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Amicus The Institute for Justice. Frederick Liu, HOGAN LOVELLS US LLP, Washington, D.C., for Amici Law Professors. Cynthia Cook Robertson, Robert C.K. Boyd, Washington, D.C., Thomas V. Loran III, PILLSBURY WINTHROP SHAW PITTMAN LLP, San Francisco, California, for Amici The Virginia State Conference of the National Association for the Advancement of Colored People, Alabama Appleseed Center for Law and Justice, American Civil Liberties Union Foundation of Virginia, Center for Civil Justice, Center for Justice, Colorado Center on Law and Policy, Equal Justice Under Law, Florida Legal Services, Inc., Kansas Appleseed Center for Law and Justice, Lawyers’ Committee for Civil Rights Under Law, Mississippi Center for Justice, National Center for Law and Economic Justice, North Carolina Justice Center, Public Justice Center, South Carolina Appleseed Center for Law and Justice, Texas Appleseed Center for Law and Justice, Tzedek DC, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and Western Center on Law & Poverty.

Unpublished opinions are not binding precedent in this circuit. 2
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FLOYD, Circuit Judge:
This case arises out of a constitutional challenge to Virginia Code § 46.2-395,
pursuant to which anyone who fails to pay court costs or fines imposed after a conviction
is subject to suspension of his or her driver’s license. Plaintiffs Damian Stinnie,
Demetrice Moore, Robert Taylor, and Neil Russo owe court debts and, because of their
inability to pay, have had their licenses suspended. They allege that the statute violates
the Equal Protection and Due Process clauses of the Constitution. The district court
dismissed Plaintiffs’ case without prejudice. Plaintiffs timely appealed. For the
following reasons, we dismiss the appeal for lack of jurisdiction and remand the case to
the district court with instructions to allow Plaintiffs to amend their complaint.
I.
Virginia Code § 46.2-395 provides, in relevant part:
(B) . . . [W]hen any person is convicted of any violation of the law of the Commonwealth or of the United States or of any valid local ordinance and fails or refuses to provide for immediate payment in full of any fine, costs, forfeitures, restitution, or penalty lawfully assessed against him, or fails to make deferred payments or installment payments as ordered by the court, the court shall forthwith suspend the person’s privilege to drive a motor vehicle on the highways in the Commonwealth. . . .
(C) Before transmitting to the Commissioner a record of the person’s failure or refusal to pay all or part of any fine, costs, forfeiture, restitution, or penalty . . . , the clerk of the court that convicted the person shall provide or cause to be sent to the person written notice of the suspension of his license or privilege to drive a motor vehicle in Virginia, effective 30 days from the date of conviction, if the fine, costs, forfeiture, restitution, or penalty is not paid prior to the effective date of the suspension as stated on the notice. . . .
3
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In their complaint, Plaintiffs alleged that they are indigent Virginia residents who have had their driver’s licenses suspended for failure to pay court costs and fines imposed following their convictions. Plaintiffs filed suit individually and on behalf of a class of additional unnamed plaintiffs similarly situated against Virginia Department of Motor Vehicles (“DMV”) Commissioner Richard Holcomb (“the Commissioner”) seeking declaratory and injunctive relief. Notwithstanding the language of Virginia Code § 46.2395(B)—providing that the “court shall forthwith suspend” the driver’s licenses— Plaintiffs alleged that it is the DMV, not the state court, that actually implements and issues the orders of suspension. Further, Plaintiffs alleged that to remove the license suspensions, they have to pay the amount owed to the court or establish an acceptable payment plan, and pay a reinstatement fee to the DMV. Accordingly, Plaintiffs claimed that Virginia Code § 46.2-395 violates the Due Process and Equal Protection clauses, U.S. Const. amend. XIV, § 1. They asserted that it “unfairly punishes them for being poor,” J.A. 11 ¶ 7, and traps them in a catch-22: because Plaintiffs do not have money to pay court costs, they do not have driver’s licenses, and because they do not have driver’s licenses, they are unable to obtain employment which would allow them to pay the court costs.
The Commissioner filed a motion to dismiss the complaint, and the district court granted his motion without prejudice. It concluded that it lacked jurisdiction over the claims against the Commissioner because the claims were barred by the Rooker-Feldman

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doctrine,* the Commissioner was entitled to Eleventh Amendment immunity, and Plaintiffs lacked standing. In granting the motion to dismiss, the district court was careful to note that “it may be possible to reconstitute [Plaintiffs’ claims] in a form and against a defendant such that a lower federal court would have jurisdiction.” J.A. 608. Plaintiffs then filed a Rule 59 and Rule 60 motion for reconsideration, along with several supporting exhibits purporting to demonstrate the court’s jurisdiction. The Commissioner opposed this motion, and filed a motion to strike the exhibits. The district court denied the motion for reconsideration and granted the motion to strike. This appeal followed.
II. The Commissioner argues that this Court lacks jurisdiction to consider Plaintiffs’ appeal because the district court’s dismissal without prejudice was not a final order. We agree. 28 U.S.C. § 1291 provides that the courts of appeals “shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . .” The finality requirement of § 1291 “advances the important interest of avoiding piecemeal
* The Rooker-Feldman doctrine holds that “lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments.” Thana v. Bd. of License Comm’rs, 827 F.3d 314, 319 (4th Cir. 2016) (quoting Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam)); see D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923). Here, the district court concluded that Plaintiffs were challenging a state court judgment because it was the state court that actually suspended the licenses.
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review of ongoing district court proceedings.” MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 116, 119 (4th Cir. 1994). We recently had the opportunity to examine at length the circumstances in which a dismissal without prejudice is considered a final judgment for purposes of appeal. See Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619 (4th Cir. 2015). In Goode, we held that “[a]n order dismissing a complaint without prejudice is not an appealable final order under § 1291 if ‘the plaintiff could save his action by merely DPHQGLQJ KLV FRPSODLQW¶ௗ´  Id. at 623 (quoting Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food & Commercial Workers Int’l Union, 10 F.3d 1064, 1066– WK &LU   ,I ³ௗµWKH JURXQGV RI WKH GLVPLVVDO PDNH clear that no amendment could cure the defects in the plaintiff’s case, the order dismissing the FRPSODLQWLVILQDOLQIDFW¶DQGWKHUHIRUHDSSHDODEOH´EXWD³ௗµSODLQWLIIPD\QRWDSSHDOWKH dismissal of his complaint without prejudice unless the grounds for dismissal clearly indicate that no amendment [in the complaint] could cure the defects in the plaintiff’s FDVH¶ௗ´ Id. (quoting Domino Sugar, 10 F.3d at 1066–67) (alterations in original).
We also noted that dismissals are generally final and appealable “in cases in which the district court granted a motion to dismiss on procedural grounds that no amendment to the pleadings could cure,” but that dismissals without prejudice are not final “in cases in which the district court granted a motion to dismiss for failure to plead sufficient facts in the complaint . . . .” Id. at 624. This approach “requires us to examine the appealability of a dismissal without prejudice based on the specific facts of the case in order to guard against piecemeal litigation and repetitive appeals.” Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir. 2005).
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The district court here determined that the complaint did not sufficiently allege subject matter jurisdiction. Based on the facts of this case and the district court’s grounds for dismissal, we agree with the district court that it “may be possible to reconstitute [Plaintiffs’ claims] in a form and against a defendant such that a lower federal court would have jurisdiction.” J.A. 608; see also J.A. 574 (granting motion to dismiss “[b]ecause jurisdiction is absent from the current iteration of this lawsuit . . .”) (emphasis added). The grounds for dismissal do not “clearly indicate that no amendment [in the complaint] could cure the defects in the plaintiff’s case,” Goode, 807 F.3d at 623 (internal quotation marks omitted), and thus appellate jurisdiction is lacking.
Plaintiffs argue that the district court’s dismissal was a final order because it dismissed their “case” without prejudice rather than merely dismissing their “complaint.” Reply Br. 20. We have noted that there is a “difference between an order dismissing an action without prejudice and one dismissing a complaint without prejudice,” Chao, 415 F.3d at 345, and that “courts have generally considered the former, but not the latter, appealable,” Goode, 807 F.3d at 624. But we followed that statement by noting that whether the district court merely dismissed the complaint or dismissed the action as a whole “is essentially one way of determining whether ‘the grounds of the dismissal make clear that no amendment could cure the defects in the plaintiff’s case, [such that] the order dismissing the complaint is final in fact and [appellate jurisdictiRQ H[LVWV@¶ௗ´  Id. (quoting Domino Sugar, 10 F.3d at 1066–67) (alterations in original).
Thus, the district court’s dismissal of the “case” without prejudice is not dispositive of our inquiry. Indeed, the district court in Goode also specifically dismissed
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the plaintiff’s “case” without prejudice—not simply his complaint. See Goode v. Cent. Va. Legal Aid Soc’y, Inc., No. 3:14cv281-HEH, 2014 WL 3945870, at *7 (E.D. Va. Aug. 12, 2014) (“Accordingly, Defendant’s Motion to Dismiss is granted and the case is dismissed without prejudice.”). This Court nevertheless concluded that the dismissal without prejudice was not a final, appealable judgment because the plaintiff “could have amended his complaint to cure the pleading deficiencies that the district court identified.” Goode, 807 F.3d at 624. There, like here, the grounds for dismissal did not make clear that “no amendment could cure the defects in the plaintiff’s case,” and therefore the order dismissing the case was not a final order. Id. at 625 (quoting Domino Sugar, 10 F.3d at 1066).
Finally, we make clear that here, like in Goode, we “assume without deciding that the district court applied the correct legal standards in assessing the motion to dismiss,” and our discussion “should not be read to indicate that we would hold that the district court’s analysis was free from error were we to consider [the appeal] on the merits.” Id. at 625 n.5. Although the parties disagree as to whether the district court erred in its legal analysis in granting the Commissioner’s motion to dismiss, “allowing appellate jurisdiction to rest on an argument that the district court had applied an improper [legal analysis] would paradoxically require this Court to assess the merits of the district court’s decision in order to determine whether we have jurisdiction to do so—putting the cart before the horse.” Id. at 625–26. Therefore, we express no opinion as to the correctness of the district court’s decision.
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Because we conclude that Plaintiffs may be able to cure the deficiencies identified by the district court by amending their complaint, we conclude that the district court’s dismissal without prejudice was not a final, appealable order and that we lack appellate jurisdiction.
III. For the foregoing reasons, Plaintiffs’ appeal is
DISMISSED AND REMANDED.

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GREGORY, Chief Judge, dissenting: I respectfully dissent because I would conclude that the district court’s dismissal
of Plaintiffs’ case for lack of jurisdiction is an appealable final order. The district court’s grounds for dismissal do not rest on the sufficiency of the plaintiffs’ factual pleadings; they instead rest on, in the court’s words, the “text and structure” of Va. Code Ann. § 46.2-395(B). See Stinnie v. Holcomb, No. 16-44, 2017 WL 963234, at *12–13 (W.D. Va. Mar. 13, 2017). Because no factual allegation is going to alter the text and structure of the state statute, no amendment to the complaint can cure the perceived jurisdictional defects. Therefore, I would conclude that the dismissal is an appealable final order over which this Court has appellate jurisdiction and, unlike the majority, decide whether the dismissal was proper. As to the district court’s grounds for dismissal, I would reverse and remand because the court erred on Rooker-Feldman, standing, and sovereign immunity.
I. A. Each year, the Commonwealth of Virginia imposes approximately half a billion dollars’ worth of fees and fines in traffic and criminal court. J.A. 13. The number and amount of these fees have grown over time and now fund a wide range of basic government operations and services. These fees include reimbursing the state for the appointment of counsel for indigent defense, as well as courthouse construction fees, courthouse security fees, criminal justice academy training fees, fixed misdemeanor fees, 10 Case 3:16-cv-00044-NKM-JCH Document 78 Filed 05/23/18 Page 10 of 35 Pageid#: 1058

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electronic summons fees, more-time-to-pay fees, and jail admissions fees, among a host of others. J.A. 14, 103–47. The stacking of these fees, along with interest, on top of offense-specific penalties, means that even a minor traffic violation could spiral out of control, to the tune of hundreds, or eventually thousands, of dollars. State courts do not appear to consider defendants’ poverty as they impose fines and fees. J.A. 17.
To incentivize payment, the state punishes each and every individual who defaults by automatically suspending his or her driver’s license, regardless of the reason for the default. When a scheduled payment is not received by the due date, the state court’s monitoring system automatically transmits an electronic notice to the Department of Motor Vehicles (DMV), indicating that the individual’s driver’s license has been suspended for failure to pay court debt. Va. Code Ann. §§ 46.2-395(B), (C). The DMV then updates its license database in accordance with the notice, thereby effectuating the suspension for all practical purposes, including for law enforcement. No notice of default is given to the driver, and no process exists for the driver to explain or contest the late payment before the DMV records the suspension. The DMV does not reinstate any suspended license until all debts owed to all state courts are current and the driver has paid a reinstatement fee of at least $145 to the DMV. J.A. 41.
This license-for-payment scheme, therefore, does not differentiate between those unable to pay from those unwilling to pay. By suspending the licenses of those who cannot pay for reasons outside of their control, the state traps thousands of Virginians in a nightmarish spiral for which there is no apparent exit. The license suspensions make it difficult, or even impossible, to maintain employment. For instance, in the Richmond
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area, only 27% of all jobs are accessible within 90 minutes of travel on public transportation. J.A. 46. For less urbanized areas, the share of accessible jobs is of course even lower. The inability to secure employment further undermines any ability to pay off court debt, which leads to the perpetual accrual of interest. J.A. 16. Then, when individuals drive on suspended licenses out of ignorance1 or desperation, they receive additional penalties and spiral further into insolvency.
The four named plaintiffs exemplify this phenomenon. Mr. Robert Taylor is a 28-year-old veteran of the National Guard who attended classes at Virginia Commonwealth University until he was forced to drop out for financial reasons. J.A. 26. He began working part-time for T-Mobile, earning $9 an hour. His license was suspended for failure to pay court debt stemming from a licenseplate violation. He was then convicted of driving with a suspended license, triggering additional debt. Mr. Taylor managed to pay the debt from the license plates, which allowed his license to be reinstated. However, Mr. Taylor could not afford to pay the fees for the suspended license citation, and his license was suspended again. Mr. Taylor partially paid off that debt before he had to take medical leave and ultimately lost his job at T-Mobile for health reasons. He then received additional citations for driving on a suspended license before he stopped driving altogether to avoid more citations and fees.
1 Neither the court nor the DMV sends any notice of default or suspension to the driver when a payment becomes overdue and the suspension takes effect. Instead, the state court only informs the driver prospectively, when the fine is first imposed, that her license will be suspended if payment is not made in full.
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Since then, Mr. Taylor’s inability to drive has prevented him from getting a job on several occasions, as he could not drive to an interview out-of-town or have reliable transportation to work. He was also rejected by an employer after a background check revealed pending charges for driving while suspended. Mr. Taylor now has no income and is saddled with $5,000 in medical expenses and $10,000 in student loans. He currently owes approximately $4,400 in court debt; and although he inquired about payment plans, he could not afford the initial down payment that was required by the only available plan. Neither the state court nor the DMV ever assessed his ability to pay when assessing fees, suspending his license, or determining a payment plan.
Mr. Neil Russo is a 61-year-old cancer survivor who also suffers from Wilson’s disease, a rare genetic disorder that causes kidney and liver problems and chronic pain. J.A. 31. In 2006, Mr. Russo was diagnosed with prostate cancer, lost his job at the National Counterterrorism Center, and accrued over $300,000 in medical debt. His sole source of income thereafter has been a monthly Social Security Disability check for $482. After losing his job, Mr. Russo was fined for issuing bad checks and speeding, among other violations. The state courts did not consider whether Mr. Russo was indigent before assessing the court costs and fines, which he could not afford to pay because his illnesses prevented him from working. The state automatically suspended Mr. Russo’s driver’s license when he defaulted. Mr. Russo continued to drive, in part because he needed transportation to his medical appointments. He was then cited for driving with a suspended license and was assessed an additional $150 fine and $202 in various add-on fees. In total, Mr. Russo now owes nearly $5,000 in court debt. He has proactively
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requested payment plans, which were unavailable or required prohibitively high monthly or down payments. Now, Mr. Russo is unable to drive to his medical appointments and cannot obtain any employment that requires driving.
Ms. Demetrice Moore, a 33-year-old single mother of two, was convicted of grand larceny in 2002, for which she has completed her sentence but has not yet paid the cost of her court-appointed counsel. J.A. 23. Despite having concluded that she was indigent, the court did not consider Ms. Moore’s ability to pay when setting court fees. After completing her sentence, Ms. Moore moved to New York for six years before returning to Virginia with a New York driver’s license. When she tried to switch to a Virginia license, the DMV determined that Ms. Moore was not eligible to drive in Virginia, due to her outstanding court debt. However, Ms. Moore’s job as an in-home certified nursing assistant, which paid her $8 an hour, required her to drive to work. Ms. Moore continued to drive, receiving several citations for driving on a suspended license. As a result, her court debt has ballooned to $4,467. Not wanting to accrue more citations, Ms. Moore no longer drives and cannot work as an in-home nursing assistant. Her family’s only source of income now is her daughter’s Supplemental Security Income (SSI) check and food stamps. The state court did not take Moore’s indigence into account while determining payment options, and she cannot afford the only payment plan available, which requires a minimum payment of $100 per month.
Mr. Damian Stinnie was earning approximately $300 per week at minimum wage jobs when a state court imposed a total of $1,002 for three traffic infractions. J.A. 16–17. The total had to be paid in full within thirty days, and the courts did not inform Mr.
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Stinnie of any other option, such as community service or a payment plan. At no point did the state consider Mr. Stinnie’s financial circumstances before either assessing the fees or suspending his license. In 2013, Mr. Stinnie, unaware that the system had automatically suspended his license, received a citation for driving while suspended. A week after Mr. Stinnie was diagnosed with lymphoma, the court imposed $150 in fines and $117 in fees for the citation.
For the next two years, Mr. Stinnie and his twin brother were homeless and regularly lived out of a jointly-owned used car because no other housing options were available. J.A. 19. In 2016, Mr. Stinnie was again cited for driving with a suspended license. The court did not set a fine but imposed $151 in court fees, even though the court recognized his indigent status when it appointed counsel. Mr. Stinnie could not afford to pay those fees and has now accrued over $1,500 in court debt to four different state courts, each of which has ordered a suspension of his license. Mr. Stinnie’s only source of income is food stamps and SSI of $750 a month, which he uses for food, clothing, and shelter. None of the four state courts have a payment plan or alternative that Mr. Stinnie is able to afford.
B. Alleging violations of their due process and equal protection rights under the Fourteenth Amendment, Plaintiffs filed a putative class action complaint against DMV Commissioner Richard Holcomb, in his official capacity. J.A. 55–62. Plaintiffs claim that the Commissioner, in implementing Va. Code Ann. § 46.2-395, unlawfully punishes
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their poverty by effectuating suspensions without distinguishing between those unwilling to pay and those unable to pay.
Plaintiffs seek numerous remedies: (1) a judgment declaring that the suspension scheme is unlawful, (2) an injunction ordering the Commissioner to stop processing further suspensions under the unlawful scheme, (3) an injunction reinstating licenses that have been suspended based on unpaid court debt, and (4) an injunction directing the Commissioner to waive reinstatement fees. J.A. 62–63.
The district court indicated that the lawsuit may well have merit but dismissed it on three jurisdictional grounds that are now on appeal. Stinnie, 2017 WL 963234, at *1. First, the district court held that it did not have subject matter jurisdiction because the Rooker-Feldman doctrine prevents the lower federal courts from reviewing state court judgments. Second, the district court held that Plaintiffs did not have standing because their injuries are not fairly traceable to or redressible by the Commissioner because state courts are responsible for suspending Plaintiffs’ licenses under Virginia law, not the DMV. Third, the district court held that the Commissioner is entitled to sovereign immunity under the Eleventh Amendment because he lacks a sufficient connection to the challenged state action. The district court noted that the dismissal was without prejudice and that an amendment might cure the jurisdictional defects.
Plaintiffs argue on appeal that the district court erred on all three jurisdictional grounds. The Commissioner argues that this Court lacks appellate jurisdiction because the district court’s ruling was not an appealable final order. Response Br. at 26. The
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Commissioner also argues in the alternative that the district court was correct to dismiss the case on all three grounds.
II. Like the majority, I first address this Court’s appellate jurisdiction before considering the district court’s grounds for dismissal. The majority is of course correct that “[a]n order dismissing a complaint without prejudice is not an appealable final order under [28 U.S.C.] § 1291 if ‘the plaintiff could save his action by merely amending his complaint.’” Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 623 (4th Cir. 2015). To determine whether a dismissal is appealable, this Court asks whether “the grounds of the dismissal make clear that no amendment could cure the [perceived] defects in the plaintiff’s case.” Id. (quoting Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993)). In this case, any amendment to the complaint would clearly be futile because the district court’s grounds for dismissal do not turn on factual allegations. Therefore, unlike the majority, I would conclude that the dismissal is a final order and that this Court has jurisdiction under § 1291. The district court’s grounds for dismissal are animated by two primary concerns. First, the district court noted that Plaintiffs seek relief from the suspension of their licenses. Second, the court concluded that the text of the state statute authorizes state courts, not the DMV, to issue such suspensions. See Va. Code Ann. § 46.2-395(B) (“[T]he court shall forthwith suspend the person’s privilege to drive a motor vehicle on the highways in the Commonwealth.”).
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In the district court’s view, those two considerations combine to create three fatal jurisdictional flaws. First, they indicate that Plaintiffs are functionally appealing state court judgments to a federal district court, rather than to state appellate courts and eventually to the Supreme Court. Stinnie, 2017 WL 963234, at *11. For the district court to usurp the Supreme Court’s jurisdiction over state court judgments would violate the Rooker-Feldman doctrine. See generally D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923). Second, because it is the state courts that issue suspensions under § 46.2-395, the Commissioner of the DMV did not cause Plaintiffs’ injuries and cannot redress them. Stinnie, 2017 WL 963234, at *15. Under that rationale, Plaintiffs would lack standing to sue the Commissioner. Finally, the district court concluded that the DMV Commissioner was immune from suit because he lacks a sufficient connection to the suspension to be sued under the Ex parte Young exception to sovereign immunity. Stinnie, 2017 WL 963234, at *19; see Ex parte Young, 209 U.S. 123, 159–60 (1908); McBurney v. Cuccinelli, 616 F.3d 393, 396 (4th Cir. 2010).
No amendment to the pleadings can mitigate the two concerns driving the district court’s analysis. First, as to seeking relief from the license suspensions, that is Plaintiffs’ entire case. Clearly, no case or controversy would remain if the amended complaint somehow dropped that central premise. Second, no change in factual pleadings will alter the plain text of § 46.2-395, which specifically authorizes state courts to issue suspensions. Under the standards that the district court has imposed, there is simply no way for Plaintiffs to survive a motion to dismiss for lack of jurisdiction.
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The district court’s analysis seems to suggest that perhaps the state court, rather than the DMV Commissioner, is the proper party to sue. However, that suggestion is a red herring at best.
First, even if Plaintiffs were to amend their complaint to add the state court, the district court’s application of the Rooker-Feldman doctrine would be unaffected. Indeed, Feldman itself involved a suit against a state court and its individual judges. See 460 U.S. at 473, n.8. Under the district court’s rationale, the state court would still be the entity responsible for the suspensions, and Plaintiffs would still be challenging the suspensions outside of the vertical appellate process. The identity of the defendant is simply immaterial to the district court’s Rooker-Feldman analysis, which asks only whether a state court ordered the suspensions.
Second, suing the state court would not help Plaintiffs establish standing under the district court’s standard. Under Virginia law, the Commissioner of the DMV is the sole entity responsible for the act of reinstating Plaintiffs’ licenses. See Va. Code Ann. § 46.2-395(B), (D). If Plaintiffs were to sue the state court, they would fail to demonstrate redressability under the district court’s standard because the statute authorizes the Commissioner, not the state court, to collect reinstatement fees, aggregate payment notices from all state courts, and reinstate licenses. Va. Code Ann. § 46.2395(B), (C), (D). In other words, the district court has created an anomalous situation where the Commissioner cannot be sued because he is not responsible for suspensions and the state courts cannot be sued because they are not responsible for reinstatements. Either way, the district court’s rationale results in a lack of standing and a dismissal.
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Similarly, suing the state court also would not allow Plaintiffs to surmount the district court’s sovereign immunity hurdle. Under the district court’s rationale, the Commissioner is immune because the statute authorizes the state court to issue suspensions, and the Commissioner therefore lacks a sufficient connection to the challenged action. However, were Plaintiffs to sue the state court, the state court would have immunity from any suit seeking the reinstatement of licenses because the Commissioner is responsible for reinstatement, and the state court accordingly lacks the requisite relationship. As with standing, the district court has trapped Plaintiffs in a catch-22.
Neither the majority, nor the district court, nor the parties have identified exactly how Plaintiffs could plausibly “reconstitute” their complaint in a form that would cure the perceived jurisdictional defects. I likewise fail to see how Plaintiffs could survive a motion to dismiss under the district court’s legal standards. See Stinnie, 2017 WL 963234, at *20; cf. Goode 807 F.3d at 625–28 (addressing each ground for dismissal and noting how each defect may be cured). Because no amendment to Plaintiffs’ complaint can cure the perceived jurisdictional defects, I would conclude that the dismissal is an appealable final order and that this Court has jurisdiction to review it.
III. I now address each of the three jurisdictional grounds on which the district court dismissed the case: Rooker-Feldman, standing, and Eleventh Amendment sovereign
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immunity. For the reasons below, I would reverse on all three grounds and hold that the district court does have jurisdiction over Plaintiffs’ claims.
A. Rooker-Feldman is an exceedingly narrow doctrine that has no relevance to the facts of this case. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (“The Rooker-Feldman doctrine . . . is confined to cases of the kind from which the doctrine acquired its name[.]”). The doctrine stands for the basic principle that the U.S. Supreme Court is the only federal court with appellate jurisdiction over state court decisions absent statutory authorization to the contrary.2 Rooker, 263 U.S. at 415–16. Thus, even when state courts err on questions of federal law, the proper jurisdictional channel for review is to appeal to the state’s higher courts, if any, and eventually to the U.S. Supreme Court. See 28 U.S.C. § 1257. In other words, Rooker-Feldman bars district courts from entertaining a claim that is functionally a direct appeal seeking reversal or modification of a state-court judgment. See Johnson v. De Grandy, 512 U.S. 997, 1005–06 (1994); Rooker, 263 U.S. at 416. But here, no state court has heard or rendered a decision on Plaintiffs’ constitutional claims—and so, the district court cannot possibly supplant the role of state appellate courts or the Supreme Court by exercising jurisdiction over such independent claims.
2 In contrast, federal district courts are courts of original and concurrent jurisdiction that ordinarily cannot review state court decisions for legal error. Federal habeas review is an example of an exception to this rule because Congress has expressly granted such jurisdiction. Thana v. Bd. of License Commissioners for Charles Cty., Md., 827 F.3d 314, 319 (4th Cir. 2016).
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The Supreme Court has only upheld applications of the Rooker-Feldman doctrine in the two eponymous cases. See Exxon, 544 U.S. at 287. In Rooker, the Supreme Court held that a federal district court did not have jurisdiction to declare a state court judgment null and void on the ground that the state court erred in applying federal precedent. 263 U.S. at 415–16. In Feldman, the Supreme Court held that a federal district court could not review the D.C. Court of Appeals’ decision to deny bar admission to an applicant. 460 U.S. at 463. However, Feldman also concluded that bar applicants could challenge the constitutionality of the rule that the D.C. Court of Appeals was applying to deny admission. Id. at 482–83.
Since Feldman, the Supreme Court has sharply curtailed lower courts’ overzealous application of the doctrine. In Exxon, the Supreme Court held that the doctrine should be cabined to the facts of its two namesake cases because a more expansive interpretation undercuts the concurrent jurisdiction of the lower federal courts. 544 U.S. at 283–84. Indeed, the Supreme Court so dramatically narrowed the doctrine’s application that Justice Stevens described Exxon as having “finally interred the so-called Rooker-Feldman doctrine,” which “ha[d] produced nothing but mischief for 23 years.” Lance v. Dennis, 546 U.S. 459, 468 (2006) (Stevens, J., dissenting on other grounds).
Under Exxon, Rooker-Feldman simply precludes parties who lose in state court from commencing a lawsuit in federal district court and seeking reversal of the state decision. 544 U.S. at 284, 287 n.2. Because the doctrine guards against district courts serving a forbidden appellate function, it cannot preclude jurisdiction over issues and claims which have never been ruled on by a state court. See Skinner v. Switzer, 562 U.S.
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521, 532 (2011). Such cases simply lack a relevant state decision subject to reversal. Dell Webb Communities, Inc. v. Carlson, 817 F.3d 867, 872 (4th Cir. 2016) (“[T]he Petition does not challenge the state court decision. Rather, it disputes . . . questions that were never litigated in the state court.”).
Furthermore, the simple fact that a federal plaintiff’s suit would undermine the correctness of a state court decision or otherwise frustrate its enforcement does not, by itself, trigger Rooker-Feldman. Thana v. Bd. of License Commissioners for Charles Cty., Md., 827 F.3d 314, 322 (4th Cir. 2016) (rejecting argument that district court could not rule in plaintiff’s favor without finding error by state court). As the Supreme Court held in Exxon, “[i]f a federal plaintiff presents some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party, then there is jurisdiction.” 544 U.S. at 293 (internal quotation marks and citation omitted). “[T]he test is not whether the relief sought in the federal suit ‘would certainly upset’ the enforcement of a state court decree, but rather whether the relief would ‘reverse or modify’ the state court decree.” Adkins v. Rumsfeld, 464 F.3d 456, 464 (4th Cir. 2006) (quoting Exxon, 544 U.S. at 284).
Indeed, the Supreme Court has held that district courts have jurisdiction over “independent claims,” including those that challenge the validity of “statute[s] or rule[s] governing the [state court] decision” or the constitutionality of the process by which a state court judgment is reached. Skinner, 562 U.S. at 532; see also Exxon, 544 U.S. at 288 (“The ‘so-called Rooker-Feldman doctrine’ does not deprive the Court of jurisdiction to decide [plaintiff’s equal protection and due process] challenge to the [state’s]
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procedures.” (quoting Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 18 (1987) (Scalia, J., concurring))). In Skinner, a state court twice denied a convicted defendant the right to DNA testing, applying a state statute that limited such post-conviction relief. 562 U.S. at 527–29. The criminal defendant then sought injunctive relief in federal court under 42 U.S.C. § 1983, arguing for the first time that the state’s statutory restrictions on DNA testing violated his Fourteenth Amendment due process rights. Id. at 529, 532. The Supreme Court reversed the lower courts and held that Rooker-Feldman did not apply to the defendant’s claim because he was not challenging the state court’s adverse application of the statute but rather the constitutionality of the statute itself—an issue that was not addressed by the state court. Id. at 532–33.
Plaintiffs’ constitutional challenges to Virginia’s license-for-payment scheme are indistinguishable from the independent claim at issue in Skinner. Here, Plaintiffs are also not challenging the state court decisions themselves. They do not contest their convictions, the applicability of the assessed fines and fees, or their failure to make the required payments. Rather, they challenge the statutory scheme, and the process it provides, as violating their due process and equal protection rights. As in Skinner, there is no state court judgment as to the claims brought in federal court. The absence of a reviewable state judgment, by definition, means Rooker-Feldman cannot apply, for it precludes only appellate review by district courts.
The district court’s conclusion to the contrary rests on two legal errors, the first of which is relying on Fourth Circuit precedent that predated Exxon. See Stinnie, 2017 WL 963234, at *12 (citing Jordahl v. Democratic Party of Virginia, 122 F.3d 192 (4th Cir.
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1997)). Those pre-Exxon cases are of questionable validity because the Fourth Circuit, like other courts, had taken an overly expansive view of the doctrine before being corrected by the Supreme Court. See Davani v. Va. Dep’t of Transp., 434 F.3d 712, 717– 18 (4th Cir. 2006) (discussing impact of Exxon on circuit precedent). Citing such precedent, the district court erroneously construed Rooker-Feldman as barring all federal claims that undermine any action taken by a state court. After concluding that state courts suspend driver’s licenses under Va. Code Ann. § 46.2-395, the district court summarily concluded that the suspensions must necessarily be judicial acts and that Plaintiffs must necessarily be seeking reversal of state court judgments. See Stinnie, 2017 WL 963234, at *12. However, this ignores the Supreme Court’s specific admonishment that the “character of the body” behind the challenged action is not dispositive of the Rooker-Feldman question.3 See, e.g., Feldman, 460 U.S. at 477. As such, the district court failed to consider whether ruling in favor of Plaintiffs’ constitutional claims actually amounts to a reversal of a state court judgment.
Second, the district court improperly viewed Rooker-Feldman through the lens of abstention and preclusion principles. Far from illustrating Rooker-Feldman’s
3 The Supreme Court has held that courts must look to the nature of the state action, rather than the identity of the actor, in determining whether the challenged action is of a “judicial” nature. See Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 644 n.3 (2002); Feldman, 460 U.S. at 482–83; see also Thana, 827 F.3d at 320–21. Notably, a court may nonetheless be engaged in non-judicial actions. Feldman, 460 U.S. at 486. Here, the Court need not decide whether the state court’s automatic transmission of a suspension order to the DMV upon a defaulted payment constitutes a judicial action because, as discussed above, Plaintiffs are bringing independent claims.
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“underlying principles and functions,” Stinnie, 2017 WL 963234, at *13, the possibility that state courts could hear or could have heard Plaintiffs’ constitutional claims is irrelevant. Indeed, that is precisely the mistake that the Supreme Court sought to correct in Exxon. There, the Supreme Court held that Rooker-Feldman should not be used to undermine the federal district court’s role as a court of concurrent jurisdiction. 544 U.S. at 284. Accordingly, the fact that a state court is an alternative forum does not deprive federal courts of jurisdiction. Id. at 292 (distinguishing Rooker-Feldman from comity and abstention doctrines). Similarly, the possibility that Plaintiffs could have raised their claims during their previous state proceedings is irrelevant because Rooker-Feldman is also analytically distinct from preclusion, which is not a jurisdictional concept. Exxon, 544 U.S. at 293. Because preclusion principles do not determine the scope of RookerFeldman, the fact that a plaintiff could have raised his federal claim in a state proceeding also does not deprive lower federal courts of jurisdiction. See Skinner, 562 U.S. at 533 n. 11 (“Even if [plaintiff could have raised federal claim in state court], ‘Rooker-Feldman is not simply preclusion by another name.’” (quoting Lance, 546 U.S. at 466)). While a district court may ultimately be bound by the preclusive effects of a state-court judgment, it nonetheless retains jurisdiction over the claim. Thus, whether Plaintiffs could have raised their constitutional challenges in a state court before or after the suspension of their licenses is immaterial for jurisdictional purposes.
In sum, Rooker-Feldman is a narrow doctrine that the district court improperly used to abrogate its own concurrent jurisdiction. Accordingly, I would hold that the district court erred in dismissing the case on this ground.
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B. The district court also erred in dismissing Plaintiffs’ case for lack of standing, specifically for failure to demonstrate traceability (or causation) and redressability. Here, the Commissioner is at least in part responsible for causing Plaintiffs’ alleged injuries, and granting Plaintiffs’ their requested relief would eliminate most if not all of the harms caused by Virginia’s license-for-payment scheme.
1. To establish standing, Plaintiffs must show that their injuries are “fairly traceable” to the Defendant. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). That is, the challenged action by the defendant must be “at least in part responsible for frustrating [the plaintiff’s] attempt to fully assert” his or her rights, “notwithstanding the presence of another proximate cause.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 316 (4th Cir. 2013). Thus, causation may be established even when there are multiple contributory or independent causes of injury. Id. (citing Bennett v. Spear, 520 U.S. 154, 168–69 (1997)). Standing also does not require that a defendant’s actions be a proximate cause. Id. at 315–16. Consistent with those principles, the Fourth Circuit has held that a plaintiff has standing to sue individuals or entities involved in the implementation of an unlawful scheme, notwithstanding any third party’s role in creating the scheme and setting it in motion. Doe v. Va. Dep’t of State Police, 713 F.3d 745, 757 (4th Cir. 2013). In Doe, the plaintiff asserted a due process challenge against the listing of her name on a sex-offender registry. Id. at 750–52. This Court held that she had standing to sue the police
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superintendent whose only role was to maintain the offender registry—even though the police department merely received offender data and did not make any classification decisions. Id. at 757–58.
Here, the role of the DMV Commissioner is no different from that of the police superintendent in Doe. Like the superintendent who maintained the registry, the Commissioner maintains a database of individual driver profiles and updates their statuses based on information received from state courts. Neither the police superintendent in Doe nor the DMV Commissioner here has any discretion to decide which individuals should be listed as an offender or debtor, respectively. And in both cases, the database manager effectuates the harmful consequences of court-determined designations by making the information available and accessible to the public or to law enforcement. As the district court correctly acknowledged, without the database, Plaintiffs would not have been penalized or incarcerated for continuing to drive and would still have the ability to drive to their work or to their medical appointments without being cited. See Stinnie, 2017 WL 963234, at *16 (citing Barden v. Virginia, 64 Va. App. 700, 702 (Ct. App. 2015) (noting that law enforcement officers use DMV’s database to ascertain validity of licenses)); Va. Code Ann. § 46.2-301(C) (providing for mandatory minimum jail term of 10 days for repeat offenders). The fact that a third party makes the initial suspension decision does not undermine the Commissioner’s own role in responding to and acting on that decision.
In addition to maintaining the DMV database, the Commissioner has sole responsibility for reinstating licenses and for collecting related reinstatement fees. Va.
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Code Ann. § 46.2-395(B). The fee is at least $145 and is not imposed by the state courts. For individuals who have little to no income, the reinstatement fee alone deprives them of their ability to drive as a consequence of their poverty. See Judd, 718 F.3d at 316 (holding that residency requirement caused injury to plaintiff’s First Amendment rights even if other obstacles to plaintiff’s exercise of his rights remain). Accordingly, the district court’s conclusion that Plaintiffs’ injuries are solely caused by third-party action is clearly untenable.
Quite simply, Plaintiffs’ injuries are traceable to the DMV Commissioner because, without his actions, Plaintiffs would be able to drive without paying a reinstatement fee and without fear of being cited, fined, and possibly incarcerated for driving on a suspended license.
2. Plaintiffs must also show that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, 528 U.S. at 181. For purposes of redressability, it is enough that the relief being sought “would abat[e] current violations and prevent[] future ones,” such as by deterring future violations. Id. at 188. Additionally, the plaintiff need “not show that a favorable decision will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 242–43 & n.15 (1982); accord Regents of Univ. of California v. Bakke, 438 U.S. 265, 280 n.14 (1978). Instead, “[t]the redressability requirement ensures that a plaintiff ‘personally would benefit in a tangible way from the court’s intervention.’” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 162 (4th Cir. 2000) (en banc). Here, the
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requested relief would functionally reinstate Plaintiffs’ driving privileges and prevent future suspensions or, at minimum, remove an obstacle to the restoration of their licenses. Accordingly, I would reverse the district court’s conclusion that a favorable ruling would not redress Plaintiffs’ injuries.
As the Supreme Court and this Court have held, an injury is redressible if a favorable court ruling would frustrate the implementation of the challenged statute or action. See Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 264–65 (1991); Cooksey v. Futrell, 721 F.3d 226, 238 (4th Cir. 2013). In Metropolitan Washington, plaintiffs sought redress from an airport authority’s proposed plan that would increase noise and pollution related to air traffic. 501 U.S. at 264–65. The airport authority’s ability to implement the proposed plan was contingent on a separate body, the Board of Review, retaining veto power over any such plans. Id. at 261. The Court held that the plaintiffs had standing to challenge the constitutionality of the Board’s veto power because invalidating the veto would “prevent the enactment of the [proposed] plan” and “is likely to redress their alleged injury,” even though the source of the injury was neither the Board nor the veto power. See id. Similarly, in Cooksey, a plaintiff sued a state agency for enforcing a law that restricted his ability to post dietary advice on his website. 721 F.3d at 233. As to standing, this Court held that a favorable decision either enjoining the enforcement of the challenged law or declaring the law unconstitutional would fully redress the plaintiff’s injuries because his ability to engage in the prohibited activity “would be restored without fear of penalty.” 721 F.3d at 238.
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Here, Plaintiffs similarly seek to prevent the Commissioner from implementing Va. Code Ann. § 46.2-395, which would restore their ability to drive without fear of punishment. They seek a declaration that the suspension process is unconstitutional, an order directing the Commissioner of the DMV to reinstate Plaintiffs’ driver’s licenses without requiring any reinstatement fees, and an order to cease the processing of any further suspension orders issued under the allegedly unconstitutional scheme. Granting the requested relief would dismantle the system responsible for trapping Plaintiffs in a vicious cycle of fines and unemployment. As the district court acknowledged, Plaintiffs would no longer be stopped, charged, and convicted of driving on a suspended license and would not incur additional fines and fees for driving. Stinnie, 2017 WL 963234, at *17. Plaintiffs, for all practical purposes, would be able to drive and use their licenses again without fear of penalty or incarceration—a tangible benefit sufficient to establish redressability.4 See Cooksey, 721 F.3d at 238; Gaston, 204 F.3d at 162.
Indeed, the removal of reinstatement fees alone satisfies the redressability requirement. As the Supreme Court has held, the removal of even one significant obstacle to the restoration of a plaintiff’s rights suffices to show redressability. See Larson, 456 U.S. at 242–43 & n.15 (holding that plaintiffs had standing to challenge one
4 An injunction would also deter future constitutional violations. Enjoining the Commissioner from enforcing the current scheme would prevent the state from continuing to use suspensions to coerce payment—at least until new procedures are created to distinguish those unable to pay from those unwilling to pay. Since Virginia uses suspensions to generate revenue, any reduction in revenue incentivizes reform. Thus, the remedy against the DMV is also likely to redress any procedural injury that Plaintiffs may have suffered.
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part of state law requiring registration under charitable solicitation statute, even if plaintiffs might ultimately be required to register for different reasons).
The district court held that Plaintiffs’ injuries are not redressible because, even with the requested injunctive relief, their licenses would still be suspended in the technical, legal sense, because the state court orders remain intact. This conclusion is problematic for several reasons. First, redressability does not require the remediation of every injury. Larson, 456 U.S. at 242–43 & n.15. Even if Plaintiffs’ licenses were to remain suspended in some abstract sense, it does not follow that the mitigation of the real-world, negative consequences of such suspensions would not redress at least some of their injuries. Furthermore, for the court to grant such injunctive relief, it would have to have decided that the suspensions were effectuated pursuant to an unconstitutional process. And, having been obtained through unlawful means, the suspensions would no longer be valid or enforceable. Therefore, even in a technical, legal sense, Plaintiffs’ licenses would no longer be suspended.
Because the relief sought would enable Plaintiffs to drive again, or at minimum remove one roadblock to their doing so, I would hold that the alleged injuries are redressible.
C. The district court also erred in dismissing the case on sovereign immunity grounds. Specifically, it held that the Ex parte Young exception to Eleventh Amendment immunity does not apply to this case because the DMV Commissioner lacks a “special relation” with the challenged statute or action. Stinnie, 2017 WL 963234, at *18–19
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(citing Ex parte Young, 209 U.S. at 159–60). However, because the Commissioner has specific enforcement obligations under Va. Code Ann. § 46.2-395 pertaining to the suspension and reinstatement of licenses, he clearly has the “special relationship” that Ex parte Young requires.
Ex parte Young permits suits challenging the unconstitutional actions of state officers acting in their official capacity, notwithstanding states’ Eleventh Amendment immunity. 209 U.S. at 159–60. The exception applies to “officers of the state [who] are clothed with some duty in regard to the enforcement of the laws of the state.” Id. at 155– 56. However, the doctrine does not apply to officers who have only a general obligation to enforce all laws of the state and who lack a “special relation” to the specific law or action being challenged. Id. at 157. The “special relation” requirement therefore protects officials like state governors and attorneys general, who “in a general sense” are “charged with the execution of all [state] laws,” absent any additional linkage between their position and the challenged laws. Id. at 157; see, e.g., McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010) (holding that state attorney general did not have sufficient connection to challenged law); Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001) (dismissing governor as party to lawsuit).
To meet this “special relation” requirement, the defendant must have both “proximity to and responsibility for the challenged state action,” such that “a federal injunction will be effective with respect to the underlying claim.” S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008). The requirement is not a stringent one, as the officer being sued need only “have some connection with the enforcement of the act.”
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See Ex parte Young, 209 U.S. at 157 (emphasis added). Indeed, it is not even “necessary that such duty [of enforcement] be declared in the same act which is to be enforced.” Id. Of course, if the challenged law does expressly confer an enforcement obligation on an officer, then the existence of the requisite connection becomes especially clear. Ex parte Young, 209 U.S. at 157.
In this case, the Commissioner, who is not a generalized law enforcement official, has express enforcement responsibilities under Va. Code Ann. § 46.2-395 to implement license suspensions and to reinstate licenses. First, the Commissioner is the designated recipient and record-keeper of all nonpayment and suspension notices from all state courts. Va. Code Ann. § 46.2-395(C); see Action NC v. Strach, 216 F. Supp. 3d 597, 624 (M.D.N.C. 2016) (holding that DMV has sufficient connection to voter registration law because it is charged with implementing registration procedures). The Commissioner is also the entity charged with returning licenses to those who have complied with their payment obligations. Va. Code Ann. §§ 46.2-395(B), (D). Finally, he is responsible for collecting license reinstatement fees. Va. Code Ann. § 46.2-395(B). Given these specific duties pertaining to license suspensions and reinstatements, the Commissioner can fairly be said to have both “proximity to and responsibility for the challenged state action.” See Limehouse, 549 F.3d at 333; cf. Hutto v. S.C. Ret. Sys., 773 F.3d 536, 551 (4th Cir. 2014) (holding plaintiffs cannot sue state officers to enjoin collection of pension contributions because officers have no role whatsoever in deducting contributions from wages).
In concluding otherwise, the district court again relies on the fact that the statute authorizes state courts to suspend licenses. However, the fact that state courts have the
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requisite proximity to the challenged action does not preclude the Commissioner from having the same. At bottom, Plaintiffs seek to have their licenses restored, pending a determination that they had the ability to pay when they defaulted on court debt. Reinstatement is, of course, the ultimate flipside of suspension, and once licenses have been suspended, a state court thereafter only notifies the Commissioner that a debt is current. The state court does not direct the reinstatement of the license itself, as other state courts may have issued additional suspension orders for other debt. As the only state official responsible for reinstating driver’s licenses, the Commissioner of the DMV cannot possibly be said to be too distant a party for this litigation.
For those reasons, I would hold that the Ex parte Young exception to sovereign immunity applies to the Commissioner in this case.
IV. For the above reasons, I respectfully dissent in this case and would reverse the district court’s dismissal for lack of jurisdiction. I would also reject Plaintiffs’ motion for judicial notice of material that the district court excluded from the record because it contains certain documents that are beyond what this Court ordinarily takes notice of and is unnecessary to the decision.

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

DAMIAN STINNIE, MELISSA ADAMS, and ADRAINNE JOHNSON, individually, and on behalf of all others similarly situated; WILLIEST BANDY, and BRIANNA MORGAN, individually, and on behalf of all others similarly situated,
Plaintiffs,
v.
RICHARD D. HOLCOMB, in his official capacity as the Commissioner of the VIRGINIA DEPARTMENT OF MOTOR VEHICLES
Defendant.

Civ. No: 3:16-cv-00044

FIRST AMENDED CLASS ACTION COMPLAINT Plaintiffs Damian Stinnie, Melissa Adams, and Adrainne Johnson, individually and on behalf of all others similarly situated, and Williest Bandy, and Brianna Morgan individually, and on behalf of all others similarly situated (collectively, “Plaintiffs”), state as follows for their First Amended Complaint: 1. The Plaintiffs in this lawsuit are Virginia residents who have suffered indefinite suspension of their driver’s licenses for failure to pay court costs and fines [“court debt”] that they could not afford to pay. 2. As a result of the Commonwealth’s efforts to coerce payment of court debt, and its failure to distinguish between those who are unwilling to pay and those who are unable to pay, nearly one million people have lost their drivers’ licenses simply
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because they are too poor to pay, effectively depriving them of reliable, lawful
transportation necessary to get to and from work, take children to school, keep medical
appointments, care for ill or disabled family members, or, paradoxically, to meet their
financial obligations to the courts.
3. From 2011-2015, people who had lost their licenses for failure to pay
court debt were sentenced to a total of 1.74 million days in jail for driving on a
suspended license.
4. Since Plaintiffs filed their original complaint, the Defendant,
Commissioner Richard D. Holcomb, has issued hundreds of thousands of suspensions
for failure to pay court debt, and hundreds of thousands of Virginians have been
convicted for driving on a suspended license due solely to failure to pay court debt,
and/or been sentenced to serve jail time for driving on a suspended license due solely to
failure court debt.
5. The Plaintiffs contend that, as written and as implemented by the
Commissioner,1 Section 46.2-395 of the Virginia Code is unconstitutional on its face for
1 In its Order setting a schedule for filing an amended complaint, the Court asked Plaintiffs to clarify whether their suit presents “facial or factual challenges (or both)” to the statute. ECF Doc. 81. One of Plaintiffs’ claims is a facial challenge that conforms to the highest standard imposed by the Supreme Court on facial challenges: that the challenged law be unconstitutional in all its applications. United States v. Salerno, 481 U.S. 739, 745 (1987). Section 46.2-395 unconstitutionally violates procedural due process on its face by revoking driver’s licenses— constitutionally protected property interests—without notice or a hearing. In this regard, every enforcement of the provision is unconstitutional. Plaintiffs’ other claims challenge the statute as applied to people who are unable to pay: both as written in the Code and as implemented by the Commissioner, the statute violates equal protection and due process when applied against those unable to pay. The Plaintiffs contend that the Commissioner is a proper defendant to challenge the constitutionality of Va. Code § 46.2-395, both as written and as implemented, because (1) under any construction of the statute as written, the Commissioner has a significant and special role in enforcement and (2) regardless of the statute’s terms, as it is actually implemented, the Commissioner issues suspensions pursuant to Va. Code § 46.2-395 without regard to the
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failing to provide sufficient notice or hearing to any driver before license suspension. It is additionally unconstitutional as applied to people who cannot afford to pay due to their modest financial circumstances.
6. The Plaintiffs bring this action for themselves and on behalf of all others similarly situated, seeking relief from the Commonwealth’s unconstitutional law that unfairly traps them in a vicious cycle of debt, unemployment, and incarceration.
JURISDICTION AND VENUE 7. The named Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. 8. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3), because it seeks to redress the deprivation, under color of State law, of rights, privileges, and immunities secured to the named Plaintiffs and Class Members by the Constitution and laws of the United States. 9. This Court has authority to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure. 10. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the named Plaintiffs’ claims occurred in this judicial district, or a substantial part of the property that is the subject of this action (namely, Plaintiffs’ driver’s licenses) is situated in this judicial district.
existence or non-existence of any court document ordering said suspension.
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PARTIES Plaintiffs
11. Plaintiff Damian Stinnie is a 26-year-old African American man who lives in Charlottesville, Virginia.
12. Mr. Stinnie is indigent within the meaning of Va. Code § 19.2-159. 13. Plaintiff Adrainne Johnson is a 32-year-old African American woman who lives in Charlottesville, Virginia. 14. Ms. Johnson is indigent within the meaning of Va. Code § 19.2-159. 15. Plaintiff Melissa Adams is a 35-year-old white woman who lives in Cascade, Virginia. 16. Ms. Adams is indigent within the meaning of Va. Code § 19.2-159. 17. Plaintiff Williest Bandy is a 30-year-old African American man who lives in Norfolk, Virginia. 18. Mr. Bandy is indigent within the meaning of Va. Code § 19.2-159. 19. Plaintiff Brianna Morgan is a 32-year-old African American woman who lives in Petersburg, Virginia. 20. Ms. Morgan is indigent within the meaning of Va. Code § 19.2-159. Defendant 21. Defendant Richard D. Holcomb is the Commissioner of the Virginia Department of Motor Vehicles (“the DMV”). 22. Mr. Holcomb is sued in his official capacity as Commissioner of the DMV.
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23. The DMV is the entity responsible under Virginia law for the issuance, suspension, and revocation of driver’s licenses. Va. Code §§ 46.2- 200 et seq.; see also Va. Code Ann. § 46.2-395.
24. As Commissioner of the DMV, Mr. Holcomb is the chief executive officer responsible for the supervision and management of the DMV and has authority to do all acts necessary or convenient to carry out the powers and duties of the DMV. Va. Code § 46.2- 200 et seq.
25. At all times relevant to the events, acts, and/or omissions alleged in this Complaint, Mr. Holcomb has acted under color of State law, pursuant to his authority and responsibility as an official of the Commonwealth of Virginia.
FACTS The Necessity of a Driver’s License
26. In December 2017, there were more than 970,000 individuals whose licenses were then currently suspended for failure to pay court debt pursuant to Va. Code Ann. § 46.2-395, and nearly two-thirds of those were suspended solely for that reason.
27. By automatically suspending the licenses of those who cannot pay for reasons outside of their control, the state traps thousands of Virginians in a nightmarish spiral from which there is no apparent exit.
28. The indefinite suspension of driver’s licenses for nonpayment of fines and costs disproportionately affects low-income persons and communities of color.
29. For example, African American people make up only twenty percent (20%) of Virginia’s population, but receive nearly half of the orders of suspension for unpaid court debt.
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30. In addition, African American people make up nearly sixty percent (60%) of convictions for driving with a suspended license where the reason for license suspension is unpaid court debt.
31. The indefinite suspension of the driver’s licenses of low-income Virginians erects significant barriers to their ability to pursue a livelihood and meet basic human needs.
32. Eighty-six percent of Americans describe the use of a car as a “necessity of life,” which is higher than the percentage of people who identified air conditioning, a cell phone, a computer, and other consumer items to be a life necessity.
33. A driver’s license is a very common requirement to obtain employment, including most jobs that are available to people with limited educational attainment.
34. Nearly 87% of Virginians travel to work by car and only 4.4% travel to work by public transit.
35. Reliable, accessible public transit remains scarce in the state, where the vast majority of counties are rural. License suspensions make it difficult, or even impossible, to maintain employment.
36. Public transit services in urban areas of the Commonwealth also provide limited access to jobs.
37. For instance, in the Richmond and Tidewater areas, only 27% and 15%, respectively, of all jobs are accessible within 90 minutes of travel on public transportation.
38. For less urbanized areas, the share of accessible jobs is likely even lower. 39. The inability to secure employment further undermines any ability to pay
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off court debt, which leads to the perpetual accrual of interest. 40. Then, when individuals drive on suspended licenses out of ignorance or
desperation, they receive additional penalties and spiral further into insolvency. The Commonwealth’s License-for-Payment Law
41. Each year, the Commonwealth of Virginia imposes approximately half a billion dollars’ worth of costs and fines in traffic and criminal court.
42. The number and amount of these fees have grown over time and now fund a wide range of basic government operations and services.
43. These fees include jury fees and court-appointed counsel fees for indigent defense, as well as courthouse construction fees, courthouse security fees, criminal justice academy training fees, fixed misdemeanor fees, electronic summons fees, more-time-topay fees, and jail admissions fees, among a host of others.
44. The stacking of these fees, along with interest, on top of offense-specific penalties, means that even a minor traffic violation can spiral out of control, to the tune of hundreds, or eventually thousands, of dollars.
45. State courts impose costs according to a fee schedule that does not allow a defendant’s poverty to be taken into account in setting the amounts owed.
46. To coerce payment, the state automatically suspends the driver’s license each and every individual who “fails or refuses” to pay, regardless of the reason for the default. Va. Code § 46.2-395.
47. Suspensions are accomplished automatically pursuant to an algorithm contained within the court and DMV computer systems without any judicial determination
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or entry of an order of suspension. See generally Ex. 1, Decl. of Llezelle Dugger. 48. The Office of the Executive Secretary of the Supreme Court of Virginia
maintains the state’s Financial Management System (“FMS”), which is used by all of the General District Courts and almost all of the 120 Circuit Courts in the Commonwealth. Id. at ¶ 5.
49. When a scheduled payment toward court debt is not received within thirty days, or within ten days of the due date on a payment plan, the FMS automatically transmits an electronic record to the DMV indicating that an individual’s account is in default. Id. at ¶ 6.
50. The DMV then updates the account holder’s license status in its license database in accordance with the FMS electronic transmission, thereby issuing the suspension for all practical purposes, including for law enforcement, prosecutors, insurance companies, and other government entities.
51. Under Virginia law, as a matter of fact, and as the Commissioner has conceded, a person’s license is not suspended until the court transmits a record of nonpayment to the DMV, and the DMV issues the suspension. See Plummer v. Commonwealth, 408 S.E.2d 765, 765-66 (Va. Ct. App. 1991); Ex. 2, “How to Pay Traffic Tickets and Other Offenses” (“Payments must be received within 30-days following your court date to prevent the suspension of your operator’s/driver’s license for failure to pay.”); ECF Dkt. No. 55, Tr. of Hearing on Mot. to Dismiss at 15 (“There is no suspension there at all until the 30 days has lapsed and [the individual hasn’t] paid.”)
52. This system does not require a judge or clerk to issue or enter an order of license suspension for failure to pay court costs or fines in order to effectuate the
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suspension. Ex. 1, Decl. of Llezelle Dugger at ¶ 7.

53. In fact, the Commissioner issued suspensions on the licenses of several of the current and former named Plaintiffs for failure to pay even when the judges entered final orders in their cases and did not check the box indicating their licenses would, in the future, be suspended upon non-payment pursuant to Va. Code § 46.2-395. See Ex. 3, Examples of Virginia Uniform Summons.

54. No record is maintained in the court file reflecting that a person’s license has been suspended for non-payment. Ex. 1, Decl. of Llezelle Dugger at ¶ 8.

55. Prior to the suspension, no notice is given to debtors apprising them of an alleged default.

56. No notice is given to debtors letting them know of their right to a hearing— or to any other remedies—to contest the validity of the resulting suspension, either before or after the suspension occurs.

57. No such notices are given because Va. Code § 46.2-395 provides no such hearings or remedies; the only remedy is to pay money to both the courts (in full or by payment plan) and the DMV (in full), whether the debtor can afford to pay or not.

58. decades.

Virginia has suspended driver’s licenses for unpaid court debt for many

59. The modern statute Section 46.2-395 was dramatically expanded in 1994, less than one year after the legislature received a report finding that “[m]any offenders are poor and without obvious means to satisfy court judgments.” Office of the Exec. Sec’y, Assessing the Need for a Fines Amnesty Program for Virginia’s District and Circuit

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Courts, House Doc. No. 39 (1993), http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/HD391993/$file/HD39_1993.pdf.
60. At the same time, the 1994 legislation also removed language from the existing Virginia Code requiring the Commonwealth’s Attorney to investigate the reasons for nonpayment of court debt and authorizing the Commonwealth’s Attorney to proceed with collection efforts only if it appeared from that investigation that the debtor may be able to pay.
61. Thus, in removing all safeguards designed to differentiate those unable to pay from those unwilling to pay—and enacting Section 46.2-395 with full knowledge that the law’s consequences would fall disproportionately on the poor—Virginia’s legislature intentionally chose to discriminate against people on the basis of poverty. The Commissioner’s Role in Enforcing § 46.2-395
62. The Commissioner supervises and manages the DMV and is responsible for “the issuance, suspension, and revocation of driver’s licenses.” Va. Code § 46.2-200.
63. The Commissioner has express enforcement responsibilities under Section 46.2-395 to implement license suspensions and to reinstate licenses.
64. The Commissioner is the designated recipient and record-keeper of all records of nonpayment from all state courts.
65. The Commissioner maintains a database of individual driver profiles and updates their statuses based on information received from state courts.
66. Upon receipt of information indicating that a person has failed to pay court debt, the Commissioner enforces Section 46.2-395 by automatically issuing a suspension on the person’s driver’s license.
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67. The Commissioner issues the automatic suspension without any order from the court.
68. The Commissioner does not conduct a review of a person’s financial condition prior to—or indeed at any point related to—suspending a person’s license for failure to pay, or otherwise inquire as to the reasons for the default.
69. The Commissioner is also the entity charged with reinstating licenses for those who have complied with their payment obligations.
70. Once a person’s license is suspended pursuant to Section 46.2-395, the DMV automatically assesses a reinstatement fee of at least $145 payable to the DMV.
71. The DMV reinstatement fee cannot be waived or paid in installments. 72. The DMV does not reinstate any suspended license until the driver has obtained an approved payment plan for each court in which they owe and paid the reinstatement fee in full to the DMV. 73. Pursuant to Section 46.2-395(B), the Commissioner is solely responsible for collecting license reinstatement fees, and the DMV derives revenue from collection of those fees. 74. The DMV reinstatement fee is at least $145 and is not imposed by the state courts. 75. The higher the number of suspensions issued, the more money is owed to DMV in reinstatement fees. 76. Some people have paid all of their court debt, but cannot afford the DMV reinstatement fee as a consequence of their poverty. 77. For individuals who have little to no income, the reinstatement fee alone
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deprives them of their ability to drive. 78. Pursuant to legislation enacted in 2015, the Commissioner is working on a
system where a debtor can walk into a DMV customer service center and pay all court debt, and DMV will reinstate her license, without any court order or involvement. See Ex. 4, Letter from Richard D. Holcomb and Karl R. Hade to members of the Virginia General Assembly (Dec. 1, 2015).
79. As the lead official for enforcement of §46.2-395’s license suspension process and oversight of Virginia’s licensing system and database, the Commissioner also effectuates the harmful consequences of automatic license suspension by making the information available and accessible (via its database) to the public and to law enforcement.
80. The Commissioner has conceded that law enforcement officers depend on the DMV database for enforcing licensing laws. See ECF Dkt. No. 55, Tr. of Hearing on Mot. to Dismiss at 11 (“[P]ractically speaking, when an officer pulls you over and they run your DMV and they pull up the little transcript, if that order has not been transmitted to DMV, it’s not going to be reflected on the DMV thing the officer is looking at.”)
81. Unlike time-limited suspensions ordered in open court, law enforcement officers have no way of knowing—independent of DMV’s database—whether a person’s license is suspended for failure to pay court debt because suspension and reinstatement reflect events that occur outside of court; namely, payment or non-payment of money to the courts and DMV.
82. When enforcing Virginia’s laws prohibiting driving-while-suspended, prosecutors rely on the DMV transcript to prove that a person’s license is, in fact, suspended.
83. Thus, without the Commissioner issuing the suspension and publishing it to its database, the Plaintiffs would not have been penalized or incarcerated for continuing to drive
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and would still have the ability to drive to their work or to their medical appointments without being cited.
84. The Plaintiffs’ and the putative class’s injuries are traceable to the Commissioner because, without his actions, they would be able to drive without paying a reinstatement fee and without fear of being cited, fined, and possibly incarcerated for driving on a suspended license.
The Named Plaintiffs’ Debts 85. Each of the named Plaintiffs is suffering (or will suffer) under the indefinite deprivation of their driver’s licenses pursuant to Section 46.2-395 and is currently (or will be) unable to drive legally because they cannot afford to pay court debt, or to pay the DMV reinstatement fee. 86. Pursuant to Section 46.2-395, the Plaintiffs’ licenses were suspended (or will be) automatically upon their default, without any inquiry—by either the courts or the DMV into their ability to pay or the reasons underlying their failure to pay. 87. The Commissioner will not reinstate the Plaintiffs’ licenses until they satisfy their court debt entirely or obtain payment plans from each court to which they are indebted, and additionally pay the DMV a reinstatement fee of at least $145. 88. The Plaintiffs would pay their debts and reinstate their licenses if they could afford to do so, but have been (or will be) unable to pay and have suffered considerable additional hardship (driver’s license suspension and its attendant problems) as a result. 89. At times, the Plaintiffs have sacrificed their needs and the needs of their families in order to make payments to the courts that they could not afford.
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90. The Plaintiffs’ debts continue to (or will) increase daily, as interest accrues at an annual rate of 6% when someone is not in good standing in an active payment plan.
91. The Plaintiffs need to drive in order to meet their basic needs. 92. The Plaintiffs are not challenging any state court decisions. 93. They are not contesting their convictions, the applicability of the fines and fees assessed in traffic or criminal court adjudications, or their failure to make the required payments. 94. Rather, they are challenging the statutory scheme, as written and implemented, and its lack of process, as violating their due process and equal protection rights and the rights of those who are similarly situated. Damian Stinnie 95. Plaintiff Damian Stinnie is 26 years old and lives in Charlottesville, Virginia. Mr. Stinnie and his twin brother grew up in the foster care system in Virginia. 96. Mr. Stinnie’s license is currently suspended because he could not afford the costs and fines related to a driving-while-suspended conviction. 97. Mr. Stinnie has struggled to escape the grip of debt-related suspensions since 2012, when his license was first suspended due to his inability to pay over $1,000 in fines and costs imposed as a result of three traffic infractions. 98. Unaware that his license had been suspended automatically when he failed to pay within 30 days, Mr. Stinnie continued to drive and, in 2013, received a citation for driving while suspended. 99. While his court case was pending, Mr. Stinnie was hospitalized with life-
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threatening lymphoma, and he missed his court date. 100. The court convicted him in his absence and imposed additional fines and fees. 101. Since 2012, Mr. Stinnie has struggled with serious illness, unemployment, and
homelessness. 102. Between 2013 and 2016, while he recovered from lymphoma, Mr. Stinnie’s only
sources of income were food stamps and Supplemental Security Income (“SSI”). 103. At times, Mr. Stinnie had no place to sleep but in his car. 104. His license has since been suspended multiple times for failure to pay court costs
and fines related to traffic offenses. 105. In late 2016, Mr. Stinnie’s health had improved enough that he could begin
looking for employment. 106. He found a part-time job making under $12 per hour as a community service
associate in December 2016, a position he still holds. 107. Despite working as many hours as his employer offered him, Mr. Stinnie never
had enough money to meet all of his expenses. 108. He also applied for a loan from a new local non-profit organization that provides
financial assistance to a limited number of individuals with outstanding court debt. 109. During this time, Mr. Stinnie faced the impossible choice of driving illegally to
look for work, help out family members, and attend medical appointments, or not to drive and face continued unemployment, being late for work, and missing medical appointments.
110. On January 13, 2017, Mr. Stinnie received a citation for expired tags and driving on a suspended license.
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111. Due to the possibility of incarceration, the court found Mr. Stinnie to be indigent and appointed an attorney to represent him.
112. Ultimately, the prosecutor dropped the charge for expired tags, but Mr. Stinnie was found guilty of driving on a suspended license and sentenced to 180 days in jail, of which 160 were suspended, and received additional fines and costs.
113. Due to the length of the active sentence and his desire to avoid disrupting his newfound employment, Mr. Stinnie filed a de novo appeal of his conviction for driving while suspended with the state circuit court.
114. While his appeal was pending, Mr. Stinnie’s loan application was granted, and he used the money to pay all of his accrued court debt, as well as paying approximately $240 in reinstatement fees to the DMV so that his license could be reinstated.
115. After enduring a cycle of debt, license suspension, and incarceration for nearly four years, Mr. Stinnie was finally able to overcome the substantial barriers created by the state to regaining the legal ability to drive, and he reinstated his license in December 2017.
116. Meanwhile, Mr. Stinnie’s appeal was unsuccessful. 117. On February 23, 2018, he was convicted by the circuit court and sentenced to thirty days in jail, including a mandatory minimum of ten days, for driving on a suspended license for failure to pay his court debt. 118. He also received a statutory ninety-day license suspension and additional fines and costs in amounts to be calculated later by the clerk’s office. 119. The court did not inquire into Mr. Stinnie’s financial circumstances. 120. The court paperwork given to Mr. Stinnie on the day of his conviction stated:
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“You have 30 days from today’s date to make final payment or to make arrangements for a payment plan, otherwise the Department of Motor Vehicles (DMV) will suspend your driver’s license.” (Emphasis added.)
121. In early March 2018, he learned that he owed a total amount of $2,189 in fines and costs to the court as a result of his conviction for driving on a suspended license, which, at the time, was suspended for failure to pay court debts that Mr. Stinnie had since paid off using the loan.
122. Mr. Stinnie obtained a payment plan for $30 per month beginning May 20, 2018. 123. Less than a month later, however, the City of Charlottesville initiated a tax lien for unpaid personal property taxes on his car. 124. The tax lien garnished 100% of his wages for two months, and a significant portion of his check in the third month. 125. Mr. Stinnie advised the court, prior to the due date it had set for the first installment payment, that he had no income and would not be able to make the first installment payment and needed a plan modification. 126. The court denied his request for a modification. 127. Mr. Stinnie also asked the nonprofit for another modest loan to help him pay the first few installments while he waited for the tax lien to end, but he was told he could not be extended additional credit until he paid off the first loan. 128. On or about June 25, 2018, the court notified the DMV that Mr. Stinnie had defaulted on the court’s payment plan, and the DMV issued a suspension of Mr. Stinnie’s license effective June 21, 2018.
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129. Mr. Stinnie’s circuit court file contains no court order suspending his license for failure to pay court debt.
130. Mr. Stinnie no longer receives SSI, and his only income is from part-time employment.
131. Mr. Stinnie is facing another personal property tax lien, and also the possibility of becoming homeless again if and when his current temporary living situation ends.
132. In order to get his license back, he must get on an approved payment plan with the court and pay $150 to the DMV.
133. Mr. Stinnie cannot afford to pay the amounts necessary to reinstate her license. 134. All told, Mr. Stinnie has paid thousands of dollars to the courts in fines and costs related to driving while suspended, paid $240 to the DMV in reinstatement fees, and spent dozens of days in jail for driving while suspended. 135. He would like to get more hours at work, but his employer requires him to have a valid driver’s license in order to go full-time. 136. If he had his license, Mr. Stinnie could go full-time at work, make more money, and possibly pay his court debt off faster. 137. Mr. Stinnie would also be able to help out his family members and conduct dayto-day business—including getting to and from medical appointments—without fear of getting pulled over and going to jail.
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Melissa Adams 138. Plaintiff Melissa Adams and her twelve-year-old son live in Cascade, Virginia, a rural community west of Danville. 139. The area where she lives is roughly twenty miles away from any public transportation. 140. Ms. Adams’s license is currently suspended because she could not and cannot afford the costs and fines related to various traffic and misdemeanor offenses, including driving on a suspended license. 141. In January 2013, Ms. Adams was diagnosed with a rare and serious blood disorder, which required her to be hospitalized on multiple occasions during the first several months of the year and necessitated outpatient chemotherapy treatment. 142. Prior to her illness, Ms. Adams held steady employment as a waitress. 143. Since her hospitalization, Ms. Adams has been unable to maintain steady employment, though she has worked on and off in low-wage jobs, typically earning between $8 and $10 per hour. 144. Shortly after Ms. Adams was released from the hospital in May 2013, she was involved in a minor accident and charged with failing to stop at the scene of an accident, operating an uninsured motor vehicle, and an expired registration. 145. Upon conviction, the court assessed $646 in fines and costs. 146. At the time, Ms. Adams was unemployed. 147. Initially, Ms. Adams was able to scrape together enough funds to make modest payments, but she could not sustain those payments while supporting herself and her son on a
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meager income. 148. She was given a deferred payment agreement that required her to pay the
remaining $526 in full at the end of three months. 149. She was not able to pay that amount. 150. On March 25, 2014, the court notified the DMV that Ms. Adams had missed the
deadline for paying her debts to the court, and the DMV issued a suspension of Ms. Adams’s license effective March 18, 2014.
151. Forced to choose between losing her job and not being able to care for herself and her family, or driving on a suspended license and risking additional citations, Ms. Adams continued to drive.
152. Ms. Adams also needed to drive to get to and from chemotherapy appointments more than forty miles away.
153. As a result, she received multiple convictions for driving while suspended. 154. Each conviction led to additional costs and fines, another three-month deferred payment plan that Ms. Adams could not afford, and another suspension of her license immediately upon default. 155. At no time did either the court or the DMV inquire into Ms. Adams’s financial circumstances or the reasons for her non-payment. 156. Upon her fourth conviction for driving while suspended, in June 2015, Ms. Adams served twelve days in jail, during which time she worried about the care and supervision of her young son. 157. Since then, Ms. Adams has refrained from driving, in order to avoid the risk of
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more incarceration. 158. Ms. Adams is trained as a CNA and has recently seen advertisements for jobs
that she strongly believes she could obtain if she had her driver’s license. 159. These jobs require her to have reliable transportation to and from the patient’s
home, which can be many miles away from where she lives, and there is no public transportation available to transport her back and forth.
160. Sometimes the job postings state that having a valid driver’s license is a condition of employment.
161. Currently, Ms. Adams is unemployed and has no income. 162. She and her son receive food stamps. 163. She owes $300 a month in rent to her mother-in-law, which she pays when she can afford it. 164. She also pays for utilities and buys groceries and other necessities for herself and her son. 165. Ms. Adams is the sole source of support her son. She rarely has enough money to meet her and her family’s basic needs. 166. Moreover, Ms. Adams’s illness requires her to travel eighty miles away to see a specialist regularly. 167. She must pay the specialist $125 each visit. She also has thousands of dollars in outstanding medical bills. 168. Ms. Adams needs her license to get to medical appointments, seek and maintain employment, to go grocery shopping, and to keep appointments for her son.
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169. She currently owes $2,975 in court debt. In order to get her license back, she must get on an approved payment plan with the court and pay $260 to the DMV in reinstatement fees.
170. Ms. Adams recently contacted both courts to which she owes money. 171. One court told Ms. Adams that she would need to pay $25 per month, even though she currently has no income. 172. The other told Ms. Adams that she would need to come physically to the court clerk’s office and show proof of income in order to get on a payment plan. 173. Without a driver’s license, Ms. Adams cannot readily get herself to the clerk’s office, and she has no income to show the court to qualify for a plan. 174. Even if she could get on payment plans with both courts, Ms. Adams does not think she could keep up with the monthly payments, and she has no idea how she could save up enough money to pay the DMV reinstatement fee. 175. Ms. Adams cannot afford to pay the amounts necessary to reinstate her license. Adrainne Johnson 176. Ms. Johnson is 34 years old. She lives in Charlottesville, Virginia with her fifteen-year-old daughter and twelve-year-old son. 177. Ms. Johnson’s license is currently suspended because she cannot afford the costs and fines related to various traffic and criminal offenses, including driving on a suspended license. 178. In 2013, Ms. Johnson was working as a Certified Nursing Assistant (CNA), helping to take care of people in their homes, and earning $8.86 per hour.
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179. In April of that year, Ms. Johnson was convicted of a drug-related charge. 180. Ms. Johnson did not have enough money for a lawyer, so the court found her to be indigent and appointed an attorney to represent her. 181. The court did not give Ms. Johnson active jail time or fines, but did sentence her to pay $865 in court costs, with the biggest single court cost being to pay for her courtappointed attorney. 182. The court put Ms. Johnson on a payment plan, and she tried to make the payments at first, but she could not afford to keep up with it and missed a payment. 183. On June 2, 2016, the court notified the DMV that Ms. Johnson had missed the deadline for paying her debts to the court, and the DMV issued a suspension of Ms. Johnson’s license effective May 31, 2016. 184. Since that time, Ms. Johnson continued to work on and off in low-wage jobs, typically earning between $7.25 and $10 per hour. 185. Ms. Johnson tried a couple of times to establish new payment plans for the 2013 court debt, but could not afford to make every payment, and her license was re-suspended multiple times, most recently in June 2018. 186. Ms. Johnson continued to drive in order to take care of her family, to get to and from jobs, and to take her daughter to medical appointments. 187. In November 2017, Ms. Johnson was convicted of driving on a suspended license. 188. The court sentenced Ms. Johnson to a $100 fine and $139 in court costs. 189. The judge did not check the box indicating that Ms. Johnson license would be
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suspended upon failure to pay. See Ex. 3, Virginia Uniform Summons for Case No. GT1711266.
190. At the time, Ms. Johnson was making minimum wage and struggling to pay for her basic living expenses.
191. The court put Ms. Johnson on a payment plan that required her to pay her debt in full within six months, which she could not afford to do.
192. As soon as Ms. Johnson missed a payment, her license was suspended again around May 2018.
193. Upon information and belief, there is nothing in Ms. Johnson’s court files suspending her license for failure to pay.
194. Neither the court nor the DMV asked Ms. Johnson about her financial circumstances or the reasons for her non-payment, before or after suspending her license.
195. After the November 2017 conviction, Ms. Johnson decided she could not take the risk of going to jail, and she stopped driving.
196. Ms. Johnson and her children live in an overcrowded rental unit with another family, doubling-up to be able to split rent.
197. In addition to her monthly rental payment, Ms. Johnson has to pay for food and utilities and other basic living expenses.
198. Ms. Johnson has very little, if anything, left over each month. She also has an outstanding child support obligation and debt to a previous landlord.
199. If she had her license, Ms. Johnson would get a higher-paying job (which often requires a license), or take on a second job so that she could meet her expenses and pay back
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her court debt. 200. Ms. Johnson would also be able to get to the grocery and medical appointments. 201. Ms. Johnson currently owes roughly $900 in court debt to two different courts. 202. In order to get her license back, Ms. Johnson must get on approved payment
plans with the courts and pay $150 in reinstatement fees to the DMV. 203. Ms. Johnson recently contacted both courts where she owes money. 204. One told Ms. Johnson that she would need to pay $35 down and $25 per month. 205. The other told Ms. Johnson that she would need to pay $25 down and would
need to travel in person to the court clerk’s office (roughly 38 miles from where she lives) to determine the other terms of a possible payment plan.
206. Without a license, Ms. Johnson does not know how and when she can get to the court to work out a payment plan.
207. Even if she can get payment plans with both courts, she worries she will not be able to keep up with monthly payments, and she has no idea how she could save up enough money to pay the DMV’s reinstatement fee.
208. Ms. Johnson cannot afford to pay the amounts necessary to reinstate her license. Williest Bandy 209. Williest Bandy is 30 years old and lives in Norfolk, Virginia. 210. Mr. Bandy lives with his girlfriend and their four children, ages 8, 4, 2, and 1. 211. From 2011 to 2018, Mr. Bandy’s license was suspended under 46.2-395 for failure to pay court debt.
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212. At present, there are no court debt suspensions on Mr. Bandy’s license. 213. Nonetheless, Mr. Bandy’s license is in a precarious state, and will likely be suspended in the near future, due to his inability to pay outstanding court debt in accordance with a payment plan he cannot sustain. 214. In 2011, Mr. Bandy was convicted of several traffic charges, including an expired inspection, failure to carry license, failure to appear, and speeding. 215. As a result of those convictions, Mr. Bandy was charged a cumulative total of $1,820 in court debt. 216. Mr. Bandy was unable to pay those amounts. 217. When Mr. Bandy failed to pay his fines and costs, his license was suspended. 218. Neither the court nor the DMV asked Mr. Bandy about his financial circumstances or the reasons for non-payment, before or after suspending his license. 219. After Mr. Bandy’s license was suspended, in late 2011, he tried to drive as little as possible. 220. Not being able to drive has been a serious burden for him and his family. 221. Not having a license meant that Mr. Bandy’s employment options have been seriously limited. 222. He couldn’t have a second job, which he has wanted and would help his family financially, because he did not have enough time to travel to and from two jobs using public transportation. 223. It has been hard to get to doctors’ appointments and do other basic things, like grocery shopping.
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224. Mr. Bandy currently owes well over $2,000 in court debt. 225. Mr. Bandy recently contacted the courts to which he owes court debt. 226. One court gave him a community service plan, by which he needs to complete 75 hours within the next six months. 227. Mr. Bandy works on most weekdays, but is very motivated to complete these hours and believes he can find placements to work off the hours on weekends. 228. The other courts said they will not permit community service, despite Mr. Bandy’s financial situation. 229. They told him, via a collections agency that those courts jointly use, that he would need to pay $75 per month. 230. Mr. Bandy did not select that monthly installment amount, and does not believe he can sustain it. 231. Mr. Bandy started this payment plan because he was desperate to get his license back, to improve his family’s financial situation. 232. After setting up plans with the courts, Mr. Bandy was able to scrounge money together to pay the DMV reinstatement fees. 233. Mr. Bandy presently has a learner’s permit, and expects to have a full and active driver’s license soon, after waiting out a 60-day permit period and passing driver’s license tests. 234. Mr. Bandy’s family’s income is extremely limited. 235. Mr. Bandy’s girlfriend is disabled and gets Supplemental Security Income (“SSI”) of $750 per month. 236. Mr. Bandy himself works as a personal care assistant (PCA), roughly 35 to 40
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hours per week at $8 per hour. 237. Mr. Bandy’s family gets food stamps. His girlfriend gets a modest TANF
payment (he believes of $100-200 per month), and occasionally can get a few hours of work. 238. Other than these modest amounts, which leave them well below the poverty line,
Mr. Bandy’s family has no other sources of income. 239. Mr. Bandy’s family of six has a lot of expenses, including rent, utilities,
transportation, house supplies, food, and clothes for the children. 240. Money is extremely tight for Mr. Bandy’s family. 241. Mr. Bandy’s family has no savings, and they struggle to pay all of their bills. 242. Mr. Bandy has struggled to make the first monthly payment of $75 to the courts. 243. Mr. Bandy had to contact the power company recently to tell them he couldn’t
pay his electricity bill on time, to try to hold money aside for the courts. 244. Mr. Bandy is very worried that he cannot keep up with monthly court debt
payments. 245. For example, he foresees that he may not be able to pay both for his water bill
and make his court debt payment, and he has determined that he needs to keep the water on at his family’s apartment.
246. Mr. Bandy does not want to default on the payment plan, because he badly needs his license to support his family and try to improve their meager finances.
247. However, in reality, Mr. Bandy believes that he will soon default on the payment plan due to not having enough money to keep up with monthly payments.
248. With a full and active license, Mr. Bandy’s employment options will improve.
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249. It will be possible to get a second job, which Mr. Bandy wants to do. 250. Moreover, Mr. Bandy will be able to pursue a wider range of jobs, such as PCA jobs that require a license as a condition of employment and potentially jobs requiring a CDL license (for which having a regular driver’s license is a prerequisite). 251. However, if his license is suspended (based on his inability to keep up with court debt payments), Mr. Bandy’s employment options will be much more limited, and it will be more or less impossible to get a second job. 252. In addition, it will be hard to get around, and do basic things like get to doctors’ appointments and go grocery shopping. 253. Mr. Bandy’s license (and the significance it holds to his family, in trying to escape poverty) is held hostage for court debt payments that he cannot afford, and he daily lives with the imminent threat of being stripped of his license due to his inability to pay. Brianna Morgan 254. Brianna Morgan is 32 years old and lives in Petersburg, Virginia. 255. Ms. Morgan is a single parent of three children, ages 4, 12, and 13. 256. All three children live with her full-time. 257. Ms. Morgan’s license was suspended for several years, until just three days ago, and may soon be suspended again, because she cannot afford the costs and fines related to traffic and criminal offenses. 258. In June 2014, Ms. Morgan was convicted for operating an uninspected vehicle. The court sentenced her to pay $35 in fines and $144 in costs. 259. At the time, Ms. Morgan was in a high-risk pregnancy and living with relatives.
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260. Other than food stamps, Ms. Morgan had no income. 261. The court assigned Ms. Morgan a deferred payment plan. 262. Ms. Morgan borrowed money to make a few payments, but it was not enough. 263. Ms. Morgan could not make any substantial payments to the court and also support her family. 264. When Ms. Morgan failed to pay her fines and costs, her license was suspended. 265. On or about July 17, 2015, the court notified the DMV that Ms. Morgan had defaulted on the court’s payment plan, and the DMV issued a suspension of Ms. Morgan’s license effective July 15, 2015. 266. Neither the court nor the DMV asked Ms. Morgan about her financial circumstances or the reasons for non-payment, before or after suspending her license. 267. After Ms. Morgan’s license was suspended, she stopped driving. 268. Not being able to drive was very hard for her and her family. 269. Ms. Morgan could not regularly visit her father in a nursing home, or attend medical appointments with him to make sure he got the care he needs. 270. Ms. Morgan also had difficulty doing basic things like grocery shopping or picking her son up from school when he has issues with his asthma. 271. Ms. Morgan has gone without needed medical visits due to being unable to get to her doctors’ offices. 272. Ms. Morgan has a disabling stomach condition and cannot work. 273. Ms. Morgan receives $665 in SSI benefits and $187 in TANF benefits, and food
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stamps. 274. Ms. Morgan rarely has enough money to meet her family’s basic needs. 275. Ms. Morgan recently contacted both courts where she owes money. 276. She currently owes $452 in court debt to different courts. 277. In order to get her license back, she had to get on approved payment plans with
both courts and also pay $155 in reinstatement fees to the DMV. 278. One court converted her debt into 44 hours of community service, to be
completed by February 2019. 279. The community service will take some time to complete because she needs to
find a nonprofit willing to host and certify her work. 280. The other court offered her a payment plan that she could not afford without
giving up basic needs. 281. She had to forgo her family’s basic needs, including toilet paper, in order to pay
the down payment to get on a payment plan. 282. Luckily, Ms. Morgan borrowed $155 from a friend to pay the DMV
reinstatement fee but she is expected to pay this money back, and she does not have any idea of how or when she can.
283. Nonetheless, Ms. Morgan’s license is in a precarious state, and will likely be suspended in the near future, due to her inability to pay outstanding court debt in accordance with a payment plan she cannot sustain.
284. Ms. Morgan is very worried that she cannot keep up with monthly court debt payments.
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285. Ms. Morgan typically does not have $25 left over at the end of the month, so making a payment to the Court will mean not meeting basic needs of her family.
286. Ms. Morgan does not want to default on the payment plan, because she badly needs her license to support her family and try to improve their meager finances.
287. However, in reality, Ms. Morgan’s is one unexpected expense away from default on the payment plan.
288. If her license is suspended (based on her inability to keep up with court debt payments), Ms. Morgan’s employment options will be much more limited, and it will be more or less impossible to get a second job.
289. In addition, it will be hard to get around, and do basic things like get to doctors’ appointments and go grocery shopping.
290. Ms. Morgan’s license (and the significance it holds to her family, in trying to escape poverty) is held hostage for court debt payments that she cannot afford, and she daily lives with the imminent threat of being stripped of her license due to her inability to pay.
The Plaintiffs’ Requested Relief 291. The Plaintiffs seek a ruling declaring Section 46.2-395 to be unconstitutional, both as written and as implemented by the Commissioner, to enjoin the Commissioner from enforcing its terms against them and those similarly situated in the future, and to restore their licenses to the status they would be in prior to the Commissioner’s unconstitutional actions against them without paying a reinstatement fee. 292. The relief requested by the Plaintiffs would functionally restore their ability to drive without fear of punishment.
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293. The Plaintiffs and putative class members would no longer be stopped, charged, and convicted of driving on a suspended license and would not incur additional fines and fees for driving.
294. The Plaintiffs and putative class members would be able to drive and use their licenses again without fear of penalty or incarceration, and without payment of the DMV reinstatement fees—a tangible benefit.
295. Thus, granting the requested relief would dismantle the system responsible for trapping the Plaintiffs and those similarly situated in a vicious cycle of fines, unemployment, and incarceration.
CLASS ACTION ALLEGATIONS 296. The named Plaintiffs bring this action for themselves individually and on behalf of all others similarly situated, pursuant to the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 297. A class action is the only practicable means by which Plaintiffs and unknown Class Members can challenge the Commonwealth’s unlawful court debt collection scheme. 298. The named Plaintiffs seek to certify two classes: a. a Suspended Class consisting of all persons whose drivers’ licenses are currently suspended due to their failure to pay court debt pursuant to Section 46.2-395; and b. a Future Suspended Class consisting of all persons whose drivers’ licenses will be suspended due to their failure to pay court debt pursuant to Section 46.2-395. 299. The named Plaintiffs seek certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure in order to represent classes of persons requesting declaratory and
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injunctive relief to declare Section 46.2-395 unconstitutional as applied to Plaintiffs and Class Members, to enjoin the Commissioner from enforcing Section 46.2-395 against Plaintiffs and the Future Class Members until such time as the Commonwealth implements a system that complies with the United States Constitution, and to remove any suspensions imposed pursuant to Section 46.2-395 from Plaintiffs’ and Suspended Class Members’ DMV records without requiring payment of DMV reinstatement fees.
300. The Commissioner has acted, or failed and/or refused to act, on grounds that apply generally to the proposed Classes, such that final injunctive and declaratory relief is appropriate with respect to the Classes as a whole.
301. As set forth more fully in the following paragraphs, this action satisfies the numerosity, commonality, typicality, and adequacy requirements of Rule 23.
Numerosity 302. In 2015, DMV reported that 914,450 individual DMV customers have at least one suspension on their DMV transcripts for nonpayment of court costs and fines related to criminal and traffic convictions. 303. By December 2017, there were more than 970,000 individuals whose licenses were then currently suspended for failure to pay court debt pursuant to Section 46.2-395, and nearly two-thirds of those were suspended solely for that reason. 304. Upon information and belief, a large proportion of those individuals holding suspended licenses are too poor to pay their court debt without imposing manifest hardship on themselves and their families. 305. The Commissioner issues over 360,000 driver’s license suspensions for nonpayment of court costs and fines each year, affecting thousands of individual debtors.
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306. Historically, approximately 60% of those suspensions remain in place twelve
months later, suggesting that a large percentage of suspensions were issued to people without
the means to pay to get the suspension removed.
307. Accordingly, the proposed class is so numerous that the joinder of all
Class Members is impracticable.
Commonality
308. All persons comprising the proposed classes are equally subject to the
provisions of Section 46.2-395, which deprives individuals of their driver’s licenses for their
failure to pay court debt without regard to whether such failure was willful, or instead caused
by their inability to pay.
309. Thus, common questions of law and fact exist as to all Class Members.
310. Among the most important, but not the only, common questions of fact are:
 Whether Section 46.2-395 empowers the DMV to issue suspensions, and/or whether the DMV has a practice of issuing suspensions, against a license for non-payment without requiring a pre-deprivation (or post-deprivation) hearing; and
 Whether Section 46.2-395 empowers the DMV to issue suspensions, and/or whether the DMV has a practice of issuing suspensions, against a license for non-payment without requiring an inquiry into a motorist’s ability to pay and determining that the motorist’s non-payment was willful.
311. Among the most important, but not the only, common questions of law are:
 Whether Section 46.2-395 violates due process and fundamental fairness by punishing those who owe money to the state for sheer inability to pay;
 Whether Section 46.2-395 strips the Plaintiffs and those like them of a constitutionally protected property interest—their driver’s licenses—without the guaranteed safeguards of notice and a hearing;
 Whether Section 46.2-395 violates equal protection by treating those who are willing but unable to pay more harshly than those who are willing and able to pay, when the only difference between them is their poverty;
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 Whether suspending licenses for delinquent court debt pursuant to Section 46.2-395 fails even the most minimum constitutional standards, as applied to debtors who lack ability to pay, because it is not rationally related to legitimate state interests; and
 Whether Section 46.2-395 subjects the Plaintiffs and those like them to harsher collection practices than those for civil debtors, in violation of equal protection. Typicality 312. The named Plaintiffs’ claims are typical of the claims of the proposed Classes as a whole. 313. As summarized in the above allegations, Plaintiffs suffered injuries from the failure of the Commonwealth, acting by and through the Commissioner, to comply with the basic constitutional provisions detailed below. 314. The answer to whether Section 46.2-395 is unconstitutional will determine the claims of the named Plaintiffs and every other Class Member. 315. The named Plaintiffs and Class Members have suffered direct injuries, and will continue to be directly injured, due to the state’s unlawful and unconstitutional pattern and practice of suspending driver’s licenses without due process and without consideration of the hardship imposed on people who cannot afford to pay. Adequacy 316. The named Plaintiffs will fairly and adequately represent the interests of the proposed Class. 317. The named Plaintiffs have no interests separate from or in conflict with those of the Classes as a whole and seek no relief other than the declaratory and injunctive relief, which is sought on behalf of the entire Class. 318. The named Plaintiffs are represented by competent legal counsel with
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substantial experience in complex civil rights litigation matters, including class actions. 319. Plaintiffs’ counsel have devoted enormous time and resources to becoming
intimately familiar with the Commonwealth’s court debt system and with all of the relevant state and federal laws and procedures that govern it.
320. Counsel has also developed relationships with many of the individuals and families victimized by the Commonwealth’s practices.
321. Accordingly, the interests of the members of the Classes will be fairly and adequately protected by the Plaintiffs and their attorneys.
CLAIMS FOR RELIEF Count I: Violation of Procedural Due Process (Lack of Ability-to-Pay Hearing) 322. The Plaintiff incorporate the allegations in Paragraphs 1-321 above with the same force and effect as if herein set forth. 323. A person’s driver’s license and its attendant government-sanctioned ability to drive has been recognized by the Supreme Court and the Fourth Circuit as a property interest that may not be taken away without due process of law. 324. Due process requires the Commonwealth to conduct ability-to-pay inquiries at each stage in a case, including the point at which it proposes to take coercive action to punish nonpayment. 325. Section § 46.2-395 of the Virginia Code automatically and mandatorily suspends the drivers’ license of all persons who “fail[] or refuse[] to pay all or part” of any fines or costs owed to the court—without permitting any inquiry into the reasons for nonpayment or consideration of whether the requirement to repay will exact manifest hardship on a person or a person’s family, and without consideration of the total amount owed to one or
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more courts or any less restrictive alternatives. 326. It is common for a person’s financial circumstances to fluctuate throughout his
or her lifetime, and a person who is not indigent at the time of trial may become indigent prior to satisfying all financial obligations to various courts. And even for those deemed indigent at the time of trial, Section 46.2-395 does not take indigency into account.
327. Prior to enforcing Section 46.2-395, the Commissioner provides no notice, oral or written, to the debtor of his or her right to an ability-to-pay determination evaluating his or her present financial condition.
328. Moreover, the Commissioner conducts no independent review of the debtor’s ability to pay, including the amounts owed to all courts in the Commonwealth and the debtor’s present financial condition, prior to—or indeed, after—taking the harsh enforcement action of suspending the debtor’s driver’s license.
329. The purpose of the Commonwealth’s license-for-payment system is to coerce payment, and not to protect public safety on the roads; therefore, Plaintiffs are entitled to pre-deprivation notice and a hearing prior to license suspension.
330. In the absence of notice and hearing, which do not presently exist under Virginia law in relation to driver’s license suspensions for unpaid court debt, the risk is very high that a debtor will be deprived of his or her driver’s license for reasons attributable to his or her poverty.
331. Thus, as written and as implemented by the Commissioner, Section 46.2-395 strips the Plaintiffs and those like them of a constitutionally protected property interest—their driver’s licenses—without the guaranteed safeguards of notice and a hearing in violation of the Due Process Clause of the U.S. Constitution.
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Count II: Violation of Due Process (Fundamental Fairness) 332. The Plaintiff incorporate the allegations in Paragraphs 1-331 above with the same force and effect as if herein set forth. 333. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 334. The Due Process Clause prohibits the state from subjecting individuals to processes and penalties that fail to comport with principles of due process and fundamental fairness. 335. The United States Supreme Court has repeatedly held that punishing a person solely for his or her inability to pay, rather than willful refusal to pay or make bona fide efforts to acquire the resources to pay, violates principles of due process and fundamental fairness. 336. Section § 46.2-395 of the Virginia Code automatically and mandatorily suspends the driver’s license—a constitutionally protected interest—of all persons who “fail[] or refuse[] to pay all or part” of any fines or costs owed to the court, without permitting any inquiry into the reasons for nonpayment or consideration of whether the requirement to repay will exact manifest hardship on a person or a person’s family, and without consideration of the total amount owed to one or more courts or any less restrictive alternatives. 337. As written and as implemented by the Commissioner, Section 46.2-395 violates due process and fundamental fairness by depriving persons owing money to the state of a constitutionally protected property interest for sheer inability to pay. 338. Accordingly, as applied to those who cannot afford to pay, the Commonwealth’s license-for-payment system, as written and as implemented, violates the
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Due Process Clause of the U.S. Constitution. Count III: Violation of Equal Protection Clause (Equal Justice and Punishing
Poverty) 339. The Plaintiff incorporate the allegations in Paragraphs 1-338 above with
the same force and effect as if herein set forth. 340. The United States Supreme Court has held that state court debt recoupment
laws, notwithstanding the state interests they may serve, may not blight the hopes of indigent people for self-sufficiency and self-respect.
341. The fundamental principle of “equal justice” requires states to consider the differential impact of harsh enforcement action on people who are impoverished.
342. Section § 46.2-395 of the Virginia Code automatically and mandatorily suspends the drivers’ license of all persons who “fail[] or refuse[] to pay all or part” of any fines or costs owed to the court—without permitting any inquiry into the reasons for nonpayment or consideration of whether the requirement to repay will exact manifest hardship on a person or a person’s family, and without consideration of the total amount owed to one or more courts or any less restrictive alternatives.
343. Section 46.2-395 inevitably results in enforcing financial obligations against people who lack the foreseeable ability to meet them.
344. The resulting cascade of hardship—job loss, mounting interest, convictions for driving while suspended, additional costs and fines, and even jail time—keeps lowincome people in a perpetual state of disadvantage, a state that people with means can avoid simply by paying in full.
345. Indeed, Virginia’s legislature expanded and automatized the Commonwealth’s license-for-payment system with full knowledge that the impact would fall most heavily on
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debtors who were too poor to pay their debts to the court. 346. Accordingly, as applied to those who cannot afford to pay, Section 46.2-395
violates the Equal Protection Clause of the United States Constitution by treating those who are willing but unable to pay more harshly than those who are willing and able to pay, when the only difference between them is their poverty.
Count IV: Violation of Due Process Clause (No Rational Basis) 347. The Plaintiff incorporate the allegations in Paragraphs 1-346 above with the same force and effect as if herein set forth. 348. Section 46.2-395 is not rationally related to any legitimate governmental objective because suspending driver’s licenses for nonpayment of court debt makes highways less safe, impedes reentry of convicted persons, and is counterproductive as applied to people who need a driver’s license to obtain or maintain employment in order to meet their financial obligations to the court. 349. The Due Process Clause protects against arbitrary and capricious government action even when the decision to take action follows adequate procedures. 350. A person has protected property and liberty interests in a driver’s license and its attendant government-sanctioned ability to drive. 351. A driver’s license is often essential in the pursuit of a livelihood, and its suspension threatens important interests of the people who hold them. 352. The purpose of licensing drivers is to promote safety on Virginia’s roads and highways by keeping drivers off the roads who present a danger behind the wheel. 353. Suspending licenses for non-driving reasons produces no traffic safety benefit, and distracts law enforcement resources from investigating criminal and traffic violations that
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present true threats to public safety. 354. For people returning to their communities from jails and prisons, lack of a
driver’s license threatens their successful reentry when they cannot obtain or maintain stable employment.
355. For low-income debtors, avoidance of driver’s license suspension does not operate as an incentive to pay when they must choose between paying the court and paying rent, buying medications, putting food on the table, and meeting other necessary expenses.
356. Indeed, as to people who lack the ability to pay court debt, a suspended license is not only not rational, but instead fundamentally irrational and counterproductive; suspension not only fails as an incentive (because such people are unable to avoid suspension under current law), but also (by making it harder for people to earn money) makes it less likely— rather that more likely—that they will be able to pay court debt.
357. Thus, Section 46.2-395, as written and as implemented, fails even the most minimum constitutional standards, as applied to debtors who lack ability to pay, because it is not rationally related to legitimate state interests.
Count V: Violation of the Equal Protection Clause (Extraordinary Collection Efforts)
358. The Plaintiff incorporate the allegations in Paragraphs 1-357 above with the same force and effect as if herein set forth.
359. The United States Supreme Court has held that, when governments seek to recoup the costs of prosecution from indigent defendants, they may not take advantage of their position to utilize unduly harsh methods of debt collection solely because the debt is owed to the government and not to a private creditor.
360. Unlike fines, which are imposed as a penalty for unlawful behavior, or
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restitution, which is imposed to compensate a victim, court costs assessed to subsidize the court proceedings (such as, e.g., court-appointed attorney fee reimbursement) are no different in character than ordinary private consumer debts incurred for services rendered.
361. When a private creditor seeks to enforce a judgment against a debtor via garnishment or lien, the law provides procedural and substantive protections for poor debtors against being deprived of certain basic necessities and the ability to maintain a livelihood.
362. The private creditor may coerce payment only to the extent permitted by those protections.
363. Section 46.2-395 does not treat indigent defendants, to the extent that they owe court costs, like other judgment debtors because it provides for suspension of the debtor’s driver’s license and the possibility of imprisonment for driving on a suspended license.
364. When the Commonwealth, acting through the Commissioner, takes advantage of its position at the controls of the machinery of government to peremptorily strip debtors of their driver’s licenses, it denies court debtors owing court costs the procedural and substantive statutory protections that other Virginia debtors may invoke against a private creditor in ordinary debt collection proceedings in order to maintain a livelihood and meet his or her basic needs.
365. The severe and coercive collection scheme enacted by Section 46.2-395, as written and implemented, constitutes invidious discrimination and violates the fundamental principle of equal protection of the laws embedded in the United States Constitution.
REQUESTED RELIEF Wherefore, the Plaintiffs respectfully request that this Court provide the following relief:
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a. Issue an order certifying this action to proceed as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2);
b. Approve the undersigned to serve as class counsel pursuant to Fed. R. Civ. P. 23(a)(4) and 23(g);
c. Issue a judgment declaring that, as written and as implemented, Section 46.2-395 of the Virginia Code is unconstitutional on its face and as applied to the Plaintiffs and Class Members;
d. Issue a judgment declaring that the Commissioner’s policies, practices, acts, and/or omissions as described herein are unlawful and violate Plaintiffs’ and Class Members’ rights under the Constitution and laws of the United States;
e. Preliminarily and permanently enjoin the Commissioner, his subordinates, agents, employees, representatives, and all others acting or purporting to act on his behalf from enforcing Section 46.2-395 against Plaintiffs and the Future Suspended Class until such time as the Commonwealth implements a system that complies with the United States Constitution;
f. Preliminarily and permanently issue an injunction ordering the Commissioner to remove any suspensions imposed pursuant to Section 46.2-395 from Plaintiffs’ and Suspended Class members’ DMV records and permit reinstatement without payment of the DMV reinstatement fees;
g. Award Plaintiffs their reasonable attorneys’ fees and litigation costs pursuant to 42 U.S.C. § 1988 and other applicable law; and
h. Grant all such other and further relief as this Court may deem necessary and/or appropriate in the interests of justice.
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DATED: September 11, 2018
Respectfully submitted,
By : ________/s/Angela A. Ciolfi_________ Jonathan T. Blank (VSB No. 38487) MCGUIREWOODS LLP Court Square Building 310 Fourth Street NE, Suite 300 Post Office Box 1288 Charlottesville, VA 22902 Ph: (434) 977-2509 Fax: (434) 980-2258 jblank@mcguirewoods.com
Angela A. Ciolfi (VSB No. 65337) Pat Levy-Lavelle (VSB No. 71190) LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 Ph: (434) 529-1810 Fax: (434) 977-0558 angela@justice4all.org
David P. Baugh (VSB No.: 22528) DAVID P. BAUGH, ESQ., PLC 2025 E. Main Street, Suite 114 Richmond, VA 23223 Ph: (804) 743-8111 Fax: (804) 225-8035 dpbaugh@dpbaugh.com
Leslie Kendrick (VSB No.: 90104) 580 Massie Rd. Charlottesville, VA 22903 Ph: (434) 243-8633 Fax: (434) 924-7536 kendrick@virginia.edu
Counsel for Plaintiffs
107089528_5.docx
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CLERKS OFFICE U.S. DIST. COURT AT CHARLOTTESVILLE, VA FILED
12/21/2018
JULIA C. DUDLEY, CLERK BY: /s/ J. JONES
DEPUTY CLERK

DAMIAN STINNIE, ET AL,

CASE NO. 3:16-CV-00044 Plaintiffs,

v.
RICHARD D. HOLCOMB, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF THE VIRGINIA DEPARTMENT OF MOTOR VEHICLES,
Defendant.

MEMORANDUM OPINION JUDGE NORMAN K. MOON

The plaintiffs in this putative class action have sued the Commissioner of Virginia’s Department of Motor Vehicles, challenging the constitutionality of Virginia Code § 46.2-395 (“§ 46.2-395”), which requires the automatic suspension of drivers’ licenses for failure to pay state court fines and costs. Plaintiffs have moved for a preliminary injunction to: (1) enjoin the Commissioner from enforcing § 46.2-395; (2) remove current suspensions of Plaintiffs’ driver’s licenses imposed under § 46.2-395; and (3) enjoin the Commissioner from charging a fee to reinstate Plaintiffs’ licenses where there are no other current restrictions on their licenses. The parties briefed the motion, and the Court held an evidentiary hearing and oral argument. Based on the current record, the Court concludes that Plaintiffs are likely to succeed on the merits of their procedural due process claim because the Commissioner suspends licenses without an opportunity to be heard. The motion for a preliminary injunction will therefore be granted.
I. Background This case was first filed with this Court in July 2016 and was dismissed without prejudice. (Dkt. 57). The Fourth Circuit dismissed Plaintiffs’ appeal for lack of appellate jurisdiction. Stinnie v. Holcomb, 734 F.App’x 858, 869 (4th Cir. 2018). The Fourth Circuit

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explained that this Court’s “grounds for dismissal [did] not clearly indicate that no amendment in

the complaint could cure the defects in the plaintiff’s case.” Id. at 861 (internal quotations omitted). Accordingly, on remand, in September 2018, Plaintiffs1 submitted an amended

complaint, alleging that § 46.2-395 “as written and as implemented by the [Virginia Department

of Motor Vehicles (“DMV”) Commissioner Richard D. Holcomb (“Commissioner”)] . . . is

unconstitutional on its face for failing to provide sufficient notice or hearing to any driver before

license suspension.” (Dkt. 84 ¶ 5). Plaintiffs also allege § 46.2-395 is “unconstitutional as

applied to people who cannot afford to pay due to their modest financial circumstances.” (Id.).

In their motion for preliminary injunction, Plaintiffs request that this Court: “(1) enjoin

the Commissioner from enforcing Section 46.2-395 against Plaintiffs and the Future Suspended

Class Members without notice and determination of ability to pay; (2) remove any current

suspensions of [Plaintiffs’] driver’s licenses imposed under Section 46.2-395; and (3) enjoin the

Commissioner from charging a fee to reinstate the Plaintiffs’ licenses if there are no other

restrictions on their licenses.” (Dkt. 90 at 2).

II. Findings of Fact

In assessing the appropriateness of this relief, the Court finds the following facts from the

preliminary injunction record.

A.

1. Plaintiffs are Virginia residents whose licenses have been suspended due to failure to

pay court fines and costs. (Dkt. 90 at 5).

1

The plaintiffs named in the amended complaint are Damian Stinnie, Melissa Adams,

Adrainne Johnson, Williest Bandy, and Brianna Morgan (“Plaintiffs”). They bring this action

“for themselves individually and on behalf of all others similarly situated,” seeking the

certification of two classes: (1) a “Suspended Class” consisting of all persons whose drivers’

licenses are currently suspended due to their failure to pay court debt pursuant to § 46.2-395 and

(2) a “Future Suspended Class” consisting of all persons whose drivers’ licenses will be

suspended due to their failure to pay court debt pursuant to § 46.2-395. (Dkt. 84 ¶¶ 296–298).

2

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2. Plaintiff Adrainne Johnson, a resident of Charlottesville, Virginia, is the mother of three children. (Dkt. 113 (Hr’g Tr.) at 15).
3. Johnson’s license has been suspended “off and on since 2016,” and is currently suspended for nonpayment of court fines and costs. (Id.).
4. Due to her lack of a license, Johnson struggles to get to the grocery store or meet her daughter’s medical needs, and cannot take her son to, or attend, any of his sporting events. (Id. at 17, 19).
5. Johnson’s lack of a license has impacted her employment, causing her to lose a job, preventing her from being hired, and frustrating her opportunities for advancement. (Id. at 17– 19).
6. Johnson and her children currently share a single family home with another family, but with a better paying job, she would be able to improve her living situation. (Id. at 18).
7. Johnson’s current income does not leave her with any money after necessary expenses each week. (Id. at 16).
8. At no time did any court inquire how much Johnson could afford to pay or inform her about the availability of alternatives to payments, and she has been unable to provide the requested amount. (Id. at 38–41).2
9. Plaintiffs Stinnie and Adams find themselves in similar circumstances. (See Dkt. 90-3 and 90-4).

2

The convictions associated with Johnson’s court fines and costs occurred before the

codification of Supreme Court of Virginia Rule 1:24 and Va. Code § 19.2-354.1. Va. Code §

19.2-354.1 requires state courts to “give a defendant ordered to pay fines and costs written notice

of the availability of deferred, modified deferred, and installment payment agreements.” That

code section also requires state courts to “offer any defendant who is unable to pay in full the

fines and costs within 30 days of sentencing the opportunity to enter into a” payment agreement.

Va. Code § 19.2-354.1(B). Rule 1:24 “is intended to ensure that all courts approve deferred and

installment payment agreements consistent with §§ 19.2-354, 19.2-354.1.”

3

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10. Stinnie describes a “cycle of debt, license suspension, and more debt and incarceration for driving while suspended” that prevents him from improving his employment situation or meeting basic needs, such as medical treatment and housing. (Dkt. 90-3 at 2).
11. Adams’s license is currently suspended because she cannot afford to pay court fines and costs. (Dkt. 90-4 at 1).
12. Adams’s “rare and serious blood disorder” has prevented her from maintaining steady employment, and although she initially made payments on her court debt, she could not “keep [them] up and support [herself] and [her] son on [her] limited income.” (Id.).
13. At no time before the suspension of their licenses were Stinnie or Adams asked about their financial circumstances or reasons for non-payment. (Dkt. 90-3 at 3; dkt. 90-4 at 2).
14. Plaintiffs Bandy and Morgan’s licenses were suspended for several years and were recently reinstated, but both face imminent suspension because they cannot afford the payments required by their payment plans. (Dkt. 90-6 at 1; dkt. 90-7 at 1).
15. Bandy and Morgan are currently on installment plans established to pay state court fines and costs, but they face the decision of providing necessities for their families, such as water and electricity, or paying monthly installments. (Dkt. 90-6 at 2; dkt. 90-7 at 4).
16. There was no inquiry into Bandy or Morgan’s financial circumstances before or after their licenses were suspended. (Dkt. 90-6 at 1; dkt. 90-7 at 1–2).
B. 17. Loss of a driver’s license adversely affects people’s ability to gain and maintain employment, often leading to a reduction in income. (Hr’g Tr. at 112). 18. When suspension occurs pursuant to § 46.2-395, neither a judge nor a clerk enters an order suspending the license or notifies the debtor of a license suspension. (Id. at 45–47, 66).
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19. Rather, DMV inputs suspensions based on electronic data automatically transmitted from state court computers to DMV. (Id. at 46, 146–7).
20. At sentencing hearings in Virginia state courts, the presiding judge assesses court fines and costs as well as their due date. (Id. at 45–46)
21. At (or within five days of) sentencing, a criminal defendant is provided with a notice indicating possible license suspension if he or she does not pay assessed costs by a designated date. (Id. at 45; 67; 73; § 46.2-395(C)).
22. After sentencing, the court’s disposition, assessed costs, and the due date of any assessed costs are entered into the Circuit Case Management System (“CCMS”) and the Financial Accounting System (“FAS”).3 (Hr’g Tr. at 43–44, 46).
23. The date that costs become due may be years after the date of sentencing. (Id. at 46, 113). 4
24. If a person fails to pay assessed costs within 40 days of the designated date, a fines and costs indicator is automatically, electronically transmitted to DMV.5 (Id. at 46, 66).
25. This information is transmitted from CCMS to the Court Automated Information

3

FAS is an updated version of the Financial Management System (“FMS”) that has been

implemented in Virginia court systems over the last year and a half. (Hr’g Tr. at 44). For

current purposes, the systems perform the same function: recording individuals’ court debt. (Id.

at 44–45). CCMS and FAS are integrated systems: when a clerk enters information in CCMS,

the data relevant to an individual’s financial account is transmitted to FAS. (Id.)

4

There are two instances where a due date may be years after the underlying conviction.

First, where a defendant is sentenced to imprisonment and/or placed on supervised probation the

payment may be deferred until after the completion of the sentence. (Hr’g Tr. at 46).

Additionally, where individuals establish payment plans with the state court, they are not in

danger of default until they fail to make a payment, which can be years after the fines and costs

were initially assessed. (Id. at 113 (establishing that Plaintiff Johnson made payments via a

payment plan for years before her license was suspended)).

5

This is true for all but two counties in Virginia, Alexandria and Fairfax, where courts

send paper documents regarding nonpayment of fines and costs directly to DMV. (Id. at 139).

5

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System, a “system-to-system” process between DMV and the Supreme Court Office of the Executive Secretary (“OES”) that allows DMV to routinely receive data from state courts. (Id. at 52, 134).
26. Data goes from CCMS to the Court Automated Information System through OES without any action by the courts. (Id.).
27. At the time of default, neither the judge nor the clerk enters an order regarding a driver’s license suspension for failure to pay fines and costs. (Id. at 45).
28. At the time of default, no notice is sent to the licensee regarding the pending license suspension. (Id. at 47, 70).
29. Through a computer-generated report, the state court clerk’s office is able to review information sent to DMV, but the court does not contact defaulted individuals to inform them of license suspensions. (Id. at 54–55).
30. The computer-generated report is used only to ensure that payments or non-payments are appropriately recorded. (Id. at 56).
31. Upon receipt of information regarding non-payment of court fines and costs, DMV records a license suspension and sends a letter informing the defaulted individual that his or her license has been suspended for failure to pay court debt. (Id. at 46).
32. The driving transcript updated by DMV is made available to law enforcement, courts, and attorneys, and can be obtained by insurance companies, as well as individuals. (Id. at 138).
33. Without DMV’s actions, an individual’s driving record would not reflect a suspension. (Id. at 147).
34. State courts have the authority to create installment payment plans to aid individuals
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struggling to pay court fines and costs. (Id. at 112); Va. Code § 19.2-354.1. 35. DMV can remove a license suspension based on failure to pay court fines and costs
where a debtor provides a certified copy of a court-approved payment plan. (Hr’g Tr. at 57). 36. The court does not take any action to notify a debtor that he is missing payments, and
once a payment is missed, the individual’s information is transmitted to DMV through the process described above. See supra ¶¶ 25–32; (Hr’g Tr. at 58).
37. The process of establishing payment plans differs among Virginia courts, but in all jurisdictions, when a payment is missed, a debtor’s data is automatically transmitted to DMV through OES and the Court Automated Information System. (Hr’g Tr. at 61).
38. When a license is suspended for nonpayment of fines and costs, it cannot be reinstated until the individual pays DMV’s $145 reinstatement fee. (Id. at 140).
39. DMV has sole responsibility for the collection of the reinstatement fee. (Id.) 40. DMV retains $45 of the reinstatement fee, and the remaining $100 goes to the Trauma Center Fund. (Id. at 142). 41. Without DMV’s actions, a license could not be suspended under § 46.2-395. (Id. at 147).
III. Commissioner’s Jurisdictional Arguments In response to Plaintiffs’ motion for a preliminary injunction, the Commissioner argues that this Court lacks jurisdiction for three reasons: (1) the Rooker-Feldman doctrine precludes this Court from exercising jurisdiction over the claims; (2) Plaintiffs lack Article III standing; and (3) the Commissioner is immune from suit under the Eleventh Amendment.
A. The Rooker-Feldman Doctrine The Rooker-Feldman doctrine precludes federal district courts from exercising appellate
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jurisdiction over a state court’s final judgment in a judicial proceeding. See District of Columbia Courts of Appeals v. Feldman, 460 U.S. 462, 481–82 (1983). The doctrine does not apply “if a plaintiff in federal court does not seek review of the state court judgment itself but instead presents an independent claim.” Thana v. Bd. of License Comm’rs for Charles Cty., Md., 827 F.3d 314, 320 (4th Cir. 2016) (internal quotations omitted). The evidence shows that Plaintiffs do not suffer the challenged injury due to a state court judgment. Rather, Plaintiffs contest the actions of a state executive officer—the Commissioner—in suspending their driver’s licenses. Insofar as the state court acts at all, Plaintiffs do not challenge that action but bring an independent claim.
The “essence of a judicial proceeding” is the adjudication and rejection of a party’s arguments. Feldman, 460 U.S. at 480–81. There is no judicial proceeding surrounding license suspension under § 46.2-395. The court’s only action is the assessment of fines and costs associated with an underlying conviction. Forty days after payment of those costs is due, without notification to affected individuals and without entrance of a court order, data is automatically, administratively, and electronically transmitted to DMV. DMV, in turn, enters a suspension on the debtor’s driving record. The suspension is an administrative action, and “state administrative decisions, even those that are subject to judicial review by state courts, are beyond doubt subject to challenge in an independent federal action.” Thana, 827 F.3d at 321.
Additionally, the Rooker-Feldman doctrine does not bar this Court’s review of a facial challenge to the statute because Plaintiffs present an independent claim. “A state-court decision is not reviewable by lower federal courts, but a statute or rule governing the decision may be challenged in a federal action.” Skinner v. Switzer, 562 U.S. 521, 532 (2011). Accordingly, where an individual challenges the constitutionality of a statute, rather than the judgment
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enforcing the statute, they have brought an independent claim to which Rooker-Feldman does not apply. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 282 (2005). (“If a federal plaintiff presents some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party, then there is jurisdiction.”).
Plaintiffs do not contest their convictions or the fines and costs assessed by the state court, (Dkt. 90 at 1). Therefore, the outcome of this case will not affect those judgments. Plaintiffs challenge the constitutionality of a statute that, they claim, violates their rights to due process and equal protection under the law. (Id. at 1–2). There has been no state court ruling on the constitutionality of this statute, and therefore no state judgment that would bar this Court’s review of Plaintiffs’ claims. See also Stinnie, 734 F.App’x at 870 (Gregory, C.J., dissenting) (“The absence of a reviewable state judgment, by definition, means Rooker-Feldman cannot apply, for it precludes only appellate review by district courts.”). For these reasons, the RookerFeldman doctrine does not bar jurisdiction over Plaintiffs’ claims.
B. Article III Standing To satisfy Article III standing requirements, Plaintiffs must show that (1) they 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. Doe v. Va. Dep’t of St. Police, 713 F.3d 745, 753 (4th Cir. 2013). The Commissioner argues that Plaintiffs fail to demonstrate traceability or redressability. (Dkt. 99 at 11). However, the evidence shows that the Commissioner is at least partially responsible for Plaintiffs’ harms, and Plaintiffs’ requested relief would eliminate most, if not all, of the harms caused by § 46.2-395.
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i. Traceability To establish that their injuries are “fairly traceable” to the Commissioner, Plaintiffs must show that the challenged action is “at least in part responsible for frustrating” their constitutional rights. Libertarian Party of Va. v. Judd, 718 F.3d 308, 315 (4th Cir. 2013). Plaintiffs need not show that the Commissioner’s actions “are the very last step in the chain of causation.” Judd, 718 F.3d at 316. Rather, the Supreme Court has “recognized the concept of concurrent causation as useful in evaluating whether the pleadings and proof demonstrate a sufficient connection between plaintiff’s injury and the conduct of the defendant.” Id. Consistent with these principles, in Doe, the Fourth Circuit held that an injury was fairly traceable to a defendant who implemented an allegedly unconstitutional statute. 713 F.3d at 757–758. In that case, the plaintiff filed suit due to her inclusion on a Virginia sex offender registry, and the Court held that she had standing to bring her due process claim against the police superintendent whose only role was publishing the registry. Id. at 751. The superintendent was not responsible for the classification decisions affecting the plaintiff, but the Court reasoned that, where the injury was directly traceable to the defendant’s implementation of the challenged statute, the plaintiff met the requirements of traceability and redressability. Id. at 757–58. The facts here are similar to those in Doe. The Commissioner has no discretion as to whose license is suspended, but he records the suspension, and without that action, Plaintiffs’ driving records would not reflect a suspension. (Hr’g Tr. at 146–47). Additionally, the Commissioner is solely responsible for the reinstatement of licenses and collection of the $145 reinstatement fee. (Hr’g Tr. at 140). For individuals who have little to no income, the reinstatement fee alone may deprive them of their ability to drive due to their inability to pay.
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Without the Commissioner’s actions, not only would Plaintiffs be able to drive without fear of being cited, fined, or possibly incarcerated, but they would not face the additional, and possibly insurmountable, burden of the reinstatement fee. Accordingly, Plaintiffs have established that their injury is fairly traceable to the actions of the Commissioner.
ii. Redressability To establish redressability, Plaintiffs must show that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167 (2000). An injury is redressible where a favorable ruling would frustrate the implementation of a challenged statute or action. See, e.g., Cooksey v. Futrell, 721 F.3d 226, 238 (4th Cir. 2013) (finding the redressability requirement met where a decision favoring the plaintiff “would mean the [defendant] would be enjoined from enforcing” an alleged unconstitutional statute, “and/or [the statute] would be deemed unconstitutional.”); Metro Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 (1991) (finding redressability requirement satisfied where invalidation of a board’s veto power would prevent the enactment of the allegedly harmful plan.). Here, Plaintiffs seek to prevent the Commissioner from implementing § 46.2-395, which would restore (or preserve) their ability to drive without fear of punishment, affording them the ability to improve their financial, home, and health conditions. Specifically, Plaintiffs request that the Commissioner be ordered to reinstate their licenses without imposing a reinstatement fee and that he be enjoined from taking further action that results in the suspension of licenses through an allegedly unconstitutional scheme. This would return Plaintiffs Stinnie, Adams, Johnson, and members of the putative Suspended Class to the position they would have been in but for the allegedly unconstitutional suspension—i.e., their licenses would be returned without
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imposition of a burdensome fee. For Plaintiffs Bandy, Morgan, and the putative Future Suspended Class, who are facing imminent suspension under § 46.2-395, this would prevent an allegedly unconstitutional deprivation of their licenses.
Without the Commissioner’s actions, it would be impossible to effectuate a license suspension. (Hr’g Tr. at 147). Accordingly, granting Plaintiffs’ request would allow them to “find full redress,” as their ability to drive “would be restored without fear of penalty.” Cooksey, 721 F.3d at 238. For these reasons, the alleged injuries are redressible.
C. Eleventh Amendment Immunity Generally, the Eleventh Amendment bars suits against states, state entities, and state officials. Gray v. Lewis, 51 F.3d 426, 431 (4th Cir. 1995). However, Ex Parte Young provides an exception, permitting suits challenging state officials who have some duty regarding enforcement of an allegedly unconstitutional act. 209 U.S. 123, 130–131 (1908). In such cases, citizens can bring suits against a state officer, in his official capacity, where he has a “special relation” to the challenged act. Id. at 201. To meet the “special relation” requirement, the challenged official must have “proximity to and responsibility for the challenged state action,” ensuring “that a federal injunction will be effective with respect to the underlying claim.” South Carolina Wildlife Federation v. Limehouse, 549 F.3d 324, 332–33 (4th Cir. 2008). This test does not require that the challenged statute specify the official’s role, but where there are express obligations, the officer’s duty is made more clear. Ex Parte Young, 209 U.S. at 453. Ultimately, the “important and material fact” is that “the state officer, by virtue of his office, has some connection with the enforcement of the act.” Id. Because the Commissioner has obligations under § 46.2-395, he has the special relationship required by Ex Parte Young, and Plaintiffs’ action is not barred by the Eleventh Amendment.
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The Commissioner not only has express duties under § 46.2-395, but the evidence presented emphasizes his key role in creating, administering, and enforcing license suspensions. First, the Commissioner is the designated recipient and record-keeper for notices of unpaid court costs. § 46.2-395(C). Receipt of this notice alone permits the Commissioner to effectuate a license suspension. Second, an individual’s license will not be reinstated until the Commissioner is presented with evidence establishing that debt has been paid in full or a payment plan has been implemented. § 46.2-395(D). Finally, the Commissioner is responsible for collecting the $145 license reinstatement fee, which must be paid before a suspension is lifted. §46.2-395(C); (Hr’g Tr. at 140). Given these duties, the Commissioner clearly has the proximity and responsibility necessary to establish “some connection” with the challenged statute. Ex Parte Young, 209 U.S. at 453; see, e.g., Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (holding that circuit court clerk bore the requisite connection to the enforcement of state marriage laws because the plaintiffs could trace the denial of their rights to the defendant’s role in enforcing the allegedly unconstitutional law); cf. Hutto v. South Carolina Ret. Sys., 773 F.3d 536, 551 (4th Cir. 2014) (holding plaintiffs could not sue named state officials to enjoin collection of pension contributions because the officials “actually ha[d] no role” in the collection process). For these reasons, Plaintiffs’ suit is not barred by the Eleventh Amendment.
IV. Preliminary Injunction Factors With the threshold issues decided, the Court turns to the merits of the preliminary injunction. The four-part test from Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7 (2008) governs. Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013). To obtain a preliminary injunction, the moving party must establish “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
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balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 550 U.S. at 20. The plaintiff “need not establish a certainty of success, but must make a clear showing that he is likely to succeed at trial.” Di Biase v. SPX Corp., 872 F.3d 244, 230 (4th Cir. 2017).
V. Plaintiffs’ Likelihood of Success on the Merits Plaintiffs assert that the Commissioner carries out the suspension process under § 46.2395 “with no meaningful notice, without a hearing, and without consideration of the persons’ inability to pay.” (Dkt. 90 at 1). They argue that they, “and hundreds of thousands of Virginians like them, lost their licenses for the simple reason that they could not afford the fines and costs imposed on them . . . offend[ing] the Fourteenth Amendment guarantees of due process and fundamental fairness, as well as equal protection under the law.” (Id. at 1–2). Plaintiffs advance several theories as to how their claims will succeed, but all that is necessary for preliminary injunctive relief is establishing the likelihood of success on at least one of their claims. (Hr’g Tr. at 12); see League of Women Voters of N.C. v. N.C., 769 F.3d 224 (4th Cir. 2014) (remanding with instructions to enter a preliminary injunction where plaintiffs were likely to succeed on at least one of their claims); Forest City Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 151 (2d Cir. 1999) (“At the preliminary injunction stage, plaintiffs need to show a likelihood of success with respect to only one of [the three challenged] statutes.”). The inquiry into likelihood of success requires Plaintiffs to “make a clear showing that they are likely to succeed . . . [but they] need not show a certainty of success.” Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013). Because Plaintiffs have met this burden regarding their procedural due process claim, they have satisfied the first prong of Winter. Plaintiffs assert that § 46.2-395 “is unconstitutional on its face for mandating automatic
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license suspension without notice or a hearing,” and that “[t]his defect violates the procedural

due process rights of every driver whose license is suspended under Section 46.2-395.” (Dkt. 90 at 14).6 The Fourteenth Amendment provides that no State can “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV § 1. For Plaintiffs’

motion for preliminary injunction to succeed based on their procedural due process claim, they

must demonstrate that, at trial, they are likely to show (1) they have been deprived of life, liberty

or property, and (2) that such deprivation occurred without the due process of law. Mathews v.

Eldridge, 424 U.S. 319, 332 (1976).

A “driver’s license is a property interest protected by the Fourteenth Amendment and,

once issued, a driver’s license may not be taken away without affording a licensee procedural

due process.” Scott v. Williams, 924 F.2d 56, 58 (4th Cir. 1991); Plumer v. Maryland, 915 F.2d

927, 931 (4th Cir. 1990) (“It is well settled that a driver’s license is a property interest that may

not be suspended or revoked without due process.”). Accordingly, the Court turns to whether §

46.2-395 provides due process.

“At bottom, procedural due process requires fair notice of impending state action and an

opportunity to be heard.” Snider Int’l Corp. v. Town of Forest Heights, Md., 739 F.3d 140, 146 (4th

Cir. 2014) (citing Mathews, 424 U.S. at 333). Notice and hearing are two distinct features of due

process, and thus governed by different standards. Id. Notice is “‘an elementary and fundamental

6

The Court notes that “if the arguments and evidence show that a statutory provision is

unconstitutional on its face, an injunction prohibiting its enforcement is ‘proper.’” Whole

Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2306 (2016) (quoting Citizens United v. Federal

Election Comm’n, 558 U.S. 310, 333 (2010)). In Whole Woman’s Health, the Supreme Court

found the district court’s award of facial relief appropriate where petitioners asked for as-applied

relief, and “such other and further relief as the Court may deem just, proper, and equitable.” Id.

(internal quotations omitted). In this case, Plaintiffs ask this Court for as-applied relief and

“further relief as this Court may deem necessary and/or appropriate in the interests of justice.”

(Dkt. 84 at 44). Accordingly, where Plaintiffs’ “evidence and arguments convince[] the District

Court that the provision [is] unconstitutional across the board,” it is within this Court’s power to

enjoin the enforcement of § 46.2-395.

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requirement of due process,’ and must be reasonably calculated to convey information concerning a deprivation.” Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). The hearing prong is governed by the three-step inquiry set forth in Mathews, which determines the adequacy of the opportunity to be heard. Id. (citing Mathews, 424 U.S. at 335). The Court will evaluate each of these elements in turn.
A. Notice Notice must be provided in a manner that would be employed by one who was “desirous of actually informing” the affected party of the pending deprivation of property. Mullane, 339 U.S. at 657. A “mere gesture” will not suffice. Id. The “reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected.” Id. Ultimately, notice is meant to “apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. “Personal service has not in all circumstances been regarded as indispensable to the process due,” and “[t]he Supreme Court has routinely recognized that the use of mail satisfies the notice element of due process.” Mullane, 339 U.S. at 314; Snider Int’l Corp., 739 F.3d at 146. Furthermore, individual notice has not been found necessary where it is “established by published, generally available state statutes and case law.” City of West Covina v. Perkins, 525 U.S. 234, 241 (1999) (holding individualized notice was not required where generally available statutes contained state-law remedies). Here, § 46.2-395(C) provides that written notice regarding license suspension upon failure to pay court costs “shall be provided to the person at the time of trial or shall be mailed by first-class mail” to the person’s current mailing address. While these forms of notice may comport with due process, see Snider Int’l Corp., 739 F.3d at 148, the evidence presented reveals two substantive problems. First, license suspension is merely a possibility at the time notice is
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given. See Section I, ¶ 23. This is not necessarily a fatal flaw. For example, in Snider Int’l Corp., a corporation and individual recipients of traffic citations challenged the use of first class mail to deliver notice of violations and associated penalties. 739 F.3d at 143. The citations carried a civil penalty of no greater than forty dollars, but non-payment and failure to contest liability could lead to the suspension of the vehicle’s registration. Id. In the case at hand, license suspension may occur years after the state court’s assessment of fines and costs, see supra Section I, ¶ 14, and no notice is sent to licensees at the time of default. See supra Section I, ¶ 23. In contrast, the notice at issue in Snider Int’l Corp. was provided no more than 30 days after a violation occurred. 739 F.3d at 143, n. 3. This temporal disconnect makes it at least questionable whether the means of notice employed here are more than a “mere gesture.” Mullane, 339 U.S. at 315.
Second, for notice to be sufficient, it must not only provide interested parties with information regarding the pendency of the action, but also “afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314. For instance, in Snider Int’l Corp., the Fourth Circuit found that a traffic citation sent by first-class mail provided adequate notice of a recipient’s violation where the recipient could elect a trial in lieu of paying a penalty. 739 F.3d 140. Additionally, in City of West Covina, the Supreme Court held that notice was satisfied by the presence of a generally available statute where the owner of seized property could turn to those statutes “to learn about the remedial procedures available to him.” 525 U.S. at 241. In contrast, § 46.2-395 does not give notice to licensees about opportunities to air objections regarding license suspension for failure to pay fines and costs, because no such process is available. See infra Section IV.B.
Again, “[a]n elementary and fundamental requirement of due process in any proceeding
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which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314 (emphasis added). The evidence before the Court suggests that Plaintiffs may succeed on showing notice is deficient in this case. However, the Court need not reach a definitive conclusion on this issue because Plaintiffs have made a clear showing that they are likely to establish that they are not provided an opportunity to be heard.
B. Hearing Even if the notice provided here was more than a mere gesture, Plaintiffs are likely to show § 46.2-395 does not provide any hearing, much less one that satisfies due process. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333 (internal quotations omitted). A meaningful hearing serves the Due Process Clause’s purpose of protecting persons “from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). In making determinations about the sufficiency of process, Mathews requires the consideration of three factors: (1) the private interest involved; (2) the risk of erroneous deprivation through the procedures used; and (3) the government’s interest. Id. at 335. The Court determines that Plaintiffs are likely to succeed because the procedures in place are not sufficient to protect against the erroneous deprivation of the property interest involved. Indeed, § 46.2-395, on its face, provides no procedural hearing at all.
* In considering the private interest involved here, the Supreme Court has held “that when a State seeks to terminate an interest such as [a driver’s license], it must afford notice and opportunity for hearing appropriate to the nature of the case before the termination becomes
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effective.” Bell v. Burson, 402 U.S. 535, 542 (1971) (emphasis added). The Fourth Circuit requires that a licensee be given some sort of opportunity to contest the suspension. Plumer, 915 F.2d at 931. In Plumer, the Fourth Circuit held that a licensee must “be given a chance to rebut” any evidence against him. Id. In this case, the Commissioner enters a suspension based on a failure to pay court fines and costs in full or in part. (Hr’g Tr. at 147). At no time are Plaintiffs given any opportunity to be heard regarding their default, nor do they have the opportunity to present evidence that they are unable to satisfy court debt. This is not sufficient in light of the “degree of potential deprivation that may be created.” Mathews, 424 U.S. at 341.
** The Commissioner argues that Plaintiffs are given three opportunities that prevent the “risk of an erroneous deprivation.” Mathews, 424 U.S. at 333. First, at the time of sentencing or through a petition contesting the assessment of court costs; second, upon an appeal of defendant’s criminal conviction; and finally, through “the statutory mechanism that allows the sentencing court to reduce or forgive” court debt. (Dkt. 99 at 15–16). These are not procedures that are tailored “‘to the capacities and circumstances of those who are to be heard,’” nor do they ensure that licensees are “given a meaningful opportunity to present their case.” Id. at 349 (quoting Golberg v. Kelly, 397 U.S. 245, 268–69 (1970)). The first two instances present the same issues: (1) they address the underlying conviction and assessment of costs, not the license suspension; and (2) they occur at a time well before the licensee is in default, a time when the licensee may, in good faith, believe he has the ability to pay. License suspension occurs 40 days after the assessed due date, which can be years after sentencing, see supra Section I, ¶ 14, but an appeal must occur within 10 days of a criminal conviction in a general district court, (Va. Code. § 16.1-132), and within 30 days of a conviction
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in a circuit court. (Va. Code § 8.01-675.3). Similarly, for those who have their licenses

suspended for failure to make payments according to a payment plan, the time to appeal has long

since passed. (See Hr’g Tr. at 113). At the time of appeal, as at the time of sentencing, license

suspension is not a certainty, nor is the licensee aware of unforeseen circumstances that might

make him unable to satisfy debt when it is due.

Finally, the statutory mechanism that allows a sentencing court to reduce or forgive court

debt addresses the imposition of fines and costs, but does not provide Plaintiffs with an

opportunity to be heard on the fact of license suspension. Va. Code § 19.2-354.1. Suspension

will still occur if the licensee fails to pay the reduced amount prescribed by the court.

Additionally, if the court forgives already-defaulted debt, the licensee would still have to provide

the Commissioner with proof of satisfaction and pay DMV’s $145 reinstatement fee. There is no

evidence that DMV provides a process that allows for waiver of this fee due to inability to pay.

Because none of these procedures allow Plaintiffs to be heard on their alleged default and later

suspension, the procedures fail to present the necessary opportunity to contest the suspension. Accordingly, Plaintiffs are likely to show the second Mathews factor weighs in their favor.7

***

The final Mathews factor, the government’s interest, also weighs in Plaintiffs’ favor. The

Commissioner argues that “the Commonwealth of Virginia has an interest in continuing to have

some enforcement mechanism to go with those fines that have been assessed by the juries.”

(Hr’g Tr. at 185). There is no indication that a loss of license will incentivize individuals to pay

7

Defendant argues that codification of Supreme Court of Virginia Rule 1:24, requiring

courts to give written notice of the availability of deferred and installment payment plans helps

to prevent erroneous deprivation. (Dkt. 99 at 5). This is not persuasive. While enrollment in a

payment plan does suggest the consideration of financial hardship, an individual who fails to

make the established payments will still have her license suspended pursuant to § 46.2-395. This

may delay suspension, but it does not prevent, or allow a licensee to object to, a license

suspension for failure to pay court fines and costs.

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court fines and costs where those individuals simply cannot afford to pay. In practice, the loss of a driver’s license adversely affects people’s ability to gain and maintain employment, often resulting in a reduction of income. (Hr’g Tr. at 106; 112). This deprives individuals of means to pay their court debt, hindering the fiscal interests of the government. Were procedural due process to be afforded, the Commissioner would be able to ascertain the effectiveness of his chosen enforcement mechanism, i.e., license suspension, and thus establish a more reliable way to ensure the collection of court fines and costs.
“The essence of due process is the requirement that ‘a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it.’” Mathews, 424 U.S. at 348– 49 (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171–72 (1951) (Frankfurter, J., concurring)). Here, the private interest at stake plainly merits some pre-deprivation process, Bell, 402 U.S. at 542, and the evidence presented highlights the importance of a driver’s license in Virginia specifically.8 There are no mechanisms in place that allow individuals to be heard regarding their inability to pay court fines and costs, and the government’s stated interest is not supported where license suspension causes a decrease in debtors’ income. Accordingly, the Court concludes that § 46.2-395, on its face, does not provide a meaningful opportunity to be heard regarding license suspension. Therefore, Plaintiffs demonstrate a likelihood of success on their claim that § 46.2-395 violates procedural due process.9

8

Not only does Plaintiffs’ testimony emphasize their need for a driver’s license to meet

non-economic needs, such as medical care for themselves and their families, (see, e.g., Hr’g Tr.

at 17–18; dkt. 90-4 at 2), but evidence also shows that the majority of Virginians rely on cars to

travel to work, and that the lack of a license reduces job opportunities. (Hr’g Tr. at 129).

9

The Court notes that Plaintiffs present a host of constitutional claims, but because it has

found Plaintiffs are likely to succeed on the merits of their procedural due process claim, it need

not reach those issues. See Fowler v. Johnson, No. 17-11441, 2017 WL 6379676 (E.D. Mich.

2017) (granting a preliminary injunction enjoining the Michigan DMV from enforcing an

allegedly unconstitutional license suspension scheme based only on the likelihood of success on

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VI. Other Winter Factors The remaining factors governing a request for a preliminary injunction—irreparable harm, the balance of equities, and the public interest—weigh in favor of Plaintiffs. First, where Plaintiffs’ constitutional rights are being violated, there is a presumption of irreparable harm. Davis v. District of Columbia, 158 F.3d 1342, 1343 (4th Cir. 1998) (citing Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987)). Irreparable harm is clearly demonstrated through the facts surrounding Plaintiff Stinnie. (Dkt. 90-3). Plaintiff Stinnie received a loan and paid the court debt underlying his initial license suspension. (Id. at 2). However, before receiving the loan that allowed him to pay his court fines and costs, he drove to essential medical appointments, resulting in a conviction for driving on a suspended license. (Id. at 2–3). He appealed his conviction, but lost, resulting in his current license suspension, despite the fact that he has paid the initial underlying court debt. (Id.). Money could not solve the injury Plaintiff Stinnie suffered, the suspension of his license made it impracticable, if not impossible, for him to carry out necessary tasks, and payment of underlying court fines and costs did not alleviate his situation. The other plaintiffs suffer similar harm. For example, Plaintiff Johnson testified that she is unable to take her daughter to necessary medical appointments, or attend her son’s athletic events, causing stress for both her and her children. (Hr’g Tr. at 17). She further testified that, because of her suspended license she has lost a job and been denied another. (Id.). Similarly, without driving, Plaintiff Adams could not travel to and from work, her chemotherapy appointments, or her son’s medical specialist. (Dkt. 90-4 at 2). Money alone would not alleviate Plaintiffs’ harms or release Plaintiffs from the cycle of hardships caused by § 46.2-395. The only remedy for Plaintiffs’ injury is the restoration of their licenses and the prevention of further suspensions under § 46.2-395. As for the remaining factors, the balancing of the equities and public interest, Fourth
plaintiffs’ due process claim). 22
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Circuit precedent “counsels that ‘a state is in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved by such an injunction.’” Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (citing Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)). The harm § 46.2-395 poses to Plaintiffs outweighs any harm the issuance of a preliminary injunction would cause others. While the Court recognizes the Commonwealth’s interest in ensuring the collection of court fines and costs, these interests are not furthered by a license suspension scheme that neither considers an individual’s ability to pay nor provides him with an opportunity to be heard on the matter. See Fowler v. Johnson, No. 1711441, 2017 WL 6379676, at *12 (E.D. Mich. Dec. 14, 2017) (“The State’s and public’s interests may in fact be served by an injunction, as restoring the driver’s licenses of individuals unable to pay their traffic debt may enable them to obtain and retain employment, which will make them more likely to pay that debt.”).
VII. Conclusion For the reasons discussed, the Court finds it likely that Plaintiffs will succeed in establishing that § 46.2-395 violates procedural due process. The remaining factors relevant to the issuance of a preliminary injunction also weigh in favor of Plaintiffs. Accordingly, Plaintiffs’ motion for preliminary injunction will be granted. An appropriate order will issue, and the Clerk of the Court is hereby directed to send a certified copy of this memorandum opinion and the accompanying order to all counsel of record. Entered this _2_1_s_t day of December, 2018.
23 Case 3:16-cv-00044-NKM-JCH Document 126 Filed 12/21/18 Page 23 of 23 Pageid#: 2413

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CLERKS OFFICE U.S. DIST. COURT AT CHARLOTTESVILLE, VA FILED
12/21/2018
JULIA C. DUDLEY, CLERK BY: /s/ J. JONES
DEPUTY CLERK

DAMIAN STINNIE, ET AL,

CASE NO. 3:16-CV-00044 Plaintiffs,

v.
RICHARD D. HOLCOMB, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF THE VIRGINIA DEPARTMENT OF MOTOR VEHICLES,
Defendant.

PRELIMINARY INJUNCTION JUDGE NORMAN K. MOON

In accordance with the accompanying memorandum opinion, Plaintiffs’ Motion for Preliminary Injunction, (dkt. 88), is GRANTED.1 As used in this preliminary injunction, the term “Plaintiffs” means Damian Stinnie, Melissa Adams, Adrainne Johnson, Williest Bandy, and Brianna Morgan. Defendant, Richard D. Holcomb, the Commissioner of the Virginia Department of Motor Vehicles (“Commissioner”) is hereby ORDERED as follows:
(1) The Commissioner is preliminarily enjoined from enforcing Virginia Code § 46.2395 against Plaintiffs unless or until the Commissioner or another entity provides a hearing regarding license suspension and provides adequate notice thereof;
(2) The Commissioner shall remove any current suspensions of the Plaintiffs’ driver’s licenses imposed under Va. Code § 46.2-395; and
(3) The Commissioner is enjoined from charging a fee to reinstate Plaintiffs’ driver’s licenses if there are no other restrictions on their licenses.

1

At this time the Court has made no determination as to Plaintiffs’ Motion to Certify

Class. (Dkt. 85). Until the Court determines “that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole,” Fed. R. Civ. P. 23(b)(2), this

Order applies only to named Plaintiffs: Damian Stinnie, Melissa Adams, Adrainne Johnson,

Williest Bandy, and Brianna Morgan.

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It is so ORDERED. The Clerk of Court is hereby directed to send a certified copy of this Order to all counsel of record. Entered this __2_1s_t__ day of December, 2018.
Case 3:16-cv-00044-NKM-JCH Document 127 Filed 12/21/18 Page 2 of 2 Pageid#: 2415

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CLERKS OFFICE U.S. DIST. COURT AT CHARLOTTESVILLE, VA FILED
06/28/2019
JULIA C. DUDLEY, CLERK BY: /s/ J. JONES
DEPUTY CLERK

DAMIAN STINNIE, ET AL.,

3:16-CV-00044 Plaintiffs,

v.
RICHARD D. HOLCOMB, in his official capacity as the Commissioner of the Virginia Department of Motor Vehicles,
Defendant.

MEMORANDUM OPINION
JUDGE NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Virginia Department of Motor Vehicles Commissioner Richard D. Holcomb’s (the “Commissioner”) motion to dismiss the case as moot or, in the alternative, to stay the case. (Dkt. 142). The underlying matter is the constitutionality of Virginia Code § 46.2-395 (“§ 46.2-395”), which requires the automatic suspension of drivers’ licenses for failure to pay state court fines and costs.
The Commissioner filed the present motion due to the enactment of Budget Amendment No. 33 (the “Budget Amendment”), which eliminates the suspension of drivers’ licenses for failure to pay court fines and costs through July 1, 2020, but does not repeal § 46.2-395. The Commissioner argues that the Budget Amendment renders Plaintiffs’ harm so remote as to moot the case, or, alternatively, that it represents the Virginia legislature’s commitment to repeal, and thus supports a stay of the matter pending the 2020 session of Virginia’s General Assembly. For the reasons discussed below, the Court finds that the Budget Amendment does not moot the case, but does render a stay appropriate.

1 Case 3:16-cv-00044-NKM-JCH Document 214 Filed 06/28/19 Page 1 of 10 Pageid#: 7408

I. Background A full recitation of the facts surrounding this case can be found in the Court’s memorandum opinion granting Plaintiffs’ preliminary injunction. Stinnie v. Holcomb, 355 F.Supp.3d 514, 520–23 (W.D. Va. 2018). Relevant here is the case’s procedural history and the text and impact of the Budget Amendment.1 This case was first filed in July 2016 and dismissed without prejudice. (Dkt. 57). The Fourth Circuit dismissed Plaintiffs’ appeal for lack of appellate jurisdiction. See Stinnie v. Holcomb, 734 F. App’x 858, 863 (4th Cir. 2018). The Fourth Circuit explained that this Court’s “grounds for dismissal [did] not clearly indicate that no amendment in the complaint could cure the defects in the plaintiff’s case.” Id. at 861 (internal quotations omitted). Accordingly, on remand, in September 2018, Plaintiffs2 submitted an amended complaint, alleging that § 46.2-395 “as written and as implemented by the Virginia Department of Motor Vehicles (“DMV”) Commissioner . . . is unconstitutional on its face” under the Fourteenth Amendment due process clause “for failing to provide sufficient notice or hearing to any driver before license suspension.” (Dkt. 84 ¶ 5). Plaintiffs also allege § 46.2-395 is unconstitutional under the Fourteenth Amendment equal protection clause “as applied to people who cannot afford to pay due to their modest financial circumstances.” (Id.). Plaintiffs moved for a preliminary injunction to: (1) enjoin the Commissioner from enforcing § 46.2-395; (2) remove current suspensions of Plaintiffs’ drivers’ licenses imposed

1

Va. Legislative Information System, 2019 Session Budget Amendments-HB1700,

Amendment 33, Item 3-6.03, https://budget.lis.virginia.gov/amendment/2019/1/HB1700/

Enrolled/GE/.

2

The plaintiffs named in the amended complaint are Damian Stinnie, Melissa Adams,

Adrainne Johnson, Williest Bandy, and Brianna Morgan (“Plaintiffs”). They bring this action

“for themselves individually and on behalf of all others similarly situated,” seeking the

certification of two classes: (1) a “Suspended Class” consisting of all persons whose drivers’

licenses are currently suspended due to their failure to pay court debt pursuant to § 46.2-395 and

(2) a “Future Suspended Class” consisting of all persons whose drivers’ licenses will be

suspended due to their failure to pay court debt pursuant to § 46.2-395. (Dkt. 84 ¶¶ 296–298).

2

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under § 46.2-395; and (3) enjoin the Commissioner from charging a fee to reinstate licenses for
plaintiffs with no other restrictions on their licenses. (Dkt. 88). This Court granted Plaintiffs’
preliminary injunction, finding that the Court could properly exercise jurisdiction over the case,
and that Plaintiffs were likely to succeed on the merits of their procedural due process claim
because the procedures provided by § 46.2-395 “are not sufficient to protect against the
erroneous deprivation of the property interest involved.” (Dkt. 126 at 18). Currently pending
before the Court is the instant motion to dismiss, (dkt. 142), a motion to dismiss pursuant to Fed.
R. Civ. P. 12, (dkt. 104), a motion to certify class, (dkt. 85), cross motions for summary
judgment, (dkts. 195, 200), and a motion to exclude witnesses, (dkt. 198).
As to the Budget Amendment, Virginia Governor Ralph Northam proposed the Budget
Amendment to “eliminate the suspension of driving privileges for nonpayment of court fines and costs.”3 In full, the Budget Amendment states:
[N]otwithstanding the provisions of § 46.2-395 of the Code of Virginia, no court shall suspend any person’s privilege to drive a motor vehicle solely for failure to pay any fines, court costs, forfeitures, restitution, or penalties assessed against such person. The Commissioner of the Department of Motor Vehicles shall reinstate a person’s privilege to drive a motor vehicle that was suspended prior to July 1, 2019, solely pursuant to § 46.2-395 of the Code of Virginia and shall waive all fees relating to reinstating such person’s driving privileges. Nothing herein shall require the Commissioner to reinstate a person’s driving privileges if such privileges have been otherwise lawfully suspended or revoked or if such person is otherwise ineligible for a driver's license.
Accompanying the text of the Budget Amendment is an explanation, which provides:

3

Commonwealth of Virginia Office of the Governor, Governor Northam Announces

Budget Amendment to Eliminate Driver’s License Suspensions for Nonpayment of Court Fines

and Costs (Mar. 26, 2019), https://www.governor.virginia.gov/newsroom/all-

releases/2019/march/headline-839710-en.html (last visited June 21, 2019)

3

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This amendment eliminates the driver’s license reinstatement fee transfer to the Trauma Fund and eliminates the loss of driving privileges to individuals who have only failed to pay fines, court costs, forfeitures, restitution or penalties assessed against them. The Department of Motor Vehicles also shall not charge a driver’s license reinstatement fee to these individuals. This initiative will help individuals that require a vehicle to gain a job, allowing them to earn money to repay any obligations they owe. This amendment has no impact to the general fund since the impact of its passage was assumed in the introduced and enrolled budgets.
The Commissioner provided the Court with a sworn declaration stating that “[p]ursuant to Budget Amendment 33, the DMV database will reflect that Va. Code § 46.2-395 suspensions that were inputted before July 1, 2019 have been complied with. Suspensions unrelated to Va. Code § 46.2-395 will remain active on the record.” (Dkt. 170-4, ¶ 7). The Commissioner further states that “[d]rivers who have records of suspension relating to Va. Code § 46.2-395 and suspensions relating to other statutory provisions will have their record relating to their § 46.2395 suspension reflect that the VA. Code § 46.2-395 suspension has been complied with, but will have to resolve the issues relating to their non-§ 46.2-395-suspensions before their privilege to drive can be reinstated.” (Id. at ¶ 9). The Commissioner reiterated this understanding of the Budget Amendment at oral argument.
As the Commissioner notes, the General Assembly’s support of both the Budget Amendment—which passed by votes of 70 to 29 in the House and 30 to 8 in the Senate— indicates political hostility towards § 46.2-395. (Dkt. 143). While Plaintiffs are correct that one “can only speculate about the possibility of legislative action,” (dkt. 156), the Commissioner testified that the process of drafting legislation to codify the Budget Amendment has begun. (Dkt. 208-1 at 83).
II. Legal Standards
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“Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (internal citations omitted). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Id. (internal citations and quotations omitted). “A case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). “A case is not moot . . . if a party can demonstrate that the apparent absence of a live dispute is merely a temporary abeyance of harm that is capable of repetition, yet evading review.” Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006).
“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936). In determining whether a stay is appropriate a court should “balance the various factors relevant to the expeditious and comprehensive disposition of the causes of action on the court’s docket.” Md. v. Universal Elections, Inc., 729 F.3d 370, 375 (4th Cir. 2013) (internal quotations omitted). These factors include “the interests of judicial economy, the hardship and inequity to the moving party in the absence of a stay, and the potential prejudice to the non-moving party in the event of a stay.” Crowell v. N.C., No. 1:17-cv-514, 2018 WL 6031190, at *4 (M.D.N.C. Nov. 16, 2018).
III. Analysis A. The Commissioner’s Motion to Dismiss the Case as Moot
The Commissioner first argues that the Budget Amendment renders this case constitutionally moot. For a case to be constitutionally moot, the challenged conduct must cease “such that there is no reasonable expectation that the wrong will be repeated.” City of Erie, 529
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U.S. at 287. Where a lawsuit concerns the constitutionality of a statute, the amendment or repeal of a statute can moot a case “even where re-enactment of the statue at issue is within the power of the legislature.” Brooks, 462 F.3d at 348. The Fourth Circuit has found cases moot when “there was no reasonable expectation” that a statute would be reenacted. See, e.g., Reyes v. City of Lynchburg, 300 F.3d 449, 453 (4th Cir. 2002). However, a case is not moot where “there is a reasonable expectation that the complaining party will be subjected to the same action again.” Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir. 2003) (citing Spencer v. Kemna, U.S. 1, 17 (1998)). Here, although the Budget Amendment has temporarily halted its enforcement, § 46.2395 remains the law. The Commissioner may be correct that “resumed enforcement does not appear probable,” (dkt. 143 at 9), but speculation as to legislative action in 2020 is not alone sufficiently concrete to justify labeling Plaintiffs’ expectation of repeated harm unreasonable. Although the Budget Amendment may indeed reflect shifting political winds, the Court finds that future enforcement of § 46.2-395 remains reasonably possible such that this case is not moot under Article III.
The Commissioner next contends that, even if the Court finds that the case is not moot in the constitutional sense, the case is “prudentially moot,” and the Court should use its “‘discretionary power to withhold injunctive and declaratory relief for prudential reasons.’” (Dkt. 143 at 10 (quoting S-1 v. Spangler, 832 F.2d 294, 297 (4th Cir. 1987))). A case is prudentially moot, and a Court cannot offer relief, where there is “only hypothetical and speculative harm.” Catawba Riverkeeper Found. v. N.C. Dep’t of Transp., 843 F.3d 583, 589 (4th Cir. 2016). However, a case is not moot where there is a “continuing and brooding presence” over the plaintiff. Preiser v. Newkirk, 422 U.S. 395 (1975). The Fourth Circuit found, in Catawba Riverkeeper Found., 843 F.3d at 589, that there was only a “remote possibility” that
6 Case 3:16-cv-00044-NKM-JCH Document 214 Filed 06/28/19 Page 6 of 10 Pageid#: 7413

the harm to the plaintiff could occur where it was prevented by “multiple barriers.” Here, the only barrier to Plaintiffs’ harm is the Budget Amendment and the hypothetical actions of the Virginia General Assembly in 2020. The Court cannot base a finding of prudential mootness on the “hypothetical and speculative” facts the Commissioner offers. Id. Furthermore, as discussed above with respect to constitutional mootness, the Budget Amendment is only a temporary cessation of the allegedly unconstitutional conduct at issue in this case, and there is a real prospect of continued enforcement of the statute.
B. The Commissioner’s Motion to Stay The Commissioner argues that, if the Court declines to dismiss the case, it “should, at a
minimum, exercise its discretionary authority to stay proceedings pending the outcome of Virginia’s next legislative session.” (Dkt. 143 at 13). The Commissioner contends that a stay will prevent “the parties and the Court from wasting considerable time and resources,” “avoid a quagmire of class certification issues,” and prevent hardship to the parties. (Dkt. 170 at 3). Plaintiffs argue that a stay is not justified by the Commissioner’s alleged hardship. (Dkt. 156 at 15). For the reasons discussed below, the relevant factors weigh in favor of a stay.
1. Judicial Economy In considering judicial economy, the Court considers principles of constitutional avoidance and judicial restraint, as well as the practical considerations presented by the docket. The Court is mindful of principles counseling discretion in its exercise of authority. First, “the principle of constitutional avoidance set forth in Ashwander v. Tenn. Valley Authority requires the federal courts to strive to avoid rendering constitutional rulings unless absolutely necessary.” Norfolk S. Ry Co. v. City of Alexandria, 608 F.3d 150, 156 (4th Cir. 2010) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“It is not the habit of the
7 Case 3:16-cv-00044-NKM-JCH Document 214 Filed 06/28/19 Page 7 of 10 Pageid#: 7414

Court to decide questions of a Constitutional nature unless absolutely necessary to a decision of the case.”)). Further supporting judicial restraint is the “prudential limits on [federal courts’] jurisdiction ‘founded in concern about the proper—and properly limited—role of the courts in a democratic society.’” Doe v. Va. Dept. of St. Police, 713 F.3d 745, 753 (4th Cir. 2013) (citing Warth v. Seldin, 422 U.S. 490, 498 (1975)).
These principles are particularly relevant to this Court’s determination regarding a stay in light of pending legislative action. Were this litigation to proceed, the Court would weigh in on sensitive constitutional questions about license suspension schemes about which other courts have disagreed,4 as well as important case-specific issues such as class certification that are arguably complicated to a significant degree by the Budget Amendment and that could be resolved by the Virginia legislature. The Court’s resolution of such issues would be rendered moot if the Virginia General Assembly repeals § 46.2-395. Thus, the Court concludes that judicial economy weighs in favor of a stay until the General Assembly either repeals § 46.2-395 or elects not to do so. See also Crowell, 2018 WL 6031190, at *4 (finding a stay appropriate where there was a “high likelihood of future legislative action”).
2. Burden on the Commissioner and Harm to Plaintiffs This litigation has been long, contentious, and no doubt costly. The Commissioner argues that the burden of litigation, including continued pre-trial motions practice as well as a trial, is too great considering the realistic possibility that his efforts will be rendered moot after the 2020 session of the Virginia General Assembly. Plaintiffs counter that their risk of harm

4

Compare Thomas v. Haslam, 303 F.Supp.3d 585 (M.D. Tenn. 2018) (concluding that the

challenged license suspension statute violated the plaintiffs’ constitutional rights as established

by Griffin v. Illinois, 351 U.S. 12, 18 (1956) and its progeny because the statute, in effect, imposed

harsher consequences on defendants based on their indigence), with Mendoza v. Garrett, 358

F.Supp.3d 1145 (D. Or. 2018) (holding that none of the rights or issues present in the Griffin line of

cases is present where defendants contest a license suspension scheme).

8

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outweighs any burden on the Commissioner. The Court acknowledges the financial burden of litigation, and concludes for the following reasons that a stay will not harm Plaintiffs.
The Commissioner has provided the Court with a sworn declaration stating that, pursuant to the Budget Amendment, “the DMV database will reflect that Va. Code § 46.2-395 suspensions that were inputted before July 1, 2019 have been complied with” and that “[d]rivers who have records of suspension relating to Va. Code § 46.2-395 and suspensions relating to other statutory provisions will have their record relating to their § 46.2-395 suspension reflect that the Va. Code § 46.2-395 suspension has been complied with.” (Dkt. 170-4, ¶ 7). With this interpretation of the Budget Amendment in mind, the Court finds that neither the Plaintiffs nor putative class members are in danger of losing their license pursuant to § 46.2-395 until July 1, 2020. This harm will be prevented entirely if the Virginia legislature repeals § 46.2-395. However, if the General Assembly fails to repeal § 46.2-395, the Court will have ample time to address the merits of the case, or at the very least class certification and the continued application of the preliminary injunction to class members, thus preventing further harm to Plaintiffs or the putative classes. Accordingly, both the Commissioner’s burden and Plaintiffs potential harm weigh in favor of a stay.
Having concluded that all relevant factors counsel in favor of a stay, the Court will stay this matter and all other pending motions in accordance with the accompanying order.
IV. Conclusion For the reasons discussed above, the Court finds that this case is not moot, and will deny the Commissioner’s motion to dismiss the case as moot. However, because the relevant factors weigh in favor of a stay, the Commissioner’s motion to stay the case will be granted. An
9 Case 3:16-cv-00044-NKM-JCH Document 214 Filed 06/28/19 Page 9 of 10 Pageid#: 7416

accompanying order will issue, establishing the temporal parameters of the stay and directing the parties to file status updates at specified junctures.
The Clerk of the Court is hereby directed to send a certified copy of this memorandum opinion and the accompanying order to all counsel of record.
Entered this _2_8_t_h day of June, 2019.
10 Case 3:16-cv-00044-NKM-JCH Document 214 Filed 06/28/19 Page 10 of 10 Pageid#: 7417

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CLERKS OFFICE U.S. DIST. COURT AT CHARLOTTESVILLE, VA FILED
06/28/2019
JULIA C. DUDLEY, CLERK BY: /s/ J. JONES
DEPUTY CLERK

DAMIAN STINNIE, ET AL.,

3:16-CV-00044 Plaintiffs,

v.
RICHARD D. HOLCOMB, in his official capacity as the Commissioner of the Virginia Department of Motor Vehicles,
Defendant.

ORDER
JUDGE NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

In accordance with the Court’s memorandum opinion, Defendant Virginia Department of Motor Vehicles Commissioner Richard D. Holcomb’s (the “Commissioner”) motion to dismiss case as moot or in the alternative stay is DENIED in part and GRANTED in part. (Dkt. 142). This case is STAYED pending the 2020 session of Virginia’s General Assembly. The stay will continue through March 21, 2020, fourteen days following the conclusion of the General Assembly’s session. The parties shall submit status reports on the following dates:
January 22, 2020—fourteen days following the first meeting of the General Assembly as mandated by Va. Code § 30-1 March 14, 2020—seven days following the conclusion of the meeting of the General Assembly pursuant to Va. Const. art IV, § 6. The parties are further ORDERED to, within ten days of this order, schedule a status hearing to take place within one week of the filing of their March 14, 2020 report. It is so ORDERED. The Clerk of the Court is hereby directed to send a copy of this order to all counsel of record.

Case 3:16-cv-00044-NKM-JCH Document 215 Filed 06/28/19 Page 1 of 2 Pageid#: 7418

Entered this _2_8_t_hday of June, 2019. Case 3:16-cv-00044-NKM-JCH Document 215 Filed 06/28/19 Page 2 of 2 Pageid#: 7419

 
 STAYED,CASREF,EXH,PROTO
U.S. District Court Western District of Virginia (Charlottesville) CIVIL DOCKET FOR CASE #: 3:16−cv−00044−NKM−JCH

Stinnie et al v. Holcomb Assigned to: Judge Norman K. Moon Referred to: Magistrate Judge Joel C. Hoppe Case in other court: 4CCA, 17−01740 Cause: 28:1331 Fed. Question
Plaintiff
Damian Stinnie Individually, and on behalf of all others similarly situated

Date Filed: 07/06/2016 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by Alyssa M. Pazandak McGuireWoods LLP − Texas 2000 McKinney Avenue, Suite 1400 Dallas, TX 75201 214−932−6480 Fax: 214−932−6499 Email: apazandak@mcguirewoods.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Angela A. Ciolfi Legal Aid Justice Center 1000 Preston Ave., Suite A Charlottesville, VA 22903 434−529−1810 Fax: 434−977−0558 Email: angela@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Peter Abel McGuireWoods LLP 652 Peter Jefferson Parkway, Suite 350 Charlottesville, VA 22911 434−980−2233 Email: babel@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brooke Alexandra Weedon McGuire Woods LLP 800 East Canal Street Richmond, VA 23219−3916 804−775−1014 Fax: 804−775−1061 Email: bweedon@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Preston Baugh David P. Baugh, Esq., PLC 2025 E. Main Street, Suite 114 Richmond, VA 23223 804−225−8035 Email: dpbaugh@dpbaugh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Todd Blank McGuireWoods LLP

652 Peter Jefferson Parkway, Suite 350 Charlottesville, VA 22911 434−977−2509 Email: jblank@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Ann Lange McGuire Woods LLP Tower Two−Sixty 260 Forbes Avenue, Suite 1800 Pittsburgh, PA 15222−3142 412−667−7941 Fax: 412−667−7961 Email: lauralange@protonmail.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Carolyn Kendrick University Of Virginia School of Law 580 Massie Road Charlottesville, VA 22903 434−243−8633 Fax: 434−924−7536 Email: kendrick@virginia.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario David Salas Legal Aid Justice Center 1000 Preston Ave., Suite A Charlottesville, VA 22903 434−977−0553 Email: mario@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer Southern Poverty Law Center 1000 Preston Avenue Charlottesville, VA 22903 470−606−9307 Fax: 434−977−0558 Email: mary.bauer@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Stephen Levy−Lavelle Legal Aid Justice Center 123 East Broad Street Richmond, VA 23219 804−643−1086 x 308 Fax: 804−643−2059 Email: pat@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis Cory Gunn McGuireWoods LLP Gateway Plaza 800 East Canal Street Richmond, VA 23219−3916 804−775−7622 Fax: 804−698−2039

Plaintiff Demetrice Moore Individually, and on behalf of all others similarly situated TERMINATED: 09/11/2018
Plaintiff Robert Taylor Individually, and on behalf of all others similarly situated TERMINATED: 09/11/2018

Email: tgunn@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Angela A. Ciolfi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Preston Baugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Todd Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Carolyn Kendrick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario David Salas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Stephen Levy−Lavelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Angela A. Ciolfi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Preston Baugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Todd Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Carolyn Kendrick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario David Salas (See above for address) LEAD ATTORNEY

Plaintiff Neil Russo Individually, and on behalf of all others similarly situated TERMINATED: 09/11/2018
Plaintiff Melissa Adams individually, and on behalf of all others similarly situated,

ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Stephen Levy−Lavelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Angela A. Ciolfi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Preston Baugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Todd Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Carolyn Kendrick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario David Salas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Stephen Levy−Lavelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alyssa M. Pazandak (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin Peter Abel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brooke Alexandra Weedon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Adrainne Johnson individually, and on behalf of all others similarly situated,
Plaintiff Williest Bandy individually, and on behalf of all others similarly situated,

Jonathan Todd Blank McGuireWoods LLP Court Square Building 310 Fourth Street, N.E., Suite 300 Charlottesville, VA 22902 434−977−2509 Email: jblank@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Ann Lange (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Travis Cory Gunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alyssa M. Pazandak (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin Peter Abel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brooke Alexandra Weedon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Todd Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Ann Lange (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Travis Cory Gunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alyssa M. Pazandak (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin Peter Abel (See above for address)

Plaintiff Brianna Morgan individually, and on behalf of all others similarly situated,
V. Defendant Richard D. Holcomb in his official capacity as the Commissioner of the Virginia

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brooke Alexandra Weedon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Todd Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Ann Lange (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Travis Cory Gunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alyssa M. Pazandak (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin Peter Abel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brooke Alexandra Weedon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Todd Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Ann Lange (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Travis Cory Gunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam John Yost Office of the Attorney General of Virginia 202 North Ninth Street

Department of Motor Vehicles

Richmond, VA 23219 703−324−2610 Email: adam.yost@fairfaxcounty.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janet W. Baugh Office of the Attorney General 202 North Ninth Street Richmond, VA 23219 804−786−4596 Fax: 692−1647 Email: jwestbrook@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maya Miriam Eckstein Hunton & Williams LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA 23219 804−788−8788 Fax: 804−343−4630 Email: meckstein@hunton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Shane Kallen Office of the Attorney General − Richmond 202 North Ninth Street Richmond, VA 23219 8040−786−2071 Fax: 8004−371−0200 Email: mkallen@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Hull Davidson Office of the Attorney General − Richmond 202 North Ninth Street Richmond, VA 23219 804−692−0551 Fax: 804−786−4239 Email: ndavidson@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neil Keith Gilman Hunton Andrews Kurth, LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037 202−955−1674 Email: ngilman@HuntonAK.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Arrowsmith Parrish Office of the Attorney General − Richmond 202 North Ninth Street Richmond, VA 23219 804−786−1192

Amicus NAACP

Fax: 804−786−0122 Email: cparrish@oag.state.va.us ATTORNEY TO BE NOTICED
David Mitchell Parker Hunton Andrews Kurth LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA 23219 804−788−8200 Fax: 804−343−4882 Email: dparker@huntonAK.com ATTORNEY TO BE NOTICED
Margaret Hoehl O'Shea Office of the Attorney General of Virginia 202 North Ninth Street Richmond, VA 23219 804−225−2206 Fax: 804−786−4239 Email: moshea@oag.state.va.us ATTORNEY TO BE NOTICED
Stuart Alan Raphael Hunton & Williams LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037 202−419−2021 Fax: 202−828−3728 Email: sraphael@huntonak.com ATTORNEY TO BE NOTICED
Trevor Stephen Cox Hunton Andrews Kurth LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA 23219 804−788−7221 Fax: 804−343−4635 Email: tcox@huntonAK.com ATTORNEY TO BE NOTICED
represented by David L. Heilberg Dygert Wright Hobbs & Heilberg, PLC Upper Floor 415 4th Street, NE Charlottesville, VA 22902 434−979−5515 Fax: 434−295−7785 Email: dheilberg@charlottesvillelegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/06/2016

# Docket Text
1 COMPLAINT against Richard D. Holcomb (Filing & Administrative fee $ 400 paid by e−receipt 0423−2485566.), filed by Neil Russo, Demetrice Moore, Damian Stinnie, Robert Taylor. 70 Day Notice due by 9/14/2016 90 Day Service due by 10/4/2016 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet)(hnw)

07/07/2016 08/02/2016 08/02/2016 08/02/2016 08/02/2016 10/03/2016 10/03/2016 10/03/2016 10/03/2016 10/04/2016 10/06/2016 10/06/2016 10/13/2016 10/20/2016
10/27/2016 10/27/2016 10/27/2016 11/02/2016
11/02/2016

2 Summons Issued as to Richard D. Holcomb.(hnw)
3 ACKNOWLEDGEMENT OF SERVICE Executed August 2, 2016 Acknowledgement filed by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor.(Blank, Jonathan)
4 WAIVER OF SERVICE Returned Executed by Neil Russo, Demetrice Moore, Damian Stinnie, Robert Taylor. Richard D. Holcomb waiver sent on 7/19/2016, answer due 9/19/2016.(Blank, Jonathan)
5 Consent MOTION for Extension of Time to File Answer October 3, 2016 by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor. (Blank, Jonathan)
6 ORDER granting 5 Motion for Extension of Time to Answer re 1 Complaint. Richard D. Holcomb answer due 10/3/2016.. Signed by Judge Norman K. Moon on 8/2/2016. (mab)
7 NOTICE of Appearance by Margaret Hoehl O'Shea on behalf of Richard D. Holcomb (O'Shea, Margaret)
8 NOTICE of Appearance by Nancy Hull Davidson on behalf of All Defendants (Davidson, Nancy)
9 MOTION to Dismiss by Richard D. Holcomb. (Davidson, Nancy)
10 Brief / Memorandum in Support re 9 MOTION to Dismiss . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit A)(Davidson, Nancy)
11 PRETRIAL ORDER, CASE REFERRED Magistrate Judge Joel C. Hoppe.. Signed by Judge Norman K. Moon on 10/04/2016. (mab)
12 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Motion to Dismiss Plaintiffs' Complaint by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor.Motions referred to Judge Joel C. Hoppe. (Blank, Jonathan)
13 ORDER granting 12 Motion for Extension of Time to File Response/Reply Responses due by 11/3/2016. Signed by Magistrate Judge Joel C. Hoppe on 10/6/16. (jcj)
14 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: In Chambers Conference Call with parties held on 10/13/2016. Court allows 7 additional days to request changes to 11 pretrial order. (kld)
15 Joint MOTION to Amend/Correct 11 Pretrial Order, Case Referred to Magistrate Judge by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order to Amend Pre−Trial Dates)(Ciolfi, Angela)
16 MOTION for Leave to File Excess Pages by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Blank, Jonathan)
17 ORDER granting 16 Unopposed Motion for Leave to Plaintiff's to File a brief exceeding twenty−five (25) pages to respond to Defendant's Motion to Dismiss. Signed by Magistrate Judge Joel C. Hoppe on 10/27/16. (jcj)
18 NOTICE of Telephonic Hearing: (N) (No Interpreter requested) . Scheduling Conference Call set for 11/2/2016 01:00 PM before Magistrate Judge Joel C. Hoppe. Chambers to set up call and email parties dial in instructions. (kld)
19 ORDER granting 15 Motion to Amend dates in 11 Pretrial Order; Fed.R.Civ.P.26(f) Conference: No later than January 6, 2017; Initial disclosures under Fed.R.Civ.P.26(a): No later than January 9, 2017; Plaintiff initial expert disclosure: No later than April 18, 2017; Defendant initial expert disclosure: No later than June 19, 2017; Rebuttal expert: No later than July 20, 2017; Deadline to complete discovery: 105 days before trial date; Deadline to file dispositive motions: 100 days before trial date; Deadline for hearing dispositive motions: 45 days before trial date; Trial set for December 11−15, 2017. Signed by Magistrate Judge Joel C. Hoppe on 11/2/2016. (mab)
20 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Scheduling Conference Call held in chambers on 11/2/2016. (kld)

11/03/2016 11/03/2016 11/03/2016 11/03/2016
11/04/2016 11/04/2016 11/07/2016 11/09/2016 11/09/2016 11/22/2016 11/22/2016 11/30/2016 12/01/2016
12/01/2016
12/22/2016 01/06/2017 01/18/2017 01/24/2017

21 Brief / Memorandum in Opposition re 9 MOTION to Dismiss Plaintiffs' Complaint. filed by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor. (Blank, Jonathan)
22 NOTICE of Appearance by David L. Heilberg on behalf of Naacp (Heilberg, David)
23 MOTION for Leave to File Amicus Brief by Naacp.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Exhibit 1 to Motion, # 2 Exhibit Exhibit A toBrief, # 3 Exhibit Exhibit B to Brief, # 4 Text of Proposed Order)(Heilberg, David)
24 NOTICE of Hearing: (CR) Bench Trial set for December 11−15, 2017 09:30 AM in Charlottesville before Judge Norman K. Moon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs. (hnw)
25 ORDER granting 23 Motion for Leave to File brief as amicus curiae; directing clerk to file the brief and supporting affidavits. Signed by Magistrate Judge Joel C. Hoppe on 11/4/2016. (mab)
26 Brief in Opposition to 9 MOTION to Dismiss . filed by NAACP. (Attachments: # 1 Affidavit Aaron Bloomfield, # 2 Affidavit Cassius Adair)(mab) Modified on 11/8/2016−corrected spelling of party name (mab).
27 Brief/Memorandum − Statement of Interest of the United States. filed by UNITED STATES OF AMERICA. (Giorno, Anthony)
28 Consent MOTION for Extension of Time to File Response/Reply as to 21 Brief / Memorandum in Opposition to Defendant's Motion to Dismiss by Richard D. Holcomb.Motions referred to Judge Joel C. Hoppe. (Baugh, Janet)
29 Oral ORDER granting 28 Motion for Extension of Time to File Response/Reply. Defendant's reply brief is due not later than November 22, 2016. Entered by Magistrate Judge Joel C. Hoppe on 11/9/16. (JCH)
30 NOTICE by Richard D. Holcomb of Supplemental Authority (Attachments: # 1 Exhibit Virginia Supreme Court Rule 1:24)(O'Shea, Margaret)
31 REPLY to Response to Motion re 9 MOTION to Dismiss . filed by Richard D. Holcomb. (Davidson, Nancy)
32 Consent MOTION for Extension of Time to File Response/Reply as to 30 Notice (Other) of Supplemental Authority by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor.Motions referred to Judge Joel C. Hoppe. (Blank, Jonathan)
33 ORDER granting 32 Motion for Extension of Time to File Response/Reply to 30 Notice of Supplemental Authority in Support of Defendant's Motion to Dismiss Responses due by 12/22/2016 Replies due by 1/6/2017.. Signed by Magistrate Judge Joel C. Hoppe on 12/1/2016. (mab)
34 NOTICE of Hearing on Motion 9 MOTION to Dismiss : (CR) ( Motion Hearing set for 2/2/2017 02:00 PM in Charlottesville before Judge Norman K. Moon.), NOTICE of Hearing: (CR) ( Oral Argument Hearing on NOTICE by Richard D. Holcomb of Supplemental Authority set for 2/2/2017 02:00 PM in Charlottesville before Judge Norman K. Moon.) (hnw)
35 Response re 30 Notice (Other) of Supplemental Authority. filed by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor. (Blank, Jonathan)
36 Response re 35 Response, 30 Notice (Other) Reply to Plaintiff's Response in Opposition to Notice of Supplemental Authority. filed by Richard D. Holcomb. (O'Shea, Margaret)
37 NOTICE of Telephonic Hearing: (N) In Chambers Conference Call set for 2/8/2017 11:00 AM before Magistrate Judge Joel C. Hoppe. Chambers to set up call and email parties dial in instructions. (kld)
38 NOTICE of Appearance by Adam John Yost on behalf of Richard D. Holcomb (Yost, Adam)

01/24/2017 01/24/2017 01/25/2017 01/30/2017 01/30/2017 01/31/2017 02/02/2017 02/06/2017 02/08/2017 02/08/2017 02/08/2017
02/09/2017 02/16/2017 02/17/2017 02/17/2017 02/23/2017

39 Memorandum in Support of 40 MOTION to Stay Discovery by Richard D. Holcomb. (Baugh, Janet) Modified on 1/25/2017−changed event type; incorrectly docketed as motion by counsel (mab).
40 MOTION to Stay Discovery by Richard D. Holcomb. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Plaintiffs' first set of discovery request)(Baugh, Janet) Modified on 1/25/2017−Modified text; removed link to document 39; Memorandum in Support of Motion (mab).
41 Notice of Correction re 39 Memorandum in Support of Motion to Stay 40 , 40 MOTION to Stay; modifications made to docket entries. Memorandum in support of motion was incorrectly filed as a motion to stay by counsel; Motion to stay text was modified to remove double language. (mab)
42 RESPONSE in Opposition re 40 MOTION to Stay . filed by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Blank, Jonathan)
43 NOTICE by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor re 37 Notice of Hearing Notice to Add Motion to Stay to February 8, 2017 Status Hearing (Blank, Jonathan)
44 NOTICE of Telephonic Hearing on Motion 40 MOTION to Stay : (FTR) Telephonic Motion Hearing set for 2/8/2017 11:00 AM before Magistrate Judge Joel C. Hoppe. Conference call previously set up and parties have been emailed dial in instructions.(kld)
46 Minute Entry for proceedings held before Judge Norman K. Moon: Motion Hearing held on 2/2/2017 re 9 MOTION to Dismiss filed by Richard D. Holcomb. (Court Reporter Judy Webb.) (hnw)
47 REPLY to Response to Motion re 40 MOTION to Stay Discovery. filed by Richard D. Holcomb. (Yost, Adam)
48 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Telephonic Motion Hearing held on 2/8/2017 re 40 MOTION to Stay discovery filed by Richard D. Holcomb. (Court Reporter M. Bottiglieri, FTR.) (mab)
49 ORDER denying 40 Motion to Stay Discovery. Signed by Magistrate Judge Joel C. Hoppe on 2/8/2017. (mab)
50 FTR Log Notes for Telephonic Motion Hearing in the Charlottesville Division in CR3 held before Judge Joel C. Hoppe on 2/8/2017. In accordance with 28 USC 753(b), I certify that I monitored the digital recording of this proceeding and that it is a true and correct record, that it is sufficiently intelligible when played on the FTR (For the Record) Player, and that it can be transcribed without undue difficulty. FTR Operator: Michele Bottiglieri, FTR (mab)
51 Objections by Defendant Richard D. Holcomb re 49 Order on Motion to Stay (O'Shea, Margaret)
52 TRANSCRIPT REQUEST (Expedited−7 calendar days Service) by Damian Stinnie for Motion to Dismiss held on 2/2/2017 before Judge Norman K. Moon. (Judy Webb, OCR) Transcript Due Deadline will be set when Financial Arrangements are made. (Blank, Jonathan) Modified on 2/16/2017 − added court reporter's name (bkd).
53 Financial arrangements made (Expedited−7 calendar days Service) re 52 Transcript Request, Transcript due by 2/23/2017. (jw)
54 Brief/Memorandum in Opposition to Defendant's Objections to the Magistrate Judge's Order Denying Defendant's Motion to Stay Discovery. filed by Damian Stinnie. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Blank, Jonathan)
55 TRANSCRIPT of Proceedings: Motion Hearing held on 2/2/2017 before Judge Norman K. Moon. Court Reporter/Transcriber Judy Webb, Telephone number judyw@vawd.uscourts.gov/540−857−5100 X 5333. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed,

03/13/2017 03/13/2017
03/13/2017 03/15/2017 04/10/2017 04/10/2017
04/20/2017
04/20/2017 04/24/2017 04/24/2017 04/24/2017 05/01/2017 05/08/2017 05/09/2017

the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/16/2017. Redacted Transcript Deadline set for 3/27/2017. Release of Transcript Restriction set for 5/24/2017. (jw)
56 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 3/13/17. (hnw) (Main Document 56 replaced on 3/15/2017) (mab).
57 ORDER granting 9 Motion to Dismiss. This case is hereby dismissed without prejudice for lack of subject matter jurisdiction. The motion to stay discovery and objections to Magistrate Judge Joel C. Hoppe's Order thereon are Denied as Moot. The Clerk is hereby directed to strike this case from the active docket of this court. Signed by Judge Norman K. Moon on 3/13/17. (hnw)
58 Notice of Cancellation of December 11−15, 2017 Bench Trial (Cancel Court Reporter) (hnw)
59 Notice of Correction re 56 Memorandum Opinion; Original document contained typographical errors and was replaced with corrected Memorandum Opinion. Errors corrected were: Page 11, line 11, word 12 is corrected from "difference" to "different." Citations in footnote 38 to "Rule 1:23" are corrected to "Rule 1:24". (mab)
60 MOTION to Alter Judgment per FRCP 59 and Obtain Relief from Judgment per FRCP 60 by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor. (Blank, Jonathan)
61 Brief / Memorandum in Support re 60 MOTION to Alter Judgment per FRCP 59 and Obtain Relief from Judgment per FRCP 60 . filed by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Blank, Jonathan) Modified on 5/22/2017 Docket entries 61−1 through 61−11 are STRICKEN from the RECORD Pursuant to Order 72 Entered May 22, 2017.(hnw).
62 TRANSCRIPT REQUEST (COPY *Only applies if original transcript has been ordered Service) by Richard D. Holcomb for Motions Hearing held on February 2, 2017 reported by Court Reporter Judy Webb before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (O'Shea, Margaret)
63 Transcript Copy Delivered re 62 Transcript Request, (jw)
64 MOTION to Strike 61 Brief / Memorandum in Support, Exhibits by Richard D. Holcomb.Motions no longer referred to Judge Joel C. Hoppe. (Davidson, Nancy) Modified on 4/27/2017 (hnw).
65 Brief / Memorandum in Support re 64 MOTION to Strike 61 Brief / Memorandum in Support, Exhibits . filed by Richard D. Holcomb. (Davidson, Nancy)
66 Brief / Memorandum in Opposition re 60 MOTION to Alter Judgment per FRCP 59 and Obtain Relief from Judgment per FRCP 60 . filed by Richard D. Holcomb. (Davidson, Nancy)
67 REPLY to Response to Motion re 60 MOTION to Alter Judgment per FRCP 59 and Obtain Relief from Judgment per FRCP 60 . filed by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor. (Blank, Jonathan)
68 Brief / Memorandum in Opposition re 64 MOTION to Strike 61 Brief / Memorandum in Support, Exhibits . filed by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor. (Blank, Jonathan)
69 NOTICE of Hearing on Motion 60 MOTION to Alter Judgment per FRCP 59 and Obtain Relief from Judgment per FRCP 60 : (CR) (No Interpreter requested) Motion Hearing set for 5/23/2017 12:00 PM in Charlottesville before Judge Norman K. Moon. (hnw)

05/11/2017 05/15/2017 05/22/2017 05/22/2017 06/14/2017 06/15/2017
06/16/2017 07/21/2017 05/23/2018 05/23/2018 06/14/2018 06/22/2018
06/29/2018 07/02/2018
09/11/2018 09/11/2018

70 NOTICE of Hearing on Motion 64 MOTION to Strike 61 Brief / Memorandum in Support, Exhibits : (CR) (No Interpreter requested) Motion Hearing set for 5/23/2017 12:00 PM in Charlottesville before Judge Norman K. Moon. (hnw)
71 REPLY to Response to Motion re 64 MOTION to Strike 61 Brief / Memorandum in Support, Exhibits . filed by Richard D. Holcomb. (Yost, Adam)
72 ORDER granting Defendants' 64 Motion to Strike. Docket entries 61 −1 through 61 −11 are Stricken from the record. Order denying Plaintiffs' 60 Motion for reconsideration. Signed by Judge Norman K. Moon on 5/22/17. (hnw)
73 Notice of Cancellation of May 23, 2017 Motion Hearing schedule at 12:00 pm in Charlottesville before the Hon. Norman K. Moon (Cancel Court Reporter) (hnw)
74 NOTICE OF APPEAL as to 72 Order on Motion to Alter Judgment, Order on Motion to Strike, 57 Order on Motion to Dismiss, by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor. Filing fee $ 505, receipt number 0423−2694355. (Blank, Jonathan)
75 Transmittal of Notice of Appeal to 4CCA re 74 Notice of Appeal, NOTE: The Docketing Statement and Transcript Order Form are available on the 4th Circuit Court of Appeals website at www.ca4.uscourts.gov. If CJA24 form(s) are applicable, you must submit a separate Auth−24 for each court reporter from whom you wish to order a transcript through the District Court's eVoucher system. (jcj)
76 NOTICE of Docketing Record on Appeal from USCA re 74 Notice of Appeal, filed by Damian Stinnie, Demetrice Moore, Neil Russo, Robert Taylor. USCA Case Number 17−1740. Case Manager Tony Webb (hnw)
77 STIPULATION re 61 Brief / Memorandum in Support,, Concerning Correction of Exhibits Attached to the Memorandum in Support of Plaintiffs' Rule 59 and 60 Motions by Damian Stinnie (Attachments: # 1 Exhibit Exhibit A)(Blank, Jonathan)
78 USCA Memorandum Opinion from 4th Circuit re 74 Notice of Appeal, DISMISSED AND REMANDED decided on 05/23/2018 (jcj)
79 USCA JUDGMENT as to 74 Notice of Appeal, filed by Damian Stinnie, Demetrice Moore, Neil Russo, Robert Taylor (Attachments: # 1 USCA Notice of Judgment)(jcj)
80 MANDATE of USCA as to 74 Notice of Appeal, filed by Damian Stinnie, Demetrice Moore, Neil Russo, Robert Taylor (jcj)
81 ORDER GRANTING leave to the plaintiffs to amend or clarify, within 21 days, any fact, claim, party or theory in their complaint. The substantive provisions of the pretrial orders (documents 11 and 19) are REINSTATED. The parties are ORDERED to meet and confer within 30 days of this Order to establish a trial date from which to calculate the deadlines in the pretrial order. The parties may recommence discovery after the filing of the amended complaint. Signed by Senior Judge Norman K. Moon on 6/22/18. (jcj)
82 Consent MOTION for Extension of Time to Amend Complaint and to Reset Other Deadlines by Demetrice Moore, Neil Russo, Damian Stinnie, Robert Taylor.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order)(Blank, Jonathan)
83 ORDER granting 82 Plaintiff's Motion for Extension of Time to Amend Complaint to and including September 11, 2018; Defendant shall have 45 days from the date Plaintiffs' file an amended complaint to file a responsive pleading; and the parties may recommence discovery 60 days after the date Defendants' file a responsive pleading. Signed by Magistrate Judge Joel C. Hoppe on 7/2/18. (jcj)
84 AMENDED COMPLAINT against Richard D. Holcomb, filed by Damian Stinnie. (Attachments: # 1 Exhibit Dugger Declaration, # 2 Exhibit Court Website, # 3 Exhibit Virginia Uniform Summons, # 4 Exhibit Holcomb Report)(Ciolfi, Angela)
85 MOTION to Certify Class by Damian Stinnie. (Attachments: # 1 Text of Proposed Order)(Ciolfi, Angela)

09/11/2018 09/11/2018
09/11/2018 09/11/2018 09/11/2018
09/12/2018
09/12/2018
09/20/2018 10/11/2018 10/15/2018 10/19/2018 10/19/2018
10/23/2018 10/26/2018 11/08/2018 11/08/2018

86 MOTION for Leave to File Excess Pages on Memorandum in Support of Motion to Certify Class by Damian Stinnie.Motions referred to Judge Joel C. Hoppe. (Ciolfi, Angela)
87 Brief / Memorandum in Support re 85 MOTION to Certify Class . filed by Damian Stinnie. (Attachments: # 1 Exhibit Dugger Declaration, # 2 Exhibit Stinnie Declaration, # 3 Exhibit Adams Declaration, # 4 Exhibit Johnson Declaration, # 5 Exhibit Bandy Declaration, # 6 Exhibit Morgan Declaration, # 7 Exhibit DMV Email, # 8 Exhibit Blank Declaration, # 9 Exhibit Ciolfi Declaration)(Ciolfi, Angela)
88 MOTION for Preliminary Injunction by Damian Stinnie.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Ciolfi, Angela)
89 MOTION for Leave to File Excess Pages on Memorandum in Support of Motion for Preliminary Injunction by Damian Stinnie.Motions referred to Judge Joel C. Hoppe. (Ciolfi, Angela)
90 Brief / Memorandum in Support re 88 MOTION for Preliminary Injunction . filed by Damian Stinnie. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit)(Ciolfi, Angela)
91 Oral ORDER granting 86 Motion for Leave to File Excess Pages. Plaintiffs are granted leave to file a memorandum in support of their motion for class certification that exceeds the page limit by 10 pages. Entered by Magistrate Judge Joel C. Hoppe on 9/12/18. (JCH)
92 Oral ORDER granting 89 Motion for Leave to File Excess Pages. Plaintiffs are granted leave to file a memorandum in support of their motion for preliminary injunction that exceeds the page limit by 25 pages. Entered by Magistrate Judge Joel C. Hoppe on 9/12/18. (JCH)
93 NOTICE of Hearing on Motion 88 MOTION for Preliminary Injunction : (CR) Motion Hearing set for 11/15/2018 01:30 PM in Charlottesville before Senior Judge Norman K. Moon. (sfc)
94 NOTICE of Appearance by Christian Arrowsmith Parrish on behalf of Richard D. Holcomb (Parrish, Christian)
95 Joint MOTION For Consent Order by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Blank, Jonathan)
96 ORDER granting in part and modifying in part Joint 95 Motion Consent Order with Scheduling Order. Signed by Senior Judge Norman K. Moon on 10/19/18. (hnw) (Main Document 96 replaced on 10/19/2018 to correct date on signature line) (hnw).
97 NOTICE of Hearing: (CR) Bench Trial set for August 5−9, 2019 09:30 AM in Charlottesville before Senior Judge Norman K. Moon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs. (hnw)
98 SCHEDULING ORDER. Signed by Senior Judge Norman K. Moon on 10/23/18. (hnw)
99 RESPONSE in Opposition re 88 MOTION for Preliminary Injunction . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit 1 − Affidavit of M. Ford)(O'Shea, Margaret)
100 NOTICE of Appearance by Benjamin Peter Abel on behalf of Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie (Abel, Benjamin)
101 MOTION for Alyssa M. Pazandak to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0423−3013448. by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Abel, Benjamin)

11/09/2018 11/09/2018 11/14/2018 11/14/2018 11/14/2018 11/14/2018 11/15/2018 11/15/2018 11/16/2018 11/16/2018 11/19/2018 11/19/2018
11/21/2018
11/21/2018

102 Oral ORDER granting 101 MOTION for Alyssa M. Pazandak to Appear Pro Hac Vice in this case. Entered by Magistrate Judge Joel C. Hoppe on 11/9/18. (JCH)
103 REPLY to Response to Motion re 88 MOTION for Preliminary Injunction . filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Abel, Benjamin)
104 MOTION to Dismiss by Richard D. Holcomb. (O'Shea, Margaret)
105 Brief / Memorandum in Support re 104 MOTION to Dismiss . filed by Richard D. Holcomb. (O'Shea, Margaret)
106 MOTION for Reconsideration re 98 Order , Motion to Stay Discovery, and Motion to Stay Response to Class Certification by Richard D. Holcomb.Motions no longer referred to Judge Joel C. Hoppe. (Baugh, Janet) Modified on 11/16/2018 (hnw).
107 Brief / Memorandum in Support re 106 MOTION for Reconsideration re 98 Order , Motion to Stay Discovery, and Motion to Stay Response to Class Certification . filed by Richard D. Holcomb. (Baugh, Janet)
108 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Motion Hearing held on 11/15/2018 re 88 MOTION for Preliminary Injunction filed by Damian Stinnie. Opinion to issue. (Court Reporter: JoRita Meyer) (hnw) (Entered: 11/16/2018)
110 Exhibit List by Melissa Adams, Williest Bandy, Richard D. Holcomb, Adrainne Johnson, Brianna Morgan, Damian Stinnie.. (Attachments: # 1 Exhibit)(hnw) (Entered: 11/16/2018)
109 TRANSCRIPT REQUEST (3 Day Service) by David M. Parker for Motion Hearing held on November 15, 2018 reported by Court Reporter JoRita Meyer before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (ca)
111 Financial arrangements made (3 Days Service) re 109 Transcript Request, Transcript due by 11/19/2018. (jm)
112 ORDER taking under advisement 106 Motion for Reconsideration and discovery remains open. Defendant's deadline to respond to Plaintiffs' motion to certify class is moved to December 10, 2018. Signed by Senior Judge Norman K. Moon on 11/19/18. (jcj)
113 TRANSCRIPT of Proceedings: Preliminary Injunction held on 11/15/18 before Judge Moon. Court Reporter/Transcriber JoRita Meyer, Telephone number 540−857−5100, EXT 5311, JoRitaM@vawd.uscourts.gov. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/10/2018. Redacted Transcript Deadline set for 12/20/2018. Release of Transcript Restriction set for 2/19/2019. (jm)
114 TRANSCRIPT REQUEST (COPY *Only applies if original transcript has been ordered Service) by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie for Motion for Preliminary Injunction Hearing held on 11/15/2018 reported by Court Reporter JoRita Meyer before Judge Judge Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Blank, Jonathan) Modified docket text on 11/21/2018 to reflect that this order is for a COPY. (ca)
115 Financial arrangements made (Expedited−7 calendar days Service) re 114 Transcript Request,, Transcript due by 11/28/2018. (jm)

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116 Transcript Copy Delivered re 114 Transcript Request,, (jm)
117 NOTICE of Appearance by Maya Miriam Eckstein on behalf of Richard D. Holcomb (Eckstein, Maya)
118 NOTICE of Appearance by Trevor Stephen Cox on behalf of Richard D. Holcomb (Cox, Trevor)
119 MOTION for Neil K. Gilman to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0423−3023758. by Richard D. Holcomb.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Attachment A, # 2 Text of Proposed Order Proposed Order)(Eckstein, Maya)
120 Oral ORDER granting 119 MOTION for Neil K. Gilman to Appear Pro Hac Vice in this case. Entered by Magistrate Judge Joel C. Hoppe on 11/27/18. (JCH)
121 NOTICE of Appearance by Stuart Alan Raphael on behalf of Richard D. Holcomb (Raphael, Stuart)
122 Joint MOTION to Amend/Correct 112 Order on Motion for Reconsideration, Scheduling Order by Richard D. Holcomb.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order)(Eckstein, Maya)
123 ORDER granting 122 Joint Motion for Consent Order. Signed by Magistrate Judge Joel C. Hoppe on 12/7/18. (hnw)
124 NOTICE of Appearance by Brooke Alexandra Weedon on behalf of Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie (Weedon, Brooke)
125 NOTICE of Appearance by David Mitchell Parker on behalf of Richard D. Holcomb (Parker, David)
126 MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 12/21/18. (jcj)
127 PRELLIMINARY INJUNCTION/ORDER granting 88 Plaintiffs' Motion for Preliminary Injunction. Signed by Senior Judge Norman K. Moon on 12/21/18. (jcj)
128 RESPONSE in Opposition re 85 MOTION to Certify Class . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit Ex. 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5, # 6 Exhibit Ex. 6, # 7 Exhibit Ex. 7, # 8 Exhibit Ex. 8, # 9 Exhibit Ex. 9)(Eckstein, Maya)
129 NOTICE of Appearance by Travis Cory Gunn on behalf of Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie (Gunn, Travis)
130 Brief / Memorandum in Opposition re 104 MOTION to Dismiss . filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Attachments: # 1 Exhibit Exhibit 1)(Gunn, Travis)
131 REPLY to Response to Motion re 85 MOTION to Certify Class . filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Blank, Jonathan)
132 RESPONSE in Support re 104 MOTION to Dismiss . filed by Richard D. Holcomb. (Eckstein, Maya)
133 NOTICE of Hearing on Motion 104 MOTION to Dismiss , 85 MOTION to Certify Class : (CR) Motion Hearing set for 3/25/2019 10:30 AM in Charlottesville before Senior Judge Norman K. Moon. (hnw)
134 NOTICE Rescheduling Hearing on Motion 85 MOTION to Certify Class , 104 MOTION to Dismiss (CR) previously set for 3/25/19 at 10:30 a.m. before Judge Norman K. Moon in Charlottesville: Motion Hearing RESET for 3/25/2019 11:00 AM in Charlottesville before Senior Judge Norman K. Moon. PLEASE NOTE THIS IS A CHANGE IN TIME ONLY(hnw)
135 MOTION for Laura A. Lange to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0423−3095726. by Melissa Adams, Williest Bandy, Adrainne Johnson,

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Brianna Morgan, Damian Stinnie. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order)(Abel, Benjamin)
136 Oral ORDER granting 135 MOTION for Laura A. Lange to Appear Pro Hac Vice in this case. Entered by Magistrate Judge Joel C. Hoppe on 3/13/19. (JCH)
137 Joint MOTION for Protective Order by Richard D. Holcomb. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Protective Order)(Eckstein, Maya)
138 STIPULATED PROTECTIVE ORDER granting 137 Motion for Protective Order. Signed by Magistrate Judge Joel C. Hoppe on 3/25/19. (jcj)
139 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Motion Hearing held on 3/25/2019 re 104 MOTION to Dismiss filed by Richard D. Holcomb, 85 MOTION to Certify Class filed by Damian Stinnie. (Court Reporter: Sonia Ferris) (hnw)
140 MOTION to Dismiss case as Moot by Richard D. Holcomb. (Eckstein, Maya)
141 Notice of Correction re 140 MOTION to Dismiss. Changed viewing restriction of Document 140 due to attorney filing document in error(hnw)
142 MOTION to Dismiss case as Moot by Richard D. Holcomb. (Eckstein, Maya)
143 Brief / Memorandum in Support re 142 MOTION to Dismiss case as Moot . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Eckstein, Maya)
144 MOTION to Stay Discovery by Richard D. Holcomb. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit, # 2 Exhibit)(Eckstein, Maya)
145 ORDER taking under advisement 144 Motion to Stay Case. Plaintiffs should file any brief in opposition to Defendant's motion to stay discovery on or before May 1, 2019. Defendant may file a reply brief on or before May 3, 2019. The Court will hold a hearing on this motion the week of May 6, 2019. Signed by Magistrate Judge Joel C. Hoppe on 4/25/19. (jcj)
146 MOTION to Compel by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. Motions referred to Judge Joel C. Hoppe. (Blank, Jonathan)
147 Brief / Memorandum in Support re 146 MOTION to Compel . filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(Blank, Jonathan)
148 NOTICE of Telephonic Hearing on Motion 146 MOTION to Compel , 144 MOTION to Stay Discovery : (FTR) Telephonic Motion Hearing set for 5/6/2019 09:30 AM before Magistrate Judge Joel C. Hoppe. Chambers to set up call, dial in information emailed to counsel.(kld)
149 RESPONSE in Opposition re 144 MOTION to Stay Discovery Memorandum in Opposition to Defendant's Expedited Motion to Stay Discovery. filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Demetrice Moore, Brianna Morgan, Neil Russo, Damian Stinnie, Robert Taylor. (Blank, Jonathan)
150 Brief / Memorandum in Opposition re 146 MOTION to Compel . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Eckstein, Maya)
151 REPLY to Response to Motion re 144 MOTION to Stay Discovery . filed by Richard D. Holcomb. (Eckstein, Maya)
152 FTR Log Notes for Motion Hearing in the Charlottesville Division in CR3 (mag) held before Judge Joel C. Hoppe on 5/6/19. In accordance with 28 USC 753(b), I certify that I monitored the digital recording of this proceeding and that it is a true and correct record, that it is sufficiently intelligible when played on the FTR (For the Record) Player, and that it can be transcribed without undue difficulty. FTR Operator: Karen Dotson (kld)

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153 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Motion Hearing held on 5/6/2019 re 146 MOTION to Compel filed by Adrainne Johnson, Damian Stinnie, Williest Bandy, Melissa Adams, Brianna Morgan, 144 MOTION to Stay Discovery filed by Richard D. Holcomb. (FTR Operator: Karen Dotson) (kld)
154 NOTICE of Telephonic Hearing: (FTR) Status Conference Call set for 5/9/2019 02:00 PM before Magistrate Judge Joel C. Hoppe. Chambers to set up call. Dial in information emailed to counsel. (kld)
155 ORDER denying 144 Motion to Stay discovery in Case; taking under advisement 146 Plaintiffs' Motion to Compel. Signed by Magistrate Judge Joel C. Hoppe on 5/6/19. (hnw)
156 Brief / Memorandum in Opposition re 142 MOTION to Dismiss case as Moot or, In the Alternative, For a Stay of Proceedings. filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Blank, Jonathan)
157 MOTION to Compel Production of Documents by Richard D. Holcomb. Motions referred to Judge Joel C. Hoppe. (Eckstein, Maya)
158 Brief / Memorandum in Support re 157 MOTION to Compel Production of Documents . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit Defendant's RFP, # 2 Exhibit Obj. to RFP, # 3 Exhibit 4.29.19 Letter to J. Blank, # 4 Exhibit Depo of Williest Bandy, # 5 Exhibit Depo of Damian Stinnie, # 6 Exhibit Plaintiffs' Supp Initial Disclosures)(Eckstein, Maya)
159 FTR Log Notes for Telephonic Status and Discovery Conference in the Charlottesville Division in CR3 held before Judge Joel C. Hoppe on 5/9/19. In accordance with 28 USC 753(b), I certify that I monitored the digital recording of this proceeding and that it is a true and correct record, that it is sufficiently intelligible when played on the FTR (For the Record) Player, and that it can be transcribed without undue difficulty. FTR Operator: H. Wheeler (hnw)
160 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Telephonic Discovery Hearing held on 5/9/2019. (FTR Operator: H. Wheeler) (hnw) (Entered: 05/10/2019)
161 TRANSCRIPT REQUEST (Hourly Service) by Richard D. Holcomb for Conference − Motion/Discovery held on 05/6/19 and 5/9/19 before Judge Hoppe. Transcript Due Deadline will be set when Financial Arrangements are made. (Eckstein, Maya)
162 ORDER granting 146 Plaintiff's Motion to Compel and granting in part 157 Defendant's Motion to Compel. Signed by Magistrate Judge Joel C. Hoppe on 5/10/19. (jcj)
163 Financial arrangements made (Original) (3 Days Service) re 161 Transcript Request. Transcriber: EXCEPTIONAL REPORTING SERVICES. Transcript due by 5/13/2019. (ca)
164 TRANSCRIPT of Proceedings: Telephonic Motion Hearing held on May 6, 2019 before Judge Joel C. Hoppe. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., Telephone number (361) 949−2988. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER unless a Redacted Transcript has been filed. Redaction Request due 6/3/2019. Redacted Transcript Deadline set for 6/13/2019. Release of Transcript Restriction set for 8/12/2019. (ca)
165 TRANSCRIPT of Proceedings: Telephonic Discovery/Status Hearing held on May 9, 2019 before Judge Joel C. Hoppe. Court Reporter/Transcriber: Exceptional Reporting Services, Inc., Telephone number (361) 949−2988. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed,

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the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER unless a Redacted Transcript has been filed. Redaction Request due 6/3/2019. Redacted Transcript Deadline set for 6/13/2019. Release of Transcript Restriction set for 8/12/2019. (ca)
166 TRANSCRIPT REQUEST (3 Day Service) by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie for Motion and Discovery Hearing held on 05/09/19 reported by Court Reporter FTR before Judge Judge Hoppe. Transcript Due Deadline will be set when Financial Arrangements are made. (Blank, Jonathan)
168 Financial arrangements made (Copy) (3 Days Service) re 166 Transcript Request. Transcriber: Exceptional Reporting Services, Inc. Transcript due by 5/17/2019. (ca)
169 Transcript Copy Delivered re 166 Transcript Request. (ca)
170 RESPONSE in Support re 142 MOTION to Dismiss case as Moot . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit Moats Subpoena, # 2 Exhibit Dugger Subpoena, # 3 Exhibit Kumer Subpoena, # 4 Exhibit Holcomb Declaration)(Eckstein, Maya)
171 NOTICE of Appearance by Michelle Shane Kallen on behalf of Richard D. Holcomb (Kallen, Michelle)
172 MOTION to Exclude Plaintiffs' Proposed Expert Witnesses by Richard D. Holcomb. Motions no longer referred to Judge Joel C. Hoppe. (Eckstein, Maya) Modified on 5/17/2019 (hnw).
173 Brief / Memorandum in Support re 172 MOTION to Exclude Plaintiffs' Proposed Expert Witnesses . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Eckstein, Maya)
174 MOTION to Expedite Motion to Exclude Plaintiff's Expert Witnesses by Richard D. Holcomb. Motions no longer referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Transcript)(Eckstein, Maya) Modified on 5/17/2019 (hnw).
175 ORDER granting 174 Defendant's Motion to Expedite. Plaintiffs shall file their response to Defendants' Motion to exclude Plaintiffs' proposed expert witnesses on or before May 20, 2019. Defendants' response, if any, shall be filed no later than May 21, 2019. Signed by Senior Judge Norman K. Moon on 5/17/19. (jcj)
176 TRANSCRIPT REQUEST (3 Day Service) by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie for Telephonic Discovery Hearing held on 05/06/2019 reported by Court Reporter FTR before Judge Judge Hoppe. Transcript Due Deadline will be set when Financial Arrangements are made. (Blank, Jonathan)
177 Financial arrangements made (Copy) (3 Days Service) re 176 Transcript Request. Transcriber: Exceptional Reporting Services, Inc. Transcript due by 5/20/2019. (ca)
178 Transcript Copy Delivered re 176 Transcript Request. (ca) (Entered: 05/20/2019)
179 Brief / Memorandum in Opposition re 173 Brief / Memorandum in Support, 172 MOTION to Exclude Plaintiffs' Proposed Expert Witnesses . filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Blank, Jonathan)
180 RESPONSE in Support re 172 MOTION to Exclude Plaintiffs' Proposed Expert Witnesses . filed by Richard D. Holcomb. (Eckstein, Maya)

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181 NOTICE of Hearing on Motion 142 MOTION to Dismiss case as Moot, 140 MOTION to Dismiss case as Moot : (CR) Motion Hearing set for 6/19/2019 11:30 AM in Charlottesville before Senior Judge Norman K. Moon. (hnw)
182 ORDER denying the Commissioner's Motion to Exclude 172 . Signed by Senior Judge Norman K. Moon on 5/23/19. (jcj)
183 TRANSCRIPT REQUEST (3 Day Service) by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie for Motion to Dismiss/Motion to Certify Class held on 03/29/2019 reported by Court Reporter FTR before Judge Judge Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Blank, Jonathan) Modified on 5/28/2019 (ca). TRANSCRIPT REQUEST RE−FILED CORRECTLY AT DOCUMENT NO. 184 .
184 TRANSCRIPT REQUEST (3 Day Service) by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie for Motion to Dismiss/Motion to Certify Class held on 03/25/2019 reported by Court Reporter Sonia Ferris before Judge Judge Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Blank, Jonathan)
185 Notice of Correction: Changed viewing restriction of Document No. 183 (Transcript Request) due to attorney attaching incorrect/deficient pdf; only viewable by court personnel. Document correctly filed at Document No. 184 . (ca)
186 NOTICE by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie re 142 of Supplemental Authority in Opposition to Defendant's Motion to Dismiss Plaintiffs' Case as Moot (Blank, Jonathan)
187 Response re 186 Notice (Other) Opposition to Notice of Supplemental Authority. filed by Richard D. Holcomb. (Attachments: # 1 Exhibit Docket)(Eckstein, Maya)
188 NOTICE by Richard D. Holcomb Supplemental Authority (Attachments: # 1 Exhibit Fowler v. Johnson)(Eckstein, Maya)
189 Financial arrangements made (Original) (3 Days Service) re 184 Transcript Request, Transcript due by 6/3/2019. (sf)
190 Consent MOTION for Leave to File Excess Pages by Richard D. Holcomb. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Proposed Order)(Eckstein, Maya)
191 ORDER granting 190 Defendant's Consent Motion for Leave to File Excess Pages and ORDERS that the page limits for the opening and response memoranda regarding Defendant's motion to exclude Plaintiff's proposed expert witnesses will be increased from 25 to 35 pages. Signed by Magistrate Judge Joel C. Hoppe on 5/31/19. (jcj)
192 Consent MOTION for Leave to File Excess Pages by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Blank, Jonathan)
193 TRANSCRIPT of Proceedings: Motion hearing held on 3/25/2019 before Judge Norman K. Moon. Court Reporter/Transcriber Sonia Ferris, Telephone number SoniaF@vawd.uscourts.gov 540.434.3181 Ext. 7. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER unless a Redacted Transcript has been filed. Redaction Request due 6/24/2019. Redacted Transcript Deadline set for 7/5/2019. Release of Transcript Restriction set for 9/3/2019. (sf)
194 ORDER granting 192 Consent Motion for Leave to File Excess Pages and ORDERS that the page limits for the opening and response memoranda regarding Plaintiffs' dispositive motion will be increased from 25 pages to 50 pages. The Court, however, encourages the parties to write succinct briefs. Signed by Magistrate Judge Joel C.

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Hoppe on 6/3/19. (jcj)
195 MOTION for Summary Judgment by Richard D. Holcomb. (Eckstein, Maya)
196 Brief / Memorandum in Support re 195 MOTION for Summary Judgment . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit Declaration of Morgan, # 2 Exhibit Transcript of Morgan, # 3 Exhibit Declaration of Bandy, # 4 Exhibit Transcript of Bandy, # 5 Exhibit Declaration of Stinnie, # 6 Exhibit Transcript of Stinnie, # 7 Exhibit Declaration of Johnson, # 8 Exhibit Transcript of Johnson, # 9 Exhibit Declaration of Adams, # 10 Exhibit Transcript of Adams, # 11 Exhibit Stinnie Dep Ex. 4, # 12 Exhibit SEALED, # 13 Exhibit SEALED, # 14 Exhibit SEALED, # 15 Exhibit SEALED, # 16 Exhibit SEALED, # 17 Exhibit Preliminary Injunction Hearing, # 18 Exhibit Deposition of Dugger, # 19 Exhibit Deposition of Peterson, # 20 Exhibit Order)(Eckstein, Maya)
197 MOTION to Seal Exhibits 12−16 to Defendant's Memorandum in Support of Summary Judgment by Richard D. Holcomb. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Proposed Order)(Eckstein, Maya)
198 MOTION to Exclude Plaintiffs' Expert Witnesses by Richard D. Holcomb. Motions referred to Judge Joel C. Hoppe. (Eckstein, Maya)
199 Brief / Memorandum in Support re 198 MOTION to Exclude Plaintiffs' Expert Witnesses . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit Deposition of Eger, # 2 Exhibit Deposition of Peterson, # 3 Exhibit Deposition of Puentes, # 4 Exhibit Deposition of Pearce, # 5 Exhibit Ex. 5 to Eger Affidavit, # 6 Exhibit Transcript of Preliminary Injunction Hearing, # 7 Exhibit Affidavit of Puentes, # 8 Exhibit Affidavit of Eger)(Eckstein, Maya)
200 MOTION for Summary Judgment As To All Counts by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Blank, Jonathan)
201 Brief / Memorandum in Support re 200 MOTION for Summary Judgment As To All Counts . filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35)(Blank, Jonathan)
202 ORDER granting in part and denying in part 197 Defendant's Motion to Seal Exhibits 12 through 16. Defendant shall publicly file copies of Exhibits 12 through 15, but all identifying information other than the person's name must be redacted. Signed by Magistrate Judge Joel C. Hoppe on 6/5/19. (jcj)
203 Sealed Document − Defendant's Exhibits 12 through 16 pursuant to Order 202 . (jcj)
204 REDACTION to 196 Brief / Memorandum in Support,,, Redacted Exhibits 12−15 by Richard D. Holcomb (Attachments: # 1 Exhibit REDACTED E−13, # 2 Exhibit REDACTED E−14, # 3 Exhibit REDACTED E−15)(Eckstein, Maya)
205 Brief / Memorandum in Opposition re 198 MOTION to Exclude Plaintiffs' Expert Witnesses . filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Blank, Jonathan)
206 Brief / Memorandum in Opposition re 195 MOTION for Summary Judgment . filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Attachments: # 1 Exhibit A)(Blank, Jonathan)
207 RESPONSE in Opposition re 200 MOTION for Summary Judgment As To All Counts . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Eckstein, Maya)

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208 NOTICE by Richard D. Holcomb of Supplemental Authority (Attachments: # 1 Exhibit Transcript)(Eckstein, Maya)
209 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Motion Hearing held on 6/19/2019 re 142 MOTION to Dismiss case as Moot filed by Richard D. Holcomb, 140 MOTION to Dismiss case as Moot filed by Richard D. Holcomb. (Court Reporter: Sonia Ferris) (hnw)
210 RESPONSE in Support re 198 MOTION to Exclude Plaintiffs' Expert Witnesses . filed by Richard D. Holcomb. (Eckstein, Maya)
211 RESPONSE in Support re 195 MOTION for Summary Judgment . filed by Richard D. Holcomb. (Attachments: # 1 Exhibit Docket: Johnson v. Jessup)(Eckstein, Maya)
212 REPLY to Response to Motion re 200 MOTION for Summary Judgment As To All Counts . filed by Melissa Adams, Williest Bandy, Adrainne Johnson, Brianna Morgan, Damian Stinnie. (Attachments: # 1 Exhibit 1)(Blank, Jonathan)
213 NOTICE of Hearing on Motion 195 MOTION for Summary Judgment , 200 MOTION for Summary Judgment As To All Counts, 198 MOTION to Exclude Plaintiffs' Expert Witnesses : (CR) Motion Hearing set for 7/17/2019 10:00 AM in Charlottesville before Senior Judge Norman K. Moon. ( Parties Request 10−1) (hnw)
214 MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 6/28/19. (jcj)
215 ORDER granting in part and denying in part 142 Motion to Dismiss. This case is STAYED pending the 2020 session of Virginia's General Assembly. The stay will continue through March 21, 2020 and all else as stated in order. The parties are hereby ORDERED to, within ten days of this order, schedule a status hearing to take place within one week of the filing of their March 14, 2020 report. Signed by Senior Judge Norman K. Moon on 6/28/19. (jcj)
216 Notice of Cancellation of August 5−9, 2019 Bench Trial (Cancel Court Reporter) (hnw)
217 Notice of Cancellation of Motions Hearing July 17, 2019 (Cancel Court Reporter) (hnw)
218 NOTICE of Hearing: (CR) (No Interpreter requested) Status Conference set for 3/20/2020 11:00 AM in Charlottesville before Senior Judge Norman K. Moon. (hnw)