Henley et al v. City of Charlottesville
MEMORANDUM OPINION and ORDER. The Court GRANTS the City's motion to dismiss the First Amendment claim, Dkt. 19, and declines to exercise supplemental jurisdiction over the VFOIA claim. The case is REMANDED to Charlottesville Circuit Court pursuant to 28 U.S.C. § 1441(c)(2). Signed by Senior Judge Norman K. Moon on 11/21/2022. (dg)
Case 3:22-cv-00027-NKM-JCH Document 28 Filed 11/21/22 Page 1 of 6 Pageid#: 337
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
CHERRY HENLEY, et al.,
CASE NO. 3:22-cv-27
MEMORANDUM OPINION & ORDER
CITY OF CHARLOTTESVILLE,
JUDGE NORMAN K. MOON
Plaintiffs Cherry Henley and David McNair1 allege the City of Charlottesville violated
the Virginia Freedom of Information Act (“VFOIA”) and the First Amendment of the United
States Constitution by preventing them from obtaining information about the City’s settlements
of civil-rights lawsuits. The Court grants the City’s motion to dismiss the First Amendment
claim because Plaintiffs lack standing. The Court also declines to exercise supplemental
jurisdiction over the VFOIA claim and remands it to Charlottesville Circuit Court from which
the case was removed.
The following in Plaintiff’s Amended Complaint is assumed true for purposes of
resolving this motion. See King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016) (reiterating the
appropriate standard of review).
On October 17, 2022, Tanesha Hudson, a former plaintiff, was voluntarily dismissed
from this action. Dkt. 24.
Case 3:22-cv-00027-NKM-JCH Document 28 Filed 11/21/22 Page 2 of 6 Pageid#: 338
Plaintiff Henley, a Virginia citizen, is head of Lending Hands, an organization that assists
women leaving jail and prisons, and a member of the People’s Coalition, which strives to reform
the criminal legal system. Dkt. 18 (“Compl.”) ¶ 1. Plaintiff McNair, a Virginia citizen, is a
journalist who covers political issues in Charlottesville, Virginia. Id. ¶ 3. As founder and editor
of The DTM, an online news publication, he is interested in covering the settlements requested in
this action and future settlements. Id.
Plaintiffs, through counsel, made two FOIA requests to the City. Id. ¶¶ 5, 7. On May 17
and June 3, 2022, Plaintiffs requested for the years 2017 to 2022,
[A]ll records concerning the settlement of claims of police misconduct, or other violation
of constitutional rights, by the city or any of its employees, whether or not the claim was
filed in an administrative or judicial agency and whether or not the claim was handled
directly by the city or by VRSA on its behalf.
Id. In response to both requests, the City provided redacted emails and letters relating to the
settlement cases but did not provide information concerning the terms of those settlements. Id. ¶¶
The City refers most litigation brought against it or its employees to its insurer, the
Virginia Risk Sharing Association (“VRSA”). Id. ¶¶ 17, 22. VRSA, the City’s alleged agent,
monitors litigation and selects attorneys for the City and possesses some of Plaintiffs’ requested
settlement documents. Id. ¶¶ 17–19, 21.
In each case in which a settlement is reached, the City or VRSA “requires the claimant to
sign an agreement not to disclose the terms of the settlement and/or the incident which gave rise
to the complaint and/or to promise not to disparage the city or any of its employees or officers”
(hereinafter, referred to as “the confidentiality provision”). Id. ¶ 19. The City claims that it is not
informed by VRSA on “the outcome of cases in which a settlement is reached.” Id. ¶ 20.
Case 3:22-cv-00027-NKM-JCH Document 28 Filed 11/21/22 Page 3 of 6 Pageid#: 339
The Amended Complaint asserts two counts. In Count I, Plaintiffs claim that the failure
to provide settlement agreements and other associated public records to them violates VFOIA.
Id. ¶ 23–30. In Count II, Plaintiffs claim that the City’s use of confidentiality provisions in
settlement agreements violates the First Amendment. Id. ¶ 31–32.
When a party attacks the subject matter jurisdiction of the Court under Fed. R. Civ. Pro.
12(b)(1), that argument must be addressed as a threshold matter. Sinochem Int’l Co. Ltd. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 431–32 (2007). A plaintiff has the burden of
establishing allegations sufficient to support subject matter jurisdiction. FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990). Standing may be challenged under a Rule 12(b)(1) motion.
See Marshall v. Meadows, 105 F.3d 904, 905 (4th Cir. 1997).
A. First Amendment Claim
The City moves to dismiss the First Amendment claim pursuant to Fed. R. Civ. Pro.
12(b)(1) because Plaintiff McNair lacks standing.2 Dkt. 22 at 1. To establish Article III standing,
Plaintiff “must show (i) that he suffered an injury in fact that is concrete, particularized, and
actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury
would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
In Overbey v. Mayor of Baltimore, 930 F.3d 215, 219 (4th Cir. 2019), the plaintiffs
Plaintiff Henley concedes that he lacks standing for the First Amendment claim. Dkt. 21
at 5 n.4.
Case 3:22-cv-00027-NKM-JCH Document 28 Filed 11/21/22 Page 4 of 6 Pageid#: 340
brought a First Amendment challenge to the city’s use of non-disparagement clauses in
settlement agreements of civil rights suits against the city. The non-disparagement clause
prohibited claimants from stating to the media opinions, facts, or allegations in any way
connected to their settlement. Id. at 220. The Fourth Circuit held that the plaintiff, a local news
website, had plausibly alleged an injury in fact for Article III standing in the amended complaint.
Id. at 226.
Specifically, the Circuit emphasized that the legally protected interest was the news
websites’ right to gather news, which is derived from the First Amendment. Id. at 227. The news
website had alleged that this interest had been invaded because “the City's alleged policy of
making silence a condition of settlement with police brutality claimants  prevented the [news
website] from interviewing at least some of those claimants about (a) their cases or (b) their
experiences with the settlement process.” Id. at 228. Based on these allegations, the Circuit
concluded that the news website had “plausibly alleged that its legally protected interest in
newsgathering ha[d], at some point, been invaded by the City's use of non-disparagement clauses
in settlement agreements with police brutality claimants.” Id. at 229.
The Amended Complaint contains no factual support that Plaintiff McNair suffered an
injury from the City’s use of confidentiality provisions in settlement agreements. Unlike the
news website in Overbey that sought to interview claimants but was prevented by settlement
conditions, Plaintiff McNair has not alleged that he sought or attempted to interview any
individual about their case or settlement with the City. As such, the Amended Complaint fails to
plausibly allege that Plaintiff’s legally protected interest in newsgathering has been invaded by
the City’s use of confidentiality provisions in settlement agreements.
Plaintiffs also allege that the City’s use of confidentiality provisions violates the First
Case 3:22-cv-00027-NKM-JCH Document 28 Filed 11/21/22 Page 5 of 6 Pageid#: 341
Amendment rights of “the public writ large as they are deprived of highly newsworthy
information.” Compl. ¶ 32. However, injury to the public is insufficient to establish an Article III
case or controversy. Lujan, 504 U.S. at 573 (“We have consistently held that a plaintiff raising
only a generally available grievance about government . . . and seeking relief that no more
directly and tangibly benefits him than it does the public at large  does not state an Article III
case or controversy.”).
Because the Amended Complaint fails to plausibly allege standing for the First
Amendment claim, the Court grants the Rule 12(b)(1) motion to dismiss.
B. VFOIA Claim
A court may decline to exercise supplemental jurisdiction over a claim if it “has
dismissed all claims over which it had original jurisdiction.” 28 U.S.C. § 1367(c)(3); see Greer v.
Trinity Fin. Servs., LLC, No. CV 20-00972-JMC, 2022 WL 2133907, at *6 (D. Md. June 14,
2022) (declining to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims
after the dismissal of the federal claim providing original jurisdiction). The Fourth Circuit has
provided that “courts enjoy wide latitude in determining whether or not to retain jurisdiction over
state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106,
110 (4th Cir. 1995).
The Court has neither federal question nor diversity jurisdiction over the VFOIA claim
and thus can only hear the claim if it exercises supplemental jurisdiction. Having dismissed the
First Amendment claim providing original jurisdiction, the Court declines to exercise
supplemental jurisdiction over the VFOIA claim.
Case 3:22-cv-00027-NKM-JCH Document 28 Filed 11/21/22 Page 6 of 6 Pageid#: 342
The Court GRANTS the City’s motion to dismiss the First Amendment claim, Dkt. 19,
and declines to exercise supplemental jurisdiction over the VFOIA claim. The case is
REMANDED to Charlottesville Circuit Court pursuant to 28 U.S.C. § 1441(c)(2).
The Clerk of Court is directed to send this Memorandum Opinion and Order to all parties
in the case and to remand this case to Charlottesville Circuit Court.
Entered this 21st
day of November, 2022.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?