Tonia Wright , as mother and next friend of D.W. v. KATHRYN O’DAY , Commissioner of the Tennessee Department of Children’s Services

*The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0037p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TONIA WRIGHT , as mother and next friend of
D.W.,
Plaintiff-Appellant,
v.
KATHRYN O’DAY , Commissioner of the
Tennessee Department of Children’s
Services; WILLIAM HASLAM, Governor of the
State of Tennessee,
Defendants-Appellees.
X---->
,-------
N
No. 12-5261
Appeal from the United States District Court
for the Middle District of Tennessee at Cookeville.
No. 2:11-cv-64—Kevin H. Sharp, District Judge.
Decided and Filed: February 8, 2013
Before: GUY and ROGERS, Circuit Judges; HOOD, District Judge.*
_________________
COUNSEL
ON BRIEF: Melanie Stepp Lane, Jamestown, Tennessee, for Appellant. Alexander S.
Rieger, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellees.
_________________
OPINION
_________________
ROGERS, Circuit Judge. The district court in this case dismissed for lack of
justiciability the procedural due process challenge to the placement of a thirteen-year-old
boy on the Tennessee child-abuse registry. The claim was brought by the boy’s mother
1

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as next friend. Plaintiff has standing to seek additional procedures because those
procedures, if granted, could result in relief that is sufficiently concrete and
particularized. The classification is complete, the classification will not be expunged
from state records, and the classification is not a generalized grievance or an injury to
a third party. The claim is also ripe for review because no further factual development
is needed to determine if the boy was afforded adequate process. He would otherwise
be forced to wait until the state determines that he is not eligible for employment in
certain prohibited fields to get an administrative hearing on his classification. The claim
should therefore not have been dismissed on justiciability grounds.
D.W., proceeding through his mother Tonia Wright, brought this civil rights
action under 42 U.S.C. § 1983. He filed a complaint against the Governor of Tennessee
and the Commissioner of the Tennessee Department of Children’s Services, alleging that
the defendants violated his procedural due process rights by listing him on the state’s
child abuse registry without providing him with an administrative hearing to challenge
the listing. According to the complaint, a Children’s Services case manager interviewed
both D.W. and Wright, and explained that another child, L.M., alleged that D.W. had
pushed L.M.’s penis and stuck his finger in L.M.’s butt. D.W. and his mother denied
these allegations during the interview, id., but later were notified that Children’s
Services had “indicated” D.W. as a perpetrator of child abuse.
D.W. requested a formal file review and submitted written information regarding
L.M.’s inconsistent statements, but never was told the evidence against him. Children’s
Services conducted the review and upheld the classification. D.W. then requested an
administrative hearing. Children’s Services denied the request on the basis that he did
not qualify for a hearing because the classification did not affect his employment.
Tennessee regulations provide for a hearing only if Children’s Services is about to
release D.W.’s information, or if he is denied employment in field affected by the
classification. Tenn. Comp. R. & Regs. 0250-07-09-.08(1). D.W. claimed that being
listed as a perpetrator of child sexual abuse deprived him of his liberty interest in
pursuing the common occupations of life, because Tennessee law prohibited his

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employment with child-care agencies, child-care programs, and adult-daycare centers.
He further claimed that the listing precluded him from having contact with children
during the course of employment with any state agency. D.W. sought injunctive and
declaratory relief.
The Commissioner filed a motion to dismiss, asserting that any claim based on
the listing’s effect on D.W.’s employment did not present a justiciable case or
controversy because D.W.’s claim of injury was speculative. The Commissioner also
asserted that D.W. was not deprived of a liberty interest because reputation damage
alone is insufficient to state a claim under the Due Process Clause. The district court
granted the motion, finding that D.W. did not present a justiciable case or controversy
because the alleged deprivation was “anchored in future events and the possibility of
future harm.” D.W. ex rel. Wright v. O’Day, No. 2:11:0064, 2012 WL 315401, at *4,
(M.D. Tenn. Feb. 1, 2012). The court did not reach the substantive issue of whether
D.W. had been deprived of a liberty interest under the Due Process Clause. Id. at *2.
The court dismissed D.W.’s claim, and D.W. appeals.
If D.W. is successful in his due process claim, he will be entitled to procedural
protections that he otherwise could not get. This is enough for Article III standing as
long as the procedures sought would lead to a concrete, particularized, and actual
benefit. D.W. has demonstrated Article III standing on both steps of this procedural-
standing analysis.
First, it is clear from Supreme Court cases that a litigant can suffer an injury-in-
fact from the denial of procedural protections even if, when applied, the procedures
might not result in relief. For instance, in the Supreme Court’s seminal procedural due
process case regarding welfare recipients, the Court required a hearing prior to
termination of welfare benefits, notwithstanding the availability of arguments that the
particular plaintiffs would still be denied benefits if the hearing were granted. See
Goldberg v. Kelly, 397 U.S. 254, 256 n.2, 264-65 (1970). The Supreme Court has
explained that “‘procedural rights’ are special” in that

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[t]he person who has been accorded a procedural right to protect his
concrete interests can assert that right without meeting all the normal
standards for redressability and immediacy. Thus, under our case law,
one living adjacent to the site for proposed construction of a federally
licensed dam has standing to challenge the licensing agency’s failure to
prepare an environmental impact statement, even though he cannot
establish with any certainty that the statement will cause the license to be
withheld or altered, and even though the dam will not be completed for
many years.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992).
But as the Court held in Lujan, there is a limit to Article III standing when
invoked to protect “procedural rights.” Apart from some situations not applicable here,
the procedural requirement sought must be one “the disregard of which could impair a
separate concrete interest of [the plaintiffs] (e.g., the procedural requirement for a
hearing prior to denial of their license application, or the procedural requirement for an
environmental impact statement before a federal facility is constructed next door to
them).” Lujan, 504 U.S. at 572. Without such a limit, a busybody litigant personally
unaffected by an illegal action could circumvent the Article III limitation by challenging
the government’s refusal to give the busybody a hearing.
This case does not fall outside the bounds of “procedural rights” standing
because the interest that D.W. wants procedures to protect—his freedom from being
classified as a child abuser—is sufficiently imminent and concrete. D.W. suffered an
injury when Children’s Services classified him as a child abuser. “When the plaintiff
is an object of the challenged action ‘there is ordinarily little question that the action or
inaction has caused him injury.’” Thomas More Law Ctr. v. Obama, 651 F.3d 529, 537
(6th Cir. 2011), (quoting Lujan, 504 U.S. at 561-62). It is clear that D.W. is the object
of the challenged action—Children’s Services placed D.W. on the abuse registry, and
D.W. challenges that action.
The harm from being listed on the child-abuse registry now is not lessened by the
regulation cited by the State and the district court that prevents Children’s Services from
releasing D.W.’s registry information after a two-year period. See D.W. ex rel. Wright,

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2012 WL 315401, at *4. The regulation states that “this provision shall not . . . require
expunction of this information from the Department’s internal records.” Tenn. Comp.
R. & Regs. 0250-07-09-.03(5). Therefore, even if Children’s Services does not release
information about D.W. after two years, the record is not expunged. Since D.W.’s
record as a child abuser may never be removed by the state, D.W. has suffered a concrete
injury because the classification as a child abuser is, in effect, permanent.
D.W.’s injury-in-fact is distinct from the generalized grievance asserted in Lujan.
In Lujan, the Supreme Court held that the plaintiffs did not have an injury-in-fact
because they merely alleged that they planned to visit other countries where wildlife
would be affected negatively by the proposed governmental regulations. 504 U.S. at
562-63. The Court found that the underlying statute was too broad in empowering any
citizen to bring a civil suit to enjoin the regulations. Id. at 571-72.
By contrast, D.W. is seeking to enforce a procedural requirement that if
disregarded would impair his concrete interests. D.W. is asserting a procedural right that
he claims should be afforded to him under Tennessee law, similar to the procedural due
process rights afforded to welfare recipients in Goldberg v. Kelly, 397 U.S. 254 (1970).
Although the State argues that there is no clear injury until D.W. applies to work
in an affected field and is excluded, this argument implies that D.W. would be forced to
wait many years in order to challenge his classification. In Cutshall v. Sundquist, we
held that a sex offender had established an injury in fact sufficient to challenge a statute
requiring his listing on a sex offender registry. 193 F.3d 466, 472 (6th Cir. 1999). We
held that the offender faced a specific threat every day because law enforcement officials
could release his registry information at any time. Id. The State argued that there was
no clear injury until the offender’s registry information was about to be released. We
rejected the state’s argument, because it would require the offender to wait until his
registry information had been released in order to challenge the statute. Id.
Similarly, D.W. would have to wait until his information in the registry was used
to make a determination about his employment status, or until the information was about
to be released, in order to challenge his classification. Under Tennessee rules, D.W. can

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only get access to an administrative hearing if Children’s Services plans to release
D.W.’s registry information or if the indication affects his employment or professional
license. See Tenn. Comp. R. & Regs. 0250-07-09-.08(1). Like the offender in Cutshall,
D.W. would have to wait to challenge his listing on the abuse registry until the
information was about to be released or until it affected his employment. Therefore, like
the offender in Cutshall, D.W. should not have to wait to challenge his classification,
and has established a sufficiently concrete injury to support standing.
D.W.’s injury is actual because he has already been classified as a child abuser
by Children’s Services. The district court accepted the State’s argument that no injury
existed because the laws could change or because D.W. might not be interested in
pursuing an occupation in child care or adult care. D.W. ex rel. Wright, 2012 WL
315401, at *4. However, highly speculative claims as to what might happen in the future
are irrelevant to a determination of whether D.W. has alleged actual or imminent harm.
In Thomas More, the plaintiffs objected to the insurance mandate under the Patient
Protection and Affordable Care Act. 651 F.3d at 533. We rejected the defendants’
arguments that the plaintiffs did not have standing to bring the claim because it was
possible that the plaintiffs could leave the country or die before the mandate to purchase
insurance became effective. Id. at 537. We defined these arguments as “hardly
probable” and “not the kinds of future developments that enter into the imminence
inquiry.” Id. The State’s arguments in this case are likewise “hardly probable” and “not
the kinds of future developments” that apply to standing.
D.W.’s future interest in pursuing certain types of employment is unknown and
uncertain, but this uncertainty does not keep D.W. from being affected now by being
listed as a child abuser. D.W. has been classified as a perpetrator of child abuse, injuring
him now in a concrete, particularized, and actual way. He therefore has standing to
challenge the adequacy of procedures by which he can defend against or challenge the
classification.
D.W.’s claim is also ripe for judicial review. The relevant facts are fit for
judicial resolution, the determination not to give process now is sufficiently final, and

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without adequate process now, D.W. will be unable to challenge his classification in the
future. To determine ripeness, we consider (1) whether the court would benefit from a
“concrete factual context”; (2) whether the agency may modify its legal position or
refine its policies, rendering a judicial decision premature; and (3) the hardship to the
plaintiffs in waiting for enforcement. See Ammex, Inc. v. Cox, 351 F.3d 697, 706 (6th
Cir. 2003).
First, the factual issues in this case are sufficiently developed to allow the courts
to adjudicate this matter fairly. The courts are certainly capable of reviewing D.W.’s
classification and determining whether D.W. should be afforded an administrative
hearing now, rather than in the future. Regardless of whether D.W. wishes to pursue
future employment in the affected fields, the issue before the court is whether D.W. was
afforded sufficient process in being classified as a child abuser by Children’s Services.
The issue is a legal one, and applying due process law to determine whether a hearing
is required now will not be better informed by the vagaries of whether D.W. actually
seeks certain jobs later in life. No future facts are needed that would require the court
to wait before determining whether D.W. received sufficient process.
Second, Children’s Services has indicated that its decision is final by reaffirming
that position after a written petition from D.W., and by denying D.W. an administrative
hearing. No further review of D.W.’s classification will occur until D.W. is denied
employment in an affected field, an event which cannot happen for several years. While
“[c]ourts should avoid pre-enforcement challenges that do not permit enforcement
agencies to refine their policies,” Ammex, 351 F.3d at 708, Children’s Services is
unlikely to change its decision or revise its regulations to grant D.W. an administrative
hearing now. In the Supreme Court’s seminal case on ripeness, the Court held that a pre-
enforcement challenge to a final agency regulation was permissible because the agency’s
position was unlikely to change. See Abbott Labs. v. Gardner, 387 U.S. 136, 151 (1967).
There is no reason to believe that Children’s Services will change its position, and, given
that Children’s Services has indicated its decision is final, no need to delay the court’s
review of the process given to D.W.

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D.W. will also suffer considerable hardship if he is denied judicial relief at this
stage of the proceedings because he will be unable to challenge the factual basis for his
classification in the future. If the court holds that there is no justiciable case or
controversy now, forcing D.W. to wait until he is excluded by Children’s Services,
Tennessee procedures prevent him from ever challenging the factual basis for his
exclusion. Under Tennessee law, a person who is appealing an exclusion or denial of
a license based on a criminal background check “may not collaterally attack the factual
basis of an underlying exclusionary record except to show that the appellant is not the
person identified on the record.” Tenn. Code Ann. § 71-3-507(e)(4). Therefore, D.W.
could only challenge Children’s Services’ determination of his eligibility to work in
particular fields. He would not be able to attack his initial classification or be provided
with a hearing on whether he should have been classified as an abuser in the first place.
Therefore, the record is sufficiently developed to allow the courts to determine
if D.W. is entitled to a hearing, Children’s Services has indicated that its decision is final
and unlikely to change, and D.W. will suffer considerable hardship if he is forced to wait
years to get a hearing.
In conclusion, the dismissal of this case cannot stand on the justiciability grounds
relied upon by the district court. Remand is therefore warranted so that the district court
may in the first instance address the merits of plaintiff’s claim, including the question
of whether D.W. has asserted a protected liberty interest under the “stigma-plus” test of
Paul v. Davis, 424 U.S. 693, 701 (1976). The judgment of the district court is reversed
and remanded for further proceedings consistent with this opinion.

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