Brian Lee Cherrix, Petitioner-Appellee, v. Daniel Braxton, Warden, Sussex I State Prison, Respondent-Appellant.
Nos. 01-1, 01-2
United States Court of Appeals, Fourth Circuit
Argued June 5, 2001. Decided July 9, 2001.
258 F.3d 250
Both here and in Astorri, the District Court relied upon the conclusory lay statements of the victims (or their lawyers) and the court‘s own observations of the victims to support the departure. But the Guidelines (and due process) generally require that evidence used in sentencing be reliable. See, e.g., United States v. Sciarrino, 884 F.2d 95 (3d Cir.1989). I agree with Judge Hutchinson that the type of evidence employed in Astorri (and in this case) is insufficiently reliable to use as a basis for an upward departure under
I do not suggest that expert medical testimony is a prerequisite to a
I believe that we should take up this case en banc to overrule Astorri. This issue arises with some degree of regularity and surely presents an important question. Alternatively, I suggest to the Sentencing Commission that it alter
In the absence of detailed and truly compelling lay testimony from the victim, a departure by the sentencing court under this section should be based upon objective evidence such as an affidavit or signed letter from the victim‘s health care provider or a verified copy of the victim‘s medical records.
An amendment along these lines would provide for an objective basis for upward departures under
With these thoughts, I join in the judgment of the Court.
In re Daniel BRAXTON, Warden, Sussex I State Prison; Mark L. Earley, Attorney General of Virginia; Samuel H. Cooper, Clerk, Accomack County Circuit Court, Petitioners.
Before MOTZ, TRAXLER, and KING, Circuit Judges.
OPINION
KING, Circuit Judge:
Daniel Braxton, the Warden of Sussex I State Prison in Virginia (the “Warden“), appeals from the district court‘s order granting the motion of Brian Lee Cherrix, a death row inmate seeking federal habeas relief, for preservation and deoxyribonucleic acid (“DNA“) retesting of the prosecution‘s evidence in his capital murder case. Alternatively, the Warden, along with Mark L. Earley, Attorney General for Virginia, and Samuel H. Cooper, Clerk of the Accomack County Circuit Court (collectively, the “Commonwealth“), seeks a writ of mandamus to compel the court to vacate its order. For reasons explained below, we dismiss the Warden‘s interlocutory appeal for lack of jurisdiction, and we deny the Commonwealth‘s petition for extraordinary relief as unjustified.
I.
A.
Cherrix was sentenced to death for the January 27, 1994 capital murder of Tessa Van Hart. Van Hart, then twenty-three, was sodomized and shot twice in the head after being dispatched for a pizza delivery on Chincoteague Island. See Cherrix v. Commonwealth, 257 Va. 292, 513 S.E.2d 642, 645-46 (1999) (setting forth a detailed factual history of the crime).1 Her murder went unsolved for more than two years. On June 3, 1996, while Cherrix was incarcerated in the Accomack County Jail on unrelated charges, he offered to share information with police about the Van Hart murder in exchange for leniency with respect to his pending sentencing. Cherrix initially told authorities that his cousin, Robert Birch, III, had divulged to Cherrix in February 1994 that Birch had killed Van Hart—first luring her to an unoccupied residence by ordering a pizza, then raping and shooting her, and finally ditching his gun in a nearby creek.
Birch, who had died in 1995, was ruled out as a suspect. However, when Cherrix led investigators to the spot in the creek where Birch had supposedly told him the murder weapon was discarded, divers searching that location recovered a .22 caliber Marlin rifle. (This gun‘s patterns were consistent with the bullets recovered from Van Hart‘s body, although the prosecution‘s firearms experts could not identify this rifle specifically as the murder weap
1.
Cherrix‘s confession was reduced to handwriting by Lewis, purportedly as dictated by Cherrix, who later refused to sign it. The Commonwealth emphasizes that Cherrix has variously, and inconsistently, suggested that his confession was false, inaccurately transcribed, coerced, and obtained in violation of his right to counsel. Cherrix counters that even if he did confess, it is not unprecedented for an accused to confess to a crime that he did not actually commit.
According to Cherrix, the only evidence connecting him to Van Hart‘s murder, other than his confession, was the .22 caliber Marlin rifle. Witnesses testified at trial that Cherrix had owned just such a gun, that he no longer possessed it several days after the crime, and that his gun had a broken, taped stock like the rifle recovered from the creek. There was also testimony, however, that Cherrix‘s gun had a squirrel carved on the stock. There is no indication in the record that the rifle recovered from the creek bore such a carving.2
Cherrix pleaded not guilty to the charges against him, presenting an alibi defense at trial. Cherrix maintained that, at the time Van Hart was killed, he was caring for his six-week-old daughter at his grandmother‘s home while speaking on the telephone with his wife, who had undergone an emergency appendectomy earlier that day. This defense was refuted at trial by Cherrix‘s then-estranged wife, who testified that Cherrix did not call her at the hospital until after 9 o‘clock that night—outside the window of time in which Van Hart‘s murder occurred. The alibi was supported, however, by Cherrix‘s grandmother, who testified that the phone call occurred at about 8 o‘clock or 8:15. In state habeas proceedings, Cherrix presented additional evidence that it had been the hospital‘s policy to terminate all patient telephone conversations at 9 o‘clock.
2.
In 1994, some two years before Cherrix‘s confession, DNA testing was conducted on seminal fluid collected from Van Hart‘s anus. In conjunction with her autopsy, the medical examiner divided the
In authorizing the DNA retesting now in dispute, the district court acknowledged that, because the prosecution‘s theory of the case at trial was that a lone assailant murdered and sodomized Van Hart, it is reasonable to infer that the person whose seminal fluid was recovered from Van Hart‘s anus is her killer. The court also recognized that DNA technology has advanced since the PCR tests were conducted in this case in 1994, and that, according to Cherrix, the newer short tandem repeat (“STR“) and mitochondrial tests can conclusively identify the donor of the seminal fluid by evaluating substances other than spermatozoa, such as epithelial cells and white blood cells.3
B.
This is the first time in any proceeding that Cherrix has requested DNA retesting. Previously, the Supreme Court of Virginia upheld Cherrix‘s convictions and death sentence on direct appeal, concluding, inter alia, that his confession was admissible, see Cherrix, 257 Va. 292, 513 S.E.2d 642, and the court subsequently denied Cherrix‘s request for rehearing. The Supreme Court of the United States then denied his petition for a writ of certiorari. See Cherrix v. Virginia, 528 U.S. 873, 120 S.Ct. 177, 145 L.Ed.2d 149 (1999). Cherrix filed a petition for a writ of habeas corpus in the Supreme Court of Virginia on December 3, 1999, which the court dismissed on April 4, 2000.
Following the state supreme court‘s denial of rehearing on June 9, 2000, the trial court scheduled Cherrix‘s execution for August 16, 2000. The day before, however, the district court for the Eastern District of Virginia stayed Cherrix‘s execution and granted his motion for appointment of counsel.
1.
Prior to filing his federal petition for a writ of habeas corpus, Cherrix moved the district court for DNA retesting of the seminal fluid collected from Van Hart‘s body. While this motion was pending, Cherrix filed another motion for the retention and preservation of evidence, asking the court to order ten separate state agencies to preserve the evidence pertaining to Van Hart‘s murder and Cherrix‘s prosecution. The Warden objected to the court ordering any state agencies to act. On December 12, 2000, the district court conditionally granted Cherrix‘s motion for the retention and preservation of evidence, directing the Commonwealth to preserve all evidence, including any bodily fluids collected from Van Hart.
Cherrix then filed his petition in the district court for a writ of habeas corpus
Pursuant to
2.
In its Supplemental Opinion, the district court expounded that its January 9, 2001 Order “granted the habeas petitioner‘s request for funds, and ordered that the custodians of the evidence make it available for testing, for three reasons.” Cherrix, 131 F.Supp.2d at 759. First, the court determined that it was authorized, pursuant to
[o]rdering a new DNA test has the potential of producing three different outcomes. First, the test can prove inconclusive, in which case no newly-discovered evidence would be before the Court, and the Herrera inquiry[and, relatedly, the Schlup inquiry,] would be futile. Second, the test results can show that Cherrix sodomized Ms. Van Hart and deposited the seminal fluid into her body, in which case the evidence would moot his claims of innocence. Third, the test results can show a third party deposited the seminal fluid into Ms. Van Hart‘s body. If the test results implicate a third party, then the issue would be placed before the Court of whether such evidence, coupled with other allegations of constitutional error, would be sufficient to grant Cherrix federal habeas relief. However, the DNA evidence must first be brought before the Court in discovery prior to consideration of the habeas corpus petition on the merits.
Id. at 765-66 (internal citations omitted).
II.
The Warden asks us, first, to reverse the district court‘s January 9, 2001 Order pursuant to an exercise of our jurisdiction under
We cannot overemphasize the extraordinary nature of the remedies sought here, stemming from the federal court system‘s longstanding disapproval of piecemeal appellate review. See, e.g., Switzerland Cheese Ass‘n, Inc. v. E. Horne‘s Market, Inc., 385 U.S. 23, 25 n. 3, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966) (recognizing that interlocutory review of pretrial orders is “an intolerable burden for us, an improper and uncertain interference with trial court discretion, and a confusing invitation to indiscriminate appeals in the future“) (quoting Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 280 F.2d 800, 806 (2d Cir.1960) (Clark, J., dissenting)); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (acknowledging that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of” the writ of mandamus, an “extraordinary remedy“).
A.
We first address whether, pursuant to
However, a non-final order generally is not subject to interlocutory appeal under
In this case, the district court‘s January 9, 2001 Order allows Cherrix to engage in discovery potentially supportive of his habeas petition, while recognizing that, even if the results of the DNA retesting exclude Cherrix as the semen donor, he still is not necessarily entitled to relief. As the court explained in its Supplemental Opinion, “The new DNA testing methods could possibly procure conclusive evidence demonstrating that a third person committed the murder and sodomy which may ultimately exonerate the habeas petitioner of capital murder.” Cherrix, 131 F.Supp.2d at 759 (emphasis added); see also id. at 786 (“This Court was called upon to make a judgment about the reasonable necessity of DNA testing services to a condemned habeas petitioner‘s case. This Court made no proclamation or judgment about Cherrix‘s claims of innocence.“). Clearly, the January 9, 2001 Order is just a step in the litigation process that is not directed to the merits of the underlying habeas action. At this juncture, the district court has not yet even been presented with the question of the admissibility of the DNA retesting results.
Nonetheless, an interlocutory order may be appealable pursuant to
1.
The Warden maintains that the “serious, perhaps irreparable, consequences” of permitting the DNA testing to go forward include: (1) “the potential destruction of the Commonwealth‘s evidence“; (2) “a guaranteed loss of the chain of custody“; (3) “the undeniable damage to federalism and finality that has ‘special
First, the Warden‘s concern about destruction of the evidence is, at best, premature. As the district court made clear, its January 9, 2001 Order
did not provide for the final testing of the evidence, only for its preservation and for testing funds. At the time of the Court‘s January 9 Order—and presently—the Court intended to conduct a hearing to determine how the DNA testing would proceed. The Court expected both the Commonwealth and the parties to participate in structuring conditions for the testing of the requested evidence in order to protect the integrity of the evidence and to ensure equal access to all parties.
The procedure the Court adopts for the analysis of the evidence will address the Petitioners’ concern that Cherrix may consume the remaining forensic evidence and that the integrity of the evidence be maintained.
Cherrix, 131 F.Supp.2d at 771-72 (internal citations omitted). Indeed, the district court went on to discuss at length the procedural issues related to post-conviction DNA testing identified in a 1999 report sponsored by the Attorney General of the United States,6 including the type of DNA analysis to be utilized, the choice of laboratory to perform the testing, and the amount of sample to be available for testing and replicate testing. See id. at 772-73.
Furthermore, even if the Commonwealth‘s supposition were realized and the evidence were destroyed, it is doubtful that harm would flow to anyone other than Cherrix. That is, as Cherrix aptly points out, he
already stands convicted and condemned, and the Commonwealth does not need the biological evidence in order to carry out his death sentence.... [This] evidence has been sitting in some storage box(es) for years, and that is where it will remain, untested and unused, unless the [Commonwealth] is compelled to make it available.
Appellee‘s Br., at 15. The Warden counters that, if the evidence is consumed during retesting, the Commonwealth might lose the ability to use it “on retrial if necessary or during clemency proceedings.” Appellant‘s Reply Br., at 7. The Warden does not explain, however, how this would lead to irreparable harm to the Commonwealth, i.e., why it would need the evidence for even more retesting. Most significantly, the district court has stated its intention to protect the evidence‘s integrity and to conduct the DNA testing in an objective manner with the participation of all parties. If the evidence is depleted during this testing, these results could be used—or challenged—by the Commonwealth upon any retrial or clemency proceeding.
Second, and similarly, with regard to the custody of the evidence to be retested, the district court declared that it “fully intends to impose procedures to protect the chain of custody when the Court actually orders that the evidence be moved to permit the DNA testing.” Cherrix, 131 F.Supp.2d at 772 n. 13 (citing for comparison In re Warden, Kentucky State Penitentiary v. Gall, 865 F.2d 786, 788 n. 1 (6th Cir.1989)
In support of his third purported consequence, the “undeniable” damage to, in particular, the finality of state court convictions, the Warden relies on the Supreme Court‘s decision in McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, during a discussion of the doctrines of procedural default and abuse of the writ, the Court illuminated the potential risks of reexamining state convictions on federal habeas review. Though we recognize the ramifications of, inter alia, granting a habeas petitioner a new trial, we fail to comprehend how McCleskey supports the Warden‘s challenge to an interlocutory order that has only the potential to someday upset the finality of Virginia‘s conviction of Cherrix. Moreover, as the district court acknowledged, “[T]his Court, by statute [
Finally, though the Warden asserts that the district court‘s January 9, 2001 Order will “open the floodgates” to similar requests, he offers no support for this stark assertion. Moreover, he fails to explain how, if there were an influx of motions for DNA testing and preservation of evidence in the district courts, this would result in “serious, perhaps irreparable consequence,” where the courts presumably would dispose of the motions on their merits in the regular course of business.
2.
In next addressing why the January 9, 2001 Order can be “effectually challenged” only by immediate appeal, the Warden asserts that “[a]bsent an immediate appeal, the Commonwealth will have to turn over its evidence [ ] with all the dangers attendant to that action[.]” Appellant‘s Br., at 14. We are not at all persuaded by this contention, which merely revisits the purported “serious, perhaps irreparable” consequences of tendering the evidence. If a discovery order could be challenged under
The Warden relies on our unpublished order in Poyner v. Murray, No. 93-6052 (4th Cir. Jan. 19, 1993), reversing the district court‘s eleventh-hour decree permitting Poyner‘s ex
Rather, we are constrained to agree with Cherrix that the propriety of the district court‘s January 9, 2001 Order can be adequately reviewed on appeal from final judgment. If, for example, the district court awards habeas relief to Cherrix based on the findings of the DNA analysis, the Warden may appeal that decision on the ground that, inter alia, the retesting was unlawfully authorized by the court. This same contention may also be proffered by the Warden if Cherrix appeals the denial of habeas relief.
In summary, because the Warden has failed to establish that the district court‘s January 9, 2001 Order might have “serious, perhaps irreparable, consequences,” and because this order cannot be “effectually challenged” only by immediate appeal, we must dismiss the Warden‘s appeal for lack of
B.
We now consider whether the Commonwealth is entitled to a writ of mandamus, pursuant to the All Writs Act,
(1) he has a clear and indisputable right to the relief sought; (2) the responding party has a clear duty to do the specific act requested; (3) the act requested is an official act or duty; (4) there are no other adequate means to attain the relief he desires; and (5) the issuance of the writ will effect right and justice in the circumstances.
Oncology Assocs., 198 F.3d at 511 (citing, inter alia, Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (recognizing that, in order to ensure “the writ will issue only in extraordinary circumstances, ... the party seeking issuance of the writ [must] have no other adequate means to attain the relief” sought)).
The Commonwealth faces the same problem in seeking a writ of mandamus that the Warden faced in bringing an interlocutory appeal—other adequate means exist to attain the relief it desires. That is, the district court‘s January 9, 2001 Order may be reviewed on appeal from final judgment, with no conceivable risk of harm to the Commonwealth. We have consistently held, as we are constrained to do today, that we will not issue a writ of mandamus under such circumstances. See, e.g., In re Catawba Indian Tribe of South Carolina, 973 F.2d 1133, 1137 (4th Cir.1992) (denying a writ of mandamus to compel the district court to grant a class certification where the issue was reviewable on appeal from final judgment); In re Int‘l Precious Metals Corp., 917 F.2d 792, 792, 794 (4th Cir.1990) (declining to issue a writ requiring the district court to transfer the case in order to enforce a forum selection clause, because the petitioner could “appeal the ... court‘s denial of transfer after final judgment“). Moreover, we are cognizant of the potential danger in permitting a party to use a petition for a writ of mandamus as an end-run around our appellate rules. See Catawba Indian Tribe, 973 F.2d at 1135 (“The very power of the writ of mandamus demands that its availability be limited to narrow circumstances lest it quickly become a shortcut by which disappointed litigants might circumvent the requirements of appellate procedure mandated by Congress.“); see also id. at 1137 (acknowledging that “[w]e must be reluctant indeed” to permit the petitioner from accomplishing by mandamus that which is prohibited by interlocutory appeal). Therefore, we deny the Commonwealth‘s mandamus petition.10
III.
For all of the foregoing reasons, we dismiss the Warden‘s interlocutory appeal for lack of jurisdiction, and we deny the Commonwealth‘s petition for a writ of mandamus.11
APPEAL DISMISSED AND PETITION FOR MANDAMUS DENIED.
I concur in the results reached in the opinion of my friend Judge King. I write separately because my reasoning is somewhat different.
I.
This appeal began with Cherrix‘s motion for an order, solely under the authority of
In light of these concerns, the Commonwealth immediately appealed the district court‘s order under
Under
The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.
We thereafter received from the district court a very detailed statement expanding upon the factual bases and the legal reasoning for its decision (“the Supplemental Opinion“). In the Supplemental Opinion, the district court explained that it was not issuing its order solely under the authority of
The Commonwealth urges us not to consider the Supplemental Opinion on the grounds that the district court essentially amended its opinion and substituted new legal grounds for its conclusions, even after we had granted the Commonwealth a stay pending appeal. Considering the fact that this panel specifically invited the district court to address the Commonwealth‘s petition for a writ of mandamus, it would be strange indeed if the district court overstepped its bounds by doing just that. Furthermore, although Appellate Rule 21(b)(4) pertains only to “Writs of Mandamus and Prohibition, and Other Extraordinary Writs,” I believe that it is appropriate for us to consider the Supplemental Opinion with respect to the Commonwealth‘s appeal under
In light of the Supplemental Opinion, I am satisfied the order of the district court will not result in “serious, perhaps irreparable, consequence” and I do not believe that the order can be “effectually challenged” only by an immediate appeal. Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981) (internal quotation marks omitted). Thus, the Commonwealth is not entitled to immediate review.
II.
Likewise, I concur that the Commonwealth is not entitled to a writ of mandamus. In addition to the reasons stated by Judge King, mandamus relief is not appropriate because the district court was acting on a matter entrusted to its discretion. As the majority opinion rightly points outs, the relief provided by the issuance of a writ of mandamus is extraordinary in nature, and I agree the Commonwealth is not entitled to it. The traditional use of the writ of mandamus has been “to confine an inferior court to a lawful exercise of its prescribed jurisdiction.” Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (internal quotation marks omitted). Although writs of mandamus or prohibition may of course be employed to compel or prohibit action by those outside of the judiciary, such as executive agencies or officials, see United States ex rel. Rahman v. Oncology Assocs., 198 F.3d 502, 515 (4th Cir.1999) (affirming in part the issuance of a writ of mandamus to the Health Care Financing Administration), additional concerns arise when mandamus relief is sought against a lower court, particularly when it is sought in conjunction with an ongoing case.
Perhaps the most obvious concern in this context is that parties will use a writ of mandamus as a surrogate for the appellate process. See Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382-83, 74 S.Ct. 145, 98 L.Ed. 106 (1953). Even if the district court issues an interlocutory order that is wrong on the merits and that results in substantial inconvenience, something more is required to justify mandamus relief. If not, “then every interlocutory order which is wrong might be reviewed under the All Writs Act” and the function of the writ of mandamus “would be enlarged to actually control the decision of the trial court rather than used in its traditional function of confining a court to its prescribed jurisdiction.” Id. at 383, 74 S.Ct. 145. The other major reason that mandamus relief is discouraged in the context of ongoing litigation is that such petitions tend to pit the petitioner and the district court against each other. In essence, the district court becomes a litigant, cast in an adversarial role against the mandamus petitioner, who remains a litigant in the pending lawsuit. See Kerr, 426 U.S. at 402, 96 S.Ct. 2119.
Accordingly, a mandamus petitioner can show he is entitled to the writ only by demonstrating the lower court committed a “clear abuse of discretion or conduct amounting to usurpation of the judicial power.” Mallard v. United States Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989) (internal citations, alterations and quotation marks omitted). And, as Judge King makes clear, even if the petitioner can demonstrate an abuse or usurpation of judicial power, there are additional hurdles to make certain that mandamus relief is available only in extraordinary circumstances: there must be no “adequate alternative means to obtain the relief” sought in the mandamus petition and the “right to issuance of the writ [must be] clear and indisputable.” Id. (internal quotation marks omitted).
It is substantially more difficult to demonstrate the court usurped power beyond its authority when the mandamus petition is directed at a matter committed to the discretion of the district court. See In re Catawba Indian Tribe of South Carolina, 973 F.2d 1133, 1136 (4th Cir.1992) (en banc). Almost by definition, a court that is deciding a matter within its discretion is acting within its prescribed authority, even if the court technically makes the wrong decision. Thus, “[t]he writ of mandamus is not to be used when the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.” Schlagenhauf v. Holder, 379 U.S. 104, 112, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (internal quotation marks omitted).
The Supplemental Opinion indicates that the court granted only Cherrix‘s request for funding pursuant to
Again, it bears noting that, in my view, the Commonwealth‘s belief that the district court acted beyond its power was not entirely misplaced, especially before the district court issued its Supplemental Opinion. Indeed, the January 9, 2001 Order does not specifically cite Rule 6(a) and it does not use the phrase “good cause,” although it does contain a general reference to the applicability of the Federal Rules of Civil Procedure through Habeas Rule 11. And, Cherrix‘s motion for DNA retesting and for funding to accomplish the retesting was made entirely under the auspices of
In the final analysis, however, if “good cause” does not support DNA retesting, the Commonwealth can have its concerns effectively addressed on appeal after the district court‘s decision on the merits has become final. I therefore concur that we cannot issue a writ of mandamus under the circumstances.
Ed BROWN, as parent and next friend of Vanessa Brown; Rosalynne Brown, as parent and next friend of Vanessa Brown; Vanessa Brown, a minor child attending Thomas Jefferson High School for Science and Technology in Fairfax, Virginia; Marc J. Cohen, as parent and next friend of Amy and Michael Cohen; Michael Cohen, a minor child attending Spring Hill School in Fairfax, Virginia; Amy Cohen, a minor child attending Spring Hill School in Fairfax, Virginia; Frank M. Feibelman, as parent and next friend of Seth Feibelman; Seth Feibelman, a minor child attending Henrico County Middle School in Henrico County, Virginia; Gregory Kruglak, as parent and next friend of Kathryn Anya Kruglak; Patricia Kruglak, as parent and next friend of Kathryn Anya Kruglak; Kathryn Anya Kruglak, a minor child attending Thomas Jefferson High School for Science and Technology in Fairfax, Virginia; Jeffrey M. Lepon, as parent and next friend of Jana Lepon and Ariel Lepon; Cora Yamamoto, as parent and next friend of Jana Lepon and Ariel Lepon; Jana Lepon, a minor child attending Longfellow Middle School in Fairfax County, Virginia;