Cuccinelli v. Rector & Visitors of the Univ. of Virginia

Decision Date02 March 2012
Docket NumberRecord No. 102359.
Citation277 Ed. Law Rep. 513,722 S.E.2d 626,283 Va. 420
PartiesKenneth T. CUCCINELLI, II, in his Capacity as Attorney General of Virginia v. RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA.
CourtVirginia Supreme Court


Wesley G. Russell, Jr., Deputy Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Charles E. James, Jr., Chief Deputy Attorney General; E. Duncan Getchell, Jr., Solicitor General; Stephen R. McCollough, Senior Appellant Counsel, on briefs), for appellant.

Chuck Rosenberg; Jessica L. Ellsworth (Stephanie J. Gold; Catherine E. Stetson; N. Thomas Connally; Jon M. Talotta; Hogan Lovells, on brief), for appellee.

American Association of University Professors, American Civil Liberties Union of Virginia, Inc., Union of Concerned Scientists, and Thomas Jefferson Center for the Protection of Free Expression (Mark C. Fleming; Lisa E. Ewart; Robert M. O'Neil; Rachel Levinson; Rebecca K. Glenberg; Bruce D. Brown; J. Joshua Wheeler; Wilmer Cutler Pickering Hale and Dorr; Bker & Hostetler, on brief), amici curiae in support of appellee.

Present: All the Justices.


The threshold issue in this case is whether the University of Virginia is a “person” under the Virginia Fraud Against Taxpayers Act (FATA or Act), Code §§ 8.01–216.1 through –216.19. For the reasons that follow, we conclude that it is not.

I. Background

This case arises from two Civil Investigative Demands (CIDs) issued to the University of Virginia and the Rector and Visitors of the University of Virginia (collectively, UVA) by Attorney General Kenneth T. Cuccinelli, II, pursuant to FATA. The CIDs sought information relating to the research of climate scientist Dr. Michael Mann, who taught at UVA from 1999 to 2005. While employed by UVA, Dr. Mann received a series of grants to fund his research on climate change.

Amidst allegations that some climate scientists had falsified data to indicate a dramatic upturn in the earth's surface temperatures as a result of the use of fossil fuels, the Attorney General launched a FATA investigation into the grants Dr. Mann received while employed by UVA. The Attorney General issued two CIDs pursuant to Code § 8.01–216.10(A), one to the University and one to its Rector and Visitors.* The content of the CIDs was identical. In relevant part, each CID provided:

This [CID] is issued in connection with an investigation by the Attorney General into possible violations by Dr. Michael Mann of §§ 8.01–216.3(A)(1), (2), and (3) of FATA. The investigation relates to data and other materials that Dr. Mann presented in seeking awards/grants funded, in whole or in part, by the Commonwealth of Virginia or any of its agencies as well as data, materials and communications that Dr. Mann created, presented or made in connection with or related to the following awards/grants.The CID then went on to list five grants, each of which was on Dr. Mann's curriculum vitae. Four of the grants were funded by the federal government and one was funded by UVA.

UVA petitioned the circuit court to set aside the CIDs, arguing, among other things, that the Attorney General had no statutory authority to serve CIDs upon agencies of the Commonwealth and that the CIDs were defective in that they failed to state the nature of the conduct alleged. The circuit court issued a letter opinion rejecting UVA's position that it was not subject to FATA investigations, finding that UVA is “a proper subject for a CID and the Attorney General may investigate grants made with Commonwealth of Virginia funds to professors such as Dr. Mann.” The circuit court also concluded, however, that the CIDs were unlawful because they failed to comply with FATA's requirement that CIDs “state the nature of the conduct constituting the alleged violation of [FATA] that is under investigation.” Code § 8.01–216.11. The circuit court therefore granted UVA's petition and set aside the CIDs, without prejudice.

The Attorney General appeals, asserting several assignments of error, and UVA assigns cross-error to the circuit court's conclusion that UVA constitutes a “person” under FATA and is thus subject to CIDs under the Act.

II. Discussion

We will first address UVA's assignment of cross-error because it is a dispositive threshold issue: if UVA is not a “person” under FATA, then it cannot be the proper subject of a CID, and the Court need not consider the Attorney General's assignments of error. See, e.g., DurretteBradshaw, P.C. v. MRC Consulting, L.C., 277 Va. 140, 142 n. *, 670 S.E.2d 704, 705 n. * (2009) (declining to address non-dispositive assignments of error where a dispositive assignment of error is addressed).

A. Standard of Review and Applicable Principles of Statutory Construction

Whether the University is a “person” under FATA is a question of statutory interpretation. As such, it ‘presents a pure question of law and is accordingly subject to de novo review by this Court.’ Warrington v. Commonwealth, 280 Va. 365, 370, 699 S.E.2d 233, 235 (2010) (quoting Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008)).

When construing a statute, our primary objective is ‘to ascertain and give effect to legislative intent,’ as expressed by the language used in the statute. Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011) (quoting Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010)) (internal quotation marks omitted). ‘When the language of a statute is unambiguous, we are bound by the plain meaning of that language.’ Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011) (quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)). And if the language of the statute ‘is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.’ Id. at 349–50, 706 S.E.2d at 862 (quoting Conyers, 273 Va. at 104, 639 S.E.2d at 178).

In evaluating a statute, moreover, we have said that “consideration of the entire statute ... to place its terms in context to ascertain their plain meaning does not offend the rule because ‘it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal.’ Eberhardt v. Fairfax County Employees' Retirement System Board of Trustees, 283 Va. 190, 194–95, 721 S.E.2d 524 (2012) (quoting Virginia Electric & Power Co. v. Board of County Supervisors, 226 Va. 382, 387–88, 309 S.E.2d 308, 311 (1983)). Thus, [a] statute is not to be construed by singling out a particular phrase.’ Id. at 195, 721 S.E.2d at 526 (quoting VEPCO, 226 Va. at 388, 309 S.E.2d at 311).

We apply these principles of statutory construction to the issue raised by UVA in its assignment of cross-error.

B. Definition of “Person” under FATA

Pursuant to FATA, the Attorney General may serve a CID upon “any person” whom he has “reason to believe ... may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigation.” Code § 8.01–216.10. For purposes of FATA, a “person” is defined as “any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust.” Code § 8.01–216.2. Because this definition does not specifically include the agencies of the Commonwealth, UVA contends that it is not a “person” under FATA and therefore is not subject to CIDs. Conversely, because the General Assembly has indicated elsewhere in the Code that UVA is a corporation, and this Court has so held, the Attorney General argues that the definition necessarily includes UVA. See Code § 23–69 (“The board of visitors of the University of Virginia shall be and remain a corporation.”); Phillips v. Rector & Visitors of the University of Virginia, 97 Va. 472, 475, 34 S.E. 66, 67 (1899) ([UVA,] from its foundation, has been wholly governed, managed, and controlled by the State through a corporation created for the purpose, under the style ‘The Rector and Visitors of the University of Virginia,’ which is a public corporation.”).

Because UVA is indeed a public corporation, and the term “corporation” can be found in the definition of a “person” under FATA, Code § 8.01–216.2, the circuit court ended its investigation at this juncture. We find that this conclusion ignored several significant reasons why “person” in Code § 8.01–216.2 cannot properly be read to include agencies of the Commonwealth.

1. Commonwealth Agencies and Statutes of General Applicability

It is well-settled law that Commonwealth agencies are not bound by statutes of general application no matter how comprehensive the language, unless named expressly or included by necessary implication.” Commonwealth ex rel. Pross v. Board of Supervisors of Spotsylvania County, 225 Va. 492, 494, 303 S.E.2d 887, 889 (1983) (emphasis added). This “ancient rule of statutory construction” has been “consistently applied by this Court for more than a century.” Id. See e.g., Whiteacre v. Rector, 70 Va. (29 Gratt.) 714, 716 (1878) (“It is old and familiar law ... that where a statute is general, and any ... interest is diverted or taken from the king, ... the king shall not be bound unless the statute is made by express words or necessary implication to extend to him.”); Levasser v. Washburn, 52 Va. (11 Gratt.) 572, 577 (1854) ([L]egislative acts are intended to regulate the acts and rights of citizens; and it is a rule of construction not to embrace the government or effect its rights by the general rules of a statute, unless it be expressly and in terms included or by necessary and unavoidable implication.”).

The Commonwealth has conceded that Code § 8.01–216.2 is a statute of general applicability. And we have consistently held that UVA is an arm or agency of the Commonwealth. Rector & Visitors of the University of Virginia v. Carter, 267...

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