Fuciarelli v. McKinney

• Decision Date: 16 July 2015
• Docket Number: No. A15A0223.,A15A0223.
• Parties: FUCIARELLI v. MCKINNEY et al.
• Court: Georgia Court of Appeals

333 Ga.App. 577

773 S.E.2d 852

FUCIARELLI

v.MCKINNEY et al.

No. A15A0223.

Court of Appeals of Georgia.

July 16, 2015.

Reconsideration Denied July 30, 2015.

Certiorari Granted Nov. 2, 2015.

Hornsby Law Group, David Brandon Hornsby, Graham Reese Scofield, for Appellant.

Annette M. Cowart, Christopher Andrew McGraw, Senior Asst. Attys. Gen., Samuel S. Olens, Atty. Gen., for Appellees.

Opinion

ELLINGTON, Presiding Judge.

The Superior Court of Fulton County dismissed claims brought by Alfred Fuciarelli under the Georgia Taxpayer Protection and False Claims Act (“the TPFCA”), OCGA § 23–3–120 et seq., on the ground that Fuciarelli lacked the required written approval of the Attorney General of the State of Georgia prior to bringing the claims, citing OCGA § 23–3–122(b)(1). Pursuant to a granted application for interlocutory appeal, Fuciarelli argues that the trial court erred in finding that his claims required the Attorney General's approval. For the reasons that follow, we affirm the judgment in part and reverse in part.

“We review a trial court's ruling on a motion to dismiss de novo, viewing all allegations in the complaint as true. Thus, we owe no deference to a trial court's ruling on questions of law and review such issues de novo under the ‘plain legal error’ standard of review.” (Citations and punctuation omitted.) Laskar v. Bd. of Regents of the Univ. Sys. of Ga., 320 Ga.App. 414, 740 S.E.2d 179 (2013). So viewed, the relevant facts are as follows.

Fuciarelli is employed by the Board of Regents of the University System of Georgia as a tenured faculty member at Valdosta State University (“VSU”). As he admits in his brief, he is a public employee. He served as an assistant vice president for research and as dean of the graduate school. In his roles as vice president and dean, Fuciarelli recommended that VSU implement an electronic research administration system to better manage its grants and research programs and their funding sources. Although VSU initially approved the system, it removed Fuciarelli as the system's budget manager and it later declined to fund the system. Fuciarelli complained to the administration about VSU's “noncompliance with laws, rules, and regulations,” he expressed concerns that VSU's lack of research administration tools exposed VSU to liability, and he complained about his exclusion from certain internal audits. Ultimately, VSU terminated Fuciarelli's contract as assistant vice president and dean, which ended his administrative duties. He remained a tenured faculty member, but his salary and benefits were reduced. Fuciarelli appealed VSU's decision to terminate his administrative duties to the Board of Regents, but the Board affirmed VSU's decision.

On July 11, 2013, after exhausting his administrative remedies, Fuciarelli filed a complaint asserting causes of action against these defendants: the Board of Regents, including its unit institution VSU;¹ William McKinney, in his individual capacity and in his official capacity as president of VSU; and Karla Hull, in her individual capacity and in her official capacity as the former acting vice president for Academic Affairs at VSU. Against each defendant, Fuciarelli asserted a claim for “False Claims Whistleblower Retaliation” under the TPFCA, citing OCGA § 23–3–122 ; and a claim for “Public Employee Whistleblower Retaliation,” citing OCGA § 45–1–4.²

The defendants moved to dismiss Fuciarelli's TPFCA claims, asserting, in pertinent part, that claims against McKinney and Hull in their official capacities and the Board of Regents are barred by sovereign immunity and that McKinney and Hull are not proper defendants to those claims in their individual capacities. After the parties had briefed these issues, the trial court issued an order directing the parties “to submit supplemental briefs on whether Fuciarelli must obtain written approval from the Attorney General [prior to bringing claims under the TPFCA] as required by OCGA § 23–3–122(b)(1).” Fuciarelli does not contend that he obtained the Attorney General's approval before filing his claims, and the record contains no evidence that he sought or was given that approval prior to filing the instant lawsuit.

On December 9, 2013, the trial court ruled, in pertinent part, that Fuciarelli's claims pursuant to OCGA § 23–3–122(l ) are barred by his failure to obtain written approval from the Attorney General. The trial court denied the defendants' motion to dismiss Fuciarelli's remaining claims brought pursuant to OCGA § 45–1–4, which prohibits retaliation against a public employee who discloses noncompliance with state law. On appeal, Fuciarelli contends that the trial court erred in dismissing his TPFCA claim on the basis that he lacked Attorney General approval, arguing that “a retaliation civil action belongs exclusively to the party bringing the claim and does not require Attorney General approval.”

1. Pretermitting whether there is any merit to Fuciarelli's argument with respect to the Board of Regents, VSU, and Hull and McKinney in their official capacities, the trial court nevertheless properly dismissed the OCGA § 23–3–122(l ) retaliation claims against these governmental defendants. As the defendants argued below in their original brief supporting their motion to dismiss in the trial court, the General Assembly did not intend for the state or any of its political subdivisions to be subject to retaliation claims brought pursuant to the TPFCA. Nothing in the TPFCA expressly or impliedly waives the government's immunity from suit. Consequently, we must affirm the trial court's order with respect to these defendants under the “right for any reason” rule.³

“Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue.” (Citations omitted.) McCobb v. Clayton County, 309 Ga.App. 217, 217–218(1)(a), 710 S.E.2d 207 (2011). Except as otherwise provided in the Georgia Constitution, “[t]he sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. 1983 Art. I, Sec. II, Par. IX (e). See Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 597–598(2), 755 S.E.2d 184 (2014). “In this regard, implied waivers of governmental immunity should not be favored.” (Citation and punctuation omitted.) Colon v. Fulton County, 294 Ga. 93, 95(1), 751 S.E.2d 307 (2013). The state's sovereign immunity extends to the Board of Regents. Wilson v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. 413, 414(3), 419 S.E.2d 916 (1992). And “[s]uits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity.” (Punctuation and footnote omitted.) Cameron v. Lang, 274 Ga. 122, 126(3), 548 S.E.2d 341 (2001). “The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver[.]” (Citation omitted.) Bonner v. Peterson, 301 Ga.App. 443, 687 S.E.2d 676 (2009). Fuciarelli cannot meet that burden.

The TPFCA does not expressly provide that it waives the state's sovereign immunity. Moreover, it does not set forth circumstances demonstrating an implied waiver of sovereign immunity. The TPFCA does not create a cause of action against the state nor does it provide that an aggrieved party may collect money damages from the state. See Colon v. Fulton County, 294 Ga. at 95–96(1), 751 S.E.2d 307.⁴ In fact, the thrust of the TPFCA is to authorize the State of Georgia, through the Attorney General or a designee, to bring civil actions to recoup losses that the state or a local government has suffered as a result of false claims presented to the state or a local government by others. For example, OCGA § 23–3–121(a) sets forth a scheme by which those who present false or fraudulent claims for public funds as defined by the TPFCA “shall be liable to the State of Georgia for a civil penalty of not less than $5,500.00 and not more than $11,000.00 for each false or fraudulent claim, plus three times the amount of damages which the state or local government sustains because of the act of such person.” (Emphasis supplied). To the extent that a private person may also bring such a claim, the TPFCA expressly provides that such a claim shall be in the government's name and with the government's approval.⁵ Moreover, under certain circumstances, the government has the right to intervene in the litigation, including the right to settle or dismiss the suit without the private person's consent. OCGA § 23–3–122(c). A private person's qui tam recovery in such a civil action is limited to a percentage of the proceeds paid to the government. OCGA § 23–3–122(h). And the “state or local government shall not be liable for expenses which a private person incurs in bringing a civil action under [the TPFCA].” OCGA § 23–3–122(k).

Considered within this context, we conclude that OCGA § 23–3–122(l ) (1) does not create a retaliation cause of action against the government such that sovereign immunity is waived. That Code section provides, in pertinent part:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of a civil action under this Code section or other efforts to stop one or more violations of this article [that is, the TPFCA].

OCGA § 23–3–122(l )(1) (emphasis supplied). This Code section clarifies that, in addition to any qui tam recovery, a whistleblower is also entitled...