FUCIARELLI v. McKINNEY Et Al.
333 Ga. App. 577
Ga. Ct. App.2015Background
- Alfred Fuciarelli, a tenured VSU faculty member and former administrator, alleged he was demoted and suffered reduced salary/benefits after reporting compliance concerns about VSU’s research administration.
- He sued the Board of Regents (and VSU), and two VSU officials (McKinney and Hull) alleging: (1) retaliation under the Georgia Taxpayer Protection Against False Claims Act (TPAFCA), OCGA § 23-3-122; and (2) public employee whistleblower retaliation under OCGA § 45-1-4.
- Defendants moved to dismiss; the trial court ordered supplemental briefing on whether plaintiff needed written pre‑filing approval from the Attorney General under OCGA § 23-3-122(b)(1).
- Plaintiff did not obtain Attorney General approval before filing. The trial court dismissed the TPAFCA retaliation claims for lack of that approval but allowed the OCGA § 45-1-4 claims to proceed.
- On interlocutory appeal, the court considered (1) whether the TPAFCA waives sovereign immunity for suits against the State/Board/officials in official capacity, and (2) whether Attorney General approval is required before bringing a TPAFCA retaliation claim against individuals in their personal capacities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TPAFCA § 23-3-122(1) permits retaliation suits against the State/Board/officials in official capacity (waiver of sovereign immunity) | Fuciarelli sought to proceed against governmental defendants under § 23-3-122(1) for retaliation | Defendants argued TPAFCA does not waive sovereign immunity and government entities/officials in official capacity are immune | Court: Sovereign immunity not waived; dismissal of governmental defendants affirmed |
| Whether a private plaintiff must get written Attorney General approval before filing a TPAFCA retaliation claim against officials in their individual capacities | Fuciarelli: retaliation claim is personal and does not require AG approval prior to filing | Defendants: OCGA § 23-3-122(b)(1) requires written AG approval for any civil action under the article, including retaliation claims | Court: AG approval is not required for the personal retaliation cause of action under § 23-3-122(1); dismissal of individual-capacity claims for lack of AG approval was error |
| Whether a private qui tam action under TPAFCA requires filing in the name of the State and is subject to AG control | Fuciarelli not pursuing a qui tam recovery; court analyzed statutory scheme | Defendants emphasize qui tam provisions that require AG approval and permit state intervention/control | Court: Qui tam actions differ from personal retaliation claims; AG approval requirement applies to actions brought in the name of the State, not to personal retaliation claims |
| Proper application of “right for any reason” rule on appeal | N/A | Defendants relied on immunity defenses preserved below | Court: Applied right-for-any-reason to affirm dismissal of governmental defendants because immunity issue was raised and plaintiff could respond |
Key Cases Cited
- Laskar v. Bd. of Regents of the Univ. System of Ga., 320 Ga. App. 414 (de novo review of motion to dismiss)
- McCobb v. Clayton County, 309 Ga. App. 217 (sovereign immunity threshold issue)
- Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593 (waiver of sovereign immunity requires express statutory language)
- Colon v. Fulton County, 294 Ga. 93 (implied waivers disfavored; waiver when statute creates action and permits money damages)
- Wilson v. Bd. of Regents of the Univ. System of Ga., 262 Ga. (state sovereign immunity extends to Board of Regents)
- Cameron v. Lang, 274 Ga. 122 (suits against officials in official capacity are suits against the state)
- Bonner v. Peterson, 301 Ga. App. 443 (burden on party claiming waiver of sovereign immunity)
- McCafferty v. Medical College of Ga., 249 Ga. 62 (institutions not separate from Board of Regents for suit)
- Bd. of Regents of the Univ. System of Ga. v. Doe, 278 Ga. App. 878 (same)
- City of Gainesville v. Dodd, 275 Ga. (right-for-any-reason rule)
- Craigo v. Azizi, 301 Ga. App. 181 (affirmance under right-for-any-reason)
- Anderson v. Jones, 323 Ga. App. 311 (affirmance if correct for any reason raised below)
- Stalley v. Orlando Reg’l Healthcare Sys., 524 F.3d 1229 (qui tam explanation)