Olvera v. University System of Georgia's Board of Regents
298 Ga. 425
| Ga. | 2016

Background

  • A group of noncitizen college students and DACA beneficiaries (including Olvera) sued the University System of Georgia Board of Regents seeking a declaratory judgment that they qualify for in‑state tuition as "lawfully present" under the Board's residency verification requirement.
  • Plaintiffs alleged the Board's policy manual required verification of lawful presence but did not define "lawful presence," and the Board refused to confer in‑state status to DACA beneficiaries.
  • The Board moved to dismiss on grounds of sovereign immunity; the trial court granted dismissal, and the Court of Appeals affirmed.
  • The Supreme Court of Georgia considered whether sovereign immunity bars this type of declaratory judgment action and whether OCGA § 50‑13‑10 (APA) waives immunity for the students' claim.
  • The Court assumed (without deciding) the Board might be subject to the APA but found the challenged residency requirement was an interpretive policy (not a rule promulgated under the APA) and therefore § 50‑13‑10 did not waive sovereign immunity.
  • The Court affirmed dismissal, noting plaintiffs could still seek relief against officials in their individual capacities (subject to qualified immunity defenses).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether sovereign immunity bars declaratory judgment against the Board for interpretation of an internal residency policy Olvera: DACA makes them "lawfully present" and the Board's failure to define/recognize that status injures their rights; § 50‑13‑10 allows declaratory challenges to agency rules Board: Sovereign immunity protects the Board; the challenged residency requirement is not an APA rule and § 50‑13‑10 does not waive immunity Held: Sovereign immunity bars the action; dismissal affirmed
Whether OCGA § 50‑13‑10 (APA) waives sovereign immunity for this claim Olvera: § 50‑13‑10 permits declaratory judgments to determine validity of rules that impair legal rights, so it waives immunity here Board: The residency requirement is an interpretive policy, not a formally promulgated rule under the APA, so § 50‑13‑10 does not apply Held: § 50‑13‑10 does not waive immunity because the residency requirement is an interpretive rule not subject to § 50‑13‑10
Whether the Board issued residency requirements pursuant to the APA Olvera: Implied that Board policy constitutes a rule for APA purposes Board: The Board never promulgated the residency rule under the APA; policy is internal interpretation Held: The Board never issued the residency requirements as an APA rule; they are interpretive policies
Available remedy if sovereign immunity bars suit against the Board Olvera: (not pursued below) seek declaratory relief against the Board Board: Plaintiffs must sue officers in their individual capacities if alleging unlawful conduct Held: Plaintiffs may seek relief against officers individually (subject to qualified immunity), but sovereign immunity bars the present suit against the Board

Key Cases Cited

  • Georgia Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593 (Ga. 2014) (explaining breadth of sovereign immunity and that only legislature may waive it)
  • Pollard v. Board of Regents of Ga., 260 Ga. 885 (Ga. 1991) (Board of Regents is a state agency subject to sovereign immunity)
  • Wilson v. Board of Regents, 262 Ga. 413 (Ga. 1992) (same)
  • Roy E. Davis & Co. v. Dept. of Revenue, 256 Ga. 709 (Ga. 1987) (distinguishing interpretive rules from rules subject to APA's procedural requirements)
  • Georgia Oilmen’s Ass’n v. Dept. of Revenue, 261 Ga. App. 393 (Ga. Ct. App. 2003) (policy interpretation not a rule within § 50‑13‑10)
  • Gilbert v. Richardson, 264 Ga. 744 (Ga. 1994) (1991 constitutional amendment confers waiver authority solely to legislature)
  • Woodard v. Laurens County, 265 Ga. 404 (Ga. 1995) (waiver of sovereign immunity is legislative grace)
  • IBM v. Evans, 265 Ga. 215 (Ga. 1995) (discussing remedies against officers and interaction of immunities)
  • Thomasville v. Shank, 263 Ga. 624 (Ga. 1993) (constitutional limits on sovereign immunity for takings)
  • Tompkins v. Board of Regents, 262 Ga. 208 (Ga. 1992) (assuming without deciding Board's APA status)
  • Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 (Ga. 2014) (prior practice of pretermitting sovereign immunity question)
  • Jenkins v. Walker, 287 Ga. 783 (Ga. 2010) (similar procedural context)
  • Georgia Council of Professional Archeologists v. Board of Regents, 271 Ga. 757 (Ga. 1999) (similar context regarding Board and declaratory actions)
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