ADAM AFZALL, AN INFANT, BY AND THROUGH HIS PARENTS AND NEXT FRIENDS, SOPHIA AFZALL AND STEPHEN AFZALL v. COMMONWEALTH OF VIRGINIA
Record No. 060767
COMMONWEALTH OF VIRGINIA
January 12, 2007
SENIOR JUSTICE HARRY L. CARRICO
Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and Agee, JJ., and Carrico, S.J.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Robert Wooldridge, Judge
By letter dated December 3, 2004, the Commonwealth claimed a lien for the amount DMAS paid for Adam‘s care. Adam‘s counsel computed the “Commonwealth‘s share” of Adam‘s expenses for legal fees and costs at $142,017.62 in obtaining the settlement.1
Adam, by his parents and next friends, then filed a motion for declaratory judgment against the Commonwealth, seeking a declaration that the “Commonwealth’s share” of his expenses for legal fees and costs in obtaining settlement of his negligence case should be deducted from the amount of the lien.
In support of his position, Adam cited a provision in the second paragraph of
The Commonwealth’s or such Department’s or institution’s lien shall be inferior to any lien for payment of reasonable attorney‘s fees and costs, but shall be superior to all other liens created by the provisions of this chapter and otherwise. Expenses for reasonable legal fees and costs shall be deducted from the total amount recovered.
Adam argued in the trial court that a plain reading of
Adam makes the same argument on appeal as he made in the trial court. However, for the first time, the Commonwealth interposes an argument that “[s]overeign immunity bars a declaratory judgment against the Commonwealth or its agencies.”
The Commonwealth concedes that it did not raise the doctrine of sovereign immunity in the trial court or in its brief in opposition to Adam‘s petition for appeal, but it asserts that the failure to raise the issue at an earlier time does not constitute the Commonwealth’s waiver of its sovereign immunity, citing Commonwealth v. Luzik, 259 Va. 198, 206-07, 524 S.E.2d 871, 877 (2000) (failure to assign cross-error to trial court‘s denial of claim of sovereign immunity cannot constitute waiver of claim). Adam does not question the timeliness of the Commonwealth’s argument concerning the doctrine of sovereign immunity, but he contends sovereign immunity does not apply in this case.
We agree that the Commonwealth can raise the defense of sovereign immunity for the first time on appeal because if sovereign immunity applies, the court is without subject matter jurisdiction to adjudicate the claim. Id. at 206-07, 524 S.E.2d at 876-77. “[0]nly the legislature acting in its policy-making capacity can abrogate the Commonwealth’s sovereign immunity.” Id. at 206, 524 S.E.2d at 876. A “‘waiver of immunity cannot be implied from general statutory language’” but must be “‘explicitly and expressly announced’” in the statute. Hinchey v. Ogden, 226 Va. 234, 241, 307 S.E.2d 891, 895 (1983) (quoting Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452, 457, 117 S.E.2d 685, 689 (1961)).
In the absence of such a waiver by the legislature, the courts of this Commonwealth do not have the necessary jurisdiction “to entertain [an] action.” Luzik, 259 Va. at 206, 524 S.E.2d at 877. Such subject matter jurisdiction cannot be waived by the Commonwealth or given to a court by agreement or inaction of the parties. Subject matter jurisdiction
can only be acquired by virtue of the Constitution or of some statute. Neither the consent of the parties, nor waiver, nor acquiescence can confer it. Nor can the right to object for a want of it be lost by acquiescence, neglect, estoppel or in any other manner. . . . and the want of such jurisdiction of the trial court will be noticed by this court ex mero motu.
Board of Supervisors v. Board of Zoning Appeals, 271 Va. 336, 344, 626 S.E.2d 374, 379 (2006) (quoting Humphreys v. Commonwealth, 186 Va. 765, 772-73, 43 S.E.2d 890, 894 (1947)).
“As a general rule, the Commonwealth is immune both from actions at law for damages and from suits in equity to restrain governmental action or to compel such action.” Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423, 455, 621 S.E.2d 78, 96 (2005). “[T]he doctrine of sovereign immunity serves a multitude of purposes including but not limited to protecting the public purse, providing for smooth operation of government, eliminating public inconvenience and danger that might spring from officials being fearful to act, assuring that citizens will be willing to take public jobs, and preventing citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.” Messina v. Burden, 228 Va. 301, 308, 321 S.E.2d 657, 660 (1984).
Sovereign immunity may also bar a declaratory judgment proceeding against the Commonwealth. Virginia Bd. of Med. v. Virginia Physical Therapy Ass’n, 13 Va. App. 458, 413 S.E.2d 59 (1991) (VBM I), aff‘d, 245 Va. 125, 427 S.E.2d 183 (1993) (VBM II). VBM I involved a bill of complaint for declaratory judgment filed by the Virginia Physical Therapy Association (the VPTA) against the Virginia Board of Medicine (the Board) for declaratory and injunctive relief against the enforcement of any rule prohibiting the use of electromyographic examinations by physical therapists.
The dispositive question before the Court of Appeals was whether “the circuit court had subject matter jurisdiction to hear the case.” Id. at 460, 413 S.E.2d at 61. The Court of Appeals determined that the jurisdiction issue turned on “the relationship between judicial review of the Board‘s actions and the doctrine of sovereign immunity.” Id. at 464, 413 S.E.2d at 63.
The Court of Appeals noted that in the Virginia Administrative Process Act (VAPA),
the General Assembly has waived sovereign immunity only to allow a party to obtain judicial review of the Board’s adoption of rules or the Board’s case decisions, as such are defined in the VAPA, in the manner provided in the VAPA. In short, the Board has consented to and may be sued only for its promulgation of a rule or its decision of a case, as both are defined in the VAPA. The VPTA’s right to bring a declaratory judgment action and in turn the court‘s jurisdiction to exercise jurisdiction over the action must be founded on the provisions of
Code § 9-6.14:16(A) and fall within the explicit and limited waiver of sovereign immunity contained in that Code section.2
Id. at 466, 413 S.E.2d at 64. The relief provided by then
The Court of Appeals noted that this Court in Kenley v. Newport News Gen. & Non-Sectarian Hosp. Ass’n, 227 Va. 39, 314 S.E.2d 52 (1984), had concluded that, as
The Court of Appeals stated that, “[i]n its present form,
This Court awarded VPTA an appeal “to consider the question whether the Court of Appeals erred in holding that the circuit court lacked subject matter jurisdiction.” We said that we had “considered this question and, for the reasons assigned by the Court of Appeals in its opinion, we will affirm its judgment.” VBM II, 245 Va. at 126, 427 S.E.2d at 184.
Adam argues that VBM I is distinguishable from the case at bar. He contends the only similarity between the two cases is that the plaintiffs in both filed for declaratory judgments and the Commonwealth was a party to both. Unlike the plaintiff in VBM I, Adam says, he does not “attempt to challenge the rules of a governmental agency or otherwise to interfere with governmental functions.” Nor, Adam continues, does he “attempt to improperly influence the conduct of governmental affairs through the threat or use of vexatious litigation or for damages against the government or to restrain or compel it to act.” What he has sought, Adam concludes, is “a judicial
We agree with the Commonwealth that VBM I governs the outcome of this case and is not distinguishable. The close similarity between this case and VBM I is that in each case the plaintiff seeks to compel the Commonwealth to take certain actions: in VBM I to refrain from enforcing a rule against the use of electromyographic examinations by physical therapists and in this case to require a reduction in the amount of the Commonwealth’s lien for payments made for Adam‘s treatment. Both would have the effect of interfering with governmental functions and, in Adam‘s case, the adverse effect upon “protecting the public purse.” Messina, 228 Va. at 301, 308, 321 S.E.2d at 660.
In any event, the ultimate question in this case is whether
We find nothing in the language of this paragraph of
Since sovereign immunity applies in this case, the trial court was without jurisdiction to adjudicate Adam‘s claim.
Dismissed and final judgment.