*1 et A15A0223. FUCIARELLI v. McKINNEY al. (773 S.E.2d Judge. Presiding Ellington, County Superior
The Court of Fulton dismissed claims Taxpayer Against by Alfred Fuciarelli under the Protection (“the TPAFCA”), seq., Act 23-3-120 et on the False Claims OCGA ground required the that Fuciarelli lacked of Georgia prior claims, General ofthe State (b) (1). granted application citing Pursuant to a interlocutory argues appeal, Fuciarelli that the trial court erred in finding required approval. that his For claims General’s judgment follow, and the reasons that part. we affirm the reverse ruling novo, “Wereview a trial court’s on a motion to dismiss de viewing allegations all in the as true. we owe no ruling questions deference to a trial court’s on of law and review such ‘plain legal issues de novo under the error’ standard of review.” (Citations punctuation omitted.) Regents and Laskar Bd. of System Ga., So Univ. viewed, the relevant facts are as follows. Regents University employed
Fuciarelli is the Board of faculty System Georgia as a tenured member at Valdosta State public employee. University (“VSU”). brief, he admits in he is a As his president an vice for research and as dean of He served as assistant graduate president dean, Fuciarelli school. his roles as vice implement an electronic research adminis- recommended that VSU system manage grants programs tration to better its research funding Although initially approved and their sources. VSU system, system’s budget manager and it it removed Fuciarelli as the system. complained declined to fund the Fuciarelli later “noncompliance laws, rules, administration about VSU’s regulations,” expressed he concerns that VSU’s lack research complained exposed liability, and he administration tools VSU to Ultimately, audits. VSU about his exclusion from certain internal president dean, vice terminated Fuciarelli’s contract as assistant duties. He remained a tenured which ended his administrative faculty salary member, and benefits were reduced. Fuciarelli but his appealed administrative duties to VSU’sdecision to terminate his Regents, but affirmed VSU’s decision. Board of the Board July exhausting remedies, 11, 2013, his administrative On after complaint asserting these causes of action Fuciarelli filed a Regents, including its unit institution defendants: the Board of McKinney, capacity VSU;1William in his individual and in his official capacity president VSU; Hull, and Karla in her individual capacity capacity acting presi- and in her official as the former vice Against defendant, dent for academic at affairs VSU. each Fuciarelli asserted a claim for “False Claims Whistleblower Retaliation” under citing TPAFCA, 23-3-122; the ployee and a claim for “Public Em- citing Retaliation,” Whistleblower OCGA 45-1-4.2 *2 The defendants moved to dismiss claims, Fuciarelli’s TPAFCA asserting, pertinent part, against McKinney that claims and Hull capacities Regents by in their official and the Board of are barred sovereign immunity McKinney proper and that and Hull are not capacities. defendants to those claims in their individual After the parties issues, had briefed these the trial court issued an order directing parties supplemental “to submit briefs on whether approval Attorney Fuciarelli must obtain written from the General [prior bringing required by to claims under the TPAFCA]as OCGA (b) (1).” Fuciarelli does not contend that he obtained the Attorney approval filing claims, General’s before his and the record sought given approval prior contains no evidence that he or was that filing to the instant lawsuit. pertinent part, 9,2013,
On December ruled, pursuant by Fuciarelli’s claims to OCGA § 23-3-122 are barred his Attorney failure to obtain written from the General. The trial court denied the defendants’ motion to dismiss Fuciarelli’s remaining brought pursuant prohib- claims 45-1-4, which against public employee noncompli- its retaliation a who discloses appeal, ance with state law. On Fuciarelli contends that the trial dismissing court erred in his TPAFCAclaim on the basis that he lacked approval, arguing General that “a retaliation civil action behalf of or for the punctuation omitted; emphasis against the administration funds in However, claim. In a unclear quam pro seipso, research in individual member Fuciarelli’s cannot be sued. See 1229, 1233 (1982), 85) (2006) (both holding [1] VSU is not The Bd. and from the many gist qui (II) Stalley offending party. See, e.g., is clear that Fuciarelli tarn of its (11th a which means ‘he who as much for the Fuciarelli’s Regents benefit of a action, separate about those sponsored McCafferty Cir. Fla. management institutions). that the private or distinct whether a the Univ. 2008) (“ complaint appears [research] matters, power v. Medical original). is tools, individual ‘Qui to sue and be sued is vested in the Board of System legal entity false claim was submitted to the State of pursuing was at risk of had misused or the administration programs,” tarn’ is an abbreviation for College v. Orlando participates Ga. v. to be that a from the Board of receive all or qui and that when Fuciarelli Ga., Doe, Regional tarn action based king in a 249 Ga. retaliated VSU, as for himself.’ prosecution Healthcare App. qui declining Regents “misusing government by demoting any penalty imposed tam upon or a civil action on System, pro ”) (citation n. 1 and, a complained specific Regents, domino implement SE2d therefore, him. It is Georgia. 524 F3d SE2d false 171) rege not and does not exclusively party bringing claim belongs approval.” General require merit Pretermitting any argu- whether there is to Fuciarelli’s
1. VSU, Hull and respect Regents, to the Board of ment with capacities, in their official the trial court nevertheless McKinney 23-3-122(1) retaliation claims properly dismissed OCGA § argued defendants. As the defendants below in governmental these their brief their motion to dismiss the trial original supporting court, Assembly any did not intend for the state or of its General subject subdivisions to be to retaliation claims political expressly impliedly to the TPAFCA. in the TPAFCA pursuant Nothing immunity Consequently, from suit. we must government’s waives to these defendants under respect affirm the trial court’s order with “right reason” rule.3 law, immunity immunity is an from Georgia sovereign “Under and, therefore, suit, liability, than a mere defense to whether rather immunity defendant has waived its is a governmental sovereign County, McCobb v. Clayton omitted.) (Citations threshold issue.” (2011). Except (1) (a) (710 Ga. 217-218 Constitution, provided otherwise “[t]he can be immunity departments agencies only of the state and its Assembly specifically provides waived an Act of the General which *3 the extent of such sovereign immunity thereby waived and Dept. See Ga. I, II, 1983, (e). Art. Sec. Par. IX waiver.” Ga. Const. Coast, Natural Resources v. Center a Sustainable 593, 294 Ga. for “In waivers of (2) (755 184) (2014). regard, implied 597-598 SE2d this (Citation punc not be favored.” governmental immunity should 93, 95 County, Colon v.Fulton (751 SE2d omitted.) tuation 294 Ga. (2013). sovereign immunity The state’s extends to the Board of 307) v. the Univ. Regents System of Ga., Wilson Bd. of 262 Ga. Regents. 413, (419 (1992). against public 414 SE2d And 916) “[s]uits are in the employees capacities reality against in their official suits and, therefore, immunity.” (Punctuation and state involve 3 any reviewing Georgia appellate may apply “right the for reason” rule when de courts Dodd, 834, 835 (573 369) (2002) judgments. City v. 275 SE2d novo certain Gainesville Ga. rule, (“Under ‘right any appellate judgment if it is correct the for reason’ an court will affirm a reason, any upon for relied.”) (citation omitted). even if that reason is different than the reason which Azizi, (3) (687 198) Craigo App. 187 SE2d See also 301 Ga. rule). summary judgment (2009) (dismissal right any A affirmed under for reason reason, any right in the trial court’s “must he affirmed if it is order, for whether stated or unstated long fair the the in the trial court and the nonmovant had a so as movant raised issue 311, 312, Jones, App. (745 787) (2013). opportunity respond.” 323 Ga. n. 2 SE2d Anderson v. presented sovereign immunity in defendant’s motion to dismiss and Because the issue of was “right opportunity respond, application of the reason” because Fueiarelli had an Williamson, (553 appropriate. SE2d rule is See Abellera v. 274 Ga. 326 omitted.) Lang, footnote Cameron v. SE2d 341) party (2001). seeking “The to benefit from the waiver sover- eign immunity proof (Cita- waiver[.]” has the burden of to establish omitted.) Peterson, Bonner v. tion Ga.
(2009). Fuciarelli cannot meet that burden. provide expressly
The TPAFCAdoes not
that it
waives
state’s
sovereign immunity. Moreover, it does not set forth circumstances
demonstrating
implied
sovereign immunity.
an
waiver of
The TPAFCA
against
provide
does
create a cause of action
the state nor does it
aggrieved party may
money damages
that an
collect
from the state.
County,
(l).4
fact,
See Colon v. Fulton
To the extent that a
bring
expressly provides
claim,
also
such a
the TPAFCA
that such
government’s
government’s
a claim shall be in the
approval.5
name and with the
government
Moreover,
circumstances,
under certain
right
litigation, including
right
has the
to intervene in the
to settle
private person’s
or dismiss the suit without the
consent. OCGA
(c).Aprivate person’s qui
recovery
tarn
in such a civil action
percentage
proceeds paid
government.
is limited to a
(h).
government
OCGA 23-3-122 And the “state or local
shall not be
4 By comparison,
Supreme
Assembly,
Court of
concluded that the General
enacting
45-1-4,
against public employees,
which authorizes certain
retaliation claims
sovereign immunity.
waived
The court reasoned:
[W]here,
here,
Legislature
specifically
right
has
created a
of action
government
by sovereign immunity,
that would otherwise be barred
and has
expressly
aggrieved party
money
further
stated that an
is entitled to collect
damages
from the
in connection with a
claim
successful
under the
*4
statute,
Legislature
sovereign
there can be no doubt that the
intended for
immu-
nity
respect
specific
to be waived with
to the
claim authorized under the statute.
County,
(1).
Colon Fulton
Any employee, or shall be entitled to agent contractor, necessary all relief to make that or employee, contractor, whole if that or agent employee, agent dis- demoted, threatened, harassed, in charged, suspended, other manner discriminated in the against terms and conditions of because of employment lawful acts done or associated others contractor, employee, agent, further- ance a civil action under this Code section or other efforts stop [the TPAFCA]. one or more violations of (1)(1) (emphasis supplied). OCGA 23-3-122 This Code section clari- § that, any qui recovery, fies addition to tarn a whistleblower is also entitled to all the relief be necessary entity to made whole from the TPAFCA, that retaliated him or her. In the context against but, rather, entity governmental entity, firm, is not the the “person, corporation, responsible or other the false legal entity” submitting claim to “the state or local 23-3-120 government.” OCGA § (defining claim); OCGA 23-3-121 those who be (defining submitting claim).6 liable for a false OCGA 23-3-122 Construing (1) (1) to allow a retaliation claim would be against government contrary purpose law enforcement which is to reasons, recoup public funds.7 For these we hold that the General did Assembly sovereign immunity not waive the state’s when it enacted the did Consequently, TPAFCA. not err Fuciarelli’s retaliation claim made to OCGA dismissing pursuant against governmental defendants. court, however, dismissing 2. The trial erred in Fuciarelli’s McKinney retaliation claims Hull and 23-3-122(1) OCGA § TPAFCA] policy be claims directed at the General or local ment.” described as those broadly 7 See, See also OCGA of this state that (Emphasis supplied.) e.g., construed and combating having public’s funds.”). §§ private persons 23-3-124, pertaining fraud and false claims directed at the applied submitted “a false or fraudulent such information and promote (6) (“To be authorized to take actions to to venue of TPAFCA civil actions. Defendants effectuate the law enforcement public’s evidence.”); interest claim to the state or local public’s combating provide (b) (The funds, purposes fraud and false TPAFCA it is the govern public “shall [the *5 capacities ground their individual on the that Fuciarelli failed to Attorney approval prior filing alleging obtain General to his suit Attorney approval retaliation claims under the TPAFCA. General required personal plaintiff. claims, for retaliation which are to the provides: “Subject The TPAFCA to the exclusions set forth in may [OCGA§ 23-3-122], a civil action under this article also be brought by private person upon Attorney a (emphasis supplied). The General.” OCGA use of the word “article” in this context was intended to embrace civil brought government; applying actions the name of to retaliation intended claims was not and would lead to absurd results. construing goal statute, our is to determine its legislative purpose. regard, In this a court must first focus on meaning text. In order statute’s to discern of the statute, words of a the reader must look at the context remembering written, which the statute was at all times meaning that the aof sentence be more than that of the separate melody words, as a is more than the notes. If the plain capable having statute, however, words of a are and meaning, produce any impracti- absurd, but one and do not contradictory cal, results, then this Court is bound to meaning If, hand, followthe of those words. on the other ambiguous, words of the statute are then this Court must keeping purpose construe the in mind the remedy.” law, evil, statute and “the old and the (a). (Punctuation emphasis omitted.) Corp. Davis, Rite-Aid 522, (b) (1),
In the context of OCGA 23-3-122 the “civil action” referenced is an action “in the name of the State of government[.]” provides that, or local Id. This Code section approval, private person “may bring General also” such a exception general claim. the subsection is itself an to the rule only governments may prosecute TPAFCA claims. The subsec- apply prerequisite Attorney tion is intended to General private person brings action under the TPAFCA that a in the government. name of the for the benefit of the Retalia- personal plaintiff claims, however, tion and are meant to proper plaintiffs necessary afford with all relief them make whole. required Because Fuciarelli was not to obtain the General’s approval prior filing action, his TPAFCAretaliation McKinney dismissing Fuciarelli’s claims Hull and erred capacities. their individual part. Judgment Barnes, J., and reversed in P. affirmed J., Phipps, fully McFadden, J., P. concurs in Division 1 concur. fully specially Ray Dillard,
and concurs Division 2. fully McMillian, JJ., 2. concur in Division and dissent in Division Judge, fully. concurring MCFADDEN, fully opinion. majority separately I concur in the I write as to emphasize majority’s Division 2 to that the construction OCGA majority 23-3-122 correctly is faithful to the text of the statute. As the personal
holds, subsection creates a cause ofaction that is *6 plaintiff, to the distinct from the cause of action addressed in the rest subject requirement 23-3-122, § of OCGA and not to the notice of (b). § OCGA 23-3-122 implies simply presented syllo-
The dissent that we are with a gism merely unpalat- that “could not be more clear” and leads to an contrary question dissent, But the is able result. the before us controlling there is a under whether distinction between actions — (1) personal subsection of which § OCGA 23-3-122 plaintiff- — n and other civil actions under that Code section as a whole — which are on behalf of the state. The text of the statute does draw controlling. (1) distinction, § such a and it is OCGA 23-3-122 is distinct from the rest of 23-3-122 and is distinct § OCGA likewise part. from the rest of the article of which that statute is a Chapter article, That Title Article deals with false or governments. fraudulent claims made state and local “Claim”). (defining § § OCGA 23-3-120 That OCGA procedures 23-3-122, addresses the civil actions under explained argument, Article 6. As the Solicitor-General at oral “The purpose moneys.” th[at] of statute is to recover state (1), lengthy
But § the final subsection of a stat- repeat- type ute, addresses a distinct of action. The subsection refers edly to an under related to “action this subsection” and sets out rules distinguishing actions, under such them from an “action this Code section,” as a whole. significant (1)distinguishes
It is that text subsection “an the action under this subsection” “a civil action under this Code from note, “where the section.” As Justice Scalia and Professor Garner place, materially in and a different document has used one term one presumption another, the different denotes a term the is that term Bryan Reading Garner, different idea.”Antonin Scalia & A. Law: The Interpretation Legal (Presumption Usage) Texts 170 of Consistent (1st 2012). (1)explains relationship And ed. subsection between A under these two different ideas. cause of action subsection arises person consequence retaliation when a suffers “lawful acts done ... furtherance of a civil action under this Code section” as a (1)(1). § whole. OCGA phrase §
It is true that 23-3-122 also uses the “civilaction OCGA (a), (b)(emphasis supplied). under this article.” But point usage that the civil actions authorized subsec- (a) purpose vindicating tions are for the throughout Consequently the article. interests addressed the subse- quent throughout [s] references the statute to “action under this Code type majority notes, section” refer to the same actions. As there reading. nois other sensible analysis
This is reinforced the rule that Scalia and Garner call Scope-of-Subparts provides, Canon, which “material contained in following preceding unindented text relates to all the indented subparts.” supra, (b), Garner, Scalia & at 156. Neither subsection requirement, which contains the notice They nor subsection is indented. equal statutory are of rank structure. Judge, concurring part. dissenting DlLLAED,
Although fully
majority’s opinion
I
concur in the
as to Division 1
seq.
that
immunity,
OCGA 23-3-120 et
does not waive the state’s
agree
majority’s holding
I do not
in Division 2. To
contrary,
plain language
(b) (1)unequivo-
the
cally requires
of OCGA 23-3-122
bring
General to
(1).
respectfully
claim
retaliation
under OCGA 23-3-122
I
majority opinion.
dissent as to this division of the
*7
interpreting any
necessarily begin
analysis
statute,
we
our
binding
considering
with familiar and
the
canons of construction. And in
meaning
charge
appellate
of a
our
as an
court is to
“presume
Assembly
that the General
meant what it said and said
statutory
plain
what it meant.”8
we must afford the
text its
and
ordinary meaning,9
contextually,10
consider the text
read the text “in
Martinez v.
plain meaning
ism,
Bryan
2247,
and
149) (2013) (“A judge
ordinary
[9]
[10]
[8]
in its
Deal v.
186 LE2d
A.
See Arizona v. Inter Tribal Council
Garner,
Deal,
purest form, begins
State,
Coleman,
meaning.”
of the text at issue
585 an way, ordinary speaker its most natural and reasonable 11 would,”* to “avoid a construction that English language seek mere language surplusage.”12 Importantly, makes some when language plain susceptible only of a statute one natural and construction, reasonable courts must “construe the statute accordi ngly.”13
Here, plain meaning (b) (1) of OCGA 23-3-122 could not be § a civil action under Article 6 bringing (Taxpayer more clear. Prior to Against Claims) Chapter (Equitable Protection False 3 Remedies Proceedings to Title 23 of the Official Generally) (Equity) Code Georgia, private person approval must obtain written from the Attorney General: a civil
Subject section, to the exclusions set forth this Code action under this article may brought by private also be upon written person Attorney General. A civil action shall be in the name of the State of government, or local as applicable. The civil action only be dismissed if the Attorney gives General written consent to the dismissal the reasons for to stating consenting such dismissal and the court enters an order approving dismissal.14
And in judice, the case sub Fuciarelli did not obtain approval from the General before his claim under OCGA § and, (l)15 accordingly, properly dismissed his action.
however, by
(punctuation omitted)); Deal,
surroundings.”
(1) (a) (“[W]e
their
Judge gamely attempts McFadden to rehabilitate Division 2 of majority opinion, convincing but these efforts are no more than majority’s refashioning plain meaning statute. The (b) (1) abundantly require- makes clear that the imposed private person” “a ment on to obtain “written prior initiating General” a “civilaction under this article” exactly says, statutory requirement applies means what it that this entirety statutory (i.e., Chapter 23, 3, theof article Title Article 6). Try might, simply justification Judge as he there is no textual for McFadden’s assertion that “OCGA 23-3-122 is . . . distinct from part,” the rest of the article of which that statute is a when (b) (1) explicitly opposite. states the exact fully majority I while concur with the I Division respectfully foregoing because, dissent from Division 2 for all of the properly granted reasons, the trial court the defendants’ motion to dismiss. Judge Ray Judge
I am authorized to state that McMillian join opinion concurring dissenting part. in this — July Decided — July denied
Reconsideration Hornsby Group, Hornsby, Law D. Brandon Graham R. Scofield, appellant. for Olens, General, Cowart,
Samuel S. Annette M. Christo- pher Attorneys appellees. McGraw, A. General, Senior Assistant for
A15A0297. STEPHENS et al. v. ZIMMERMAN. S.E.2d Ray, Judge. mayor City
Joshua Zimmerman sued the and the aldermen theof (the “City”) Stephens, police of Savannah and Samantha officer/ Metropolitan detective trainee with the Savannah-Chatham Police Department, raising imprisonment, State law claims of false false prosecution. arrest, and malicious He amended his allege a violation of 42 USC 1983. These claims arise from Zimmer- wrongfully prosecuted man’s contention that he was arrested employment discriminated in the terms and conditions of because of lawful acts done contractor, employee, agent, or associated others furtherance of a civil action under stop article.”). this Code section or other efforts to one more violations of this