PRESENT: All the Justices
KENNETH T. CUCCINELLI, II, IN HIS CAPACITY AS ATTORNEY GENERAL OF VIRGINIA OPINION BY v. Record No. 102359 JUSTICE LEROY F. MILLETTE, JR. March 2, 2012 RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge Designate
The threshold issue in this case is whether the University
of Virginia is a "person" under the Virginia Fraud Against
Taxpayers Act (FATA or Act), Code §§ 8.01-216.1 through -
216.19. For the reasons that follow, we conclude that it is
not.
I. Background
This case arises from two Civil Investigative Demands
(CIDs) issued to the University of Virginia and the Rector and
Visitors of the University of Virginia (collectively, UVA) by
Attorney General Kenneth T. Cuccinelli, II, pursuant to FATA.
The CIDs sought information relating to the research of climate
scientist Dr. Michael Mann, who taught at UVA from 1999 to
2005. While employed by UVA, Dr. Mann received a series of
grants to fund his research on climate change.
Amidst allegations that some climate scientists had
falsified data to indicate a dramatic upturn in the earth's
1 surface temperatures as a result of the use of fossil fuels,
the Attorney General launched a FATA investigation into the
grants Dr. Mann received while employed by UVA. The Attorney
General issued two CIDs pursuant to Code § 8.01-216.10(A), one
to the University and one to its Rector and Visitors. * The
content of the CIDs was identical. In relevant part, each CID
provided:
This [CID] is issued in connection with an investigation by the Attorney General into possible violations by Dr. Michael Mann of §§ 8.01- 216.3(A)(1), (2), and (3) of FATA. The investigation relates to data and other materials that Dr. Mann presented in seeking awards/grants funded, in whole or in part, by the Commonwealth of Virginia or any of its agencies as well as data, materials and communications that Dr. Mann created, presented or made in connection with or related to the following awards/grants.
The CID then went on to list five grants, each of which was on
Dr. Mann's curriculum vitae. Four of the grants were funded by
the federal government and one was funded by UVA.
UVA petitioned the circuit court to set aside the CIDs,
arguing, among other things, that the Attorney General had no
statutory authority to serve CIDs upon agencies of the
Commonwealth and that the CIDs were defective in that they
failed to state the nature of the conduct alleged. The circuit
* At oral argument, counsel for both sides agreed that, for the purposes of this case, the entities were one and the same; Deputy Attorney General Wesley G. Russell, Jr., explained that UVA had been served with process under both titles merely to be thorough and avoid error. 2 court issued a letter opinion rejecting UVA's position that it
was not subject to FATA investigations, finding that UVA is "a
proper subject for a CID and the Attorney General may
investigate grants made with Commonwealth of Virginia funds to
professors such as Dr. Mann." The circuit court also
concluded, however, that the CIDs were unlawful because they
failed to comply with FATA's requirement that CIDs "state the
nature of the conduct constituting the alleged violation of
[FATA] that is under investigation." Code § 8.01-216.11. The
circuit court therefore granted UVA's petition and set aside
the CIDs, without prejudice.
The Attorney General appeals, asserting several
assignments of error, and UVA assigns cross-error to the
circuit court's conclusion that UVA constitutes a "person"
under FATA and is thus subject to CIDs under the Act.
II. Discussion
We will first address UVA's assignment of cross-error
because it is a dispositive threshold issue: if UVA is not a
"person" under FATA, then it cannot be the proper subject of a
CID, and the Court need not consider the Attorney General's
assignments of error. See, e.g., DurretteBradshaw, P.C. v. MRC
Consulting, L.C., 277 Va. 140, 142 n.*, 670 S.E.2d 704, 705 n.*
(2009) (declining to address non-dispositive assignments of
error where a dispositive assignment of error is addressed).
3 A. Standard of Review and Applicable Principles of Statutory Construction
Whether the University is a "person" under FATA is a
question of statutory interpretation. As such, it " 'presents
a pure question of law and is accordingly subject to de novo
review by this Court.' " Warrington v. Commonwealth, 280 Va.
365, 370, 699 S.E.2d 233, 235 (2010) (quoting Jones v.
Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008)).
When construing a statute, our primary objective is " 'to
ascertain and give effect to legislative intent,' " as
expressed by the language used in the statute. Commonwealth v.
Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011) (quoting
Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118
(2010)) (internal quotation marks omitted). " 'When the
language of a statute is unambiguous, we are bound by the plain
meaning of that language.' " Kozmina v. Commonwealth, 281 Va.
347, 349, 706 S.E.2d 860, 862 (2011) (quoting Conyers v.
Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639
S.E.2d 174, 178 (2007)). And if the language of the statute
" 'is subject to more than one interpretation, we must apply
the interpretation that will carry out the legislative intent
behind the statute.' " Id. at 349-50, 706 S.E.2d at 862
(quoting Conyers, 273 Va. at 104, 639 S.E.2d at 178).
4 In evaluating a statute, moreover, we have said that
"consideration of the entire statute . . . to place its terms
in context to ascertain their plain meaning does not offend the
rule because 'it is our duty to interpret the several parts of
a statute as a consistent and harmonious whole so as to
effectuate the legislative goal.' " Eberhardt v. Fairfax
County Employees' Retirement System Board of Trustees, 283 Va.
190, 194-95, ___ S.E.2d ___, ___ (2012) (quoting Virginia
Electric & Power Co. v. Board of County Supervisors, 226 Va.
382, 387-88, 309 S.E.2d 308, 311 (1983)). Thus, " '[a] statute
is not to be construed by singling out a particular phrase.' "
Id. at 195, ___ S.E.2d at ___ (quoting VEPCO, 226 Va. at 388,
309 S.E.2d at 311).
We apply these principles of statutory construction to the
issue raised by UVA in its assignment of cross-error.
B. Definition of "Person" under FATA
Pursuant to FATA, the Attorney General may serve a CID
upon "any person" whom he has "reason to believe . . . may be
in possession, custody, or control of any documentary material
or information relevant to a false claims law investigation."
Code § 8.01-216.10. For purposes of FATA, a "person" is
defined as "any natural person, corporation, firm, association,
organization, partnership, limited liability company, business
or trust." Code § 8.01-216.2. Because this definition does
5 not specifically include the agencies of the Commonwealth, UVA
contends that it is not a "person" under FATA and therefore is
not subject to CIDs. Conversely, because the General Assembly
has indicated elsewhere in the Code that UVA is a corporation,
and this Court has so held, the Attorney General argues that
the definition necessarily includes UVA. See Code § 23-69
("The board of visitors of the University of Virginia shall be
and remain a corporation."); Phillips v. Rector & Visitors of
the University of Virginia, 97 Va. 472, 475, 34 S.E. 66, 67
(1899) ("[UVA,] from its foundation, has been wholly governed,
managed, and controlled by the State through a corporation
created for the purpose, under the style 'The Rector and
Visitors of the University of Virginia,' which is a public
corporation.").
Because UVA is indeed a public corporation, and the term
"corporation" can be found in the definition of a "person"
under FATA, Code § 8.01-216.2, the circuit court ended its
investigation at this juncture. We find that this conclusion
ignored several significant reasons why "person" in Code
§ 8.01-216.2 cannot properly be read to include agencies of the
Commonwealth.
1. Commonwealth Agencies and Statutes of General Applicability
6 It is well-settled law that Commonwealth agencies are not
bound by statutes of general application "no matter how
comprehensive the language, unless named expressly or included
by necessary implication." Commonwealth ex. rel. Pross v.
Board of Supervisors of Spotsylvania County, 225 Va. 492, 494,
303 S.E.2d 887, 889 (1983) (emphasis added). This "ancient
rule of statutory construction" has been "consistently applied
by this Court for more than a century." Id. See, e.g.,
Whiteacre v. Rector, 70 Va. (29 Gratt.) 714, 716 (1878) ("It is
old and familiar law . . . that where a statute is general, and
any . . . interest is diverted or taken from the king, . . .
the king shall not be bound unless the statute is made by
express words or necessary implication to extend to him.");
Levasser v. Washburn, 52 Va. (11 Gratt.) 572, 577 (1854)
("[L]egislative acts are intended to regulate the acts and
rights of citizens; and it is a rule of construction not to
embrace the government or effect its rights by the general
rules of a statute, unless it be expressly and in terms
included or by necessary and unavoidable implication.").
The Commonwealth has conceded that Code § 8.01-216.2 is a
statute of general applicability. And we have consistently
held that UVA is an arm or agency of the Commonwealth. Rector
& Visitors of the University of Virginia v. Carter, 267 Va.
242, 245, 591 S.E.2d 76, 78 (2004) (referring to UVA as an
7 agency of the Commonwealth); James v. Jane, 221 Va. 43, 51, 282
S.E.2d 864, 868 (1980) (noting that UVA is an "agency of the
Commonwealth of Virginia . . . entitled to the protection of
the immunity of the state."). The same is true of other state
universities. See, e.g., George Mason University v. Floyd, 275
Va. 32, 37, 654 S.E.2d 556, 558 (2008). Other courts have
agreed with our construction. See, e.g., Wilson v. University
of Virginia, 663 F. Supp. 1089, 1092 (W.D. Va. 1987) ("It
cannot be disputed that the University of Virginia is an arm of
the state entitled to eleventh amendment protection."). The
Virginia Administrative Code also lists UVA as an
administrative agency. 8 VAC 85. Finally, the consistent
position of the Attorney General's opinions has been that state
universities are Commonwealth agencies, with all the benefits
and obligations that accompany such status, including
exemptions from statutes of general applicability. See, e.g.,
1983 Op. Atty. Gen. 381 ("Generally, the State and its agencies
are not bound by any statute, unless the statute in express
terms is made to extend to the State. Virginia Polytechnic
Institute and State University is a State agency for purposes
of the State's general exemption from statutory and local
requirements." (internal citations and footnote omitted)).
In Richard L. Deal & Associates, Inc. v. Commonwealth, 224
Va. 618, 620, 299 S.E.2d 346, 347 (1983), the Court
8 specifically applied this principle to a statute utilizing the
term "person." There, an agency of the Commonwealth refused to
abide by an arbitration provision of a contract on the ground
that it could not be bound by such a clause. The plaintiff
argued that the Commonwealth was bound by the provision because
it was a "person" authorized to enter into an arbitration
agreement under Code § 8.01-577. The Court disagreed, holding
that "the sovereign is a person or party within the intendment
of a statute only when the General Assembly names it expressly
or by necessary implication." Id.
Code § 8.01-216.2, the definitional portion of FATA,
contains no express inclusion of the Commonwealth in its
definition of "person." Nor do we find the term "corporation"
to be sufficient to expressly include corporate agencies of the
Commonwealth such as public universities. This conclusion is
evidenced by the incongruity that would be introduced into the
Code as a whole, beyond FATA, by affirming the circuit court's
interpretation. The Code is replete with definitions of
"person" that include the term "corporation" but do not
otherwise include governmental entities. See, e.g., Code
§§ 4.1-401 (Wine Franchise Act), 5.1-89 (Air Carriers), 6.2-
2200 (Motor Vehicle Title Loans), 10.1-1000 (Cave Protection
Act). The General Assembly has also demonstrated throughout
the Code its ability to define the term "person" to include
9 governmental bodies when it so intended. See, e.g., Code
§§ 5.1-1 (Aircraft, Airmen, and Airports Generally), 6.2-100
(Financial Institutions and Services, General Provisions),
8.01-412.9 (Uniform Interstate Depositions and Discovery Act),
10.1-560 (Erosion and Sediment Control Law). The General
Assembly could have defined "person" accordingly in Code
§ 8.01-216.2. Since the General Assembly has expressly
included the Commonwealth and its agencies when the General
Assembly so intended and expressly excluded the Commonwealth
and its agencies elsewhere in the Code, we cannot find that
FATA expressly includes UVA under its definition of "person"
merely because the definition includes corporations. See,
e.g., Halifax Corp. v. Wachovia Bank, 268 Va. 641, 654, 604
S.E.2d 403, 408 (2004) (stating that, when the legislature
omits language from one statute that it has included in
another, courts may not construe the former statute to include
that language, as doing so would ignore "an unambiguous
manifestation of a contrary intention" of the legislature).
We do observe the express use of the term "agency"
elsewhere in FATA: the word "agency" appears in the definition
of "Commonwealth" in Code § 8.01-216.2, and an express
reference to "agency" can be found in Code § 8.01-216.8, a
section of FATA addressing certain actions that are barred,
relief from employment discrimination, and waiver of sovereign
10 immunity in the case of retaliatory action. Because neither of
these references pertains directly to a "person" under the
statute, we find that they do not constitute the type of
express reference required by this Court in Deal. If anything,
the use of the term "agency" elsewhere in the Act lends greater
strength to our belief that the General Assembly would have
expressly included the term "agency" in the definition of
"person," had it been intended. We operate from the basic
principle of statutory construction that, when the General
Assembly opts to invoke two different terms within the same
act, "those terms are presumed to have distinct and different
meanings." Industrial Development Authority of Roanoke v.
Board of Supervisors of Montgomery County, 263 Va. 349, 353,
559 S.E.2d 621, 623 (2002). The express use of the word
"agency" in Code § 8.01-216.8 implies that, had the General
Assembly intended its definition of "person" in Code § 8.01-
216.2 to encompass agencies, it would have done so, rather than
use the term "corporation," which applies to some arms of the
Commonwealth but not all.
We likewise reject the Attorney General's claim that UVA
is swept into the definition of "person" by necessary
implication. A necessary implication is "[a]n implication so
strong in its probability that anything to the contrary would
be unreasonable." Black's Law Dictionary 822 (9th ed. 2009).
11 The Attorney General's argument for a "necessary implication"
amounts to a policy preference for CIDs as an investigatory
tool. The language of the Act still functions without
including Commonwealth agencies within the statute's definition
of corporations. We therefore do not find that Commonwealth
agencies are included by "necessary implication."
We recognize that the third paragraph in Code § 8.01-216.8
seems to address a private party bringing an action against a
Commonwealth agency. See Ligon v. County of Goochland, 279 Va.
312, 318, 689 S.E.2d 666, 669-70 (2010) (involving a
retaliatory discharge claim made by an employee against the
county pursuant to Code § 8.01-216.8). This raises the
possibility that the General Assembly intended agencies to be
persons under Code § 8.01-216.3 (the false claims provision).
The less-than-clear statement of Code § 8.01-216.8, however,
occurs outside of the primary portions of FATA addressing
definitional terms, false claims, and CIDs. None of these
primary sections make reference to Commonwealth agencies as
persons and all function more coherently – as discussed in Part
II.B, infra – when construed otherwise. We do not find that
this one anomalous phrase creates such a strong implication as
to render any other interpretation unreasonable.
In sum, neither by express language nor by necessary
implication does FATA provide the Attorney General with
12 authority to issue CIDs to Commonwealth agencies. We remain
unconvinced that this statute of general applicability was
intended to apply to corporate bodies that are arms of the
2. Functional Incongruity within the Statute
As we have previously held, evaluation of the plain
meaning of a statute permits the consideration of the
legislative act as a whole. Eberhardt, 283 Va. at 194-95, ___
S.E.2d. at ___. We recognize that functional inconsistencies
exist in some portion of FATA when "person" is always construed
to include Commonwealth agencies as well as when it is never
construed to include Commonwealth agencies. Given this
unfortunate conflict, we are left to select the definition that
best refines the Act "as a consistent and harmonious whole so
as to effectuate the legislative goal." VEPCO, 226 Va. at 387-
88, 309 S.E.2d at 311. The following functional incongruities,
however, caused by defining a Commonwealth agency as a
"person," do superior damage to FATA as a whole. Accordingly,
we decline to include agencies in the definition.
The definitional portion of FATA in Code § 8.01-216.2
applies to all subsequent portions of the Act. As a result,
the "person" subject to CIDs under Code § 8.01-216.10 is
defined in the same way as the "person" "liable to the
Commonwealth" under the false claims provision in Code § 8.01-
13 216.3. As UVA notes, there is no waiver of sovereign immunity
subjecting the Commonwealth to the false claims provision. An
agency cannot be a "person" "liable to the Commonwealth" when
there has been no express waiver of sovereign immunity in the
statute.
There is an express waiver of sovereign immunity in FATA
in Code § 8.01-216.8, in the context of discrimination
protection from retaliation for employees of the Commonwealth
who report violations of FATA. The express waiver there only
serves to highlight the absence of such a waiver in other parts
of the Act. In its 2011 amendment, the General Assembly
specifically chose to attach the sovereign immunity waiver only
to the retaliatory discharge portion of Code § 8.01-216.8, and
not to the other portions of the statute.
FATA also separately defines "Commonwealth" in Code
§ 8.01-216.2 as the "Commonwealth of Virginia, any agency of
state government, and any political subdivision of the
Commonwealth." As we have said, UVA is unambiguously an agency
of the Commonwealth. Carter, 267 Va. at 245, 591 S.E.2d at 78.
As a result, under the circuit court's ruling, UVA fits under
the definitions of both "person" and "Commonwealth" in FATA.
This is again inconsistent with the principle, discussed
supra, that, "[w]hen the General Assembly uses two different
terms in the same act, those terms are presumed to have
14 distinct and different meanings." Industrial Development
Authority, 263 Va. at 353, 559 S.E.2d at 623. The consequence
is no mere blunder in statutory construction. Defining a
corporate-form agency of the Commonwealth under the term
"Commonwealth" in one definition and "person" in a separate
definition in Code § 8.01-216.2 introduces functional
incongruity into FATA.
Code § 8.01-216.5(A) allows a "person" to bring a civil
action for FATA violations "for the person and for the
Commonwealth . . . in the name of the Commonwealth." The
Commonwealth may then intervene and proceed with the action,
although the "person" may continue as a party subject to
certain limitations. Code §§ 8.01-216.5(B) and -216.6(A). The
provisions of Code §§ 8.01-216.5 through -216.8 repeatedly
treat the "person" that initially brought the private action as
a separate entity from the "Commonwealth." This distinction is
lost if, as the circuit court held, the term "person" is
construed as including agencies of the Commonwealth.
In addition, as not all Commonwealth agencies are
corporations, reading "corporations" to include UVA would
produce the inexplicable and awkward result that state agencies
operating as public corporations are subject to FATA while
other arms of the Commonwealth are not. We find it unlikely
that the General Assembly intended such a result. In light of
15 the multiple inconsistencies raised by such an interpretation,
we conclude that the General Assembly did not intend Code
§ 8.01-216.2 to include agencies of the Commonwealth in its
definition of "person."
3. Noscitur a Sociis
Finally, the principle of noscitur a sociis – that a word
is known by the company it keeps – suggests that the term
"corporation" in FATA excludes governmental agencies:
The maxim of noscitur a sociis provides that the meaning of doubtful words in a statute may be determined by reference to their association with related words and phrases. When general words and specific words are grouped together, the general words are limited and qualified by the specific words and will be construed to embrace only objects similar in nature to those objects identified by the specific words.
Andrews v. Ring, 266 Va. 311, 319, 585 S.E.2d 780, 784 (2003).
The definition of "person" in Code § 8.01-216.2 includes
"natural person" and a list of similarly related entities:
"corporation, firm, association, organization, partnership,
limited liability company, business or trust." Accompanied by
these other terms, "corporation" should be understood as a
similarly oriented private sector entity, and not as
encompassing an agency of the Commonwealth.
C. Other Issues
As a result of this Court's conclusion that UVA is not a
"person" under the statute, we need not reach the assignments
16 of error raised by the Attorney General. Because the statute
does not give the Attorney General authority to issue CIDs to
UVA, all other issues are rendered moot.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the
circuit court setting aside the CIDs, but, unlike the circuit
court, we set aside the CIDs with prejudice, on the different
ground that the University of Virginia, as an agency of the
Commonwealth, does not constitute a "person" under the Fraud
Against Taxpayers Act and therefore cannot be the proper
subject of a CID. Accordingly, we enter final judgment here in
favor of the Rector and Visitors of the University of Virginia.
Affirmed and final judgment.
JUSTICE McCLANAHAN, concurring in part and dissenting in part.
Like the majority, I would affirm the circuit court's
judgment granting the petition filed by the Rector and
Visitors of the University of Virginia (UVA) to set aside the
Attorney General's Civil Investigative Demands (CIDs) served
upon UVA pursuant to Code § 8.01-216.10 of the Virginia Fraud
Against Taxpayer's Act (FATA) (Code §§ 8.01-216.1 through -
216.19). Unlike the majority, however, I would affirm the
circuit court in issuing its judgment without prejudice. I
disagree with the majority's threshold determination that UVA,
17 as an agency of the Commonwealth, is exempt from FATA – which
is the majority's rationale for setting aside the CIDs with
prejudice.
Concluding that UVA is subject to the Attorney General's
investigative authority under FATA, I would affirm the circuit
court on its finding that the CIDs were facially deficient,
but only on the ground that they were deficient in "stat[ing]
the nature of the conduct constituting the alleged violation"
of FATA that was under investigation, as expressly required by
Code § 8.01-216.11. I would reject the circuit court's
holding that the CIDs were also required to contain the
Attorney General's "reason to believe" that UVA was in
possession of material or information relevant to that
investigation under the terms of Code § 8.01-216.10(A), as I
read no such requirement in the statute.
I. Application of FATA to UVA
FATA is enforceable by both the Attorney General and
private citizens. Under Code § 8.01-216.4, the Attorney
General is given the authority to investigate a FATA violation
and bring a civil action under FATA against an alleged
violator implicated in the investigation. To aid the Attorney
General in conducting the investigation, Code § 8.01-216.10
authorizes the Attorney General to issue CIDs, which may
require the recipient to produce documentary material, answer
18 written interrogatories and/or give oral testimony. Under
Code § 8.01-216.5, a private citizen may also bring a FATA
civil action "in the name of the Commonwealth," subject to a
number of conditions and restrictions.
Code § 8.01-216.8, in turn, sets forth limits on the
circuit court's jurisdiction to adjudicate certain actions
initiated by private citizens under FATA. In carving out
those limitations, the statute, in my opinion, plainly evinces
the General Assembly's intent to bring the agencies of the
Commonwealth within the scope of the investigative and civil
enforcement provisions of FATA, subject to the statute's
jurisdictional limitations. Code § 8.01-216.8 provides, in
relevant part:
No court shall have jurisdiction over an action brought under this article against any department, authority, board, bureau, commission, or agency of the Commonwealth, any political subdivision of the Commonwealth, a member of the General Assembly, a member of the judiciary, or an exempt official if the action is based on evidence or information known to the Commonwealth when the action was brought. For purposes of this section, "exempt official" means the Governor, Lieutenant Governor, Attorney General and the directors or members of any department, authority, board, bureau, commission or agency of the Commonwealth or any political subdivision of the Commonwealth.
Id. (emphasis added). By the express terms of this provision,
the only limit specifically placed upon the institution of a
FATA civil action against an agency of the Commonwealth is
19 where the action is initiated by a private citizen based "on
evidence or information known to the Commonwealth when the
action was brought." Id. FATA imposes no such jurisdictional
limitation on actions initiated by the Attorney General. This
means, in my opinion, that the Attorney General may bring a
FATA action against an agency of the Commonwealth in the same
manner that the Attorney General may do so against any other
person or entity alleged to have presented a false claim in
violation of FATA under Code § 8.01-216.3(A). 1 To interpret
Code §§ 8.01-216.3(A) and -216.8 otherwise would mean that a
1 Code § 8.01-216.3(A), in setting forth the elements of a FATA violation, provides in relevant part, as follows:
A. Any person who:
1. Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
2. Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;
3. Conspires to commit a violation of subdivision 1 [or] 2 . . .
shall be liable to the Commonwealth for a civil penalty of not less than $ 5,500 and not more than $ 11,000, plus three times the amount of damages sustained by the Commonwealth.
A person violating this section shall be liable to the Commonwealth for reasonable attorney fees and costs of a civil action brought to recover any such penalties or damages. All such fees and costs shall be paid to the Attorney General's Office by the 20 private citizen could do what the Attorney General could not
do in terms of initiating a FATA action against the numerous
entities and individuals, including agencies of the
Commonwealth, listed in Code § 8.01-216.8 as quoted above.
And, yet, the Attorney General, in acting for the
Commonwealth, could then proceed with such action initiated by
a private citizen. See Code §§ 8.01-216.5 and -216.6. Such
an interpretation of these statutes would lead to this absurd
result, which the General Assembly surely did not intend. As
this Court has repeatedly stated, in the context of statutory
construction, "[t]he plain, obvious, and rational meaning of a
statute is to be preferred over any curious, narrow, or
strained construction, and a statute should never be construed
in a way that leads to absurd results." Meeks v.
Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007)
(internal citations and quotation marks omitted).
Because an agency of the Commonwealth falls within the
definition of the term "[a]ny person" in Code § 8.01-216.3(A)
under my reading of this statute in conjunction with Code
§ 8.01-216.8, it follows, I believe, that the Attorney General
defendant and shall not be included in any damages or civil penalties recovered in a civil action based on a violation of this section.
(Emphasis added.)
21 has the authority to serve a CID on UVA, as an agency of the
Commonwealth, based on an application of the same definition of
the term "any person" under Code § 8.01-216.10(A). Pursuant to
Code § 8.01-216.10(A), the Attorney General may serve a CID
upon "any person" that the Attorney General "has reason to
believe . . . may be in possession, custody, or control of any
documentary material or information relevant to a [FATA]
investigation." In short, I would apply the same definition to
the term "any person" as it appears in both Code § 8.01-
216.3(A) and Code § 8.01-216.10(A), and that term would include
UVA as an agency of the Commonwealth.
My reading of Code § 8.01-216.10 is indeed dictated by its
common sense application. If the legislature intended to allow
the Attorney General to bring a FATA action against an agency
of the Commonwealth, the legislature undoubtedly intended to
grant the Attorney General the authority to obtain relevant
investigative information from an agency of the Commonwealth
through the issuance of a CID to the agency, whether the object
of the investigation was the agency or some third party. See
McDaniel v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623, 627-
28 (1957) (explaining that "in the construction of a statute
the court will look to the whole body of the Act to determine
the true intention of each part. All of its parts must be
examined so as to make it harmonious if possible.").
22 Furthermore, this interpretation of Code § 8.01-216.10 is
bolstered by the fact that, pursuant to Code § 8.01-216.4, the
filing of a FATA civil action by the Attorney General must be
predicated upon an investigation conducted by the Attorney
General into whether a violation of Code § 8.01-216.3 has
occurred. See Code § 8.01-216.4 ("The Attorney General shall
investigate any violation of Code § 8.01-216.3. If the Attorney
General finds that a person has violated or is violating
§ 8.01-216.3, the Attorney General may bring a civil action
under this section."). Thus, the Attorney General would be
required to conduct an investigation into a possible FATA
violation involving a state agency before bringing a FATA civil
action against the agency or a third party. To do so, the
Attorney General, no doubt, would have to obtain information
from the agency, as in the instant case, and the CID would be
the Attorney General's primary means of obtaining that
information under FATA's statutory scheme. 2
For these reasons, in my judgment, UVA is not exempt from
the Attorney General's authority to issue CIDs pursuant to Code
§ 8.01-216.10.
II. Evaluation of CIDs Issued to UVA
2 Nine of the nineteen statutes comprising FATA (Code §§ 8.01-216.10 through -216.18) address the substance and utilization of the CID under this statutory scheme. 23 Because I would hold that the Attorney General was
authorized to issue CIDs to UVA, I would proceed, as did the
circuit court, to review the CIDs at issue for their conformity
to FATA's substantive requirements. The review must be
limited, however, to determining the facial validity of the
CIDs since there was no evidentiary hearing on UVA's petition
to set aside the CIDs.
Code § 8.01-216.11 provides that each CID "shall state the
nature of the conduct constituting the alleged violation of a
false claims law that is under investigation, and the
applicable provision of law alleged to be violated." The CIDs
before us for review state that they were "issued in connection
with an investigation by the Attorney General into possible
violations by Dr. Michael Mann of [Code] §§ 8.01-216.3(A)(1),
(2), and (3) of FATA." They further provide that "[t]he
investigation related to data and other materials that Dr. Mann
presents in seeking awards/grants funded, in whole or in part,
by the Commonwealth of Virginia or any of its agencies as well
as data, materials and communications that Dr. Mann created,
presented or made in connection with or related to [five
specifically identified] awards/grants . . . ." I agree with
the circuit court that this description failed to sufficiently
describe "the nature of the conduct constituting the alleged
violation[s]," as required by Code § 8.01-216.11. That is, it
24 did not sufficiently state what the Attorney General suspected
Dr. Mann did that was "false or fraudulent" in violation of
Code § 8.01-216.3(A).
I disagree with the circuit court, however, in its
interpretation and application of Code § 8.01-216.10(A) in
relation to the court's review of the sufficiency of the CIDs.
As previously noted, subsection A of the statute provides that,
"[w]henever the Attorney General . . . has reason to believe
that any person may be in possession, custody, or control of
any documentary material or information relevant to a [FATA]
investigation," the Attorney General may issue a CID to such
"person" and require this recipient to produce documentary
material, answer written interrogatories and/or give oral
testimony. In an alternative ruling, the circuit court held
that, under the terms of Code § 8.01-216.10(A), the CIDs issued
to UVA were defective on their face because they did not set
forth the Attorney General's "reason to believe" that UVA was
in possession of material or information pertaining to the
subject investigation. I would reject this holding as there is
no requirement in Code § 8.01-216.10 or any other provision of
FATA that the CID must contain the Attorney General's "reason
to believe" that the recipient of the CID possesses such
material or information. The statutory requirements under FATA
25 for what must be contained in a CID are limited to Code § 8.01-
216.11. 3
I would thus affirm the circuit court's judgment setting
aside the CIDs issued by the Attorney General to UVA, but,
unlike the majority, I would do so without prejudice.
3 UVA indicates that the circuit court relied upon yet an additional ground for holding that the CIDs were defective, which was purportedly the circuit court's determination that the Attorney General could not investigate the four "federal grant funds" from the total of five grants listed in the CIDs because FATA only applies to funds provided by the Commonwealth. I do not believe the circuit court so held, as the circuit court only postulated in its letter opinion that, "[i]f the Attorney General and [UVA] agree that the first four listed grants are federal grants, this [c]ourt supports the position of [UVA] that the Attorney General should not be able to investigate these grants . . . ." In any event, the limited record in this case cannot support a decision on that issue. Without knowing the specific nature of those grants, no ruling could be made as to whether or not they were subject to FATA. 26