Nichole Fogleman v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 19, 2023
• Docket: 0841222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Causey and Senior Judge Haley UNPUBLISHED

Argued at Richmond, Virginia

NICHOLE FOGLEMAN MEMORANDUM OPINION* BY v. Record No. 0841-22-2 JUDGE JAMES W. HALEY, JR. SEPTEMBER 19, 2023 COMMONWEALTH OF VIRGINIA, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND C.N. Jenkins, Jr., Judge

Nicholas F. Simopoulos (Simopoulos Law, PLLC, on briefs), for appellant.

Graham K. Bryant, Deputy Solicitor General (Jason S. Miyares, Attorney General; Charles H. Slemp, III, Chief Deputy Attorney General; Steven G. Popps, Deputy Attorney General; Andrew N. Ferguson, Solicitor General; Erika L. Maley, Principal Deputy Solicitor General; Sandra S. Gregor, Assistant Attorney General, on brief), for appellees.

Nichole Fogleman appeals the circuit court’s order granting the Commonwealth’s and

Virginia Commonwealth University’s (VCU) plea of sovereign immunity. She argues that the

Virginia Human Rights Act (VHRA) permits a cause of action for age discrimination against the

Commonwealth and waives sovereign immunity. Finding no error, we affirm the trial court’s

judgment.

BACKGROUND

In reviewing this matter involving sovereign immunity, we review the evidence in the light

most favorable to the Commonwealth, given that the Commonwealth is the prevailing party before

the trial court. Patterson v. City of Danville, 301 Va. 181, 187 (2022). In June 2020, Fogleman

* This opinion is not designated for publication. See Code § 17.1-413(A). began classes in a Ph.D. program at VCU. As part of a course taught by Tyler Corson, Fogleman

wrote discussion posts about the topic of her term paper. In an August 2020 post to an online

discussion forum, Fogleman “transferred [content] verbatim from another source” without

providing citations. Corson emailed Fogleman the following day and directed her to use proper

citations in the future. Fogleman revised her discussion posts.

On September 7 and 10, 2020, Corson reported Fogleman to the Office of Student Conduct

and Academic Integrity (SCAI) for plagiarism. Fogleman subsequently withdrew from the Ph.D.

program. After her withdrawal, an SCAI investigator adjudicated Fogleman responsible for

plagiarism. Fogleman appealed that decision to the SCAI Decision Review Board, which affirmed

the finding.

On October 26, 2021, Fogleman filed a complaint under the VHRA against the

Commonwealth, VCU, and Corson, alleging age discrimination against all defendants; Fogleman

also advanced counts of defamation, defamation per se, and gross negligence against Corson.1 On

January 7, 2022, the Commonwealth and VCU filed a plea of sovereign immunity seeking their

dismissal as parties from the action because they were absolutely immune from Fogleman’s claim.

Fogleman opposed the plea, arguing that the General Assembly had waived the Commonwealth’s

sovereign immunity under the VHRA.

On March 16, 2022, the trial court granted the Commonwealth’s and VCU’s plea of

sovereign immunity. On June 1, 2022, the trial court granted Fogleman’s motion for a nonsuit

regarding her claims against Corson. Fogleman filed a notice of appeal on June 7, 2022, seeking

review of the trial court’s order granting the plea of sovereign immunity.2 She argues that the trial

1 Corson is not a party to this appeal. 2 This Court previously determined that the trial court’s June 1, 2022 nonsuit order was a final, appealable order. Fogleman v. Commonwealth, No. 0841-22-2 (July 8, 2022) (order). -2- court erred because the General Assembly waived sovereign immunity under the VHRA by

necessary implication.

ANALYSIS

I. Fogleman’s argument is properly at issue in this appeal.

As a threshold matter, the Commonwealth and VCU argue that Fogleman’s sole assignment

of error is not properly before this Court because it addresses a claim that is not part of the final,

appealable nonsuit order. They maintain that the trial court’s order granting the plea of sovereign

immunity was the final disposition of the counts against them and not part of the action that was

subject to the nonsuit. Accordingly, they argue that the only issue that may be raised in this appeal

is the propriety of the nonsuit order.

“The effect of [a] nonsuit and interpretation of [a] trial court’s . . . order are questions of law

which we consider de novo.” Temple v. Mary Washington Hosp., Inc., 288 Va. 134, 139 (2014)

(citing Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007)). The

Commonwealth and VCU correctly note that, generally, “an appeal from a nonsuit order is limited

to resolving disputes regarding the propriety of granting the nonsuit.” Wilby v. Gostel, 265 Va. 437,

443-44 (2003) (citing McManama v. Plunk, 250 Va. 27, 32 (1995)). A party, however, may not

suffer a nonsuit of any claims that have already been submitted to the court for a decision. Dalloul

v. Agbey, 255 Va. 511, 514 (1998) (citing Khanna v. Dominion Bank, 237 Va. 242, 245 (1989)).

Thus, “when the trial court has reached a final determination in a proceeding regarding any claims

or parties to claims, those claims and parties are excluded by operation of law from any nonsuit

request.” Id. (citing Bremer v. Doctor’s Bldg. Partnership, 251 Va. 74, 80 (1996)). Instead, “‘the

action’ subject to a plaintiff’s nonsuit request is comprised of the claims and parties remaining in the

case after any other claims and parties have been dismissed with prejudice or otherwise eliminated

from the case.” Id. (quoting Code § 8.01-380(A)).

-3- Consistent with those principles, the Supreme Court has held that when a trial court

dismisses with prejudice some, but not all, claims or defendants in multi-party litigation, and

subsequently enters a final order nonsuiting the remaining claims, “the case [becomes] concluded as

to all claims and parties” because “nothing remain[s] to be done.” Id. at 515. Under those

circumstances, a party may appeal the prior order dismissing some of the claims or defendants with

prejudice even though those claims or parties were not subject to the nonsuit order. Id. Although

Rule 1:2 would have permitted a severable claim to be immediately appealed as a partial final

judgment before a final order is entered, a party is not required to pursue that relief and may instead

wait until a final order is entered to appeal.3 Id.

As we noted in our July 8, 2022 order, the trial court’s March 16, 2022 order granting the

Commonwealth’s and VCU’s plea of sovereign immunity was not a final order because it did not

dispose of all claims against all parties. Instead, the trial court’s June 1, 2022 nonsuit order, which

disposed of the remaining claims, was the final order in this case; Fogleman appropriately filed a

notice of appeal after that order was entered. Given those circumstances, Fogleman’s argument

challenging the trial court’s ruling on the plea of sovereign immunity is properly before this Court.

Id.

II. The General Assembly did not waive sovereign immunity under the VHRA.

“We review de novo a trial court’s ruling on a plea of sovereign immunity.” Pike v.

Hagaman, 292 Va. 209, 214 (2016) (quoting City of Chesapeake v. Cunningham, 268 Va. 624, 633

(2004)). “[W]here no evidence is taken in support of a plea in bar, the trial court, and the appellate

court upon review, consider solely the pleadings in resolving the issue presented. In doing so, the

facts stated in the plaintiff’s [complaint] are deemed true.” Fines v. Rappahannock Area Comm.

Moreover, the order granting the plea of sovereign immunity was not a “partial final 3

judgment.” See Rule 1:2(a)(i)-(iii). -4- Servs. Board, 301 Va. 305, 312 (2022) (second alteration in original) (quoting Massenburg v. City

of Petersburg, 298 Va. 212, 216 (2019)).

“[T]he doctrine of sovereign immunity is ‘alive and well’ in Virginia.” Id. at 313 (alteration

in original) (quoting Messina v. Burden, 228 Va. 301, 307 (1984)). The doctrine generally provides

that “the Commonwealth is immune from liability for damages and from suits to restrain

governmental action or to compel such action.” Ligon v. County of Goochland, 279 Va. 312, 316

(2010) (quoting Gray v. Virginia Sec’y of Transp., 276 Va. 93, 102 (2008)). Indeed, it is a long

“established principle of sovereignty” that the Commonwealth “cannot be sued in its own courts, or

in any other, without its consent and permission.” Bd. of Pub. Works of City of Richmond v. Gannt,

76 Va. 455, 461 (1882). Agencies of the Commonwealth, including public universities, are entitled

to the same sovereign immunity. Cuccinelli v. Rector & Visitors of Univ. of Va., 283 Va. 420, 427

(2012).

Fogleman does not contest that VCU is an agency of the Commonwealth. Rather, she

contends the VHRA waived sovereign immunity, permitting a cause of action for age

discrimination against the Commonwealth and VCU. She begins by noting that the VHRA’s

explicit policy is to “safeguard all individuals within the Commonwealth from unlawful

discrimination” by creating a cause of action “over the person who allegedly unlawfully

discriminated” and that the General Assembly created the Office of Civil Rights (OCR) “to carry

out this policy.” To that end, the OCR adopted regulations, which have the force of law and define

the term “person” as “any individual, corporation, partnership . . . government, political subdivision,

or any other legal or commercial entity and any successor, representative, agent, agency, or

instrumentality thereof.” 1 Va. Admin. Code § 45-20-20 (emphasis added). Moreover, the General

Assembly’s Dictionary Act defines “person” as “any . . . government, political subdivision, . . . and

any . . . agency or instrumentality thereof.” Code § 1-230. Accordingly, Fogleman maintains that

-5- the General Assembly and OCR have, “by necessary and unavoidable implication, applied the

VHRA to” the Commonwealth and thereby waived sovereign immunity. Any other interpretation

would, according to Fogleman, result in “an unreasonable and absurd interpretation of the VHRA.”

It is a foundational principle of sovereign immunity law that “[o]nly the General Assembly,

acting in its capacity of making social policy, can abrogate the Commonwealth’s sovereign

immunity.” Gray, 276 Va. at 102 (emphasis added) (quoting Alliance to Save the Mattaponi v.

Commonwealth, 270 Va. 423, 455 (2005)); see also Ligon, 279 Va. at 317 (“Only the General

Assembly can determine as a matter of policy whether the Commonwealth’s sovereign immunity

should be abrogated with regard to a particular type of legal action.” (citing Azfall v.

Commonwealth, 273 Va. 226, 230 (2007))). Moreover, the only way the General Assembly may

abrogate sovereign immunity regarding a particular claim is by “an express statutory” provision.

Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 244 (2004). Indeed, “Commonwealth

agencies are not bound by statutes of general application ‘no matter how comprehensive the

language, unless named expressly or included by necessary implication.’” Cuccinelli, 283 Va. at

426-27 (quoting Commonwealth ex rel. Pross v. Bd. of Supervisors of Spotsylvania Cnty., 225 Va.

492, 494 (1983)); see also Gray, 276 Va. at 102 (“A waiver of sovereign immunity will not be

implied from general statutory language but must be explicitly and expressly stated in the statute.”

(quoting Alliance, 270 Va. at 455)). “A necessary implication is ‘[a]n implication so strong in its

probability that anything to the contrary would be unreasonable.’” Cuccinelli, 283 Va. at 429

(alteration in original) (quoting Black’s Law Dictionary 822 (9th ed. 2009)). “[T]here can be no

waiver of sovereign immunity by implication.” Hinchey v. Ogden, 226 Va. 234, 241 (1983).

The General Assembly has demonstrated its awareness of these longstanding principles of

sovereign immunity by including express waivers in previous legislation. For example, the Virginia

Tort Claims Act “constitutes an express limited waiver of the Commonwealth’s immunity from tort

-6- claims” by providing that, subject to the Act’s provisions, “the Commonwealth shall be liable for

claims for . . . personal injury or death.” Bates v. Commonwealth, 267 Va. 387, 391 (2004) (quoting

Code § 8.01-195.3). Similarly, “[t]here is an express waiver of sovereign immunity in [the Virginia

Fraud Against Taxpayers Act] in Code § 8.01-216.8.” Cuccinelli, 283 Va. at 430. That clear and

explicit waiver language provides: “This paragraph shall constitute a waiver of sovereign immunity

and creates a cause of action by an employee against the Commonwealth.” Code § 8.01-216.8.

Although the VHRA contains comprehensive language that outlines “the policy of the

Commonwealth,” which purports to “safeguard all individuals” and “prohibit discriminatory

practices,” it does not contain a clear and unequivocal waiver of sovereign immunity. Given the

General Assembly’s express waiver in other Acts, the lack of such clear and unequivocal language

in the VHRA compels the conclusion that sovereign immunity is not waived.

Nevertheless, Fogleman argues that the VHRA waives sovereign immunity by necessary

implication because it permits causes of action against any “person who allegedly unlawfully

discriminate[s],” and the government is a person as defined by the OCR and Code § 1-230. But,

Fogleman’s argument that the OCR can waive sovereign immunity by defining the government as a

person contravenes foundational principles. “[T]he sovereign is a person or party within the

intendment of a statute only when the General Assembly names it expressly or by necessary

implication.” Cuccinelli, 283 Va. at 428 (emphasis added) (quoting Richard L. Deal & Associates,

Inc. v. Commonwealth, 224 Va. 618, 620 (1983)). As noted above, “[o]nly the General Assembly,

acting in its capacity of making social policy, can abrogate the Commonwealth’s sovereign

immunity.” Gray, 276 Va. at 102 (emphasis added) (quoting Alliance, 270 Va. at 455). Thus, it is

within the exclusive prerogative of the legislative branch to determine, as a matter of social policy,

when sovereign immunity can be abrogated. Regulations promulgated by state agencies, which are

not directly accountable to voters, cannot waive sovereignty. Cf. United States v. Mitchell, 463 U.S.

-7- 206, 215-16 (1983) (holding that the “source” of the government’s consent to be sued must be

found in legislation, not a contract the government enters or “executive regulations”); Heller v.

United States, 776 F.2d 92, 98 n.7 (3d Cir. 1985) (“[G]overnment regulations alone, without the

express intent of [the legislature] cannot waive sovereign immunity.”).

Fogleman’s argument that the General Assembly waived sovereign immunity by necessary

implication under Code § 1-230 also fails. “A necessary implication is ‘[a]n implication so strong

in its probability that anything to the contrary would be unreasonable.’” Cuccinelli, 283 Va. at 429

(alteration in original) (quoting Black’s Law Dictionary 822 (9th ed. 2009)). Consequently, if “[t]he

language of the Act still functions” without concluding that the Commonwealth waived sovereign

immunity, then we will not hold that immunity is waived by necessary implication. Id. Fogleman

fails to demonstrate how the VHRA will not function or how it would be unreasonable unless we

conclude that sovereign immunity is waived. Indeed, the Act’s terms remain operative even if the

Commonwealth is not encompassed within its scope. Moreover, Code § 1-230’s definitions occur

outside the VHRA, and nothing within the VHRA references the Commonwealth or its agencies as

persons under the Act. Thus, we decline Fogleman’s invitation to hold that the Code § 1-230

definition of “person” creates such a strong implication that sovereign immunity in the VHRA is

waived that any other interpretation is unreasonable. See Deal, 224 Va. at 620-22 (declining to

conclude that the Commonwealth was “a person” within arbitration statutes even though, at that

time, the Dictionary Act provided that “[t]he word ‘person’ may extend and be applied to bodies

politic and corporate as well as individuals”).

CONCLUSION

In sum, the General Assembly did not expressly or by necessary implication waive

sovereign immunity under the VHRA. Accordingly, the trial court’s judgment is affirmed.

Affirmed.

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