Thursday, February 11, 2016
The Georgia Supreme Court in Olvera v. Univ. Sys. of Georgia's Bd. of Regents, No. S15G1130, 2016 WL 369382, at *2 (Ga. Feb. 1, 2016), rejected a challenge to the state university system policy of denying in-state tuition to immigrant students who are lawfully in the country pursuant to President Obama's "Deferred Action for Childhood Arrivals program" (DACA). The students "filed a declaratory judgment action against the University System of Georgia's Board of Regents and its members in their official capacities (collectively, the Board) seeking a declaration that they are entitled to in-state tuition at schools in the University System of Georgia." The trial court, however, dismissed the challenge, holding that the Board was entitled to sovereign immunity in the case. The Court of Appeals affirmed, as did the Georgia Supreme Court. In other words, the court did not rule on the merits of the case, but rather rejected plaintiffs' ability to challenge the policy--at least a challenge directed at the Board of Regents. In its final paragraph, the court wrote:
[o]ur decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse. It means only that they must seek relief against such officers in their individual capacities. In some cases, qualified official immunity may limit the availability of such relief, but sovereign immunity generally will pose no bar.
Nonetheless, the decision was a major setback for plaintiffs who sought not just to challenge the actions of particular state officers, but the policy itself. As to the policy, the dourt offered this summary of the arguments:
[T]he students alleged that their status as DACA beneficiaries rendered them lawfully present in the United States. They further alleged that the Board's policy manual required students to provide verification of their lawful presence in the United States before being classified as in-state students for tuition purposes. And they alleged that the Board had not defined "lawful presence" for the purpose of its policy manual. The students alleged that the Board has "refused to confer in-state tuition benefits to Georgia college students who have obtained lawful presence in the United States through DACA." They sought a declaration that they "and other similarly situated DACA approved students who would otherwise qualify for in-statetuition benefits are entitled to those benefits."
Arguing that sovereign immunity barred the declaratory judgment action, the Board moved for the trial court to dismiss it. The trial court agreed and granted the motion to dismiss, reasoning among other things that sovereign immunity extends to declaratory judgment actions and that the provision in the Administrative Procedures Act authorizing declaratory judgment actions against state agencies to determine the validity of agency rules ... did not waive sovereign immunity in actions concerning “interpretive rules.”
The Court of Appeals agreed with the trial court.
The sweep of sovereign immunity under the Georgia Constitution is broad. It provides:
Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. . . .
The plain and unambiguous text of the 1991 constitutional amendment shows that only the General Assembly has the authority to waive the State's sovereign immunity. [Gilbert v. Richardson, 264 Ga. 744, 748(3), 452 S.E.2d 476 (1994) ](subsection (e) of the amendment “confers upon the legislature the authority to waive sovereign immunity”). . . .
It is settled that the Board is an agency of the State to which sovereign immunity applies. . . .
The students argue that the Board's sovereign immunity is waived under OCGA § 50–13–10(a) of the Georgia Administrative Procedure Act, which provides:
The validity of any rule, waiver, or variance may be determined in an action for declaratory judgment when it is alleged that the rule, waiver, or variance or its threatened application interferes with or impairs the legal rights of the petitioner. A declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule, waiver, or variance in question.
This contention is misplaced. Even if we assume without deciding that the Board is subject to the APA, the Board did not issue the residency requirements pursuant to the APA, and, in fact, the Board has never issued any rule pursuant to the APA. In addition, the Board's “policy [regarding residency requirements] was merely the agency's interpretation of [an internal manual], not an independently promulgated agency rule, and did not bring plaintiff within the scope of OCGA § 50–13–10.” As such, the residency requirements challenged by the students is
not a “rule” within the purview of § 50–13–10 .... [The residency requirements have] never been enacted as a [Board] rule pursuant to the APA. Therefore, the [residency requirements constitute] an “interpretive rule” [that falls within an exception to the procedural requirements of the APA pursuant to OCGA §§ 50–13–3 and 50–13–4,] not a “rule” [subject to the APA] within the meaning of § 50–13–10.”