Present: All the Justices
GEORGE MASON UNIVERSITY
OPINION BY
v. Record No. 062603 JUSTICE LAWRENCE L. KOONTZ, JR.
January 11, 2008
ROBERT D. H. FLOYD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
In this appeal, we review a circuit court judgment
reversing a university’s denial of in-state tuition charges
requested by one of its students.
BACKGROUND
After completing a graduate degree program at a university
in the State of Indiana, Robert D. H. Floyd (Floyd) moved to the
Commonwealth of Virginia on May 15, 2004. He leased an
apartment and obtained “several small jobs” prior to
matriculating at the George Mason University (GMU) School of Law
on August 16, 2004. During this time, Floyd titled and
registered his motor vehicle in Virginia, registered to vote,
and obtained a Virginia driver’s license. Floyd was admitted to
the law school, for purposes of tuition charges, as an
independent out-of-state student. During his first academic
year of enrollment at the law school, he supported himself
through income from his summer employment and federal student
loans and filed a “part-year resident” state income tax return
in Virginia for the 2004 tax year.
Prior to the commencement of his second academic year as a
student at the law school, Floyd filed a Domicile Petition for
Continuing Students with GMU’s Office of the Registrar on August
4, 2005, seeking reclassification for in-state tuition status.
Question No. 5 of the pre-printed form petition asked the date
that the petitioner moved to Virginia, the reason for the move,
and whether the petitioner intended to remain in Virginia in the
future. Floyd responded to this question by declaring that he
had located to the Commonwealth on “May 15, 2004 . . . to attend
law school. I have a job in a VA law firm and intend to stay in
the future.”
On August 26, 2005, the Office of the Registrar denied
Floyd’s petition for reclassification as an in-state student.
Floyd subsequently filed an appeal with the Office of the
Registrar on September 16, 2005.1 Question No. 7 of the appeal
form asked “when and why did you initially move to Virginia?”
Once again, Floyd responded “May 15, 2004,” and completed the
1
There are three levels of administrative appellate review
offered to a student seeking domicile reclassification at GMU.
Upon rejection of the student’s original petition by the Office
of the Registrar, a student wishing to seek further review of
the Registrar’s reclassification decision can do so by
requesting review with the Intermediate Level Domicile Appeals
Committee within fifteen business days from receipt of the
original rejection. If a student then wishes to appeal the
decision of the Intermediate Level Domicile Appeals Committee,
he may do so by subsequently petitioning for review of this
decision with the Third Level Domicile Appeals Committee, again
within fifteen days of receipt of the previous response.
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“Reason” section by stating that he had moved to Virginia in
order “[t]o attend law school and seek employment.”
The Intermediate Level Domicile Appeals Committee denied
Floyd’s appeal by letter on October 28, 2005. Floyd filed a
Request for Reconsideration, which permitted submission of “new
objective information,” wherein he attached a letter dated
September 20, 2005 from the law firm where he had interned,
stating that he had now been “hired [as a] law clerk.” GMU
again denied Floyd’s petition, stating that he had “not
demonstrated by clear and convincing evidence that [he had]
established and maintained a Virginia domicile for the entire
one-year period prior to the start of classes for Fall 2005.”
Floyd filed yet another appeal on December 15, 2005, which
was denied on February 3, 2006, and confirmed by letter on April
12, 2006. Pursuant to Code § 23–7.4:3 and 8 V.A.C. § 40–120–
280, Floyd subsequently sought a review of GMU’s final
administrative decision in the Circuit Court of Fairfax County.
On appeal, the circuit court reversed GMU’s decision, ruling
that the decision was “arbitrary, capricious, [or] otherwise
contrary to law.” This appeal followed.
DISCUSSION
We consider two issues raised by this appeal. The first
issue, raised sua sponte by this Court, is whether GMU, as an
entity making decisions pursuant to Title 8 of the Virginia
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Administrative Code, is an administrative agency whose decisions
fall within the scope of Code § 17.1-405 so as to properly
render this appeal within the original jurisdiction of the Court
of Appeals of Virginia. We have not previously addressed this
issue and do so presently in order to resolve the issue for
cases that may arise in the future. The second issue we
consider is whether the circuit court erred in reversing GMU’s
determination that Floyd was not an in-state student so as to
qualify him for reduced tuition charges. We will address these
issues in that sequence.
Code § 8.01-670, which addresses the civil appellate
jurisdiction of this Court, provides in pertinent part that:
A. Except as provided by [Code] § 17.1-405, any person
may present a petition for an appeal to the Supreme Court
if he believes himself aggrieved . . . . (3) By a final
judgment in any other civil case.
(Emphasis added.) In comparison, Code § 17.1-405, providing for
the civil jurisdiction of the Court of Appeals, provides in
pertinent part that:
Any aggrieved party may appeal to the Court of Appeals
from:
1. Any final decision of a circuit court on appeal
from (i) a decision of an administrative agency.
(Emphasis added.) Because the Code has not defined
“administrative agency” for purposes of Code § 17.1-405, we must
resolve whether the determination of eligibility for in-state
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tuition by a state-affiliated university, such as GMU, is a
decision of an “administrative agency.”
It is clear that GMU qualifies as an agency of the
Commonwealth. Under the Administrative Process Act, an “Agency”
is defined as “any authority, instrumentality, officer, board or
other unit of the state government empowered . . . to make
regulations or decide cases.” Code § 2.2-4001 (emphasis added).
To this effect, Code § 23-14 states that all state-affiliated
four-year universities are “governmental instrumentalities;”
Code § 23-9.2:3 supplies the “governing body of every
educational institution” with the power to promulgate certain
necessary “rules and regulations.” Perhaps most significantly,
Title 8 of the Virginia Administrative Code actually denominates
George Mason University within its text as the Commonwealth’s
“Agency No. 35.” 8 V.A.C. 35, Agency Introduction.
There is, however, a difference between an administrative
agency, and an agency with the power to make administrative
decisions. Cf. Virginia Beach Beautification Comm'n v. Board of
Zoning Appeals, 231 Va. 415, 417, 344 S.E.2d 899, 901 (1986)
(stating that former Code § 17-116.05(1), as the predecessor of
Code § 17.1-405, “deal[t] with a decision made by an
administrative agency and not with an administrative decision
made by some entity that is not purely an administrative
agency”). Considering “the nature of the entity making the
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decision rather than the substance of the decision itself,” it
is obvious that GMU is not “purely an administrative agency.”2
Id. The primary goal of every university is to educate, not
regulate, its students. This conclusion is further supported by
Code § 23-7.4:3, which expressly provides that the
Administrative Process Act shall not apply to the “appeals
process for those students who are aggrieved by decisions
regarding eligibility for in-state or reduced tuition charges
pursuant to §§ 23-7.4 and 23-7.4:2.”
Under Code § 17.1-405, the Court of Appeals only has
jurisdiction over an appeal from an administrative agency, not
over an administrative decision made by an entity that is not
purely an administrative agency. The Court of Appeals thus
lacks jurisdiction over a circuit court decision on appeal from
the determination of a state university pursuant to Code § 23-
7.4. Appellate jurisdiction of such cases properly lies in this
Court under Code § 8.01-670(A)(3).
We now turn to consider whether the circuit court erred in
reversing GMU’s decision denying Floyd’s request for in-state
tuition charges.
2
Similarly, in Rector and Visitors of the University of
Virginia v. Carter, 267 Va. 242, 245, 591 S.E.2d 76, 78 (2004),
this Court held in a sovereign immunity context that the
university is “an agency of the Commonwealth.” Beyond question,
this university is not purely an administrative agency of the
Commonwealth.
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In order to qualify for in-state tuition charges at a
public institution of higher education in Virginia, Code § 23-
7.4(B) requires a student to “establish by clear and convincing
evidence that for a period of at least one year immediately
prior to the date of the alleged entitlement, he was domiciled
in Virginia and had abandoned any previous domicile, if such
existed.” Code § 23-7.4(B). Furthermore, the statute
additionally provides that:
In determining domiciliary intent, all of the
following applicable factors shall be considered:
continuous residence for at least one year prior to
the date of alleged entitlement, state to which income
taxes are filed or paid, driver’s license, motor
vehicle registration, voter registration, employment,
property ownership, sources of financial support,
military records, a written offer and acceptance of
employment following graduation, and any other social
or economic relationships with the Commonwealth and
other jurisdictions.
Domiciliary status shall not ordinarily be
conferred by the performance of acts which are
auxiliary to fulfilling educational objectives or are
required or routinely performed by temporary residents
of the Commonwealth. Mere physical presence or
residence primarily for educational purposes shall not
confer domiciliary status. A matriculating student
who has entered an institution and is classified as an
out-of-state student shall be required to rebut by
clear and convincing evidence the presumption that he
is in the Commonwealth for the purpose of attending
school and not as a bona fide domiciliary.
Id.
A student wishing to challenge a university’s decision
pursuant to Code § 23-7.4(B) has the right to appeal the case to
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the circuit court in the jurisdiction in which the institution
is located. Code § 23-7.4:3(A). Upon appeal to the circuit
court, no decision shall be reversed unless the school’s
decision is deemed “arbitrary, capricious or otherwise contrary
to law.” Id.
This Court has addressed a university’s determination
pursuant to Code § 23-7.4 once before. In Ravindranathan v.
Virginia Commonwealth University, 258 Va. 269, 519 S.E.2d 618
(1999), an “out-of-state” medical student filed an application
requesting in-state tuition charges at a state-affiliated
university. In her application, the student stated that she
intended to remain indefinitely in Virginia based primarily upon
her boyfriend’s plan to settle in the Commonwealth, and that
this intent was further demonstrated by the fact that she was
registered to vote in Virginia, possessed a Virginia driver’s
license, owned a car registered in Virginia, had checking and
savings accounts with financial institutions in Virginia, filed
a Virginia state resident income tax return the year preceding
her application, and had not filed state income tax returns in
any other state for three years after filing her application.
Id. at 271, 519 S.E.2d at 618-19.
The university rejected Ravindranathan’s application for
in-state tuition charges, and upon appeal, the circuit court
affirmed. This Court upheld the circuit court’s decision,
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stating that the facts upon which Ravindranathan relied to
support her claim of Virginia domicile under Code § 23-7.4(B)
could be “deemed auxiliary to fulfilling her educational
objectives or are routinely performed by temporary residents of
[Virginia].” Id. at 275, 519 S.E.2d at 621.
As in Ravindranathan, the university in the present case
determined that in consideration of the totality of evidence
presented to its appeals committees, Floyd’s acts were auxiliary
to his primary educational purpose for residing in Virginia. On
appeal, this Court is limited to considering only whether the
circuit court erred in finding that GMU’s decision to deny Floyd
in-state tuition charges was “arbitrary, capricious, [or]
otherwise contrary to law.” In light of the presumption
established in Code § 23-7.4(B) that an out-of-state student be
required to demonstrate by clear and convincing evidence that he
entered the Commonwealth for a primary purpose other than an
educational purpose, we hold that the circuit court was plainly
wrong in finding that the decision made by GMU was arbitrary,
capricious, or otherwise contrary to law. Code § 8.01-680.
Floyd himself admitted on more than one occasion that he had
relocated to Virginia for the primary purpose of attending law
school. Moreover, as in Ravindranathan, the many facts upon
which Floyd relies to support his purported Virginia domicile
could likewise be deemed auxiliary to fulfilling his educational
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objectives or are routinely performed by temporary residents of
this Commonwealth.3
CONCLUSION
For these reasons, we will reverse the judgment of the
Circuit Court of Fairfax County reversing George Mason
University’s decision denying the application for Robert D. H.
Floyd for in-state tuition charges and we will enter final
judgment for George Mason University.
Reversed and final judgment.
3
To the extent that Floyd relies upon the September 20,
2005 letter from the law firm as evidence that he had received
permanent employment with the firm, that evidence is not
relevant to the year immediately prior to August 22, 2005, which
marked the beginning of classes for the fall semester. See Code
§ 23-7.4(B).
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