COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Kelsey and McClanahan
Argued at Richmond, Virginia
DAVID A. GARRAGHTY
OPINION BY
v. Record No. 0695-04-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 1, 2005
VIRGINIA RETIREMENT SYSTEM AND
VIRGINIA DEPARTMENT OF CORRECTIONS
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
James B. Thorsen (Thorsen & Scher, on briefs), for appellant.
Brian J. Goodman, Assistant Attorney General (Jerry W. Kilgore,
Attorney General; Guy W. Horsley, Jr., Special Assistant Attorney
General, on brief), for appellees.
The trial judge found that the Circuit Court of Greensville County previously had decided
appeals under the State Grievance Procedure statutes concerning David A. Garraghty’s
grievances about retirement benefits and eligibility for the Virginia Law Officers Retirement
System. The trial judge ruled, therefore, that Garraghty could not continue to appeal these
grievance issues under the Administrative Process Act. Garraghty contends the trial judge erred
in dismissing his petitions for appeal. We disagree and affirm the orders dismissing the appeals.
I.
The record in this appeal is sparse and lacks an agency record that normally accompanies
an appeal under the Administrative Process Act. We will endeavor to construct the procedural
posture of this case by reference to the pleadings filed in the trial court and the exhibits attached
to those pleadings.
According to the pleadings, David A. Garraghty began his career at the Department of
Corrections as a correctional officer in 1973. In 1992, Garraghty was promoted to chief warden
of the Greensville Correctional Center, where he remained until his retirement on January 1,
2003. The pleadings further indicate that in preparation for his retirement, Garraghty made
inquiries regarding his retirement compensation.
In April 2002, Garraghty filed a grievance with the Department of Corrections under the
State Grievance Procedure (Code §§ 2.2-3000 to 2.2-3008), asserting that his position as chief
warden made him eligible for the Virginia Law Officers Retirement System (VaLORS) and
alleging that “[t]he decision to not include his position in the VaLORS program was arbitrary
and capricious.”1 In reply to the grievance, the regional director wrote that “Wardens are not
identified in . . . Code [§ 51.1-212] as being members of VaLORS.” On Garraghty’s appeal of
that finding, the Department of Corrections ruled that when VaLORS was first implemented
wardens “were not listed as covered,” that Garraghty was “aware since July 15, 1999 that [his]
position was not included in this program,” and that Garraghty’s grievance was untimely because
it was not filed within thirty days of July 15, 1999. On Garraghty’s next appeal, the Department
of Employment Dispute Resolution ruled that although the Department of Corrections
determined in 1999 which employees were covered by VaLORS, Garraghty was not then
“directly and personally” impacted by that determination. The Department of Employment
1
In 1999, the General Assembly passed legislation establishing the Virginia Law
Officers Retirement System, which is administered by the Virginia Retirement System. See
Code §§ 51.1-211 to 51.1-220. Under VaLORS an “‘[e]mployee’ means . . . correctional officer
as that term is defined in [Code] § 53.1-1.” Code § 51.1-212. Thus, by incorporating this
statutory reference, “‘Correctional officer’ means a duly sworn employee of the Department of
Corrections whose normal duties relate to maintaining immediate control, supervision and
custody of prisoners confined in any state correctional facility.” Code § 53.1-1. Documents in
the record indicate that under certain conditions, a covered employee with twenty-five years of
service retiring on or after October 1, 1999 is eligible for early unreduced retirement at age 50.
VaLORS also supplements retirement pensions until the age of 65 for those employees hired
after July 1, 1974 who have served 20 years of hazardous duty.
-2-
Dispute Resolution further ruled that (i) Garraghty’s grievance was not time barred; (ii) “Chief
Wardens do not meet the definition of ‘correctional officer’ because their ‘normal duties’ do not
entail the ‘immediate control, supervision and custody of prisoners’ . . . [but, rather,] primarily
include the ‘manage[ment] and direct[ion] of the activities of the most complex prisons’”; and
(iii) Garraghty’s “grievance does not quality for hearing because [Garraghty] has not presented
sufficient evidence that the [Department of Corrections] misapplied state policy by excluding
him, as Chief Warden, from the VaLORS Program.”2
2
In his grievance, Garraghty had claimed “[t]he decision not to include his position . . .
was arbitrary and capricious.” In pertinent part, the state grievance procedure provides for
hearings regarding the following:
A. A grievance qualifying for a hearing shall involve a
complaint or dispute by an employee relating to the following
adverse employment actions in which the employee is personally
involved, including but not limited to (i) formal disciplinary
actions, including suspensions, demotions, transfers and
assignments, and dismissals resulting from formal discipline or
unsatisfactory job performance; (ii) the application of all written
personnel policies, procedures, rules and regulations where it can
be shown that policy was misapplied or unfairly applied; (iii)
discrimination on the basis of race, color, religion, political
affiliation, age, disability, national origin or sex; (iv) arbitrary or
capricious performance evaluations; (v) acts of retaliation as the
result of the use of or participation in the grievance procedure or
because the employee has complied with any law of the United
States or of the Commonwealth, has reported any violation of such
law to a governmental authority, has sought any change in law
before the Congress of the United States or the General Assembly,
or has reported an incidence of fraud, abuse, or gross
mismanagement; and (vi) retaliation for exercising any right
otherwise protected by law.
B. Management reserves the exclusive right to manage the
affairs and operations of state government. Management shall
exercise its powers with the highest degree of trust. In any
employment matter that management precludes from proceeding to
a grievance hearing, management’s response, including any
appropriate remedial actions, shall be prompt, complete, and fair.
-3-
The pleadings also indicate that during this same time period Garraghty filed another
grievance with the Department of Corrections concerning his creditable compensation for
retirement. The record does not contain a copy of this grievance or the initial response from the
Department of Corrections. The record does contain, however, a ruling by the Department of
Employment Dispute Resolution, which indicates that Garraghty believed this grievance
qualified for a hearing under Code § 2.2-3004 and that Garraghty “claims that [the Department
of Corrections] has failed to comply with state and federal law by refusing to provide his full
creditable compensation to the Virginia Retirement System . . . for the purpose of computing his
retirement pay.” The Department of Employment Dispute Resolution made findings and
conclusions, including the following: (i) although Garraghty contends his final compensation
should include a factor for fringe benefits he received (for example housing, utilities, insurance
and meals), the Retirement System has determined as a matter of policy that “only compensation
in the form of salary is eligible for inclusion as part of the reportable compensation for
retirement”; (ii) no policy or procedure required the Department of Corrections or any employing
agency to provide the Retirement System information about perquisites for purposes of
C. Complaints relating solely to the following issues shall not
proceed to a hearing: (i) establishment and revision of wages,
salaries, position classifications, or general benefits; (ii) work
activity accepted by the employee as a condition of employment or
which may reasonably be expected to be a part of the job content;
(iii) contents of ordinances, statutes or established personnel
policies, procedures, and rules and regulations; (iv) methods,
means, and personnel by which work activities are to be carried on;
(v) termination, layoff, demotion, or suspension from duties
because of lack of work, reduction in work force, or job abolition;
(vi) hiring, promotion, transfer, assignment, and retention of
employees within the agency; and (vii) relief of employees from
duties of the agency in emergencies.
Code § 2.2-3004.
-4-
computing retirement benefits; and (iii) “this grievance cannot be qualified for hearing on the
basis of an alleged misapplication or unfair application of state or agency policy.”
Garraghty appealed the rulings on both grievances to the Circuit Court of Greensville
County as permitted by Code § 2.2-3004(E). A judge of that court determined that only
questions of law were presented by the petitions for appeal and found “in neither of the above
referenced grievances did the Department of Corrections misapply or unfairly apply any
personnel policy procedure rule or regulation.” The judge affirmed the rulings in both
grievances by an order entered February 3, 2003.
Two months later, the Retirement System sent a letter, dated April 4, 2003, to
Garraghty’s attorney acknowledging receipt of a letter “in which [Garraghty’s attorney]
requested information” about Garraghty’s retirement benefit. The letter informed Garraghty’s
attorney that the Retirement System has a “longstanding policy to place no value on perquisites
for the purpose of determining a member’s creditable compensation,” that its “calculation of . . .
Garraghty’s retirement benefit reflects the zero value of the perquisites noted in . . . Garraghty’s
letter of December 10, 2002,” and further noted the following:
Additionally, because the [Retirement System] does not maintain
positions for every category of member, it relies on the
participating employers to define an employee’s eligibility to
participate in the retirement system. In the specific case of
correctional officers, the [Department of Corrections] has
determined that only uniformed officers up to the rank of major are
eligible for coverage under VaLORS. Eligibility for coverage
under VaLORS is not determined by the [Retirement System].
The record does not contain either a copy of the letter from Garraghty’s attorney that resulted in
this response or a copy of Garraghty’s letter dated December 10, 2002.
On April 7, 2003, Garraghty’s attorney sent a letter to the Department of Corrections
detailing the status of Garraghty’s grievance concerning the VaLORS program. Alleging that the
Department of Corrections’ ruling that the grievance was time barred had been reversed on
-5-
appeal, Garraghty’s attorney “request[ed] a review of this issue and written explanation and/or a
final agency decision . . . on . . . Garraghty’s eligibility for VaLORS.” On April 24, 2003, the
Department of Corrections responded, in pertinent part, that during the grievance process its
“third step response to . . . Garraghty’s grievance dated 6/7/02 stated, ‘the Code of Virginia
defines what positions are covered under the VaLORS program and I have no authority to place
your position in this program.’”
Based on these letters of April 4, 2003 and April 24, 2003 from the two agencies,
Garraghty filed petitions in the Circuit Court of the City of Richmond, alleging that these appeals
arose under the Administrative Process Act. See Code §§ 2.2-4000 to 2.2-4033. The
Department of Corrections and the Retirement System sought dismissal of the petitions, alleging
that the court lacked “subject matter jurisdiction” to hear the appeals and that the principle of res
judicata compelled dismissal.
The trial judge dismissed both appeals. He ruled that a judge of the Circuit Court of
Greensville County had previously affirmed the rulings of the Department of Employment
Dispute Resolution and that the order affirming these rulings “is final and cannot be appealed
pursuant to Virginia Code Section 2.2-3004(E).” The judge also ruled that “the issue[s]
Garraghty raised in his grievance[s] and that [were] addressed by [those rulings] . . . and the
Greensville County Circuit Court cannot be pursued again in this Court.”
II.
Garraghty contends the trial judge erred in dismissing his petitions. He argues that the
Retirement System’s letter of April 4, 2003 and the Department of Corrections’ letter of April
24, 2003 meet the definition of “case decisions” under the Administrative Process Act. We
disagree.
-6-
The Act defines a “case decision” as follows:
[A]ny agency proceeding or determination that, under laws or
regulations at the time, a named party as a matter of past or present
fact, or of threatened or contemplated private action, either is, is
not, or may or may not be (i) in violation of such law or regulation
or (ii) in compliance with any existing requirement for obtaining or
retaining a license or other right or benefit.
Code § 2.2-4001.
By the statute’s plain meaning, a case decision is the resolution of an agency
“proceeding,” (a “regular and orderly progression of a lawsuit”), or an agency’s “determination,”
(“a final decision by a court or administrative agency”). Black’s Law Dictionary 1221, 460 (7th
ed. 1999). Accordingly, the “heart” of a case decision is a “fact determination respecting
compliance with the law,” Kenley v. Newport News Gen. & Non-Sectarian Hosp. Ass’n, 227 Va.
39, 45, 314 S.E.2d 52, 55 (1984), and one that involves “an application of the law to the facts of
[a] particular case.” Strawbridge v. County of Chesterfield, 23 Va. App. 493, 499, 477 S.E.2d
789, 792 (1996); see also Virginia Bd. of Med. v. Virginia Physical Therapy Ass’n, 13 Va. App.
458, 468, 413 S.E.2d 59, 65 (1991) (holding that “[a]bsent a case decision as defined by the
[Administrative Process Act], the [petitioner] could not and cannot bring a suit against [an
agency] to challenge the alleged unlawful de facto rule or position of the [agency]”).
As a threshold issue, we note that the communications Garraghty received from these
agencies are not excluded from the Act’s definition of “case decision” merely because they are in
the form of letters addressed to his attorney. Greenwald Cassell Ass’n v. Dep’t of Commerce, 15
Va. App. 236, 239, 421 S.E.2d 903, 905-06 (1992) (holding that a cease and desist letter was the
Department’s determination that the defendant was in violation of law, and as such was a “case
decision”). In this case, however, neither letter involves the application of facts to law in an
agency proceeding -- the essence of the definition of a case decision. Rather, both letters
-7-
respond to Garraghty’s request for “information” and reference decisions made in past
proceedings.
The April 7, 2003 letter from Garraghty’s attorney was unmistakably a request for a
clarification of the Department of Corrections’ position concerning the grievance matter. The
letter related the steps Garraghty had taken during the grievance process and asserted that during
the process the Department of Corrections had incorrectly rejected his grievance on a procedural
basis and “has never formally stated its position and/or reasoning as to . . . Garraghty being
eligible or not for VaLORS.” The letter “request[ed] a review of this issue and written
explanation and/or final agency decision of the . . . position on . . . Garraghty’s eligibility for
VaLORS.”
In response, the Department of Corrections’ letter of April 24 did no more than explain
that it had indeed responded to the merits during the grievance process and that both the
Department of Employment Resolution and the Greensville Circuit Court had affirmed the denial
of a grievance hearing for that precise reason. This letter fails the Act’s definition of “case
decision” because it simply re-informed Garraghty of the decisions that already had been made
through the grievance procedure. The letter provided a written explanation of the reasoning
denying the grievance, explaining that the “response to . . . Garraghty’s grievance . . . stated ‘the
Code of Virginia defines what positions are covered under the VaLORS program and I have no
authority to place your position in the program.’” In further response to Garraghty’s request for
an “explanation,” the letter closed with the following paragraph:
The Department of Employee Dispute Resolution ruled that
Mr. Garraghty’s grievance was not qualified for a hearing and
why. This was consistent with Mr. Angelone’s third step response.
It was this decision that the grievance was not qualified for a
hearing that the Greensville Circuit Court affirmed.
-8-
Thus, the letter expressly references the Department of Corrections’ earlier determination of
Garraghty’s claim made in the grievance procedure, and it further referenced the Greensville
Circuit Court’s affirmance of this determination. The letter simply referred to the agency’s past
decisions and, thus, cannot be considered an agency’s “determination” or “case decision” under
the Act.3
As we earlier noted, the record does not contain the letter from Garraghty’s attorney that
generated the Retirement System’s April 4, 2003 letter. Thus, the trial judge and we are
informed of its tenor only by the Retirement System’s response, which states that the attorney
“requested information regarding the retirement benefit for . . . Garraghty.” The record contains
no indication that the attorney’s letter had the effect of filing a claim for retirement benefits or
sought from the Retirement System a “fact determination respecting compliance with the law.”
Kenley, 227 Va. at 45, 314 S.E.2d at 55.4
As the Attorney General aptly notes, “for reasons known only to him, Garraghty pursued
[the State Grievance Procedure] avenue on the VaLORS issue and the creditable compensation
3
In the petition for appeal to the circuit court, Garraghty sought to characterize this letter
as a case decision, alleging that
[t]his appeal is taken from the Virginia Department of Corrections
. . . final agency decision set forth in its letter of April 24, 2003
denying your Appellant’s request to recognize and/or classify his
former position of warden as that of a “correctional officer,” so as
to be covered by the VaLORS program and administered by the
Virginia Retirement System . . . .
4
In the petition for appeal to the circuit court, Garraghty sought to characterize the
Retirement System’s response as a case decision, alleging that
[t]his appeal is taken from the Virginia Retirement System . . .
final agency decision set forth in its letter of April 4, 2003 denying
your Appellant’s request to calculate and/or recalculate his
retirement by adding the value of the perquisites included in his
job . . . [and] den[ying] your Appellant’s request to be included in
coverage under the Virginia Law Officers Retirement System . . . .
-9-
issue.” Indeed, by filing petitions for appeal from responses to his letters seeking an
“explanation” from the Department of Corrections and “information” from the Retirement
System about the bases underlying the adverse rulings on his grievances, Garraghty merely
resurrected the grievance issues and sought to ascribe to these explanatory responses new and
independent agency actions. In the absence of a case decision, however, Garraghty had no
jurisdictional basis to invoke any provision of the Administrative Process Act. He merely sought
to continue the grievance process in an unorthodox manner not sanctioned by any statute or case
law.
The Attorney General argues that “Garraghty has exhausted his administrative remedies
with respect to these two issues, and that he cannot take ‘another bite at the apple’ by
commencing separate, additional appeals under the [Administrative Process Act] to re-litigate the
same issues.” We need not, and do not, decide whether Garraghty’s claim that he is entitled to
VaLORS benefits and creditable compensation for perquisites under retirement programs
administered by the Retirement System must be pursued exclusively under either the State
Grievance Procedure or the Administrative Process Act.5 We hold, based upon the issue fairly
5
The State Grievance Procedure provides that
[i]t shall be the policy of the Commonwealth, as an employer, to
encourage the resolution of employee problems and complaints . . .
[and that to] the extent that such concerns cannot be resolved
informally, the grievance procedure shall afford an immediate and
fair method for the resolution of employment disputes that may
arise between state agencies and those employees who have access
to the procedure.
Code § 2.2-3000. The legislature has specified in Code § 2.2-3004 the types of grievances
qualifying for a hearing (Code § 2.2-3004(A)) and the types of complaints not qualifying for a
hearing (Code § 2.2-3004(C)).
The Administrative Process Act specifically addresses personnel actions in the following
provision:
- 10 -
presented by this appeal, only that the two letters at issue in this appeal are not case decisions.
They were responses to Garraghty’s requests for information, not to an application or claim for
benefits. Thus, Garraghty’s petitions for appeal were nothing more than an attempt to relitigate
the grievance procedure issues that had been finally decided in the Circuit Court of Greensville
County.
For these reasons, we affirm the orders dismissing the petitions.
Affirmed.
B. Agency action relating to the following subjects shall be
exempted from the provisions of this chapter:
* * * * * * *
7. The selection, tenure, dismissal, direction or control of any
officer or employee of an agency of the Commonwealth.
Code § 2.2-4002. See generally Op. Va. Att’y Gen. 31, 32 (rendered under a similar provision
before the Act was recodified).
- 11 -