Opinion
Docket No.: CL17-5454
11-22-2017
MICHAEL C. McGHEE, Plaintiff, v. VIRGINIA DEPARTMENT OF MOTOR VEHICLES, Defendant.
FINAL ORDER REGARDING DEFENDANT'S MOTION TO DISMISS PETITION FOR APPEAL
THIS CAUSE came to be heard on October 10, 2017, upon the Petition for Appeal of Administrative Decision (the "Petition") filed by Plaintiff Michael McGhee and a corresponding motion to dismiss (the "Motion") filed by Defendant Virginia Department of Motor Vehicles ("DMV"). The Petition appeals the administrative decision of the DMV Hearing Officer, which found that McGhee violated Sections 46.2-646.1(B) and 46.2-706 of the Code of Virginia by failing to do one of the following: (i) reinsure his motor vehicle (the "Vehicle"), (ii) pay the uninsured motor vehicle fee, (iii) surrender the license plates for the Vehicle, or (iv) deactivate the Vehicle registration. McGhee seeks release from the required statutory insurance notification obligations, reversal of DMV's administrative decision to suspend his driver's license, and an award of his court costs and attorney's fees associated with this appeal.
Because the Court lacks jurisdiction, for the reasons discussed herein, the Court GRANTS DMV's motion to dismiss and dismisses this action.
BACKGROUND
On December 14, 2016, DMV sent an "Insurance Verification Inquiry" letter to McGhee, informing him that his automobile insurance company had notified DMV that McGhee's vehicle liability insurance had been terminated. (R. Tab 1.) DMV instructed McGhee that if he wished "to maintain license plates for th[e] vehicle," he needed to either obtain liability insurance for the Vehicle or pay the Uninsured Motor Vehicle ("UMV") fee by January 4, 2017. (Id.) In the alternative, if he elected not to do either, he was required to surrender his license plates to DMV or request that his license plates be deactivated. (Id.)
On January 11, 2017, DMV sent McGhee an "Order of Suspension," which stated that McGhee's "privilege to operate motor vehicles, register vehicles, and obtain license plates and decals in Virginia" would be suspended on February 10, 2017, unless he either (i) provided DMV proof of automobile liability insurance or (ii) paid the $500 statutory fee and had his insurance company file form SR22 "Certificate of Insurance" with DMV for a period of three years. (R. Tab 2.) The order also offered McGhee the opportunity to request an administrative hearing to show cause why the order should not be enforced. (Id.)
McGhee requested an administrative hearing on January 24, 2017, stating that he had been "sick" and "not able to go out after dialysis," the Vehicle was for sale, and he had been in the hospital "for a little before the date in question." (R. Tab 3.) On January 31, 2017, DMV notified McGhee that it had received his request, that the Order of Suspension was temporarily withdrawn pending the requested hearing, and that he should provide DMV "any information as to why [he] believe[d] the order of suspension should not be enforced." (R. Tab 4.) A telephonic hearing was conducted on April 3, 2017, and on April 6, 2017, DMV issued its Hearing Decision, in which it decided—after reviewing the evidence—that it was reinstating the Order of Suspension effective May 9, 2017, unless McGhee paid the $500 statutory fee and furnished proof of financial responsibility. (R. Tab 6.) The Hearing Decision also summarized the relevant findings of fact and conclusions of law—including that McGhee registered the Vehicle as insured with DMV and that McGhee acknowledged receipt of correspondence from DMV advising him of both the requirement to register a vehicle and the consequences for failing to do so—to which McGhee responded by alleging that he did not reply to the correspondence primarily due to ill health. (Id.) The Hearing Decision further notified McGhee of his right to appeal the decision to the appropriate Virginia circuit court or, alternatively, to petition for reconsideration with the DMV Commissioner. (Id.)
DMV also pointed out that "[s]uch information may result in the cancellation of the order and a hearing may not be required." (R. Tab 4.)
McGhee mailed a letter to the DMV Agency Secretary dated April 27, 2017, indicating that he intended to appeal the Hearing Decision. On May 2, 2017, the DMV Agency Secretary sent a response letter, in which he informed McGhee that DMV would consider his letter a notice of appeal in accordance with Rule 2A:2, instructed McGhee how to proceed with a petition in accordance with the Rules of Supreme Court of Virginia, and attached a copy of the rules associated with the Virginia Administrative Process Act ("VAPA"). (R. Tab 7.) McGhee then filed the Petition on May 9, 2017. DMV points out that, upon filing the Petition, McGhee mailed a copy to the DMV Hearing Officer and requested that the Court serve the Petition on the Hearing Officer, although such service was never accomplished. (Mot. Dismiss and Br. Opp'n Pet. Appeal ¶ 3 & n.3.)
In the Petition, McGhee asserts that there is no legal basis to suspend his operator's license. (Pet. Appeal Administrative Decision 3.) In support thereof, McGhee states that he believed he was not required to purchase insurance as required by Section 46.2-706 of the Code of Virginia because the Vehicle is an antique vehicle and is inoperable. (Id.) He further contends that health-related issues caused him to be unaware of the violation notice and precluded his timely response. (Id.) Lastly, McGhee requests that, "[i]f the Court finds there was no will full [sic] violation of DMV's requirement for insurance . . . he be released from the on going [sic] obligation for SR-22 insurance." McGhee argues that he has now complied with "all of the term [sic] set out by the hearing officer." (Id.)
The Hearing Decision states that "[t]he suspension shall begin at 12:01 a.m. on May 9, 2017, unless prior to that time [McGhee] compl[ies] with the Order by: (1) Paying DMV the statutory fee of $500; AND (2) Furnishing proof of financial responsibility either by having your liability insurance company file form SR-22 or in a manner consistent with Article 15, Chapter 3 of Title 46.2 (§ 46.2-435 et seq.) of the Code of Virginia." (R. Tab 6.) --------
In its Motion, DMV argues that the appeal should be dismissed because McGhee did not properly serve the DMV Agency Secretary as required by Virginia Supreme Court Rule 2A:4, precluding the Court from acquiring jurisdiction. (Mot. Dismiss and Br. Opp'n Pet. Appeal ¶¶ 2-4.) In the alternative, DMV asserts in its Brief that if the Court were to decide it has jurisdiction, DMV should prevail on the merits. (Id. ¶ 22.) In support, DMV contends that the agency record reflects that McGhee failed to meet the clear statutory requirements and that the agency acted within the scope of its authority under the VAPA. (Id. ¶¶ 14-19, 22.) DMV further argues that it cannot be sued for damages or attorney's fees as it is entitled to sovereign immunity; thus, the only remedy available—even if the Court were to find in McGhee's favor—is reversal of the agency decision. (Id. ¶¶ 20-21.)
The Court heard arguments regarding both the Petition and the Motion at a hearing on October 10, 2017, after which the Court took the matter under advisement. Having considered the pleadings, the evidence and oral argument presented at the hearing, and applicable authorities, the Court now issues its ruling.
STANDARD OF REVIEW
Under Virginia law, "[a]ny person aggrieved by an order or act of the Commissioner [of DMV] requiring suspension or revocation of a license or registration . . . is entitled to judicial review in accordance with the provisions of the Administrative Process Act." Va. Code § 46.2-410 (2015 Repl. Vol.). Under the VAPA, "[a]ny person affected by . . . and claiming unlawfulness of a case decision . . . shall have a right to direct review thereof by an appropriate and timely court action against the agency or its officers or agents in the manner provided by the Rules of the Supreme Court of Virginia." Va. Code § 2.2-4026 (2017 Repl. Vol.). The complaining party has the burden of demonstrating "an error of law subject to review by the court." Id. § 2.2-4027.
A DMV decision can be appealed to a circuit court by filing a petition of appeal with the court clerk's office to commence a civil action in accordance with Rule 3:2(a) of the Rules of Supreme Court of Virginia. Rule 3:4 provides that "[e]xcept in cases where service is waived pursuant to Code § 8.01-286.1 [concerning the prerequisites for waiver of service of process], the plaintiff shall furnish the clerk when the complaint [or petition] is filed with as many paper copies thereof as there are defendants upon whom it is to be served," which "clearly contemplates official service of process." Muse Constr. Grp., Inc. v. Commonwealth Bd. of Contractors, 61 Va. App. 125, 140, 733 S.E.2d 690, 697 (2012). "There is no statute or rule specifically prescribing the method for the service of process of a petition for the appeal of an administrative ruling . . . ." Va. Ret. Sys. v. Avery, 262 Va. 538, 543, 551 S.E.2d 612, 615 (2001).
"Process is an official notice informing the recipient of pending action filed and advising when a response is required." Bendele ex rel. Bendele v. Va. Dep't of Med. Assistance Servs., 29 Va. App. 395, 398, 512 S.E.2d 827, 829 (1999). "Process, at least for purposes of Rule 2A:4(a), must be an official notice issued by a court, not simply information being shared from another source." Muse, 61 Va. App. at 140, 733 S.E.2d at 697. "[T]he simple act of mailing to an agency a copy of a petition for appeal that has been filed with a court does not qualify as 'process.'" Id.
"Except for process commencing actions for divorce or annulment of marriage or other actions wherein service of process is specifically prescribed by statute, process which has reached the person to whom it is directed within the time prescribed by law, if any, shall be sufficient although not served or accepted as provided in this chapter." Va. Code § 8.01-288 (2015 Repl. Vol.).
ANALYSIS
Motion to Dismiss
Although Commonwealth agencies are generally immune from suit, sovereign immunity may be waived explicitly and expressly by statute. Va. Bd. of Med. v. Va. Physical Therapy Ass'n, 13 Va. App. 458, 465, 413 S.E.2d 59, 63 (1991). Additionally, the Commonwealth "may tailor its consent to be sued by prescribing certain modes, terms, and conditions." Id. As such, the VAPA '"expressly provides two actions that allow agencies to be sued: (1) the adoption of rules, and (2) case decisions, as those terms are statutorily defined." Id. at 465, 413 S.E.2d at 64. In sum, "the General Assembly has waived sovereign immunity only to allow a party to obtain judicial review of the [agency's] adoption of rules or the [agency's] case decisions, as such are defined in the VAPA, in the manner provided in the VAPA." Id. at 466, 413 S.E.2d at 64. (1999). Thus, "without any accompanying court-issued process," the provisions of Section 8.01-288 do not apply to a petition for appeal of an administrative ruling. Muse, 61 Va. App. at 141, 733 S.E.2d at 697.
DMV admits that McGhee filed a notice of appeal with the DMV Agency Secretary as required by Rule 2A:2 and requested formal service on the hearing officer; however, no court-issued process was forwarded to the agency secretary as required by Rule 2A:4. Even if, arguendo, court-issued service of process on the hearing officer was requested, the Court received no evidence that such service actually was accomplished. Without court-issued process, the procedural requirements to overcome sovereign immunity have not been met, and this Court does not have jurisdiction to hear the appeal. The Court therefore GRANTS DMV's motion to dismiss.
CONCLUSION
Based on the above, the Court GRANTS DMV's motion to dismiss due to defective service of process and the Court's associated lack of jurisdiction.
Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail or email copies of this Order to all counsel of record.
IT IS SO ORDERED this 22nd day of November, 2017.
/s/_________
David W. Lannetti
Circuit Court Judge