OLVERA et al.
UNIVERSITY SYSTEM OF GEORGIA'S BOARD OF REGENTS et al
Cert. applied for.
Sovereign immunity. Fulton Superior Court. Before Judge Goger.
Kuck Immigration Partners, Charles H. Kuck, for appellants.
Samuel S. Olens, Attorney General, Russell D. Willard, Senior Assistant Attorney General, Allen I. Lightcap, Assistant Attorney General, for appellees.
Non-citizen college students who are beneficiaries of the federal Deferred Action for Childhood Arrivals program (" DACA" ) brought an 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 were entitled to in-state tuition benefits at institutions in the University System of Georgia. The trial court granted the Board's motion to dismiss on the ground that [331 Ga.App. 393] sovereign immunity bars the action. We agree and affirm. Accordingly, we do not reach the merits of the action.
" We review de novo a trial court's ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity." Bd. of Regents of the Univ. System of Georgia v. Canas, 295 Ga.App. 505, 509 (3) (672 S.E.2d 47) (2009) (citation and punctuation omitted).
In their declaratory judgment petition, the 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 " refus[ed] 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-state tuition 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 Procedure Act authorizing declaratory judgment actions against state agencies to determine the validity of agency rules, OCGA § 50-13-10, did not waive sovereign immunity in actions concerning " interpretive rules."
We agree with the trial court that sovereign immunity bars this action. Our state constitution provides that, with certain exceptions not relevant to this case, sovereign immunity " extends to the state and all of its departments and agencies." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). Accordingly, sovereign immunity extends to the Board of Regents. Wilson v. Bd. of Regents of the Univ. System of Georgia, 262 Ga. 413, 414 (3) (419 S.E.2d 916) (1992); Carroll v. Bd. of Regents of the Univ. System of Georgia, 324 Ga.App. 598, 602 (2) (751 S.E.2d 421) (2013); Bd. of Regents of the Univ. System of Georgia v. Ruff, 315 Ga.App. 452, 456 (2) (726 S.E.2d 451) (2012). It also extends to individual members of the Board when, as here, they are sued in their official capacities. See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 599 (2) (755 S.E.2d 184) (2014) (plain language of Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e) applies [331 Ga.App. 394] to the state and its officers and employees when sued in their official capacities); Cameron v. Lang, 274 Ga. 122, 126 (3) (549 S.E.2d 341) (2001) (sovereign immunity applies to public employees sued in their official capacities). And sovereign immunity extends to declaratory judgment actions against state agencies. See Judicial Council of Ga. v. Brown & Gallo, LLC, 288 Ga. 294, 298 (702 S.E.2d 894) (2010); DeKalb County School Dist. v. Gold, 318 Ga.App. 633, 637, 640 (1) (a) (734 S.E.2d 466) (2012); Live Oak Consulting v. Dept. of Community Health, 281 Ga.App. 791, 796 (1) (637 S.E.2d 455) (2006).
It is true that sovereign immunity can be waived. But it " can only be waived bye an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).
See Center for a Sustainable Coast, 294 Ga. at 603 (2). And it is true that in OCGA § 50-13-10 of the Administrative Procedure Act, OCGA § 50-13-1 et seq., the General Assembly specifically waived the state's sovereign immunity for certain declaratory judgment actions against state agencies. ...