PATRICK LEE CHERRIE, ADMINISTRATOR OF THE ESTATE OF GERDA A. HARVEY, DECEASED, ET AL.
VIRGINIA HEALTH SERVICES, INC.
THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Timothy S.
PRESENT: All the Justices
ARTHUR KELSEY JUSTICE
circuit court dismissed declaratory judgment complaints filed
by two decedents' estates seeking to assert a private
right of action for the production of documents under 12 VAC
§ 5-371-140(G). After consolidating these cases, the
court held that the regulation did not require the production
of documents requested by the estates and, on that basis,
dismissed both complaints. We affirm but for a different
reason. The governing statute does not imply a private right
of action for the enforcement of this regulation, and thus,
the estates' claims cannot be enforced in a declaratory
Virginia Board of Health regulates certain medical facilities
in the Commonwealth, including "[n]ursing home[s]"
as defined by Code § 32.1-123. See 12 VAC
§ 5-371-10 (defining "[n]ursing facility" as
"any nursing home as defined in § 32.1-123 of the
Code of Virginia"). One condition of licensure requires
nursing homes to have "written policies and
procedures" and to make these "policies . . .
available for review, upon request, to residents and their
designated representatives." 12 VAC § 5-371-140(A),
statute and regulation, the Board may enforce this
requirement through the imposition of "administrative
sanctions, " which could include, among other things,
petitioning a court to "impose a civil penalty" and
"[r]evoking or suspending" the nursing home's
license. Id. § 5-371-90(A), (B)(2)-(3); see
also Code § 32.1-135(A). Under Code § 32.1-24,
individual "case decisions" are then subject to the
Administrative Process Act, Code §§ 2.2-4000 to
2.2-4031. In addition, the State Health Commissioner may
"initiate court proceedings" against non-compliant
nursing homes, Code § 32.1-127.01, in the event that
administrative remedies do not produce compliance.
consolidated case, the complaints alleged that Gerda A.
Harvey and James Clifton Davis, Jr. were residents for brief
periods at two different nursing homes operated by Virginia
Health Services, Inc. After their deaths, their executors
asked the nursing homes to provide copies of all written
policies and procedures in effect during the decedents'
stays. J.A. at 5, 12. When the nursing homes refused, the
executors of both estates filed declaratory judgment actions
seeking an order of "specific performance"
compelling the nursing homes to provide the requested
documents. Id. at 3, 10.
circuit court dismissed the case, holding that only current
residents, not former residents, could bring an enforcement
action under 12 VAC § 5-371-140(G). The estates appeal,
arguing that the better interpretation of this regulation is
that it authorizes current and former residents of nursing
homes to bring a private right of action.
no need to referee the dispute between the circuit court and
the estates on whether to interpret 12 VAC §
5-371-140(G) narrowly or broadly. We thus do not address
whether the term "residents" in this regulation
encompasses former as well as current residents. That dispute
presupposes that the governing statutes authorize parties
other than the Commissioner to bring a regulatory enforcement
action in circuit court. We hold that the statutes do not
authorize a private right of action to enforce 12 VAC §
Virginia, "substantive law" determines whether a
private claimant has a right to bring a judicial action.
Kiser v. A.W. Chesterton Co., 285 Va. 12, 21, 736
S.E.2d 910, 915 (2013) (quoting Roller v. Basic Constr.
Co., 238 Va. 321, 327, 384 S.E.2d 323, 326 (1989)).
Substantive law includes the Constitution of Virginia, laws
enacted by the General Assembly, and historic common-law
principles recognized by our courts. A "right of
action" is a legally recognized "remedial
right" to "enforce a cause of action,
" which is simply the "set of operative facts"
that causes a claimant to assert his claim. Id.
(emphasis added); see also Black's Law
Dictionary 266, 1520 (10th ed. 2014) (defining "cause of
action" as a "group of operative facts giving rise
to one or more bases for suing" and "right of
action" as the "right to bring a specific case to
court"). The distinction between a right of
action and a cause of action should not be dismissed
as an odd, rhetorical anachronism. It factors into many
modern legal doctrines, including res judicata, accrual for
statute-of-limitations purposes, and, pertinent here, a
party's right to seek judicial remedies.
case, the estates claim they have asserted a viable cause of
action. In their view, the "cause" of their civil
action is obvious: The nursing homes will not produce the
requested documents, and the regulation requires them to do
so. While that may or may not be true, it does not answer the
threshold question of whether "substantive law"
gives the estates the legal "right" to seek