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Cherrie v. Virginia Health Services, Inc.

Supreme Court of Virginia

July 14, 2016



          PRESENT: All the Justices



         The 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 judgment action.


         The 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), (G).

         By 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.

         In this 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.

         The 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.


         We see 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 § 5-371-140(G).


         In 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.

         In this 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 judicial ...

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