Fulton County Superior Court

***EFILED***RM
Date: 12/30/2016 11:42:35 PM
Cathelene Robinson, Clerk

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

RIGOBERTO RIVERA HERNANDEZ,

JOSAFAT SANTILLAN, ET AL.,

Plaintiffs,

CIVIL ACTION FILE NO:

2016-CV-274418
v.

C. DEAN ALFORD, ET AL. IN THEIR

INDIVIDUAL CAPACITIES AS
MEMBERS OF THE UNIVERSITY
SYSTEM OF GEORGIA'S BOARD OF
REGENTS,
Defendants.

FINAL ORDER
This matter

comes before

the Court on Plaintiff's

MOTION FOR SUMMARY

JUDGMENT and Defendant's MOTION TO DISMISS. The instant case is a mandamus action
arising out of the denial of in-state tuition to Plaintiffs by the members of the University System
of Georgia's Board of Regents. None of the Plaintiffs in this action are United States citizens;
rather they are recipients of the Deferred Action for Childhood Arrivals ("DACA") program,
meaning that they have been granted relief from deportation by the Department of Homeland
Security. The Board of Regents has denied these students in-state tuition status on the basis that

they do not meet the "legal presence"

requirement

Plaintiffs contend that as DACA recipients

subject

the members

to the issuance

dispositive

lawfully present in the United

of lawful presence in determining

in-state

of the Board of Regents have failed their public duty and are

of a writ of mandamus.

motions on December

in Board of Regents Policy 4.3.4.

they are considered

States and that by refusing to accept such definition

tuition eligibility,

specified

The Court conducted

a hearing

on these

1, 2016, and now, having considered the argument of counsel,

the record in this case, and the law, the Court finds and concludes as follows:
Defendants' Motion to Dismiss
Defendants assert in their Motion to Dismiss that: I) Plaintiffs have failed to state a claim
upon which relief may be granted, and 2) mandamus is not an appropriate remedy in this case. It
is well established

that:

"[A] motion to dismiss for failure to state a claim upon which relief may be granted
should not be sustained unless (1) the allegations of the complaint disclose with certainty
that the claimant would not be entitled to relief under any state of provable facts asserted
in support thereof; and (2) the movant establishes that the claimant could not possibly
introduce evidence within the framework of the complaint sufficient to warrant a grant of
the relief sought. ... In deciding a motion to dismiss, all pleadings are to be construed most
favorably to the party who filed them, and all doubts regarding such pleadings must be
resolved in the filing party's favor."
Scouten v. Amerisave Mortgage Corp., 283 Ga. 72, 73 (2008) (quoting Anderson v. Flake, 267
Ga. 498, 501(2) (1997.

See also O.C.G.A. 9-11-12(b)(6).

The purpose of mandamus relief is

to compel a government official to act when they have failed to perform a clear legal duty.
Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657,661 (2014). A writ of mandamus can be
properly issued only when two conditions have been met: I) the applicant bas a clear legal right

to the relief requested; and 2) no other adequate legal remedy is available

to obtain the relief

requested.
Defendants
that "Plaintiffs

argue that Plaintiffs'

claims impose no clear legal duty on the Regents and

have failed to plead a demand on their part to the Regents that the Regents take

the action desired by Plaintiffs nor have they pled a refusal on the part of the Regents to take the
demanded action." Motion to Dismiss, p. 13. The Court disagrees with this characterization

of

Plaintiffs' claims. Defendants have a duty to "make such reasonable rules and regulations as are
necessary for the performance of its duties ... " pursuant to O.C.G.A.

20-3-31.

As Plaintiffs have

pled, the federal government has made clear that DACA recipients are lawfully present in the
United States. J The Board of Regents has a policy which requires lawful presence in the United

States in order to receive in-state tuition status.' The Board of Regents refuses to accept the
current lawful status that Plaintiffs have been granted. Under the facts asserted in Plaintiffs'
complaint this constitutes Defendants' failure to perform a clear legal duty. Defendants also
argue that Plaintiffs' claims seek to improperly "compel a general course of conduct or the
performance of continuous duties ... where the court issuing the writ would have to undertake to
oversee and control the general course of official conduct of the party to whom the writ is
directed." Solomon y. Brown, 218 Ga. 508, 509 (1962). This is another mischaracterization of
Plaintiffs' claims. Requiring Defendants to give proper effect to their own in-state tuition policy
as it relates to the federally defined legal presence of DACA recipients would not improperly
I This can be found in the United States Citizenship and Immigration Services FAQ on DACA which is contained on
the official website of the Department of Homeland Security.

Regents Policy 4.1.6 uses the term "lawfully present". Their argument that the use of this term predates DACA
serves only as an attempt to circumvent the status that Plaintiffs and other similarly situated students have been
granted by the federal government. At no point was the Policy amended to change the term "lawful presence" to
"lawful status" (which carries a different legal meaning), and there is no proper basis for the Regents to ignore the
status these students have been granted simply because they weren't aware in advance of DES' intention to grant it.
2

compel any "long series of continuous acts to be performed under varying conditions."
v. Cochran, 134 Ga. 396 (1910).

Jackson

Nor would it improperly "compel the undoing of acts already

done or the correction of wrongs already perpetrated."

County Bd. of Ed., 245 Ga. 533,540 (1980).
in-state tuition to DACA recipients "undone";

Plaintiffs

Hilton Const. Co. Inc .. v. Rockdale

have not sought to have every denial of

they seek to have Defendants perform their duty

by legally applying the policy from this point forward.

Defendants also argue that any duty that might be owed is discretionary
therefore Plaintiffs'

in nature and

claims for mandamus relief must fail. Atlanta Title & Trust Co. v. Tidwell,

173 Ga. 499 (1931). However the Court agrees with Plaintiffs' argument that the Regents'
enforcement of what is a clear and unambiguous standard in their own regulations does not
involve any discretion. The "lawful presence" standard is one that was adopted by the Board of
Regents in their discretion, but the question of whether to honor the legal definition of "lawful
presence" as established by the federal govemment is not a discretionary matter.
Finally, Defendants argue that Plaintiffs have an adequate remedy at law through the
appeal process set out in the Regents' Policy Manual, and that Plaintiffs' failure to pursue that
remedy means mandamus cannot be issued. Voyles v. McKinney, 283 Ga. 169, 170 (2008). The
Court will discuss the adequate remedy requirement further in addressing Plaintiffs' Motion for
Summary Judgment, but for the purposes of this Motion to Dismiss Defendants have failed to
establish that the facts in the complaint disclose with certainty that the appeals process provided
for in the Regents' Policy Manual is an "equally convenient, complete, and beneficial" remedy
at law. N. Fulton Med. Ctr., Inc. v. Roach, 265 Ga. 125, 127 (1995). Not only is it a matter of the
Regents Office of Legal Affairs' discretion whether each appeal is considered at all, but
4

Defendants have not provided

any showing that each individual student pursuing such a process

would be equally convenient to seeking mandamus

For the aforementioned

relief as they have done here.

reasons, the allegations

in Plaintiffs'

complaint

(which in the

context of this Motion to Dismiss must be taken as true) do not disclose with certainty that
Plaintiffs are not entitled to relief on their mandamus

petition.

Therefore Defendants'

Motion to

Dismiss is DENIED.

Plaintiffs' Motion for Summary Judgment

As discussed above,
Mandamus is an extraordinary remedy to compel a public officer to perform a required
duty when there is no other adequate legal remedy. It is a discretionary remedy that courts
may grant only when the petitioner has a clear legal right to the relief sought or the public
official has committed a gross abuse of discretion. In general, mandamus relief is not
available to compel officials to follow a general course of conduct, perform a
discretionary act, or undo a past act.
Schrenko v. DeKalb County School Dist.. 276 Ga. 786, 794(3) (2003)(citations

omitted).

Plaintiffs argue in their Motion for Summary Judgment that they are entitled to mandamus relief
because they meet all of the requirements for in-state tuition as specified in the Regents' Policy
Manual and each member of the Board of Regents has a public duty to abide by its Rules and
Policies, which necessarily includes its policy that requires students to submit proof of "lawful
presence" to be eligible for in-state tuition. Under Georgia law, in order for a party to prevail on
summary judgment, "the moving party must demonstrate that there is no genuine issue of
material fact and that undisputed facts, viewed in the light most favorable to the nonmoving
party, warrant judgment as a matter of law." Lau's Corp. v. Haskins, 261 Ga. 491, 491 (1991).
The moving party may show there is no genuine issue of material

fact by introducing

"documents,

affidavits, depositions

and other evidence

in the record revealing

that there is no

evidence sufficient to create a jury issue on at least one essential element of plaintiff's case." rd.
The nonmoving party "cannot rest on its pleadings,

but rather must point to specific

evidence

giving rise to a triable issue." rd.

Plaintiffs Have a Clear Legal Right to Mandamus Relief

The first condition that Plaintiffs must satisfy here is a showing that no genuine issue of
material fact exists as to whether they have a "clear legal right to [mandamus] relief'. Bibb Cty.
v. Monroe Cty., 294 Ga. 730, 734 (2014). The Court finds that Plaintiffs have made such a
showing and Defendants have not pointed to any specific evidence to the contrary. O.C.G.A.
9-6-20 states that "[a]ll official duties should be faithfully performed, and whenever, from any
cause, a defect of legal justice would ensue from a failure to perform or from improper
performance, the writ of mandamus may issue to compel a due performance." The legislature has
provided that "[t]he board of regents shall have power: (1) To make such reasonable rules and
regulations as are necessary for the performance of its duties ... " O.C.G.A. 20-3-31.
Additionally, there is a specific statutory requirement that [n]oncitizen students shall not be
classified as in-state for tuition purposes unless the student is legally in this state and there is
evidence to warrant consideration of in-state classification as determined by the board of
regents." O.C.G.A. 20-3-66(d), (emphasis added).
Under the discretion granted to it, the members of the Board of Regents continue to enact
a policy which wan-ants consideration of in-state classification to those who are lawfully present
in the United States. To create such a standard and then ignore the federal definition of it, which
is the only legally proper definition, is wholly unreasonable. Regents Policy 4.3.4 states that
6

"Each University System institution shall verify the lawful presence in the United States of every
successfully admitted person applying for resident tuition status ... " Exhibit D to Plaintiffs'
Motion for Summary Judgment. As Plaintiffs have noted, the Board of Regents has even
recognized the fact that "lawful presence is, of course, a question of federal law." Exhibit 1 to
Plaintiffs' Motion for Summary Judgment. And according to the federal government, "[a]n
individual who has received deferred action is authorized by the Department of Homeland
Security (DHS) to be present in the United States, and is therefore considered by DHS to be
lawfully present during the period deferred action is in effect." Exhibit E to Plaintiffs' Motion for
Summary Judgment. Neither party disputes that DHS has made this statement, rather Defendants
attempt to devalue the statement by arguing that it is merely a website FAQ and not an official
policy or regulation. While an official DHS policy on this question would certainly be beneficial
given the unique status of DACA recipients, the statements are nonetheless posted to the public
on the official website of the Department of Homeland Security and the Court finds they should
therefore be taken as accurate representations of the federal government's position. Defendants
have refused to accept the federally established lawful presence of Plaintiffs and many other
similarly situated students-students who are Georgia taxpayers, workers, and graduates of
Georgia public high schools pursuing an affordable option for higher education. Such refusal of a
faithful performance of their duties is unreasonable and creates a defect of legal justice that has
already negatively impacted thousands of Georgia students. There is no genuine issue of material
fact as to whether Plaintiffs have a clear legal right to have Defendants compelled to perform
their duty on this issue.
Plaintiffs Have No Other Adequate Legal Remedy
7

The second prong that must be satisfied for mandamus to be issued is that there must be
no other adequate legal remedy available to effectuate the relief being sought. Bibb Cty. v.
Monroe Cly. at 734. More specifically,

"[t]he general rule that mandamus does not lie where the

petitioner has an adequate legal remedy is limited to cases in which the legal remedy is "equally
convenient,

complete and beneficial."

N. Fulton Med. Ctr., Inc. v. Roach, 265 Ga. 125,

(1995). As mentioned above in the discussion

127

of Defendants' Motion to Dismiss, Defendants

argue that because Plaintiffs failed to pursue appeals of their in-state tuition denial through their
institutions, mandamus relief is not available

process set out in Rule 4.7.1.

to them. It is undisputed that there is an appeal

The Rule states that

Final judgment on all appeals regarding admissions (including program admissions),

residency, student grades, traffic citations, and the Guaranteed Tuition Plan rests with the
president of the institution at which the appeal is heard (BoR Minutes, June 2006). Any
University System student aggrieved by a final decision of the president of an institution,
other than those stated above, may apply to the Board's Office of Legal Affairs for a
review of the decision, in accordance with Policy 8.6 Applications for Discretionary
Review; provided, however, that an application may be reviewed if (1) the record
suggests that a miscarriage of justice might reasonably occur if the application is not
reviewed, or (2) whether the record suggests that the institutional decision, if not
reviewed, might reasonably have detrimental and system-wide significance.
Board of Regents' Policy Manual Rule 4.7.1. It is also undisputed that Plaintiffs did not apply to
have their in-state tuition denials reviewed through this process. However this would only bar
mandamus relief if the appeal process as set out (or any other adequate legal remedy) was
equally convenient, complete, and beneficial. The facts and evidence presented show that the
appeal process as described in Rule 4.7.1 would not provide such adequate alternative relief to
Plaintiffs. Based on the language of the rule, a student does not have a direct or automatic right
to appeal and have their decision reviewed. If a student wishes to appeal the final in-state tuition

decision from their institution, they can apply to the Board of Regents' Office of Legal Affairs
who will then determine whether the appeal will be considered at all based on whether they find
a likely miscarriage of justice or detrimental system-wide effects. This multi-step discretionary
appeal process is not equally convenient or complete to the relief Plaintiffs seek here. Defendants
have not pointed to any specific evidence giving rise to a triable issue on this question, and the
Court finds there to be no genuine issue of material fact as to whether Plaintiffs have an adequate
altemative legal remedy.
For the aforementioned reasons, Plaintiffs have established that they are entitled to
mandamus relief as a matter of law. Plaintiffs' Motion for Summary Judgment is GRANTED
and Defendants are hereby compelled to perform their duty in applying the federal definition of
lawful presence as it relates to students who are DACA recipients and to grant them in-state
tuition status. This is the Court's final order in this matter and the Clerk's Office is directed to
mark this case as CLOSED.
SO ORDERED, ADJUDGED AND DECREED THIS 30th DAY OF DECEMBER,
2016.