Full Opinion

COURT OF APPEALS OF VIRGINIA Record No. 1913-25-4 VALERIA L. FOARCE v. FAIRFAX COUNTY SCHOOL BOARD Present: Chief Judge Decker, Judges AtLee and Callins Argued at Fredericksburg, Virginia Opinion Issued November 4, 2026* FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Patrick M. Blanch, Judge Valeria L. Foarce, pro se. Jakob T. Stalnaker (John F. Cafferky; Blankingship & Keith, P.C., on briefs), for appellee. MEMORANDUM OPINION BY JUDGE DOMINIQUE A. CALLINS Valeria L. Foarce appeals the circuit court’s judgment dismissing her petition for review of the Fairfax County School Board’s (“FCPS”) grievance determination. She argues that the circuit court erred by dismissing her petition for lack of subject matter jurisdiction. Finding no error, we affirm the circuit court’s judgment. BACKGROUND1 The Virginia Board of Education has established a procedure for resolving employee grievances. 8 VAC 20-90-30. FCPS has expanded the grievance procedure to follow six steps. * This opinion is not designated for publication. See Code § 17.1-413(A). 1 On appeal from the circuit court’s demurrer ruling, we accept the truth of the facts as pleaded and any reasonable inferences to be had thereof. Patterson v. City of Danville, 301 Va. 181, 197 (2022). First, the grievant participates in an informal conference with their immediate supervisor. Then, if the conference does not resolve the dispute, the grievant may submit a written grievance to their immediate supervisor. From there, the grievant may appeal the decision of their immediate supervisor to a regional assistant superintendent, whose decision may be further appealed to the superintendent’s hearing officer. If, following this appeals process, the grievance remains unresolved, then the grievant may either (1) request a hearing before a fact-finding panel or (2) “proceed directly to a determination before [FCPS].” Fairfax Cnty. Sch. Bd. Reg. 4461.3. Foarce is a teacher employed by FCPS.2 On March 31, 2025, Foarce filed a grievance, alleging that a principal discriminated in the “hiring process.” Later, she filed a separate grievance alleging that the same principal had retaliated against her by “improperly plac[ing] a record of her protected opposition” in her personnel file. According to Foarce, administrative officials committed “substantial procedural violations” during her informal conference and initial appeal, including reversing “the burden of proof” during her first appeal. Based on these alleged procedural violations, Foarce submitted a “[m]id-[p]rocess [a]ppeal” to FCPS, which was rejected as “premature.” Foarce resumed the grievance process, eventually appealing to the superintendent’s hearing officer. In her later petition to the circuit court, Foarce would claim that the hearing officer committed “multiple, outcome-determinative violations,” including fabricating evidence and limiting her right to cross-examine the sole witness at the hearing. Foarce noted two appeals to FCPS after the hearing officer’s decision: a “Step 6 appeal on the merits” and a “separate request for determination . . . regarding substantial procedural 2 Foarce alleged that she was a “contracted/licensed professional employee,” but we infer from her petition and pleadings that she is employed as a teacher. See Patterson, 301 Va. at 197. -2- violations.”3 FCPS consolidated Foarce’s appeals and rendered a final decision on her grievances on September 16, 2025. FCPS’s final decision purportedly stated that it “did not find any procedural violations that justified any of [Foarce’s] requested remedies.”4 Foarce petitioned the circuit court to review FCPS’s final decision. She alleged that the decision was arbitrary, capricious, and contrary to law because FCPS determined that the alleged procedural violations did not justify deciding in Foarce’s favor. She argued that FCPS had no discretion to determine whether a procedural violation justified a decision in her favor, contending that under Code § 22.1-308 and 8 VAC 20-90-50, any procedural violation entitled her to a decision in her favor. Foarce also claimed that FCPS abused its discretion by rejecting her “mid-process procedural appeal.” She asked the circuit court to reverse FCPS’s decision and remand the matter with instructions to “enter a decision in [her] favor” on both of her grievances. FCPS demurred, arguing that the circuit court lacked subject matter jurisdiction to consider Foarce’s petition because it challenged a decision on the merits of her grievances, rather than a grievability determination under Code § 22.1-314. Foarce countered that her “appeal does not seek to revisit the merits of her employment dispute; it challenges a legal determination - [FCPS’s] decision to apply a discretionary grievability standard to a matter governed by a mandatory rule of law.” 3 Foarce claimed to the circuit court that she noted four appeals to FCPS, two for each of her underlying grievances. Whether Foarce noted two or four appeals to FCPS does not affect our disposition of this case. 4 FCPS’s final decision is not in the record. -3- After a hearing, the circuit court dismissed Foarce’s petition for lack of subject matter jurisdiction by a final order dated October 24, 2025.5 Foarce now appeals. ANALYSIS Foarce contends that the circuit court erred by dismissing her petition for lack of subject matter jurisdiction under Code § 22.1-314. She asserts that FCPS’s determination regarding whether the hearing officer complied with its grievance process under Code § 22.1-308(A)(7) is “a grievability determination as a matter of law.” She emphasizes that “[c]onstruing procedural non-compliance as outside grievability” would render Code § 22.1-308(A)(7) meaningless. We disagree. “This Court reviews a circuit court’s decision to sustain a demurrer de novo.” Givago Growth, LLC v. ITech AG, LLC, 300 Va. 260, 264 (2021). “A demurrer tests the legal sufficiency of the facts alleged in a complaint assuming that all facts alleged therein and all inferences fairly drawn from those facts are true.” Id. We further “interpret those allegations in the light most favorable to the plaintiff.” Taylor v. Aids-Hilfe Koln, e.V., 301 Va. 352, 357 (2022) (quoting Coward v. Wellmont Health Sys., 295 Va. 351, 358 (2018)). And we review issues of statutory interpretation de novo. Va. Educ. Ass’n v. Davison, 294 Va. 109, 115 (2017). “Subject matter jurisdiction ‘refers to a [tribunal]’s power to adjudicate a class of cases or controversies[.]’” Verizon Va. LLC v. State Corp. Comm’n, 302 Va. 467, 473 (2023) (alterations in original) (quoting Cilwa v. Commonwealth, 298 Va. 259, 266 (2019)). Such jurisdiction can only 5 After considering objections to each party’s proposed written statement of facts, the circuit court vacated the October final order on December 5, 2025. On December 19, 2025, the circuit court entered a new final order dismissing Foarce’s petition for lack of subject matter jurisdiction. We asked the parties to address whether the circuit court had active jurisdiction to vacate its October 24, 2025 order and, if so, whether the December 5, 2025 order rendered this appeal moot. The parties agree that the circuit court lacked jurisdiction to vacate its October 24, 2025 final order. We also agree that the circuit court lacked active jurisdiction to vacate the October final order and conclude that this appeal is not moot. -4- be conferred by the Constitution or by statute; parties cannot waive the absence of subject matter jurisdiction or confer it upon a court by consent. Pure Presbyterian Church of Wash. v. Grace of God Presbyterian Church, 296 Va. 42, 49-50 (2018). In the context of this case, a “grievance” is defined by Code § 22.1-306 as follows: a complaint or dispute by a teacher relating to [their] employment, including (i) disciplinary action including dismissal; (ii) the application or interpretation of (a) personnel policies, (b) procedures, (c) rules and regulations, (d) ordinances, and (e) statutes; (iii) acts of reprisal against a teacher for filing or processing a grievance . . . ; and (iv) complaints of discrimination on the basis of race, color, creed, religion, political affiliation, disability, age, national origin, sex, pregnancy, childbirth or related medical conditions, marital status, sexual orientation, gender identity, or military status. Further, “failure to apply, where applicable, the rules, regulations, policies, or procedures as written or established by the school board is grievable.” Id. Because each school board has “the exclusive right to manage the affairs and operations of the school division,” the term “grievance” does not include, among other things, issues involving hiring, salaries, or the school division’s operations. Id. The General Assembly directed the Virginia Board of Education to “prescribe a grievance procedure” for resolving employee grievances. Code § 22.1-308(A). The General Assembly also instructed that the grievance procedure adopted by the Virginia Board of Education must include, among other things, “[t]he right of the grievant, at [their] option, upon failure of the respondent to comply with all substantial procedural requirements without just cause, to advancement to the next step or, in the final step, to a decision in [their] favor.” Code § 22.1-308(A)(7). The Virginia Board of Education prescribed a grievance procedure in accordance with Code § 22.1-308(A), which FCPS expanded to follow six steps, concluding with a final decision by FCPS. 8 VAC 20-90-30; Fairfax Cnty. Sch. Bd. Reg. 4461.3. -5- Code § 22.1-314 confers circuit courts with jurisdiction to hear school board appeals regarding the grievability of a matter. Cnty. Sch. Bd. of York Cnty. v. Epperson, 246 Va. 214, 217 (1993). The statute permits a local school board to initially decide whether a matter is grievable. Id. at 216. An employee may appeal this initial decision of the school board to the circuit court. Id.; Code § 22.1-314. Following the circuit court’s review, the remaining steps of the grievance procedure may be utilized to decide the merits of the matter. Epperson, 246 Va. at 216. An employee, however, cannot appeal a school board’s final decision on the merits. See Code § 22.1-308(A)(8) (identifying the “final step” in the grievance procedure as “a final decision on the grievance by the school board”). An important distinction lies between adjudicating grievability and adjudicating the merits of a matter. “Grievability” refers to the eligibility of a matter to be adjudicated using the grievance procedure—in other words, whether a matter involves a “grievance” as defined in Code § 22.1-306. See Code § 22.1-314. “Merits” refers to the legal substance of a claim. Our Supreme Court supported this distinction in Tazewell Cnty. Sch. Bd. v. Gillenwater, 241 Va. 166 (1991), and Epperson, 246 Va. at 217, where it dismissed school board employee appeals to the circuit court because the underlying complaints were not “grievances” as defined in Code § 22.1-306. It appears here that Foarce mistakes an adverse decision on the merits of her grievances with the grievability of her underlying complaints. Her petition to the circuit court did not state that she asked FCPS to determine the grievability of her complaints of discrimination, retaliation, or procedural violations under Code § 22.1-314. Nor did she allege that FCPS found that her complaints were not grievable or subject to its grievance procedure. Rather, Foarce alleged that FCPS rendered a final decision on her grievances after she followed its six-step grievance -6- procedure and asked the circuit court to “reverse [FCPS’s] decision.” In other words, Foarce challenges FCPS’s final decision on the merits of her grievances. Foarce’s arguments below and on appeal confirm the nature of her petition. For instance, her opposition to FCPS’s demurrer argued that the alleged procedural violations during the grievance process “required a decision in her favor.” Similarly, Foarce argues to this Court that Code § 22.1-308(A)(7) required FCPS to enter a decision in her favor.6 Foarce also argues that FCPS erroneously used a “‘justification’ standard” in determining the merits of her grievance. But, again, she appears to misunderstand FCPS’s decision to be a grievability determination subject to judicial review.7 Foarce seeks to appeal FCPS’s final decision on the merits of her grievance, which the circuit court does not have jurisdiction over and cannot review. Therefore, we affirm the circuit court’s dismissal of Foarce’s petition.8 6 Foarce argues that “[i]nterpreting [FCPS’s] refusal to apply the mandated consequence as unreviewable” would render the statutory remedial protection under Code § 22.1-308(A)(7) “a dead letter.” However, Code § 22.1-308 only prescribes the grievance procedure and does not confer jurisdiction on the circuit court. See Verizon Va. LLC, 302 Va. at 473. Therefore, this argument is without merit. 7 Relying on Sch. Bd. of the Cnty. of Loudoun v. Burk, 249 Va. 163 (1995), Foarce asserts that grievance statutes are remedial in nature and must be broadly interpreted. However, Burk does not stand for such a proposition; thus, her argument is without merit. See id. (finding lack of jurisdiction when the notice of appeal was not provided within the 10-day period under Code § 22.1-314). 8 Foarce further claims that the circuit court erred by rendering a decision in the absence of the administrative record and failing to comply with Rule 5A:8(d)’s procedure for resolving objections to a proposed written statement of facts. We do not address Foarce’s additional assignments of error given our holding that the circuit court properly dismissed her petition for lack of subject matter jurisdiction. See Thomas v. Commonwealth, 303 Va. 188, 198 (2024) (“The doctrine of judicial restraint dictates that generally we decide cases ‘on the best and narrowest grounds available.’” (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4 (2010))). -7- CONCLUSION Accordingly, we affirm the judgment of the circuit court.9 Affirmed. 9 Appellant’s motion to stay briefing, filed January 20, 2026, is hereby denied. -8-