Employment – VAWPA can’t be asserted against official in individual capacity

Because the Virginia Fraud and Abuse Whistle-Blower Protection Act’s limited remedies – reinstatement and back pay – are only available against a defendant in his official capacity, the claim asserted against an official in his individual capacity was dismissed.

Background

Dr. Derrick Brown, the former Chief Academic Officer of Lynchburg City Schools, is suing Dr. Ben Copeland, the former Interim Superintendent of Lynchburg City Schools, for allegedly “retaliating” against him for saying that “underprivileged and minority students . . . require  protection.” Brown seeks relief under 42 U.S.C. § 1983 and Virginia’s Fraud and Abuse Whistle-Blower Protection Act, or FAWPA.

Copeland, who has been sued only in his individual capacity, moves to dismiss Brown’s FAWPA claim for lack of standing, arguing that Copeland cannot provide Brown with the relief he seeks—namely, reinstatement and back pay.

Analysis

Copeland’s motion to dismiss—which essentially argues that supervisors cannot be sued in their individual capacity under the FAWPA—presents a non-federal question, and therefore, this court must “apply the law of the state.” There is a dearth of authority interpreting the FAWPA.

The Court of Appeals of Virginia recently held that § 2.2-3010’s definition of employer means “an employee’s supervisor within [the government] agency.” In other words, under the FAWPA, a state or municipal employee who has been retaliated against for reporting violations of law can sue his supervisor but cannot sue the state or municipality. This construction is supported by the plain language of the statute, which defines employer as “a person supervising one or more employees.”

But neither that decision nor any other Virginia case directly addresses the issue presented here. To be sure, that decision held that supervisors can be sued in their official capacities, noting that supervisors are not entitled to sovereign immunity under the FAWPA. But it left open the question of whether supervisors can be sued in their individual capacities. The text and structure of the statute suggest not.

The FAWPA only allows for limited statutory remedies, namely: “(i) reinstatement to the same position or, if the position is filled, to an equivalent position; (ii) back pay; [or] (iii) full reinstatement of fringe benefits and seniority rights.” These remedies are only available against a defendant in his official capacity—not his individual capacity.

An individual supervisor (and especially a former supervisor who is no longer employed by the government agency) is in no position to reinstate a plaintiff or to compel the government agency to pay back pay. Therefore, the FAWPA’s remedy provision strongly suggests that the General Assembly only contemplated official capacity claims against supervisors. Because Copeland is only sued in his individual capacity, the FAWPA claim against him must be dismissed.

Defendant’s motion to dismiss granted.

Brown v. Copeland, Case No. 6:26-cv-00016, May 19, 2026. WDVA at Lynchburg (Moon). VLW 026-3-220. 6 pp.

Full-Text Opinion

VLW 026-3-220