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COMMONWEALTHOFVIRGINIA 
EdwardL . Hogshire 
315 East High Street 
Charlottesville. Virginia 22902 
(434) 970·3760 
(434)9 7 0 · 3 0 3 8(fax) 
DanielR. Bouton
Sixteenth JudicialC o u r t
PO.B o x230
Orange, Virginia2 2 % 0
(540)6 7 2 · 2 4 3 3
Albemarle
Culpeper
Fluvanna
Goochland
(540) 672·2189(fax)
Greene
Louisa
Madison
Orange
Charlottesville
August 30, 2010
Chuck Rosenberg, Esquire
Hogan LovellsU SLLP
Columbia Square
555Thirteenth Street,N W
Washington, DC 20004
WesleyG . Russell, Jr. Esquire
Deputy Attorney General
Officeo f the Attorney General

Civil Litigation Division
900 East Main Street
Richmond, Virginia 23219

Re: The Rector and Visitorso f the Universityo f Virginia
v.
KennethT . CuccinelJi, II, Attorney Generalo f Virginia
Case No.:C L l 0-398
Dear Counsel:
Timothy K Sanner 
PO. Box 799 
Louisa, Virginia 23093 
(540) 967·5300 
(540)967·5681(fax) 
CherylV .Higgins 
501E.Jefferson SI..3 r d Floor 
Charlottesville. Virginia 22902 
(434) 972-4015 
(434) 972-4071( f a x )
JohnG.Berry 
135 WestC a m e r o n Street 
Culpeper. Virginia 22701 
(540) 727·3440 
(540)7 2 7 · 7 5 3 5(fax) 
This matter came before the Courto n August2 0 , 2 0 1 0 on the Petition to Set
Aside Civil Investigative Demands issuedtothe Universityo f Virginia by Respondent,
KennethT , Cuccinelli, II, on April 23, 2010, A hearing was held on August 20, 2010 and
the Court took the matter under advisement to review the legal authority cited.
BACKGROUND

The Civil Investigative Demands attached as Exhibits 1 and 2 to the Petition are identical except one is issued to the Universityo f Virginia and the other to the Rectors and Visitorso fthe University o fV i r g i n i a ,

Page 2
Pursuant to Article 19.1o f the Code o fVirginia o f 1950, as amended, known as
the Virginia Fraud Against Taxpayers Act (FATA), the Attorney General shall
investigate any violationo f the Act. Section 8.01·216.4o f theC o d e o fVirginia.
Violationso f the Act include:" A n y person who:
1. Knowingly presents,o r causes to be presented, toa n officero r
employeeo f the Commonwealth a falseo r fraudulent claim for
payment or approval;
2. Knowingly makes, uses,o r causes to bem a d eo r used, a false
recordo r statement to get a falseo r fraudulent claim paido r
approved by the Commonwealth;
3. Conspires to defraud the Commonwealth byg e t t i n g a false or
fraudulent claim allowed or paid.".
Id 8.01·216.3
These are the violations alleged in the Civil InvestigativeD e m a n d s in Exhibits1
and 2.
TheA c t authorizes the Attorney General to issue a civil investigative demand
(CID)i f h e has. . . . . reason to believe that any person mayb e in possession, custody,o r
controlo f any documentary materialo r information relevant to a falsec l a i m sl a w
investigation. .. ."
Id.8.01·216.10
Section8.01·216.11o f the Code sets forth contents and deadiineso f each civil
investigative demand. It states:" E a c h civil investigative demand issuedu n d e r this article
shall state the natureo fthe conduct constituting the alleged violationo f a false claims
law that is under investigation, and the applicable provisiono f the law alleged to be
violated. "
The Act also contains definitions under Section 8.01·216.2o f the Code. Pertinent
to this Petition is the definitiono f "person."' ' ' P e r s o n ' includes any natural person,
corporation, firm, association, organization, partnership, limited liabilityc o m p a n y ,
business,o r trust."
A" c l a i m "is defined as" a n y requesto r demand... for moneyo r property ... i f t h e

Commonwealth provides any portiono f the moneyo r property that is requestedo r demanded,o ri f the Commonwealth will reimburse. . . any portiono fthem o n e yo r property that is requested or demanded."Id.8.01·216.2

Acivil investigative demand (CID) is" a n administratives u b p o e n a . " In re Oral
Testimonyo fa Witness Pursuant to Civil Investigative DemandN o .9 8 -1 ,1 8 2F .R .D .
196,2 0 2 (E.D. Va. 1998)
Page 3
ISSUESP R E S E N T E D
1. Does the Attorney General have to allege "reason to believe" that the
Universityo f Virginia is in possessiono f documentary material relevant to a false claims
law investigation?
2. Has the Attorney General stated in the Civil Investigation Demands issued" t h e
natureo f the conduct constituting the alleged violationo f the false claims law thatis
under investigation?"
3.Is the Universityo f Virginia a "person" under the Act to whom a civil 
investigative demand may issue? 
4. Would the issuanceo f a civili
n
v
~
s
t
i
g
a
t
i
v
e
demand by the Attorney Generalto
the Universityo f Virginia "chill" the academic freedomo f professors like Dr. Mann?
5. What are funded grants/awards by the Commonwealth?
6. Whatis the scopeo f the civil investigative demands issued?
ANALYSIS
1.R E A S O NT OB E L I E V E B YA T T O R N E YG E N E R A L
The Attorney General argues that the requiremento f Section8 . 1 0 - 2 1 6 . 1 0is a
subjective standard. In other words, the Attorney General has unbridled discretiontosay
he believes the University does have relevant material and that the Court does not have

the ability to review any requirementh e has "reason to believe" or not. The Court
disagrees. In order for the Attorney General to have "reasonto believe", he has to have
some objective basis to issue a civil investigative demand, which the Court has powerto
review. This Court rules that the objective basis for the Attorney General to have "reason

tobelieve" bas to be statedin the "natureo f the conduct" requirement contained in
Section 8.01-216.11. Stating the "natureo f the conduct" and the applicable lawo f the Act
believedto be violated tells the Courti f the Attorney General has "reason to believe."
2.N A T U R EO FT H E C O N D U C TR E Q U I R E M E N T
In reviewing the Civil Investigative Demands, the Court notes the "applicable

provisiono f the law allegedto be violated" is statedb y reference to the statute. However, the natureo f the conduct is not stated so that any reasonable person could glean whatD r. Mann didto violate the statute. The Attorney General says "the investigation relatesto data and other materials that Dr., Mann presented in seeking award/grants funded, in

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