Samuel Rolofson v. Brittany Fraser

COURT OF APPEALS OF VIRGINIA

Present: Judges Friedman, Frucci and Senior Judge Humphreys

PUBLISHED

Argued at Fredericksburg, Virginia

SAMUEL ROLOFSON

v. Record No. 0535-23-4

BRITTANY FRASER OPINION BY

JUDGE STEVEN C. FRUCCI

BRITTANY FRASER JULY 30, 2024

v. Record No. 0828-23-4

SAMUEL ROLOFSON

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Tania M.L. Saylor, Judge

Andrew C. Nichols (Timothy P. Bosson; Charis Lex P.C.; Bosson

Legal Group, P.C., on briefs), for Samuel Rolofson.

J. Andrew Baxter (Heba K. Carter; Erika M. Gnazzo; General

Counsel, P.C., on briefs), for Brittany Fraser.

This consolidated appeal arises out of the dismissal of a defamation case following a plea

in bar and asks whether the circuit court erred by: (1) dismissing Samuel Rolofson’s defamation

claims against Brittany Fraser arising from a May 15, 2020 Board of Inquiry1 (“BOI”) hearing as

“qualifiedly privileged” without permitting him to present evidence of malice, (2) dismissing

Rolofson’s defamation claim against Fraser arising from an alleged defamatory statement made

on April 29, 2021; and (3) concluding that the Virginia Anti-SLAPP2 statute, Code § 8.01-223.2,

1

BOIs are investigatory boards that look into alleged misconduct of officers.

2

The acronym SLAPP stands for Strategic Lawsuit Against Public Participation.

did not apply.3 The statutory construction issues presented in Fraser’s cross-appeal are matters

of first impression. For the following reasons, we affirm the circuit court on all assignments of

error.

BACKGROUND

Samuel Rolofson and Brittany Fraser are Army officers who dated briefly in 2017 while

both were stationed at Fort Bragg, North Carolina.4 After the end of their romantic relationship,

Fraser made allegations about Rolofson’s behavior to the military chain of command.

Following, his chain of command initiated an investigation, which resulted in Rolofson receiving

a General Officer Memorandum of Reprimand (“GOMOR”). The GOMOR reprimanded

Rolofson “for harassing” Fraser, “and for using [his] official duty position . . . to wrongfully

revoke the security access of an enlisted Soldier.” The GOMOR found that Rolofson “sent

[Fraser], and members of her team, text messages that made her feel uncomfortable[,]” and that

Rolofson had “demonstrate[d] a complete lack of judgment and responsibility” and “discredited”

himself.

The commanding general who reviewed Rolofson’s GOMOR ordered a BOI hearing to

determine whether Rolofson “harass[ed] Captain Fraser” and “use[d] his authority as a military

intelligence officer to remove an individual’s access” to a building. The BOI hearing was heard

on May 15, 2020. During the hearing, Fraser made numerous statements regarding Rolofson’s

behavior. Following, the BOI officers recommended Rolofson’s dismissal from the Army, but

As the statements at issue were published in North Carolina, it could be argued that

3

North Carolina law applies. The issue of whether North Carolina or Virginia law applies,

however, was not discussed during litigation at the circuit court level, nor was it briefed on

appeal. Accordingly, this Court will assume without deciding that Virginia law applies, pursuant

to the law of the case doctrine. See Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 27 (2008).

4

Now known as Fort Liberty.

-2-

upon review, the Deputy Assistant Secretary of the Army for Review Boards retained Rolofson

in the service. On April 29, 2021, Fraser allegedly told Rolofson’s superiors that “she was in

fear of her life because [Rolofson] knew her address and had sued her.” Allegedly, because of

Fraser’s statements and the GOMOR, Rolofson will be administratively separated from the

Army on April 1, 2025.

On September 30, 2021, Rolofson filed a complaint for defamation in the Circuit Court of

Fairfax County. By agreement, Rolofson filed an amended complaint on December 10, 2021,

adding prayers for declaratory and injunctive relief in addition to the monetary damages. The

amended complaint alleged that the statements made by Fraser about Rolofson during the May

15, 2020 BOI hearing were defamatory. Fraser allegedly stated that Rolofson had abused his

authority by deleting Sergeant Roman Nazario’s5 name from a security computer, which limited

Nazario’s access to certain buildings. The amended complaint also alleged that Fraser had

defamed Rolofson by stating that he was a threat to her health and safety on April 29, 2021.

Rolofson asserted that Fraser’s defamatory statements had harmed him “in the form of loss of

deployment, loss of career furthering opportunities, and ostracization within his work place.”

Fraser filed a “Demurrer, Plea in Bar, and Motion to Dismiss,” asserting, in relevant part,

that Rolofson’s claims were “subject to qualified privilege” and barred under Virginia’s Anti-

SLAPP statute, Code § 8.01-223.2. In her supporting brief, Fraser argued that her statements, as

alleged in the amended complaint, were “qualifiedly privileged,” because she “had a duty to

report” the matters to military authorities during the BOI hearing. Rolofson’s responsive brief

countered that Fraser had defamed him maliciously, which defeated her claims of privilege and

immunity.

5

Fraser alleges that Rolofson accused her of having an inappropriate relationship with

Sergeant Nazario, a non-commissioned officer who was also stationed at Fort Bragg.

-3-

At an evidentiary hearing to address the statute of limitations’ effect on additional

statements Rolofson alleged Fraser made in 2017 and claims of qualified privilege, and anti-

SLAPP protections for all alleged statements made by Fraser, the parties disagreed regarding

whether the circuit court needed to hear evidence. Fraser wanted to present evidence, and

because she bore the burden on the plea in bar, the circuit court permitted her to introduce

evidence she thought necessary to meet her burden.

Fraser did not address her qualified privilege defense at the hearing. Consistent with that

posture, the circuit court repeatedly stated that the “only” matters before it were the statute of

limitations issue and whether the claims were barred by the anti-SLAPP statute.

Captain Guybert Paul, a judge advocate for the United States Army, also testified at the

plea in bar hearing.6 Captain Paul had prosecuted Rolofson at the May 15, 2020 BOI hearing,

which was presided over by a colonel and two lieutenant colonels. The presiding officers at BOI

hearings generally must determine whether questions or charges by a general officer are

“substantiated” by a “preponderance of the evidence.” The presiding officers then recommend

whether the subject individual should be “separate[d]” from the Army, under “honorable” or

“other than honorable” conditions. BOI hearings may involve sworn witness testimony, are open

to the public, and are subject to FOIA requests. The rules of evidence, including hearsay rules,

do not apply at BOI hearings.

At the conclusion of the hearing, the circuit court sustained the plea in bar to the 2017

statements on statute of limitations’ grounds and ordered supplemental briefing on the anti-

SLAPP statute immunity. The circuit court subsequently sustained the plea in bar, finding that

6

Captain Paul testified that the purpose of the BOI hearing is to determine whether the

allegations of misconduct are substantiated by a preponderance of the evidence, and if so, to

make a recommendation as to whether the accused should be separated from the military. 10

U.S.C. § 14903.

-4-

Fraser’s statements during the May 15, 2020 BOI hearing were “qualifiedly privileged.” The

circuit court acknowledged that a qualified privilege does not apply to statements “made with

malice” but found that Fraser’s credible testimony “was sufficient to overcome the allegations of

malice.” The circuit court further found that, although it was Rolofson’s burden to prove malice,

he had offered no evidence of malice at the hearing. Addressing the third count of defamation

for Fraser’s April 29, 2021 statement, the circuit court noted that the parties had presented no

evidence regarding those statements and that the pleadings were too conclusory and alleged

merely “an expression of [Fraser’s] opinion, which is not actionable as defamation.” The circuit

court expressly rejected Fraser’s arguments that the claims were barred under the anti-SLAPP

statute, finding that the statements at the BOI hearing were not “a matter of public concern”

under the anti-SLAPP statute and that the BOI hearing itself was not a “public hearing before the

governing body of any locality or other political subdivision.”

Rolofson objected to the circuit court’s ruling, arguing that the qualified privilege claim

was not “properly in front of the Court” during the plea in bar hearing. He asserted that Fraser

had not raised the claim at the hearing and that the circuit court had refused to allow him to

introduce evidence of malice. Rolofson also stated that the circuit court should have granted him

leave to amend his complaint. Fraser sought reconsideration of the circuit court’s anti-SLAPP

rulings. The circuit court denied the motion. Rolofson timely appealed, and Fraser cross-

appealed.

ANALYSIS

“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s

recovery.” Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v.

VanMarter, 279 Va. 566, 577 (2010)). “The party asserting the plea in bar bears the burden of

proof.” Id. If the “parties present evidence on the plea ore tenus, the circuit court’s factual

-5-

findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they

are plainly wrong or without evidentiary support.” Id. But we review de novo the circuit court’s

“application of the law to the facts.” Ferguson v. Stokes, 287 Va. 446, 450 (2014).

I. The circuit court’s decision to dismiss Rolofson’s defamation claim due to qualified

privilege

Rolofson challenges the circuit court’s rulings that Fraser established a qualified privilege

and that he then failed to overcome that qualified privilege by presenting evidence of malice.

Rolofson argues that the circuit court took no evidence on qualified privilege and stated twice

that the only questions before the circuit court were Fraser’s statute of limitations and anti-

SLAPP defenses. Consequently, he alleges that the circuit court was bound by his pleadings in

the amended complaint on the qualified privilege claim, which expressly alleged that Fraser had

maliciously defamed him. As we find that the record established Fraser’s statements were

absolutely privileged, we need not decide the issues of malice or qualified privilege. Banks v.

Commonwealth, 280 Va. 612, 617 (2010).

This Court will “not hesitate, in a proper case, where the correct conclusion has been

reached but the wrong reason given, to sustain the result and assign the right ground.” Id.

(quoting Eason v. Eason, 204 Va. 347, 352 (1963)). Indeed, even if the “right ground” was not

presented to the circuit court, we may sustain its judgment provided the record supports the right

ground and no “additional factual presentation is necessary to resolve the newly-advanced

reason.” Perry v. Commonwealth, 280 Va. 572, 580 (2010). The record “supports an alternative

ground for affirmance” when “all evidence necessary to that ground was before the circuit

court.” Banks, 280 Va. at 617. If that evidence was conflicting, then the record must also show

how the circuit court resolved the dispute. Id. Here, the circuit court reached the right result,

-6-

though for a different reason, because the undisputed evidence before the circuit court

demonstrated that Fraser’s statements were absolutely privileged.

“In the law of defamation, there are two types of privileges – absolute and qualified.”

Isle of Wight County v. Nogeic, 281 Va. 140, 152 (2011). Where qualified privilege can be

defeated by a showing of malice, “the maker of an absolutely privileged communication is

accorded complete immunity from liability even though the communication is made maliciously

and with knowledge that it is false.” Id. (quoting Lindeman v. Lesnick, 268 Va. 532, 537

(2004)).

The rule of absolute privilege “is broad and comprehensive,

including within its scope all proceedings of a judicial nature

whether pending in some court of justice, or before a tribunal or

officer clothed with judicial or quasi-judicial powers,” and

includes “any proceeding for the purpose of obtaining such remedy

as the law allows.”

Givago Growth, LLC v. Itech AG, LLC, 300 Va. 260, 265 (2021) (quoting Penick v. Ratcliffe,

149 Va. 618, 627-28 (1927)). “The purpose underlying the absolute privilege is that ‘the public

interest is best served when individuals who participate in lawsuits are allowed to conduct the

proceeding with freedom to speak fully on the issues relating to the controversy.’” Id. (quoting

Watt v. McKelvie, 219 Va. 645, 651 (1978)).7

7

As mentioned, absolute privilege goes “beyond the actual courtroom” and is extended to

proceedings that are judicial in nature because of the safeguards in place, such as liability for

perjury or the applicability of the rules of evidence. Lindeman, 268 Va. at 537. For example,

because a claimant seeking to perfect a mechanic’s lien must appear in the clerk’s office “and

make oath before a notary public,” the “filing of the memorandum of mechanic’s lien constitutes

a judicial proceeding,” and statements within the memorandum are “absolutely privileged” if

they are “relevant and pertinent to the case.” Donohoe Constr. Co. v. Mt. Vernon Associates,

235 Va. 531, 538-39 (1988). Similarly, “certain proceedings before” the Workers’

Compensation Commission “involve a quasi-judicial body contemplated by the privilege because

the Commission, upon receipt of evidence submitted under penalty of perjury, resolves facts and

legal disputes falling within its statutory authority between parties who seek to have their

disputes . . . resolved.” Lindeman, 268 Va. at 537-38.

-7-

In the case at hand, Captain Paul’s description of the BOI hearing provides overwhelming

and uncontested evidence that Fraser’s statements made during the May 15, 2020 BOI hearing

are absolutely privileged. BOI hearings are conducted before a panel of unbiased higher-ranking

officers, who consider sworn witness testimony and other evidence and can be questioned

through voir dire at the hearing. The hearings are open to the public and subject to FOIA

requests. The record indicates that Rolofson participated at the hearing and had the assistance of

counsel. Further, Rolofson was ordered to appear in front of this BOI to determine whether the

allegations were substantiated and whether the Board should recommend his separation from the

Army. Thus, Fraser’s allegedly defamatory statements were made “before a tribunal or officer

clothed with judicial or quasi-judicial powers.” Givago Growth, 300 Va. at 265. In that context,

the public interest is best served by permitting witnesses to “speak fully,” under penalty of

perjury, so that the BOI can resolve the dispute before it. Id. Accordingly, the undisputed

evidence demonstrated that Fraser’s statements at the BOI hearing were absolutely privileged.

Therefore, although for a different reason, we affirm the circuit court’s judgment dismissing

Rolfson’s defamation claims that were based on those statements.

II. The circuit court’s decision to dismiss Rolofson’s defamation claim as to the April 29

2021 statement due to its being an expression of opinion8

Rolofson also challenges the circuit court’s finding that the April 29, 2021 statement was

an expression of opinion.9 In Virginia, to successfully plead a defamation claim, the plaintiff

must allege facts to establish (1) publication of, (2) an actionable statement, (3) with requisite

intent. Schaecher v. Bouffault, 290 Va. 83, 90 (2015). Notably, “expressions of opinion are not

8

Whether Fraser’s statement about her then frame of mind is defamatory on its face was

not addressed by either party and so this Court does not include it in its analysis.

9

This presents the Court with a question of law that it analyzes de novo. Cashion v.

Smith, 286 Va. 327, 336 (2013).

-8-

actionable as defamation.” Lewis v. Kei, 281 Va. 715, 727 (2011). An idea expressed in opinion

is never “false” within the scope of the First Amendment of the United States Constitution, and

“however pernicious an opinion may seem, we depend for its correction not on the conscience of

judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S.

323, 339-40 (1974). “[W]hen a statement is relative in nature and depends largely on a speaker’s

point of view, that statement is an expression of opinion.” Hyland v. Raytheon Tech. Sers. Co.,

277 Va. 40, 47 (2009).

In the case at hand, the record demonstrates that the April 29, 2021 statement by Fraser

was an opinion. Rolofson alleges that Fraser “stated she was in fear of her life because

[Rolofson] knew her address and had sued her,” even though Rolofson had “not contact[ed] her

for a number of years.” Clearly, the conclusion by Fraser that she was in “fear of her life” was

relative to the nature of her own personal knowledge: She formed this opinion based on her

knowledge that he had sued her and knew where she lived. Accordingly, her statement of her

then state of mind (“fear of her life”) largely depended on her subjective point of view and

therefore is an expression of opinion. Indeed, Rolofson’s counter-assertion in the second part of

that paragraph, intimating that she should not be in fear of her life, is likewise an opinion largely

dependent on his own subjective viewpoint: He formed this opinion based on his knowledge that

he had not contacted her in years. Accordingly, we find as a matter of law that the statement

made by Fraser on April 29, 2021, is an expression of opinion. Therefore, the circuit court did

not err when it dismissed Rolofson’s defamation claim for this statement.

III. The circuit court’s denial of leave to amend

Rolofson also argues that the circuit court abused its discretion by dismissing his

defamation claim without granting him leave to amend. Review of a circuit court’s “decision to

grant or deny a motion” for leave to file an amended complaint “is limited to the question

-9-

whether the trial court abused [its] discretion.” AGCS Marine Ins. Co. v. Arlington Cnty., 293

Va. 469, 487 (2017) (quoting Lucas v. Woody, 287 Va. 354, 363 (2014)). Although a pleading

may not be amended “after it is filed save by leave of court,” Rule 1:8 provides that “[l]eave to

amend shall be liberally granted in furtherance of the ends of justice.” Generally, a circuit court

need not grant leave to amend when the proffered amendments “are legally futile,” or “where

there is no proffer or description of the new allegations.” AGCS, 293 Va. at 487 (citing Rule

1:8). Other relevant considerations include “whether the court previously granted leave to

amend” and “how long the case has been pending.” Doe By and Through Doe v. Baker, 299 Va.

628, 656 (2021) (citing Ogunde v. Prison Health Servs., Inc., 274 Va. 55, 67 (2007)).

Here, the record demonstrates that the circuit court previously granted Rolofson leave to

file an amended complaint. Moreover, when Rolofson objected to the circuit court’s order

dismissing count three of his amended complaint, he did not proffer any new allegations he

would include in a second amended complaint that would overcome the circuit court’s finding

that the statement was an opinion from which a defamation claim could not arise. Rather, he

merely stated, “as to the statement not being clearly pled, [he] should have been provided an

opportunity to replead to clarify.” Given those circumstances, the circuit court did not abuse its

discretion by not granting Rolofson leave to amend.

IV. The circuit court’s ruling regarding Virginia’s anti-SLAPP Statute

Fraser argues that, although the circuit court ruled in her favor, it erred by not applying

the immunity provided under Virginia’s Anti-SLAPP statute, Code § 8.01-223.2(A). She asserts

that the circuit court erred in holding that the statements at issue in the case did not regard

“matters of public concern that would be protected under the First Amendment to the

- 10 -

Constitution of the United States” within the meaning of Code § 8.01-223.2(A)(i).10 She

likewise argues that the circuit court erred in holding that the BOI hearing was not a “public

hearing before the governing body of any locality or other political subdivision or a public

hearing before the board, commission, agency or authority of any such governing body or

political subdivision or any other governing body of local government” under Code

§ 8.01-223.2(A)(ii).11 Fraser argues that the proper test for determining whether a matter is of

public concern is whether its content implicates the public welfare. She contends that the

standards of conduct for the military services are such a matter. She also reiterates that the BOI

hearing related to Rolofson’s fitness to retain his “position of trust to protect the Constitution, the

United States and its citizens,” which Fraser sees as “a matter of public concern.”

“Under well-established principles, an issue of statutory interpretation is a pure question

of law which we review de novo.” Dep’t of Taxation v. R.J. Reynolds Tobacco, 300 Va. 446,

454 (2022) (quoting JSR Mech., Inc. v. Aireco Supply, Inc., 291 Va. 377, 383 (2016));

Wintergreen Homestead, LLC v. Pennington, 76 Va. App. 69, 74 (2022). “The ‘primary

objective of statutory construction is to ascertain and give effect to legislative intent.’” Grethen

v. Robinson, 294 Va. 392, 397 (2017) (quoting Turner v. Commonwealth, 226 Va. 456, 459

(1983)); Chenevert v. Commonwealth, 72 Va. App. 47, 56 (2020). “That intention is initially

found in the words of the statute itself, and if those words are clear and unambiguous, we do not

10

Fraser argues that she was entitled to immunity under the statute because the

challenged statements related to Rolofson’s misconduct and fitness to serve as an active duty

servicemember. Viewed in that light, Fraser contends that the statements addressed a matter of

public concern under Code § 8.01-223.2(A)(i).

11

Fraser contends the BOI was a public hearing before a board or political subdivision,

namely, the United States Army, which she argues makes her statements at that hearing protected

under Code § 8.01-223.2(A)(ii).

- 11 -

rely on rules of statutory construction.” Palmer v. Atlantic Coast Pipeline, 293 Va. 573, 578

(2017) (quoting Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91 (1997)).

“[W]hen the language of an enactment is free from ambiguity, resort to legislative history

and extrinsic facts is not permitted because we take the words as written to determine their

meaning.” Conner v. City of Danville, 70 Va. App. 192, 205 (2019) (quoting Newberry Station

Homeowners Ass’n, Inc. v. Bd. of Supervisors of Fairfax County, 285 Va. 604, 614 (2013)).

“[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious,

narrow, or strained construction.” Grethen, 294 Va. at 397 (quoting Turner, 226 Va. at 459).

Settled principles of statutory construction also dictate that statutes “in derogation of the

common law are [themselves] to be strictly construed and not to be enlarged in their operation by

construction beyond their express terms.” Shoemaker v. Funkhouser, 299 Va. 471, 484 (2021)

(alteration in original) (quoting Wetlands Am. Tr., Inc. v. White Cloud Nine Ventures, L.P., 291

Va. 153, 165 (2016)); Isbell v. Commercial Inv. Assocs., 273 Va. 605, 613 (2007) (quoting

Chesapeake & Ohio Ry. Co. v. Kinzer, 206 Va. 175, 181 (1965)). “[O]ur duty [is] to interpret

the statute as written and when this is done our responsibility ceases.” Cornell v. Benedict, 301

Va. 342, 349 (2022) (quoting Tvardek v. Powhatan Vill. Homeowners Ass’n, 291 Va. 269, 277

(2016)).

A. SLAPP suits and anti-SLAPP statutes

“The acronym ‘SLAPP’ . . . was coined in the 1980s to refer to ‘meritless suits brought

by large private interests to deter common citizens from exercising their political or legal rights

or to punish them for doing so.’” Bristol Asphalt Co., v. Rochester Bituminous Prods., Inc., 227

N.E.3d 1019, 1031 (Mass. 2024) (quoting Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d

935, 939 n.7 (Mass. 1998)).

- 12 -

“Generally speaking, anti-SLAPP statutes aim to weed out and deter lawsuits brought for

the improper purpose of harassing individuals who are exercising their protected right to freedom

of speech.” Fairfax v. CBS Corp., 2 F.4th 286, 296 (4th Cir. 2021). Virginia is one of many

states that have adopted an anti-SLAPP statute.

As relevant to Fraser’s appeal, Virginia’s anti-SLAPP statute12 provided as follows:

A. A person shall be immune from civil liability for a violation of

§ 18.2-499, a claim of tortious interference with an existing

contract or a business or contractual expectancy, or a claim of

defamation based solely on statements (i) regarding matters of

public concern that would be protected under the First Amendment

to the United States Constitution made by that person that are

communicated to a third party or (ii) made at a public hearing

before the governing body of any locality or other political

subdivision, or the boards, commissions, agencies and authorities

thereof, and other governing bodies of any local governmental

entity concerning matters properly before such body. The

immunity provided by this section shall not apply to any

statements made with actual or constructive knowledge that they

are false or with reckless disregard for whether they are false.

B. Any person who has a suit against him dismissed or a witness

subpoena or subpoena duces tecum quashed pursuant to the

immunity provided by this section may be awarded reasonable

attorney fees and costs.

Code § 8.01-223.2; 2020 Va. Acts ch. 824 (emphases added). At issue in the appeal are both

Code § 8.01-223.2(A)(i) and (A)(ii). With this framework in mind, we address each provision in

turn.

12

Code § 8.01-223.2 was amended effective July 1, 2020, so arguably the earlier version

might apply because the challenged statements were made on May 15, 2020. But the only

difference between the statutory language following the 2020 amendment was an expansion of

the availability of attorney fees for a quashed witness subpoena or subpoena duces tecum, which

is not at issue here. The statute was amended again effective July 1, 2023, after the trial court

had ruled. See 2023 Va. Acts chs. 462, 463.

- 13 -

B. Matters of Public Concern

Code § 8.01-223.2 does not define “matters of public concern”; instead, it tethers the

statutory immunity provided to statements protected by the First Amendment. “[S]peech

concerning public affairs is more than self-expression; it is the essence of self-government.”

Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75

(1964)); Connick v. Myers, 461 U.S. 138, 145 (1983) (same). “Courts begin the First

Amendment inquiry by assessing whether the speech at issue relates to a matter of public

concern.” Liverman v. City of Petersburg, 844 F.3d 400, 406 (4th Cir. 2016). “The inquiry into

the protected status of speech is one of law, not fact.” Connick, 461 U.S. at 148 n.7.

“Speech involves a matter of public concern when it involves an issue of social, political,

or other interest to a community.” Carey v. Throwe, 957 F.3d 468, 475 (4th Cir. 2020) (quoting

Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc)); Campbell v. Galloway, 483

F.3d 258, 267 (4th Cir. 2007) (same). “By contrast, if the speech at issue merely implicates a

‘purely personal’ topic, the First Amendment does not apply and our analysis comes to an end.”

Carey, 957 F.3d at 475 (quoting Liverman, 844 F.3d at 406). “[M]any ordinary disputes in the

public workplace should be settled or resolved without calling the heavy artillery of the

Constitution into play.” Brooks v. Arthur, 685 F.3d 367, 371 (4th Cir. 2012).

“[F]or speech to rise to the level of public concern, it generally must involve at least

some objective nexus to the public welfare, beyond the simple fact that its subject happens to be

a public employee.” Carey, 957 F.3d at 478. So, the question before the Court is “whether the

public employee was speaking as a citizen upon a matter of public concern or as an employee

about a matter of personal interest.” Brooks, 685 F.3d at 371 (quoting McVey v. Stacy, 157 F.3d

271, 277 (4th Cir. 1998)); Cromer v. Brown, 88 F.3d 1315, 1325 (4th Cir. 1996) (same). That

question is resolved “by examining the ‘content, form and context’ of his speech.” Cromer, 88

- 14 -

F.3d at 1325 (quoting Connick, 461 U.S. at 147-48); Urofsky, 216 F.3d at 406. This inquiry is

“case- and fact-specific.” Campbell, 483 F.3d at 269 (quoting Connick, 461 U.S. at 147-48).

Speech generally is about “a public matter” when the content addresses such topics as:

• “discriminatory institutional policies or practices,” Brooks, 685 F.3d at 372;

• “the operations and policies of the Department,” Liverman, 844 F.3d at 408;

• “the inability of the [organization] to carry out its vital public mission

effectively,” Cromer, 88 F.3d at 1325-26;

• “improper treatment of members of the public” and discriminatory treatment

of female officers, Campbell, 483 F.3d at 270;

• a new policy under consideration by a school board, Loudoun Cnty. School

Board v. Cross, No. 210584, 2021 Va. LEXIS 141 (Aug. 30, 2021) (order); or

• a high school football coach’s recruiting practices and behavior around

student athletes, Harless v. Nicely, 80 Va. App. 678 (2024).

Conversely, “[p]ersonal grievances, complaints about conditions of employment, or

expressions about other matters of personal interest do not constitute speech about matters of

public concern that are protected by the First Amendment, but are matters more immediately

concerned with the self-interest of the speaker as employee.” Campbell, 483 F.3d at 267

(emphasis added) (quoting Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir.

1992)). Moreover, “[w]hen public employees make statements pursuant to their official duties,

the employees are not speaking as citizens for First Amendment purposes.” Id. at 266 (quoting

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)).

Turning to the form and context of the speech, various courts have held that speech

addressed a matter of public concern when it was:

• designed “to reach as broad a public audience as possible,” Snyder, 562 U.S.

at 454;

- 15 -

• directed to the public, Borough of Duryea v. Guarnieri, 564 U.S. 379, 398

(2011); Liverman, 844 F.3d at 410 (noting that Facebook posts suggest an

intent to communicate with the public); or

• in the form “of a group complaint,” Cromer, 88 F.3d at 1325-26.

The forum in which the speech occurred is also important. Massaro v. Fairfax County,

95 F.4th 895, 906 (4th Cir. 2024). Typically, invoking “an internal grievance procedure” does

“not seek to communicate to the public or to advance a political or social point of view beyond

the employment context.” Id.; Brooks, 685 F.3d at 373 (stating “[a]n employee . . . who seeks

primarily resolution of his personal situation through an employer-provided grievance process

simply does not speak with the civic intent necessary to invoke the First Amendment”).

Applying the above framework to the facts of this case, we conclude that the circuit court

correctly held that Fraser’s statements at the BOI did not address a “‘matter of public concern

that would be protected under the First Amendment to the United States Constitution,’ and as

such, do not receive the protection of Virginia Code § 8.01-223.2(A)(i).” Fraser’s statements

“through ‘an internal grievance procedure’” indicated that she did “not seek to communicate to

the public or to advance a political or social point of view beyond the employment context.”

Brooks, 685 F.3d at 373 (quoting Borough of Duryea, 564 U.S. at 398).

Fraser resists this conclusion by asserting that the BOI was convened to consider

Rolofson’s “alleged misconduct, substandard performance of duty, or conduct” that was

“incompatible with military service.” Fraser insists that “whether the Army adheres to” its

standards for officer conduct, including the mismanagement of personal affairs and conduct

unbecoming an officer” is a matter of public interest. Perhaps that is true, but Fraser’s

challenged statements did not address whether the Army adheres to its standards for officer

conduct—either as a systemic issue or in Rolofson’s case. Rather, Fraser’s statements concerned

her personal allegations against Rolofson concerning his personal conduct. Nothing in the record

- 16 -

indicates that Fraser was attempting to speak with the public or that her statements addressed the

Army’s ability—as an organization—to meet its public mission. Fraser’s reliance on Ellis v.

Shirikawa, 2021 WL 5112829 (D. Me. 2021), and Hammond v. Lovings, 2016 U.S. Dist. LEXIS

187597 (W.D. Tex. May 25, 2016), is misplaced because those cases applied state anti-SLAPP

statutes that are much broader than Virginia’s.

“We do not diminish the significance of personal grievances to the parties involved” and

acknowledge that the Army reprimanded Rolofson, consistent with its procedures and process;

“but private concerns are just that: significant chiefly to the parties involved. The First

Amendment demands more.” Brooks, 685 F.3d at 376. Finally, although Fraser argues

strenuously that she was entitled to immunity because the purpose of anti-SLAPP statutes is to

protect citizens from “frivolous” and vexatious litigation, the circuit court did not find

Rolofson’s claims frivolous, and the face of the pleadings indicate that he genuinely was seeking

personal redress to try to salvage his military career.

C. The United States Army does not qualify as the “governing body of any locality or

political subdivision”

“Adhering closely to statutory texts, Virginia courts presume that the legislature chose,

with care, the words it used when it enacted the relevant statute.” Cornell, 301 Va. at 349

(quoting Tvardek, 291 Va. at 277). “The act of choosing carefully some words necessarily

implies others are omitted with equal care.” In re Brown, 295 Va. 202, 223 (2018) (quoting

Rickman v. Commonwealth, 294 Va. 531, 540 n.3 (2017)). “The one canon of construction that

precedes all others is that we presume that the legislature says what it means and means what it

says.” Cornell, 301 Va. at 349 (quoting Tvardek, 291 Va. at 277).

The circuit court ruled that the BOI hearing was not “‘a public hearing before the

governing body of any locality or other political subdivision’ or a public hearing before the

- 17 -

board, commission, agency or authority of any such governing body or political subdivision or

any other governing body of local government,” and thus “not the type of public hearing

contemplated” by Code § 8.01-223.2(A)(ii). That ruling follows the statutory language.

Code § 8.01-223.2(A)(ii) protects statements “made at a public hearing before the

governing body of any locality or other political subdivision, or the boards, commissions,

agencies and authorities thereof, and other governing bodies of any local governmental entity

concerning matters properly before such body.” (Emphases added).

Fraser’s argument focusing on what comprises a “public hearing” elides the significant

limitation within Code § 8.01-223.2(A)(ii) on the reach of Virginia’s anti-SLAPP statute.

Although some states have defined governing bodies quite broadly, Virginia has not. The plain

words of the statute limit its protections. We cannot ignore the limiting words “locality” and

“local government” in the enactment and presume that the legislature meant something broader.

Cornell, 301 Va. at 349.

Fraser argues that the 82nd Airborne Division is a political subdivision under Code

§ 8.01-223.2. Political subdivision, as defined in Code § 15.2-5101, means a locality or any

institution or commission of the Commonwealth of Virginia. The Army is a service branch of the

United States Armed Forces and is organized within the Department of the Army, a federal

government agency. It would be a strain of logic to try and categorize the Army, a military

branch, as a political subdivision as the legislature contemplated when drafting the anti-SLAPP

statute. The emphasis throughout Code § 8.01-223.2 is on local entities and other governing

bodies that have been given authority by the Commonwealth. Further, it appears that Code

§ 8.01-223.2 refers to counties, cities, towns, and governing bodies that are owned or controlled

by the Commonwealth. For example, a county is a political subdivision of the state for the

purpose of civil administration of such powers as may be delegated by the state. Kirkpatrick v.

- 18 -

Bd. of Supervisors, 146 Va. 113 (1926). Although the BOI was a board, which is referenced in

Code § 8.01-223.2, it is not a board of a locality or other political subdivision.13

Accordingly, the 82nd Airborne Division of the Army is clearly not a political

subdivision of the Commonwealth that would be included under Code § 8.01-223.2. Therefore,

the circuit court did not err in its ruling that Code § 8.01-223.2 did not apply in this case.

V. Attorney Fees

Finally, Fraser claims that because she was entitled to immunity under Code

§ 8.01-223.2(A), she was entitled to attorney fees under Code § 8.01-223.2(B). Fraser argues

that the circuit court erred when it denied the award of attorney fees and costs Code

§ 8.01-223.2(B) permits.

Any person who has a suit against him dismissed or a witness

subpoena or subpoena duces tecum quashed pursuant to the

immunity provided by this section may be awarded reasonable

attorney fees and costs.

Code § 8.01-223.2(B).

We deny Fraser’s request for “reasonable attorney fees and costs” under subsection (B).

Under that provision of Virginia’s anti-SLAPP statute, such fees and costs may be awarded only

to a “person who has a suit against him dismissed . . . pursuant to the immunity provided by this

section.” Id. (emphasis added). Therefore, not only is such an award discretionary but it is also

13

At oral argument, counsel for Fraser argued that “board” stood alone in the disjunctive

within Code § 8.01-223.2, and therefore, the application of the anti-SLAPP statute is broader

than it appears. Counsel is mistaken. We conclude that the General Assembly’s intent in

drafting the statute was to qualify the word “board” by the preceding limiting language of

“governing body of any local or other political subdivision” connected by the use of the noun

“thereof” within that sentence. Collins Dictionary states that “thereof is used after a noun to

relate that noun to a situation or thing that you have just mentioned.” Thereof, Collins English

Dictionary, https://www.collinsdictionary.com/dictionary/english/thereof (last visited Jul. 29,

2024).

- 19 -

inapplicable here where dismissal of the charges against Fraser is not based on affirmative

evidence of Fraser’s immunity under Code § 8.01-223.2(A).

CONCLUSION

Because we conclude that most of the alleged defamatory statements were made in a

quasi-judicial proceeding, they were absolutely privileged. As a result, we need not, and do not,

address whether the circuit court erred in either granting the plea in bar on qualified privilege

grounds or in denying Rolofson an opportunity to present evidence of malice. Thus, we affirm

the circuit court’s decision to dismiss Rolofson’s defamation action under the right result,

different reason doctrine as to the May 15, 2020 statements. Further, we affirm the circuit

court’s decision to dismiss Rolofson’s defamation claim as to the April 29, 2021 statement in

that it was an expression of opinion. We also affirm the circuit court’s denial of Rolofson’s

request for leave to amend the complaint. Additionally, we affirm the circuit court’s ruling that

Virginia’s anti-SLAPP statute did not apply under the circumstances of this case and as a result,

the circuit court also did not err in failing to award attorney fees and costs to Fraser.

Affirmed.

- 20 -