                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-2100


ANGELA VANBUREN,

                Plaintiff - Appellant,

          v.

STEPHEN A. GRUBB,

                Defendant – Appellee,

          and

VIRGINIA HIGHLANDS ORTHOPAEDIC SPINE CENTER, LLC,

                Defendant.



                             No. 10-2161


ANGELA VANBUREN,

                Plaintiff - Appellee,

          v.

STEPHEN A. GRUBB,

                Defendant – Appellant,

          and

VIRGINIA HIGHLANDS ORTHOPAEDIC SPINE CENTER, LLC,

                Defendant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.      James C. Turk, Senior
District Judge. (7:10-cv-00132-jct)


Argued:   December 8, 2011                Decided:   March 1, 2012


Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.


Unpublished Order of Certification to the Supreme Court of
Virginia.   Judge Floyd directed entry of the order with the
concurrences of Judge Niemeyer and Judge Motz.


James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant/Cross-Appellee.    Terry Neill Grimes,
GRIMES & WILLIAMS, P.C., Roanoke, Virginia, for Appellee/Cross-
Appellant.




                                2
                                       ORDER


FLOYD, Circuit Judge:

                            I.     Question Certified

     The United States Court of Appeals for the Fourth Circuit,

exercising the privilege afforded it by the Supreme Court of

Virginia through its Rule 5:40 to certify questions of law to

the Supreme Court of Virginia when a question of Virginia law is

determinative in a pending action and there is no controlling

Virginia    precedent    on      point,   requests       the   Supreme    Court   of

Virginia    to   exercise     its    discretion     to    answer    the   following

question:

     1.    Does Virginia law recognize a common law tort
     claim    of  wrongful   discharge in  violation  of
     established public policy against an individual who
     was not the plaintiff’s actual employer, such as a
     supervisor or manager, but who participated in the
     wrongful firing of the plaintiff?

     We    acknowledge      that    the   Supreme    Court     of   Virginia      may

restate this question.           See Va. Sup. Ct. R. 5:40(d).



                  II.    Nature of the Controversy and
                          Statement of Relevant Facts

                                              A.

     This appeal arises from the district court’s order granting

a motion to dismiss.          In reviewing such an order, we accept as


                                          3
true the factual allegations set forth in the complaint and draw

all reasonable inferences from them in the nonmovant’s favor.

See CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 51 (4th

Cir. 2011).       These allegations provide as follows.

     Virginia Highlands Orthopaedic Spine Center, LLC (Virginia

Highlands),       a    Virginia     limited        liability      company,      employed

Angela VanBuren as a registered nurse.                    Dr. Stephen A. Grubb was

the owner and medical director of Virginia Highlands. 1                         VanBuren

served as his first-assist spine specialty nurse.                        As such, she

worked under and reported directly to Dr. Grubb, who, at all

relevant times, was her supervisor.

     VanBuren         commenced     employment       at    Virginia      Highlands     on

December 1, 2003.            No more than ten days passed before Dr.

Grubb,     who    was    married      to     another       woman,      began    sexually

harassing VanBuren.           Broadly speaking, this sexual harassment

included     unwelcome       contact,      fondling,        and     touching.         Over

VanBuren’s       protests,    Dr.    Grubb       would    hug   her;   rub     her   back,

waist, breasts, and other inappropriate areas; and attempt to

     1
       We note that VanBuren’s complaint does not specify whether
Virginia Highlands is a member-managed or manager-managed
limited liability company.    Consequently, we do not know Dr.
Grubb’s exact role in the limited liability company—that is,
whether he was a manager in a manager-managed limited liability
company or a member in a member-managed limited liability
company.   Instead, we know only that Virginia Highlands is a
limited liability company owned by Dr. Grubb and that he served
as its medical director and the supervisor to VanBuren.



                                             4
kiss her.       He also professed his love for her and even penned a

number of love poems for her.

        On a number of occasions, after VanBuren and Dr. Grubb had

worked long hours, he waited for her outside of the women’s

locker room at Virginia Highlands.                      She lingered in the locker

room out of hope that he would lose interest and leave.                           But he

paced outside of the locker room until she emerged, at which

time he attempted to hug, fondle, and kiss her.

        These actions did not escape the attention of VanBuren’s

coworkers.           His   pacing    outside       of    the   women’s    locker       room

aroused      their    suspicions.          One    coworker,      concerned      with    Dr.

Grubb’s behavior, began walking VanBuren to her car to help her

avoid his advances.

        In May 2006, VanBuren and other coworkers traveled with Dr.

Grubb to Radford, Virginia, to assist in setting up a new office

and stayed in a local hotel.                     One evening Dr. Grubb insisted

that    he    walk    VanBuren      back   to     her    hotel   room,    despite      her

protests.       When they arrived at VanBuren’s room, he pushed his

way inside and proceeded to rub her waist, breasts, and hair,

and to profess his love for her.                  He tried to pull her into his

lap, at which time VanBuren, who was initially stiff with shock,

freed    herself      from   him.      She       reminded      him   he   was   married,

informed him she would not have sex with him, and demanded he

leave.       He did not comply until she began to raise her voice.

                                             5
       At all times, VanBuren made clear to Dr. Grubb that she did

not welcome his advances.            Each time Dr. Grubb made a physical

advance, VanBuren pulled away from him, demanded that he cease,

and reminded him that he was married.                 Dr. Grubb’s response on

one occasion was that he “maybe . . . got a little carried away

and she may have to tell him to take a cold shower sometimes.”

VanBuren approached him several times and requested that he quit

his advances, informing him that his conduct was offensive and

unwelcome.          She pointed out that other employees noticed his

behavior and were gossiping that they were having an affair.

Dr. Grubb’s response was that he did not care what other people

thought.

       Dr.     Grubb’s    harassment      continued     even      after    VanBuren

married her husband in December 2007.               Dr. Grubb sought to take

advantage      of    opportunities   to   console      VanBuren    about    marital

problems.           But   the   consoling     simply     involved     encouraging

VanBuren to leave her husband and hugging, kissing, and groping

her.     VanBuren continued to resist these efforts and to inform

him that his advances were unwelcome.

       The situation culminated on March 19, 2008, when Dr. Grubb

demanded that VanBuren meet with him in his office behind closed

doors.       The conversation began with Dr. Grubb expressing concern

over VanBuren’s marriage and suggesting that leaving her husband



                                          6
would be in her best interest.                Once again, he made advances,

attempting to hug and kiss her while telling her he loved her.

        Six days later, Dr. Grubb called VanBuren back into his

office and asked if she planned to stay with her husband.                           When

she answered affirmatively, he fired her without explanation.

To entice her to remain mum about the harassment, he offered her

five weeks of severance pay.



                                         B.

        VanBuren instituted this action in federal court on March

25, 2010.     She named two defendants in her complaint—Dr. Grubb

and Virginia Highlands.          VanBuren asserted two causes of action

against Virginia Highlands—a Title VII claim and a state tort

law claim of wrongful discharge.                 Her only claim against Dr.

Grubb     asserted      wrongful    discharge.               VanBuren’s       wrongful-

discharge    claims      against    Virginia         Highlands     and    Dr.       Grubb

alleged    that   she    was   discharged       in    violation    of     established

public     policy.       Specifically,        she     asserted     that       she    was

terminated because she refused to engage in criminal conduct—

namely, adultery, as proscribed in Va. Code Ann. § 18.2-365, and

open and gross lewdness and lasciviousness, as proscribed in Va.

Code Ann. § 18.2-345.

     Virginia        Highlands     and    Dr.        Grubb     moved     to     dismiss

VanBuren’s claims for failure to state a claim.                         The district

                                         7
court, exercising federal-question jurisdiction over the Title

VII   claim    and   supplemental        jurisdiction      over          the   wrongful-

discharge     claims,    granted    the    motion    to   dismiss         in   part   and

denied it in part.         It granted the motion as to the wrongful-

discharge claim against Dr. Grubb.                  In doing so, it held that

the Virginia Supreme Court, although not having addressed the

issue, likely would allow wrongful-discharge claims only against

employers, not supervisors or other co-employees.                        Consequently,

the   district   court    dismissed       Dr.   Grubb     as    a   defendant.         It

declined,     however,    to    dismiss       the    claims      against        Virginia

Highlands.

      Pursuant to Federal Rule of Civil Procedure 54(b), VanBuren

subsequently     moved    for      the    district      court       to    enter   final

judgment as to Dr. Grubb, which would allow her to immediately

appeal its order dismissing him as a party.                     After conducting a

hearing on the matter, the district court granted the motion.

It determined that its order dismissing all claims against Dr.

Grubb was final as to him and that no just reason to delay the

entry of final judgment existed.              This appeal followed. 2


      2
       Dr. Grubb challenges our appellate jurisdiction, asserting
that the district court erred in directing entry of final
judgment pursuant to Rule 54(b). We review the district court’s
certification of its order as constituting a final judgment for
abuse of discretion.       MCI Constructors, LLC v. City of
Greensboro, 610 F.3d 849, 855 (4th Cir. 2010).       We will not
belabor this point, for the district court plainly directed
(Continued)
                                          8
       III.    Legal Discussion and Relevant Virginia Case Law

          A.     Common Law Tort Claim of Wrongful Discharge
                      in Violation of Public Policy

       Virginia is an employment-at-will state.                   See Miller v.

SEVAMP, Inc., 362 S.E.2d 915, 916-17 (Va. 1987).                  As such, when

an   employment   contract      in   Virginia   does   not    provide   for   the

duration of the employment relationship expressly or by fair

inference,     either   party    ordinarily     is   free    to   terminate   the

relationship for any reason or for no reason at all, provided

that it gives the other party reasonable notice.                     See id. at

917.    That rule, however, “is not absolute.”                Bowman v. State

Bank of Keysville, 331 S.E.2d 797, 801 (Va. 1985).                    There are

“recognized exceptions to the rule of terminability.”                Id.

       One of those recognized exceptions, which the Supreme Court

of Virginia recognized in Bowman, involves wrongful discharge in

violation of established public policy.                Miller, 362 S.E.2d at

918.    The plaintiffs in Bowman were two employees of a bank.



entry of final judgment pursuant to a valid exercise of its
discretion.   This situation falls within the purview of Rule
54(b) in that it involves multiple parties. See Fed. R. Civ. P.
54(b).    The district court properly followed the two-step
inquiry that we have outlined for determining whether to certify
a final judgment under Rule 54(b) when it determined that
(1) the judgment as to Dr. Grubb was final and (2) there was no
just reason for delay.    See Braswell Shipyards, Inc. v. Beazer
E., Inc., 2 F.3d 1331, 1335 (4th Cir. 1993). Its determinations
were sound and abided by the appropriate legal standards.       We
therefore are satisfied that we possess appellate jurisdiction.



                                        9
331 S.E.2d at 798-99.              Aside from their status as employees,

they also held common stock in the bank corporation.                               Id. at

799.     They alleged that the bank’s president, who served on the

board of directors, warned them that they would be fired if they

did not vote their shares in favor of a hotly contested proposed

merger and the merger failed.               Id.       The plaintiffs accordingly

voted their shares in favor of the merger, which passed by a

narrow    margin,    but    they    later      wrote    a     letter    to   the    bank’s

president asserting that their votes were illegally obtained and

thus invalid.       Id.    Without their illegally obtained votes, they

noted, the merger would not have passed.                      Id.    The bank’s board

of directors subsequently voted to abandon the merger.                             Id.   It

also voted to discharge the plaintiffs.                        Id.      The plaintiffs

brought suit against the bank, the vice president of the company

with which the bank would have merged, and certain individual

directors for, among other things, wrongful discharge.                              Id. at

800.     The trial court sustained the defendants’ demurrers upon

the filing of motions for judgment.                  Id. at 798.

       The Supreme Court of Virginia, although acknowledging that

Virginia is traditionally an employment-at-will state, id. at

800, held that “the plaintiffs . . . stated a cause of action in

tort   against     the    Bank     and   the    named       directors    for   improper

discharge    from    employment,”        id.    at     801.      One    of   the    narrow

exceptions    to    the    employment-at-will           doctrine,      it    determined,

                                          10
involves     situations       in    which        employees        are    “discharged            in

violation of an established public policy.”                             Id.           The court

decided     that     the      plaintiff’s         discharge           fit        within       this

exception.     Id.         The established public policy derived from a

statute     that     guaranteed      the      right        to    one     vote         for     each

outstanding        share     of    stock,        which,         the     court         observed,

necessarily involved the right to exercise that vote “free of

duress and intimidation imposed on individual stockholders by

corporate management.”             Id.     The court announced, “Because the

right    conferred     by    statute     is      in   furtherance           of    established

public policy, the employer may not lawfully use the threat of

discharge of an at-will employee as a device to control the

otherwise unfettered discretion of a shareholder to vote freely

his or her stock in the corporation.”                           Id.     Accordingly, the

court allowed the plaintiffs’ cause of action against the bank

and the individual directors to proceed.                    Id.

      Since deciding Bowman, the Supreme Court of Virginia “has

consistently         characterized          [this]          exception[]               [to      the

employment-at-will          doctrine]    as      ‘narrow.’”            City      of    Virginia

Beach v. Harris, 523 S.E.2d 239, 245 (Va. 2000).                                 It therefore

has     recognized    cognizable         claims       of    wrongful          discharge         in

violation of public policy in only three circumstances.                                      Rowan

v. Tractor Supply Co., 559 S.E.2d 709, 711 (Va. 2002).                                      One of

those recognized circumstances—the one that is relevant to this

                                            11
case—involves instances “where the discharge was based on the

employee’s refusal to engage in a criminal act.”                                        Id.     The

Supreme         Court   of     Virginia          recognized          that     an       employee’s

discharge        for    such      a     reason    could       give     rise       to    a     viable

wrongful-discharge claim in Mitchem v. Counts, 523 S.E.2d 246

(Va. 2000).

      In     Mitchem,        an       employee        alleged       that    her        employer—an

insurance         agent—sexually           harassed           her     by      massaging          her

shoulders, patting her buttocks, trying to pull her into his lap

and kiss her, and otherwise touching her against her will.                                       Id.

at 248.          The employee maintained that her employer fired her

after she spurned his advances and refused to engage in a sexual

relationship with him.                  Id.      She brought a wrongful-discharge

claim      against      him,      alleging,       among       other        things,       that    her

discharge        violated         the    public        policy       underlying         Virginia’s

criminal         statutes         proscribing          fornication           and        lewd    and

lascivious cohabitation.                 Id. at 248-49.               Because the employee

would have violated these statutes if she had entered into the

sexual relationship with her employer as he sought, the Supreme

Court      of     Virginia        determined           that     the     employer         violated

established        public      policy     when        he   fired     her    for    refusing      to

engage in such a relationship.                   See id. at 252.             As a result, it

held that she stated a cognizable wrongful-discharge claim.                                      See

id.

                                                 12
      After Mitchem, the Supreme Court of Virginia has generally

recognized that discharging an employee for refusing to engage

in criminal conduct can constitute the basis of a cognizable

wrongful-discharge claim because, even though “criminal statutes

do    not    contain        explicit        statements         of    public       policy,      the

protection        of     the     general     public          from    lawless      acts    is    an

unquestioned          policy       underlying         such    statutes.”           Rowan,      559

S.E.2d at 711.              “[A]llowing the employment-at-will doctrine to

‘serve      as    a     shield     for    employers          who    seek    to    force     their

employees, under the threat of discharge, to engage in criminal

activity’        would      violate      this    most    compelling         public       policy.”

Id. (quoting Mitchem, 523 S.E.2d at 252).

      VanBuren          alleges      that    her       discharge       resulted      from      her

refusal to submit to Dr. Grubb’s persistent sexual advances.                                    If

she    had       done    so,     she     maintains,          she    would     have       violated

Virginia’s         statutes         criminalizing            adultery       and      lewd      and

lascivious cohabitation.                  See Va. Code Ann. §§ 18.2-345, -365.

Accordingly,          she   submits       that    she    was       fired   for    refusing      to

engage in what would have been a criminal act and that her

discharge        thus    violated        Virginia’s      established         public       policy.

Accepting VanBuren’s allegations in her complaint as true and

drawing all reasonable inferences from them in her favor, we are

of    the    opinion         she    has     adequately          alleged      that     she      was

wrongfully discharged in violation of established public policy.

                                                 13
Her allegations are similar in many respects to the allegations

in Mitchem, which the Supreme Court of Virginia determined to

state a cognizable wrongful-discharge claim.                 The district court

correctly     determined   as   much    when    it     denied   the     motion    to

dismiss as to Virginia Highlands.



    B.      Proper Defendants in a Claim for Wrongful Discharge
                     in Violation of Public Policy

     This appeal presents the issue of whether such a claim for

wrongful discharge in violation of established public policy is

cognizable against an individual, such as a supervisor, manager,

or other employee, who is not the employee’s actual employer,

but who nonetheless played a role in wrongfully terminating the

employee.      The   district   court       answered    in   the    negative     and

therefore dismissed the claim against Dr. Grubb on that basis

alone.   We are not so sure, however.

     The Supreme Court of Virginia has not squarely addressed

this issue.      The closest it came was in Bowman, in which it

permitted the plaintiffs’ wrongful-discharge claims to proceed

against the individual bank directors, not just the bank.                        331

S.E.2d   at   801.    That   aspect     of    the    case    suggests    that    the

Supreme Court of Virginia does not believe wrongful-discharge

claims are cognizable against only employers.                      Yet we remain

reticent to rely too much on Bowman, for the court did not


                                       14
engage in any analysis concerning who may be liable for wrongful

discharge in violation of established public policy.                           The issue

on    appeal    in    Bowman     was    whether       Virginia     recognized           any

exception      to    the    employment-at-will         doctrine      for        wrongful

discharges that violate established public policy.                       In answering

that question affirmatively, the Supreme Court of Virginia at

most assumed, without explanation, that the individual directors

could be liable.           And, as a result, it provided no indication

that such liability would extend beyond individual directors to

individuals who serve in other capacities for an employer.

      Moreover,      we    are   hesitant     to    extrapolate     too     much    from

Bowman given the profound implications that could result in our

determining that individuals who are not employers can be liable

for   wrongful       discharge     in   violation       of    established         public

policy.     Recognizing such claims against supervisors and other

individuals who are not employers would open a new class of

individuals to liability for their participation in wrongfully

terminating an employee.           It could also have implications on the

use of the corporate structure in Virginia, as it would allow

individual employees to be held personally liable under certain

circumstances        for     termination       decisions.                Given     these

implications, we think this issue is one best decided by the

Supreme   Court      of    Virginia.     See       Rhodes    v.   E.I.    du     Pont    de

Nemours & Co., 636 F.3d 88, 97-98 (4th Cir. 2011) (noting that

                                         15
federal courts “should act conservatively when asked to predict

how a state court would proceed on a novel issue of state law”).

        Furthermore, as far as we can tell, no general consensus

has     arisen    among   Virginia’s        trial    courts.            VanBuren   has

submitted an order in which a Virginia trial court held that a

wrongful-discharge claim could be asserted against a managing

employee, not just the employer. 3           McClosky v. Warren Cnty. Dep’t

of Soc. Servs., Civil No. CL09000097-00, 2010 WL 7765600, at *1

(Va. Cir. Ct. July 15, 2010).           This one decision, however, does

not provide sufficient guidance on which we can base a decision.

      Finally, we observe that states are split on this issue.

See Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 775 (Iowa 2009);

Physio GP, Inc. v. Naifeh, 306 S.W.3d 886, 888-89 (Tex. App.

2010);     Physio   GP,    306    S.W.3d     at     891    &    n.2     (Hudson,   J.,

dissenting)      (collecting      cases).         “Those       states    that   impose

liability on an individual employee who participates in the tort

of wrongful discharge essentially view wrongful discharge as any

other     tort   within   the    existing    rule    that       imposes    individual

      3
       A magistrate judge in the Eastern District of Virginia has
reached a similar conclusion, holding that wrongful-discharge
claims may “proceed against those officers or agents of a
company who . . . played a key role in contributing to the
company’s tortious conduct allegedly inflicted on a wrongfully
discharged plaintiff.”      McFarland v. Va. Ret. Servs. of
Chesterfield, L.L.C., 477 F. Supp. 2d 727, 739 (E.D. Va. 2007).
Given that this decision conflicts with the district court’s
ruling below, we lack a consensus even among our lower courts.



                                       16
liability on employees for their own tortious conduct.” 4                                Jasper,

764 N.W.2d at 775.                    One reason for this approach is that the

tort       of     wrongful       discharge       imposes        liability      based     on    the

wrongful         reasons        motivating      the    discharge,        not   the     discharge

itself, meaning that individuals who are responsible for those

wrongful reasons, even if they are not the employer, should be

liable.           See     id.    at     776.      Another       reason    offered       is    that

individual         liability          “promotes      deterrence     and       better    decision

making          because     it       allows    the     active    wrongdoer       to     be    held

directly responsible.”                  Physio GP, 306 S.W.3d at 888 (majority

opinion).

       Courts        that       do     not    recognize      wrongful-discharge             claims

against          individuals          unless    they      are     the     actual       employers

“conclude the tort can . . . be committed [only] by the person

or legal entity that employs the terminated employee.”                                   Jasper,

764 N.W.2d at 775.                   Their reasoning is based on the fact that

the employment relationship exists between the employee and the

employer, meaning that only the employer possesses the power to

fire       an    employee.           Physio    GP,     306   S.W.3d      at    888.      Because

employees do not have the power to fire another employee except

on   behalf        of     the    employer,       they    cannot     be    liable       in    their

       4
       Virginia recognizes that “corporate officers [are] liable
for their tortious conduct.”   PTS Corp. v. Buckman, 561 S.E.2d
718, 723 (Va. 2002).



                                                  17
personal    capacity        for   wrongful      discharge,      even        if   they   are

supervisors or owners.            Id. at 888-89.        Unlike states that allow

individual liability for wrongful discharge, states that do not

allow     such    liability       contend       that    it   is    unnecessary          for

deterrence purposes because “liable employers will likely take

their own measures to deter agents or employees from wrongfully

exercising termination authority.”                Id. at 889.           They have also

noted the difficulty in limiting the number of individuals who

could      be     liable      for     a        wrongful-termination              decision,

“particularly . . . in a corporate environment involving group

evaluation       of   employees      and       collective       decisionmaking          for

terminations.”        Id.

     We     therefore        find   ourselves          unable     to        predict     with

confidence how the Supreme Court of Virginia would rule on this

question.       As a result, we respectfully request that the Supreme

Court of Virginia answer our certified question.



          IV.    Certified Question Determines This Proceeding

     The    certified       question      is    determinative          of    the   pending

proceeding.       If Virginia’s common law tort claim of wrongful

discharge in violation of public policy is cognizable against

individuals such as Dr. Grubb, then the district court erred,

and we will be compelled to reverse and remand.                              But if only

employers can be liable for wrongful discharge in violation of

                                           18
public policy, then the district court was correct, and we will

affirm.



                  V.   The Parties and Their Counsel

                                    A.

     The Plaintiff-Appellant/Cross-Appellee is Angela VanBuren.

Counsel for the Plaintiff-Appellant/Cross-Appellee is:

James J. O’Keeffe, IV, VSB number 48620
     james_okeeffe@gentrylocke.com
Gentry, Locke, Rakes & Moore
10 Franklin Road, SE
P.O. Box 40013
Roanoke, VA 24022-0013
(540) 983-9459 (Telephone)
(540) 983-9400 (Facsimile)



                                    B.

     The Defendant-Appellee/Cross-Appellant is Stephen A. Grubb.

Counsel for the Defendant-Appellee/Cross-Appellant is:

Terry Neill Grimes, VSB number 24127
     tgrimes@terryngrimes.com
Grimes & Williams, P.C.
320 Elm Avenue
Roanoke, VA 24016-4001
(540) 982-3711 (Telephone)
(540) 345-6572 (Facsimile)




                               19
                                           C.

     Another Defendant, who is not a party to this appeal, is

Virginia Highlands Orthopaedic Spine Center, LLC.                        Counsel for

this Defendant is:

Terry Neill Grimes, VSB number 24127
     tgrimes@terryngrimes.com
Grimes & Williams, P.C.
320 Elm Avenue
Roanoke, VA 24016-4001
(540) 982-3711 (Telephone)
(540) 345-6572 (Facsimile)



                               VI.          Conclusion

     Pursuant     to    the   privilege          made    available      by   Virginia

Supreme Court Rule 5:40, we respectfully:



       1) Certify the question stated in Part I of this Order of

          Certification       to     the    Supreme      Court     of   Virginia   for

          resolution;



       2) Order    the    Clerk      of     this      Court   to   forward    to   the

          Supreme Court of Virginia, under the official seal of

          this Court, a copy of this Order of Certification,

          together with the original or copies of the record

          before       this   Court    to       the   extent     requested    by   the

          Supreme Court of Virginia; and



                                           20
3) Order that any request for all or part of the record

  be fulfilled by the Clerk of this Court simply upon

  notification from the Clerk of the Supreme Court of

  Virginia.

                                     QUESTION CERTIFIED

                                          FOR THE COURT

                                     /s/ Henry F. Floyd




                      21
