Preliminary Motions Practice in Administrative Appeals Under the Virginia Administrative Process Act

The Virginia Administrative Process Act (“VAPA”) and Part 2A of the Rules of the Supreme Court of Virginia govern judicial review of determinations by certain administrative agencies in Virginia. A party appealing an agency decision under the VAPA must operate within these parameters, and the Court’s review of an agency decision is limited. In this context, the party contesting the agency decision bears the burden to “designate and demonstrate an error of law subject to review by the court.” Va. Code § 2.2-4027.

Under the VAPA, an “error of law” contemplates a decision that is not: (1) in accordance with constitutional right, power, privilege or immunity; (2) in compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter, the stated objectives for which regulations can be made, and the factual showing respecting violations or entitlement in connection with case decisions; (3) in observance of required procedure where any failure therein is not mere harmless error; or (4) substantially supported by the evidence for findings of fact. In other words, an “error of law” under the VAPA contemplates one of two basic inquiries: (1) whether the agency acted within its authority; or (2) whether the agency decision was supported by substantial evidence.

While it is well-established that a Circuit Court acts as a appellate court in this context –conducting a “review”  of the agency decision consistent with traditional appellate concepts – the reality created by the VAPA scheme and Part 2A of the Rules actually place the Circuit Court into a “hybrid” role somewhere in between a purely appellate tribunal and a traditional trial court. On one hand, and consistent with traditional appellate principles, the Rules prohibit discovery in VAPA appeals absent extraordinary circumstances, and traditional doctrines of waiver and preservation of error apply. On the other hand, however, the Rules authorize for preliminary motions practice on an appellant’s petition for administrative appeal – such as demurrers, pleas, or motions dismiss – which are typically used in traditional civil litigation at the trial court level. Accordingly, the Rules provide a respondent to an administrative appeal (that has an interest in defending the agency’s decision) with an avenue to challenge the appeal at a threshold stage.

A classic challenge to an administrative decision is whether the decision was supported by “substantial evidence.” While it is difficult for an appellant to ultimately prevail on such challenges, because the applicable legal standard requires the Court to give great deference to any agency’s factual findings, such claims nevertheless generally require a review of the agency’s record to resolve as a factual matter. Therefore, they are generally not susceptible to preliminary motions practice.

By contrast, however, an appellant may challenge an agency decision based on purely legal grounds. For example, the petitioner may claim that the agency misinterpreted or misapplied an applicable statute or regulation. Such cases rest on threshold questions of law regarding the proper interpretation/application of applicable law, which the Court can resolve without reviewing the record that was before the agency. It is these kinds of administrative appeals in which threshold motions practice can be readily used to achieve summary dismissal of the appeal on the grounds that the agency’s decision was correct as a matter of law under the applicable statute or regulation, and thus prevent a costly and time-consuming judicial review process involving consideration of the entire agency record.

Respondents to a VAPA appeal can also utilize the traditional appellate doctrines of waiver and preservation of error in connection with preliminary motions practice. Just as in a trial court, parties to an agency proceeding may waive or fail to adequately preserve issues for appeal by, for example, failing to lodge an appropriate objection to an agency action or determination at the proper time. Similar to threshold questions of law, issues of preservation and waiver present preliminary, discrete matters that the Circuit Court can determine before engaging in a comprehensive review of the agency’s decision and the evidence on which it was based. And, they may be dispositive of the appeal as a whole. Threshold motions practice is an ideal vehicle to raise such matters at an early stage in the proceeding and potentially short-circuit the appeal at the outset.

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