COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Clements
Argued at Richmond, Virginia
WAYNE ALLEN RUSSELL,
ADMINISTRATOR OF THE ESTATE
OF KATHRYN O’NEIL RUSSELL
OPINION BY
v. Record No. 2443-10-2 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 22, 2011
VIRGINIA BOARD OF AGRICULTURE AND
CONSUMER SERVICES
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
Norman Hunter Lamson for appellant.
Stephen P. Jack, Assistant Attorney General (Kenneth T. Cuccinelli,
II, Attorney General, on brief), for appellee.
Wayne Allen Russell, on behalf of the estate of Kathryn O’Neil Russell (“Russell”),
appeals the decision of the circuit court to grant the Virginia Board of Agriculture and Consumer
Services’ (“Board”) motion to dismiss for failure to timely file a notice of appeal pursuant to
Rule 2A:2 of the Supreme Court of Virginia. In addition to asking this Court to consider
assignments of error on the part of the Board that were never reviewed by the circuit court,
Russell alleges on appeal that the Circuit Court of Albemarle County (“circuit court”) erred when
it
sustained the motion to dismiss of the Board based on asserted
non-compliance by . . . Russell with the requirement of . . . Rule
2A:2(a) that a litigant file a notice of appeal within 30 days after
“adoption of the regulation” because the “adoption of the
regulation” occurs when the last of all the requisites of law for
making the will of the agency effective have occurred, and, those
requisites being (a) the vote in favor of the measure (in the case of
a collective body), here occurring March 20, 2008, (b) filing with
the Registrar of Regulations as required by Code §§ 2.2-4103,
2.2-4013(B), and 2.2-4012(E), here occurring July 30, 2008,
(c) publication by the Registrar of Regulations in the Register as
required by Code § 2.2-4031(A), here occurring August 18, 2008,
and (d) the arrival of either thirty days after publication (September
17, 2008) or any other later date specified by the agency (October
3, 2008) as required by [Code] § 2.2-4015(A), and the last requisite
here occurring on the agency designated effective date, namely
October 3, 2008, Russell’s October 30, 2008, filing was within 30
days thereafter, and hence timely. 1
We agree with the circuit court that it did not have jurisdiction to consider Russell’s appeal due
to his untimely notice of appeal, and, thus, we affirm. Because the circuit court did not have
jurisdiction to hear Russell’s appeal, we do not address the merits of Russell’s other assignments
of error.
1
All of Russell’s assignments of error are unhelpfully voluminous and convoluted and
while we would normally reproduce them verbatim, in the interest of both brevity and
readability, we have abridged the issues to which he assigns error.
Although we do not address them for the reasons stated infra, Russell also contends on
appeal:
Even if [he] did not timely file [his] notice of appeal, the trial court
still erred in sustaining said motion to dismiss because the instant
regulation, namely, 2 VAC 5-206 (the Scrapie Regulation) was not
adopted by the Board at all, as the legislature had composed it . . .
[thus rendering] the regulation, void ab initio, and rendering the
case subject to the rule that its purported actions may be attacked at
any time, in any court, and by any means, and that the court has a
duty sua sponte to invalidate the regulation;
and,
Even if [he] did not timely file [his] notice of appeal, the trial court
still erred in sustaining said motion to dismiss because the Board’s
failure to comply strictly with statutes requiring it to publish in the
Registrar [sic “Register”] notice of opportunity for oral and written
submittals (public comment) and of any public hearing caused it
not to acquire subject matter jurisdiction in the particular case,
making the regulation void ab initio, and triggering the rule that its
action is subject to attack at any time, in any court, by any means,
and the court has a duty sua sponte to invalidate the regulation
....
-2-
I. Background
At the time of the adoption of the regulation at issue in this case, the Board was
statutorily tasked with
protect[ing] domestic animals and poultry from disease. It shall
also be the duty of the Board . . . to cooperate with . . . the United
States Department of Agriculture in establishing such interstate
quarantine lines, rules and regulations as to best protect the
livestock and poultry of this Commonwealth against all contagious
and infectious diseases.
Code § 3.1-724. 2 The Board was also “authorized to make the regulations adopted under this
article conform, insofar as practicable, to those regulations adopted under federal statutes
governing animal health.” Code § 3.1-726. 3
The United States Department of Agriculture sought to eradicate Scrapie, a debilitating
disease of sheep and goats, by 2010. Pursuant to this goal, in September 2001, a federal
regulation became effective which restricted the interstate movement of sheep and goats from
states that had not initiated intrastate regulatory action aimed at the eradication of this disease.
The Board initiated procedures to adopt a regulation that would bring the Commonwealth
in line with the federal guidelines. On December 6, 2007, the Board held a public hearing on the
proposed regulation. The Board was presented summarized written public comments and also
heard from those who chose to comment in person. An amended final proposed regulation was
adopted by the Board at a March 20, 2008 meeting. The final regulation as adopted was posted
in the Virginia Register of Regulations on August 18, 2008. The regulation had an effective date
of October 3, 2008.
2
Code § 3.1-724 has since been replaced with Code § 3.2-6001.
3
Code § 3.1-726(A) has since been replaced with Code § 3.2-6002(A).
-3-
On October 30, 2008, Kathryn Russell served a notice of appeal on the Board’s Agency
Secretary, Roy Seward. She then filed a “Petition for Appeal” in the circuit court. In response,
the Board filed a “Response to Petition for Appeal and Motion to Dismiss.”
Kathryn Russell then died unexpectedly in a car accident. The circuit court appointed her
husband, Wayne Allen Russell, as substitute for her in his capacity as administrator of her estate.
On October 13, 2010, the circuit court ruled that Russell’s notice of appeal was not filed
within the 30-day requirement of Rule 2A:2 and granted the Board’s motion to dismiss.
II. Analysis
Appellant argues on appeal to this Court that the circuit court erred in sustaining the
Board’s motion to dismiss based on a failure to comply with the 30-day notice requirement of
Virginia Supreme Court Rule 2A:2(a). We disagree.
A question of statutory interpretation is subject to review de novo on appeal. Wright v.
Commonwealth, 275 Va. 77, 80-81, 655 S.E.2d 7, 9 (2008). This is an action appealing a
regulation adopted by the Board of Agriculture and Consumer Services; as such, it is governed
by Virginia’s Administrative Process Act (“APA”). Under the APA,
Any person affected by and claiming the unlawfulness of any
regulation, . . . shall have a right to the direct review thereof by an
appropriate and timely court action against the agency or its
officers or agents in the manner provided by the rules of the
Supreme Court of Virginia. Actions may be instituted in any court
of competent jurisdiction as provided in [Code] § 2.2-4003, and the
judgments of the courts of original jurisdiction shall be subject to
appeal to or review by higher courts as in other cases unless
otherwise provided by law.
Code § 2.2-4026. The pertinent Supreme Court of Virginia rule is Rule 2A:2, which states that
“[a]ny party appealing from a regulation . . . shall file with the agency secretary, within 30 days
after adoption of the regulation . . . , a notice of appeal signed by the appealing party or that
party’s counsel.” (Emphasis added). The issue in this case is when the point of “adoption”
-4-
occurs when an agency creates a regulation such as to trigger the beginning of the 30-day period
in which to note an appeal.
The problem with determining the date of adoption for the purpose of Rule 2A:2 is that
the APA uses the term “adoption” at several different points and in different contexts. For
example, Code § 2.2-4013 is the statute which is relevant to this analysis, and it references
“adoption” in three different ways. Under subsection A, “adoption” first occurs when the agency
decides to adopt a regulation following public comment. The statute specifically says,
Not less than fifteen days following the completion of the public
comment period provided for in § 2.2-4007.03, the agency may
(i) adopt the proposed regulation if the Governor has no objection
to the regulation; (ii) modify and adopt the proposed regulation
after considering and incorporating the Governor’s objections or
suggestions, if any; or (iii) adopt the regulation without changes
despite the Governor’s recommendations for change.
Code § 2.2-4013(A) (emphasis added).
The next subsection then references a point of “final adoption” by the agency that relates
back to the initial adoption. This subsection states that,
Upon final adoption of the regulation, the agency shall forward a
copy of the regulation to the Registrar of Regulations for
publication as soon as practicable in the Register. All changes to
the proposed regulation shall be highlighted in the final regulation,
and substantial changes to the proposed regulation shall be
explained in the final regulation.
Code § 2.2-4013(B) (emphasis added). Although this subsection of the statute characterizes this
action by the agency as the “final adoption” of a regulation, in yet another subsection, the Code
requires a “thirty-day final adoption period.” This arguably implies that the “final adoption”
referred to in Code § 2.2-4013(B) is not actually “final” at all until the conclusion of the 30-day
period. Specifically, the Code states,
A thirty-day final adoption period for regulations shall commence
upon the publication of the final regulation in the Register. The
Governor may review the final regulation during this thirty-day
-5-
final adoption period and if he objects to any portion or all of a
regulation, the Governor may file a formal objection to the
regulation, suspend the effective date of the regulation in
accordance with subsection B of § 2.2-4014, or both.
If the Governor files a formal objection to the regulation, he shall
forward his objections to the Registrar and agency prior to the
conclusion of the thirty-day final adoption period. The Governor
shall be deemed to have acquiesced to a promulgated regulation if
he fails to object to it or if he fails to suspend the effective date of
the regulation in accordance with subsection B of § 2.2-4014
during the thirty-day final adoption period. The Governor’s
objection, or the suspension of the regulation, or both if applicable,
shall be published in the Register.
A regulation shall become effective as provided in § 2.2-4015.
Code § 2.2-4013(D) (emphasis added). This “final adoption” occurs thirty days after the
publication of the final regulation in the Register, whereas the “final adoption” in subsection B is
the agency action that triggers the publication of the final regulation in the Register in the first
place. Thus, logic dictates that the “final adoption” referred to in subsection D must be separate
and distinct from the “final adoption” in subsection B.
So the question then arises, at which point of “adoption” does Rule 2A:2 contemplate that
the 30-day period commence within which to note an appeal? Put another way, does “final
adoption” of a regulation occur when the agency votes to implement it and forwards the
regulation to the Registrar of Regulations for publication or after the expiration of the 30-day
public comment period during which the Governor can suspend or suggest changes to the
regulation? Procedural due process considerations and the principle that appellate courts may
generally only consider issues on appeal which involve lower court judgments, or as in this case,
agency decisions which are final, weigh in favor of using the later date as the point at which the
period for noting an appeal commences. However, an application of either definition of
“adoption” to the record before us results in a conclusion that Russell’s appeal was not timely
filed.
-6-
Even assuming without deciding that the regulation is “finally adopted” as contemplated
by Code § 2.2-4013(D) which occurs at the conclusion of the 30-day “final adoption period,”
Russell’s notice of appeal was untimely filed in this case. The Board published the final
regulation in the August 18, 2008 issue of the Register of Regulations. This triggered the 30-day
final adoption period as required by Code § 2.2-4013(D). During this period, the Governor could
have objected to and suspended the regulation, but he did not. Thus, the Governor is deemed to
have acquiesced to the regulation, and, on September 17, 2008, the regulation was “adopted” and
became effective. This is the latest date on which the regulation could be “finally adopted.”
Thus, if the 30-day notice period in Rule 2A:2 started at this point, anyone aggrieved by action
of the agency in adopting the regulation must have filed a notice of appeal by October 17, 2008.
In this case, the notice of appeal was not filed until October 30, 2008; therefore, the notice of
appeal was untimely, and the circuit court was correct in concluding that it had no authority to
consider the appeal and did not err in granting the Board’s motion to dismiss the appeal.
“Strict enforcement of the time requirements of the rules governing the notice of appeal is
necessary because ‘[l]itigation is a serious and harassing matter, and the right to know when it is
ended is a valuable right.’” Ghameshlouy v. Commonwealth, 279 Va. 379, 391, 689 S.E.2d 698,
704 (2010) (quoting Avery v. County School Bd., 192 Va. 329, 333, 64 S.E.2d 767, 770 (1951)).
Thus, “‘[t]he purpose of the specific time limit [for filing a notice of appeal] is not to penalize
the appellant but to protect the appellee.’” Id.
Russell argues that, even if his notice was untimely, he may nevertheless challenge that
the regulation is void ab initio at any time because an improperly constituted Board lacked
subject matter jurisdiction in adopting the regulation. Russell misconstrues the law in this area.
While it is true that one may challenge subject matter jurisdiction at any point, one must properly
be in a court in the first place in order to do so. That is, an appellate court must properly have
-7-
acquired appellate jurisdiction itself before it can hear a challenge to any lower court or agency’s
actions. The Virginia Supreme Court previously made this point specifically with respect to the
APA.
Similarly, in the Administrative Process Act, the General
Assembly provided a procedure for court review of certain actions
taken by administrative agencies. Code § 2.2-4026. To obtain
such a review, Rule 2A:2 requires that “any party appealing from a
regulation or case decision shall file, within 30 days . . . of the final
order in the case decision, with the agency secretary a notice of
appeal.” The timely filing of that notice of appeal is jurisdictional.
In all these cases, we did not, however, state that the time
requirements for the appellate filings at issue were an aspect of
subject matter jurisdiction. That question was not before us
because, in each case, any concern about compliance with the
respective time period for filing the appeal had been timely raised,
and we therefore did not need to decide whether the issue had been
or could have been waived.
Like the statutory provisions in Morrison [v. Bestler, 239 Va. 166,
387 S.E.2d 753 (1990),] and Nelson [v. Warden of Keen Mt. Corr.
Ctr., 262 Va. 276, 552 S.E.2d 73 (2001)], the 30-day filing
requirement in Code § 15.2-2314 does not involve the subject
matter jurisdiction of a circuit court to adjudicate the matter in
controversy. As such, the filing requirement is an “other
‘jurisdictional’ element” subject to waiver if not properly raised.
Thus, we hold that the County’s failure to file the petition for a
writ of certiorari under Code § 15.2-2314 within 30 days of the
final decision of the BZA did not divest the circuit court of its
subject matter jurisdiction. The issue of timely filing is therefore
waived since it was not raised in the circuit court. See Rule 5:25.
Bd. of Supervisors v. Bd. of Zoning Appeals, 271 Va. 336, 347-48, 626 S.E.2d 374, 380-81
(2006) (quoting Morrison, 239 Va. at 169, 387 S.E.2d at 755) (internal citations omitted).
In this case, the appellant failed to file notice within the 30-day period as required by
Rule 2A:2. Thus, the circuit court never gained appellate jurisdiction to consider the merits of
any assignments of error with respect to the agency. Therefore, the circuit court did not err in
granting the Board’s motion to dismiss.
-8-
Because they were never addressed by the circuit court, we do not address the merits of
Russell’s remaining assignments of error. Ohree v. Commonwealth, 26 Va. App. 299, 307-08,
494 S.E.2d 484, 488-89 (1998).
III. Conclusion
Because Russell failed to satisfy the notice requirement of Rule 2A:2, the circuit court
did not err in granting the Board’s motion to dismiss for failure to timely file a notice of appeal.
Additionally, since the circuit court was without jurisdiction to do so, it did not err in refusing to
address Russell’s challenges to the regulation. Thus, we affirm the judgment of the circuit court.
Affirmed.
-9-