COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Richmond, Virginia
E. DEAN CHRISTIAN
OPINION BY
v. Record No. 0918-04-2 JUDGE D. ARTHUR KELSEY
MARCH 29, 2005
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
John R. Cullen, Judge
Monica J. Chernin (The Law Offices of Monica J. Chernin, on brief),
for appellant.
Allen T. Wilson, Special Counsel (Jerry W. Kilgore, Attorney
General; David E. Johnson, Deputy Attorney General; Kim F. Piner,
Senior Assistant Attorney General, on brief), for appellee.
The circuit court dismissed an administrative appeal filed by E. Dean Christian on the
ground that he failed to name the Virginia Department of Social Services (VDSS) as a party in
his petition for appeal. We hold that the petition sufficiently identified VDSS as a party. For
this reason, we reverse the circuit court’s dismissal order and remand this matter for further
proceedings on the merits.
I.
To administer child protective services in the Commonwealth, the General Assembly
delegates authority to VDSS, a state agency governed by a state board, Code § 63.2-215, and
also requires that there “shall be a local department of social services for each county or city
under the supervision and management of a local director.” Code § 63.2-324; see also 22 Va.
Admin. Code § 40-705-10 (defining “Department” and “local department”). The responsibility
to investigate complaints of child abuse and neglect rests primarily with the local departments.
See Code § 63.2-1503; 22 Va. Admin. Code § 40-705-50(B). Through the use of administrative
hearing officers, VDSS reviews de novo any contested determination by a local department. See
Code 63.2-1526(B); 22 Va. Admin. Code § 40-705-190(H).
In this case, the Fluvanna County Department of Social Services made an administrative
finding that Christian physically abused his child. Christian requested and received an “informal
conference” to dispute the finding. See Code § 63.2-1526(A); 22 Va. Admin. Code
§ 40-705-120(E). The local department reaffirmed its earlier decision. Christian then filed a
petition with VDSS for a “formal hearing” by an administrative hearing officer. See Code
63.2-1526(B). The VDSS hearing officer affirmed the local department’s findings in a decision
entered on July 30, 2003. His written opinion used the caption “In the matter of E. Dean
Christian.”
Christian filed a timely appeal to the circuit court seeking judicial review pursuant to the
Virginia Administrative Process Act (VAPA), Code § 2.2-4000, et seq. See Code 63.2-1526(B)
(authorizing VAPA appeals of decisions of VDSS hearing officers). The caption of the petition
for appeal tracked the one used in the VDSS administrative process. Styled “In the matter of E.
Dean Christian, appellant,” the caption identified the case number of the VDSS administrative
proceeding and requested service on the “Commissioner” of the “Virginia Department of Social
Services.”
The text of the petition specifically identified the VDSS hearing officer by name and
stated the order being appealed was the hearing officer’s July 30, 2003 final order. The petition
also named the “Fluvanna County Department of Social Services” as a “party to this suit.” The
petition complained about the final ruling of “the agency” and requested that it be set aside. The
petition concluded with a certificate of service stating that a copy had been mailed both to the
-2-
“Commissioner of the Virginia Department of Social Services” and the “Department of Social
Services of Fluvanna County.”
After being served with process, VDSS filed a plea in bar seeking to dismiss the VAPA
appeal. VDSS argued that Christian’s petition for appeal identified the local department, but
failed to make clear VDSS was likewise a party to the VAPA appeal. Because Rule 2A:4’s
mandatory thirty-day period following the notice of appeal had passed, VDSS reasoned, it could
not be added to the petition by amendment.
In response, Christian argued that the petition identified VDSS as a party by specifically
naming the VDSS hearing officer by name, using the VDSS caption of the case, requesting
service on VDSS, and appealing the very decision (identified by complaint number and date of
entry) issued by VDSS. If that were not enough, Christian argued in the alternative, he would
still be entitled to amend the petition under Rule 1:8 to clarify any perceived ambiguities about
whether VDSS was a party to the VAPA appeal. Finding neither of Christian’s arguments
persuasive, the circuit court dismissed the appeal.
Christian appeals to us, arguing that his petition for appeal was sufficient because VDSS
lacks any real basis for claiming it had not been made a party to the VAPA appeal.
II.
When the VAPA authorizes judicial review, it must be conducted “in the manner
provided by the rules of the Supreme Court of Virginia.” Code § 2.2-4206. Within thirty days
of filing a notice of appeal, an appellant must file a petition for appeal in the circuit court. “Such
filing shall include all steps provided in Rules 2:2 and 2:3 to cause a copy of the petition to be
served (as in the case of a bill of complaint in equity) on the agency secretary and on every other
-3-
party.” Rule 2A:4(a).1 In addition, Rule 2A:4(b) requires the petition to “designate the
regulation or case decision appealed from, specify the errors assigned, state the reasons why the
regulation or case decision is deemed to be unlawful and conclude with a specific statement of
the relief requested.” The thirty-day deadline implicates the circuit court’s “jurisdiction over the
subject of the appeal.” State Water Control Bd. v. Crutchfield, 265 Va. 416, 423, 578 S.E.2d
762, 766 (2003); Va. Ret. Sys. v. Avery, 262 Va. 538, 542, 551 S.E.2d 612, 614 (2001); Sours v.
Va. Bd. for Architects, 30 Va. App. 313, 318, 516 S.E.2d 712, 715 (1999) (holding that “the
timely filing of a petition for appeal of an agency decision is jurisdictional”).
In this case, VDSS does not contend Christian filed his petition out of time ⎯ but that it
was fatally insufficient because it failed to identify, in so many words, VDSS as a party. We
disagree. A fair reading of the petition alerted VDSS that it was being called upon, however
obliquely, to respond to the appeal. This should have been reasonably apparent because the
petition specifically:
identified the decision of the VDSS hearing officer ⎯ a
designee of the VDSS Commissioner2 ⎯ as the agency ruling
being appealed;
requested, in the caption of the case, service on the VDSS
Commissioner, a task only required to be done under Rule
2A:4(a) for parties;
used the same style as the VDSS administrative caption of the
case; and
certified that it was being mailed to the Commissioner of the
VDSS.
1
It is better practice to identify all appellees by name in the caption of the case. By itself,
however, the failure to do so does not require that the appeal be dismissed. See Williams Steel
Erection Co. v. Dept. of Labor & Indus., 42 Va. App. 814, 821, 595 S.E.2d 45, 49 (2004).
2
Code § 63.2-1526(B) authorizes the VDSS Commissioner to “designate and authorize
one or more members of his staff to conduct [administrative] hearings.” See also 22 Va. Admin.
Code § 40-705-190(H)(1).
-4-
Given the unique statutory distribution of initial decisionmaking power to the local
department and final authority to VDSS, the only administrative decision that could be appealed
to the circuit court was the decision by the VDSS hearing officer. It takes little more effort to
read the petition for appeal as necessarily identifying VDSS as the real party in interest. See
generally Williams Steel Erection Co. v. Dept. of Labor & Indus., 42 Va. App. 814, 822, 595
S.E.2d 45, 49 (2004) (noting in parenthetical that “where an existing deficiency is one of form
rather than substance, appellate jurisdiction will still be conferred if the notice fairly and
accurately advises the successful party of the . . . appeal” (citation omitted)).
As a general rule, insubstantial defects in a timely filed appeal “should not be fatal where
no genuine doubt exists about who is appealing, from what judgment, to which appellate court.”
Becker v. Montgomery, 532 U.S. 757, 767-68 (2001); see also Smith v. Barry, 502 U.S. 244,
245, 248-49 (1992). Thus, when a “litigant files papers in a fashion that is technically at
variance with the letter of a procedural rule, a court may nonetheless find that the litigant has
complied with the rule if the litigant’s action is the functional equivalent of what the rule
requires.” Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988); see also Foman v.
Davis, 371 U.S. 178, 181 (1962) (holding that, despite its “inept” draftsmanship, the appellant’s
intention to appeal the specific final order was “manifest”).
That said, we do not hold that the mere mention of an agency anywhere in a VAPA
petition, without more, necessarily makes it a party to the appeal. The natural pragmatism that
accompanies principles of good pleading, as commendable as it may be, has its limits. In a
VAPA appeal, an agency becomes a party only when identified in the petition as a party to the
appeal ⎯ that is, where a reasonable reader would understand either from the petition’s text or
context or both that the agency is being mentioned not as a mere historical reference within the
larger background of the case, but as the party against whom the appeal is being taken.
-5-
III.
Under the unique circumstances of this case, we hold Christian’s petition sufficiently
identified VDSS as a party to this VAPA appeal. We reverse the circuit court’s dismissal order
and remand the matter for further proceedings consistent with this opinion.3
Reversed & remanded.
3
In the circuit court, Christian moved for leave to amend his petition in the event “it
needs to be done” to ensure that the petition sufficiently identified VDSS as a party. The circuit
court denied the motion. On appeal to us, Christian argues that, “assuming arguendo” his
petition failed to identify VDSS as a party, the circuit court erred in refusing his proposed
amendment. Because we hold the petition sufficiently identified VDSS as a party, we need not
rule on this alternative argument.
-6-