COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
VIRGINIA RETIREMENT SYSTEM, ET AL.
OPINION BY
v. Record No. 0902-96-2 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 7, 1997
ANTHONY M. RIZZO, JR.
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Lloyd C. Sullenberger, Judge
Michael K. Jackson, Senior Assistant Attorney
General & Chief (James S. Gilmore, III,
Attorney General; John Paul Woodley, Jr.,
Deputy Attorney General; John M. McCarthy,
Senior Assistant Attorney General, on
briefs), for appellants.
C. Waverly Parker for appellee
Appellant, Virginia Retirement System (VRS), denied the
application for disability retirement benefits of appellee,
Anthony M. Rizzo, Jr. On appeal, the Circuit Court of Orange
County (circuit court) set aside the denial and remanded the
matter for further proceedings. The circuit court's order was
the subject of an appeal to this Court, which, in material
respects, affirmed the circuit court's remand. VRS again denied
benefits; Rizzo again appealed to the circuit court, which
granted Rizzo's motion for summary judgment and remanded the
matter to VRS to calculate and implement the disability benefits.
VRS appeals the order granting summary judgment. For the
reasons that follow, we reverse.
I.
Rizzo applied to VRS for disability benefits pursuant to
Code § 51.1-156. 1 VRS denied Rizzo's application. Following
appeal to the circuit court and subsequent appeal to this Court,
the matter was remanded for further proceedings. On remand, the
parties attempted to resolve the matter through "informal"
adjudication, conducted pursuant to Code § 9-6.14:11. 2 Cf. Code
1
Code § 51.1-156 provides in pertinent part:
A. Any member in service or within ninety
days after termination of service who has not
withdrawn his accumulated contributions as
provided for in § 51.1-128 may retire for
disability not compensable under the Virginia
Workers' Compensation Act (§ 65.2-100 et
seq.) upon written notification to the Board
setting forth the date the retirement is to
become effective.
* * * * * * *
E. After a medical examination of the member
or after reviewing pertinent medical records,
the Medical Board shall certify that (i) the
member is and has been continuously since the
effective date of retirement if prior to
filing of the notification, mentally or
physically incapacitated for the further
performance of duty, (ii) the incapacity is
likely to be permanent, and (iii) the member
should be retired. A member shall not be
retired for disability for any condition
which existed at the time of becoming a
member unless medical evidence, convincing to
the Board, supports the fact that the
pre-existing condition has worsened
substantially.
2
Code § 9-6.14:11 provides, in pertinent part:
A. Agencies shall ascertain the fact basis
for their decisions of cases through informal
conference or consultation proceedings unless
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(..continued)
the named party and the agency consent to
waive such a conference or proceeding to go
directly to a formal hearing. Such
conference-consultation procedures include
rights of parties to the case (i) to have
reasonable notice thereof, (ii) to appear in
person or by counsel or other qualified
representative before the agency or its
subordinates, or before a hearing officer as
provided by subsection A of § 9-6.14:14.1,
for the informal presentation of factual
data, argument, or proof in connection with
any case, (iii) to have notice of any
contrary fact basis or information in the
possession of the agency which can be relied
upon in making an adverse decision, (iv) to
receive a prompt decision of any application
for a license, benefit, or renewal thereof,
and (v) to be informed, briefly and generally
in writing, of the factual or procedural
basis for an adverse decision in any case.
* * * * * * *
D. In any informal fact-finding proceeding
in which a hearing officer, as described in
§ 9-6.14:14.1, is not used or is not
empowered to recommend a finding, the board,
commission, or agency personnel responsible
for rendering a decision shall render that
decision within ninety days from the date of
the informal fact-finding proceeding or from
a later date agreed to by the named party and
the agency. If the agency does not render a
decision within ninety days, the named party
to the case decision may provide written
notice to the agency that a decision is due.
If no decision is made within thirty days
from agency receipt of the notice, the
decision is deemed to be in favor of the
named party. The preceding sentence shall
not apply to case decisions before (i) the
State Water Control Board or the Department
of Environmental Quality to the extent
necessary to comply with the federal Clean
Water Act or (ii) the State Air Pollution
Control Board or the Department of
Environmental Quality to the extent necessary
to comply with the federal Clean Air Act. An
agency shall provide notification to the
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(..continued)
named party of its decision within five days
of the decision.
E. In any informal fact-finding proceeding
in which a hearing officer, as described in
§ 9-6.14:14.1, is empowered to recommend a
finding, the board, commission, or agency
personnel responsible for rendering a
decision shall render that decision within
thirty days from the date that the agency
receives the hearing officer's
recommendation. If the agency does not
render a decision within thirty days, the
named party to the case decision may provide
written notice to the agency that a decision
is due. If no decision is made within thirty
days from agency receipt of the notice, the
decision is deemed to be in favor of the
named party. The preceding sentence shall
not apply to case decisions before (i) the
State Water Control Board or the Department
of Environmental Quality to the extent
necessary to comply with the federal Clean
Water Act or (ii) the State Air Pollution
Control Board or the Department of
Environmental Quality to the extent necessary
to comply with the federal Clean Air Act. An
agency shall provide notification to the
named party of its decision within five days
of the decision.
F. The provisions of subsection D
notwithstanding, if the board members or
agency personnel who conducted the informal
proceeding are unable to attend to official
duties due to sickness, disability, or
termination of their official capacity with
the agency, then the timeframe provisions of
subsection D shall be reset and commence from
the date that either new board members or
agency personnel are assigned to the matter
or a new proceeding is conducted if needed,
whichever is later. An agency shall provide
notification within five days to the named
party of any incapacity of the board members
or agency personnel that necessitates a
replacement or a new proceeding.
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§ 9-6.14:12 (governing "formal" adjudication). 3
3
Code § 9-6.14:12 provides, in pertinent part:
A. The agency shall afford opportunity for
the formal taking of evidence upon relevant
fact issues in any case in which the basic
laws provide expressly for decisions upon or
after hearing and may do so in any case to
the extent that informal procedures under
§ 9-6.14:11 have not been had or have failed
to dispose of a case by consent.
* * * * * * *
C. Where a hearing officer presides, or
where a subordinate designated for that
purpose presides in hearings specified in
subsection F of § 9-6.14:14.1, he shall
recommend findings and a decision unless the
agency shall by its procedural regulations
provide for the making of findings and an
initial decision by such presiding officers
subject to review and reconsideration by the
agency on appeal to it as of right or on its
own motion. The agency shall give deference
to findings by the presiding officer
explicitly based on the demeanor of
witnesses.
D. Prior to the recommendations or decisions
of subordinates, the parties concerned shall
be given opportunity, on request, to submit
in writing for the record (i) proposed
findings and conclusions and (ii) statements
of reasons therefor. In all cases, on
request, opportunity shall be afforded for
oral argument (i) to hearing officers or
subordinate presiding officers, as the case
may be, in all cases in which they make such
recommendations or decisions or (ii) to the
agency in cases in which it makes the
original decision without such prior
recommendation and otherwise as it may permit
in its discretion or provide by general rule.
Where hearing officers or subordinate
presiding officers, as the case may be, make
recommendations or decisions, the agency
shall receive and act on exceptions thereto.
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(..continued)
E. All decisions or recommended decisions
shall be served upon the parties, become a
part of the record, and briefly state or
recommend the findings, conclusions, reasons,
or basis therefor upon the evidence presented
by the record and relevant to the basic law
under which the agency is operating together
with the appropriate order, license, grant of
benefits, sanction, relief, or denial
thereof.
* * * * * * *
G. In any formal proceeding in which a
hearing officer, as described in
§ 9-6.14:14.1, is not used or is not
empowered by the agency to recommend a
finding, the board, commission, or agency
personnel responsible for rendering a
decision shall render that decision within
ninety days from the date of the formal
proceeding or from a later date agreed to by
the named party and the agency. If the
agency does not render a decision within
ninety days, the named party to the case
decision may provide written notice to the
agency that a decision is due. If no
decision is made within thirty days from
agency receipt of the notice, then the
decision is deemed to be in favor of the
named party. The preceding sentence shall
not apply to case decisions before (i) the
State Water Control Board or the Department
of Environmental Quality to the extent
necessary to comply with the federal Clean
Water Act or (ii) the State Air Pollution
Control Board or the Department of
Environmental Quality to the extent necessary
to comply with the federal Clean Air Act. An
agency shall provide notification to the
named party of its decision within five days
of the decision.
H. In any formal proceeding in which a
hearing officer, as described in
§ 9-6.14:14.1, is empowered to recommend a
finding, the board, commission, or agency
personnel responsible for rendering a
decision shall render that decision within
thirty days from the date that the agency
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A VRS representative conducted a hearing on April 25, 1995.
At that hearing, Rizzo incorporated all of his evidence adduced
at the previous administrative hearing and introduced further
medical evidence of his psychiatrist, Dr. Robert S. Brown, Jr.,
to establish his disability. The following day, the agency
representative notified VRS that he would forward the transcript
(..continued)
receives the hearing officer's
recommendation. If the agency does not
render a decision within thirty days, the
named party to the case decision may provide
written notice to the agency that a decision
is due. If no decision is made within thirty
days from agency receipt of the notice, the
decision is deemed to be in favor of the
named party. The preceding sentence shall
not apply to case decisions before (i) the
State Water Control Board or the Department
of Environmental Quality to the extent
necessary to comply with the federal Clean
Water Act or (ii) the State Air Pollution
Control Board or the Department of
Environmental Quality to the extent necessary
to comply with the federal Clean Air Act. An
agency shall provide notification to the
named party of its decision within five days
of the decision.
I. The provisions of subsection G
notwithstanding, if the board members or
agency personnel who conducted the formal
proceeding are unable to attend to official
duties due to sickness, disability, or
termination of their official capacity with
the agency, then the timeframe provisions of
subsection G shall be reset and commence from
the date that either new board members or
agency personnel are assigned to the matter
or a new proceeding is conducted if needed,
whichever is later. An agency shall provide
notification within five days to the named
party of any incapacity of the board members
or agency personnel that necessitates a
replacement or a new proceeding.
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of Dr. Brown's testimony as soon as he received it. VRS received
the transcript on May 26 with a request from the agency
representative that VRS forward the transcript to its Medical
Board. On June 19, VRS forwarded the transcript of Dr. Brown's
testimony to the Medical Board and requested that the Board
comment on all the medical evidence. On July 11, VRS received
correspondence from the Medical Board, requesting permission to
forward the evidence for review by Dr. Merritt Foster. On July
26, VRS consented, requesting the Medical Board to forward the
evidence to Dr. Foster. The Medical Board forwarded the evidence
to Dr. Foster on August 9.
On August 21, 118 days after the hearing, VRS acknowledged
receipt of correspondence from Rizzo, notifying VRS that a
decision was due. In response, VRS stated that it would ask the
Medical Board to advise Doctor Foster to "move forward." On
September 29, thirty-nine days after it received Rizzo's first
notice, VRS received a second notice from Rizzo that a decision
was due.
On September 27, the Medical Board forwarded a report from
Dr. Foster to VRS, noting that the Board adopted Dr. Foster's
report. VRS forwarded the report to the agency representative on
October 4.
On October 6, Rizzo wrote the agency representative and VRS
to inform them that, because more than thirty days had elapsed
since he first notified VRS that a decision was due, a decision
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had been "deemed" in his favor pursuant to Code § 9-6.11:14(D).
VRS responded on October 22, arguing that Rizzo misinterpreted
the statute and that the "proceeding" envisioned in that section
was not concluded until VRS received the Medical Board's report.
On November 6, the agency representative recommended that
Rizzo be granted benefits. Later that day, however, the VRS
issued a decision denying benefits. Rizzo appealed the substance
of VRS's decision to the circuit court and also filed a motion
for summary judgment, contending that, pursuant to Code
§ 9-6.14:11(D), a decision had been "deemed" in his favor because
VRS had failed to resolve the matter within the prescribed time
limits.
The court granted Rizzo's motion for summary judgment,
concluding that
the General Assembly, by using the phrase
"from the date of the informal fact-finding
proceeding" in the statute intended that the
90 day period begin to run in a case such as
the case at bar when the agency
representative holds the fact-finding
hearing. Otherwise, the agency representative
and the agency's medical board would wholly
control the time of decision and the
limitation in the statute would be
practically meaningless.
II.
On appeal, we must determine the point in the adjudication
process from which the time limitations of Code § 9-6.14:11(D)
begin to run. We find that the legislature intended those time
limitations to begin running at the close of the fact-gathering
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stage of the adjudication process.
VRS is established and governed by Chapter 1 of Title 51.1
of the Virginia Code. VRS is an administrative agency subject to
Virginia's Administrative Process Act (VAPA), codified in Chapter
1.1:1 of Title 9. VAPA's purpose is "to supplement . . . basic
laws conferring authority on agencies . . . [to] decide cases
. . . . [VAPA] does not supersede or repeal additional procedural
requirements in such basic laws." Code § 9-6.14:3. In that
light, Article 3 of VAPA governs "case decisions."
As with any adjudication, the "case decision" process
imposes two general requirements on the agency personnel
responsible for determining a case. The personnel must first
oversee the process by which relevant information is gathered.
The responsible person or persons must then formulate and render
a determination based on that information.
Article 3 provides two mechanisms by which an agency gathers
the factual information necessary to decide a case. In one
instance, agencies "ascertain the fact basis for their decisions
of cases through informal conference or consultation
proceedings." Code § 9-6.14:11(A). The statute refers to this
type of fact-gathering as an "informal fact-finding proceeding,"
see Code § 9-6.14:11(D),(E), which leads to the rendering of an
"informal fact-finding decision." See Code § 9-6.14:11(C). In
the other instance, the "formal proceeding," agencies "afford
opportunity for the formal taking of evidence upon relevant fact
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issues." Code § 9-6.14:12(A),(G),(H).
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Once the agency has completed its fact-gathering
responsibility, it then renders a decision. The mechanics of the
latter responsibility depend, in part, on whether a hearing
officer, as defined in Article 3.1, presides over the "case
decision proceeding." See Code §§ 9-6.14:11(D),(E),
9-6.14:12(G),(H), 9-6.14:14.1. 4 Where a hearing officer presides
over a case decision proceeding, whether informal or formal, the
hearing officer typically recommends findings and a decision to
the agency. Code §§ 9-6.14:11(E),
9-6.14:12(C),(D),(E),(H). In such cases, after receipt of the
recommendation, the agency must render a decision. Where no
hearing officer presides over a case decision proceeding, the
4
Code § 9-6.14:14.1 sets forth qualification requirements
for hearing officers and provides, in pertinent part:
D. Any hearing officer empowered by the
agency to provide a recommendation or
conclusion in a case decision matter shall
render that recommendation or conclusion
within ninety days from the date of the case
decision proceeding or from a later date
agreed to by the named party and the agency.
If the hearing officer does not render a
decision within ninety days, then the named
party to the case decision may provide
written notice to the hearing officer and the
Executive Secretary of the Supreme Court that
a decision is due. If no decision is made
within thirty days from receipt by the
hearing officer of the notice, then the
Executive Secretary of the Supreme Court
shall remove the hearing officer from the
hearing officer list and report the hearing
officer to the Virginia State Bar for
possible disciplinary action, unless good
cause is shown for the delay.
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intermediate, recommendation stage is eliminated, and
decision-making responsibility falls directly to the "board,
commission, or agency personnel responsible for rendering a
decision." Code §§ 9-6.14:11(D), 9-6.14:12(G).
We find a distinction between the agency's responsibility
for fact-gathering, whether accomplished informally or formally,
and its responsibility for rendering a decision based on the
facts it gathers. In short, the fact-gathering stage, whether it
is conducted informally or formally, provides the basis for which
the case will be decided. 5
VAPA prescribes the time by which an agency must render a
decision. Where the case involves no hearing officer, the agency
must render a decision within ninety days from the date of the
case decision proceeding, whether it be an informal conference or
consultation proceeding or a formal evidentiary proceeding. Code
§§ 9-6.14:11(D), 9-6.14:12(G). The statute provides an exception
where the agency representative responsible for rendering a
decision becomes incapacitated. In such cases, the time limit is
reset and commences from the date that new agency personnel are
assigned or a new proceeding is conducted. Code §§ 9-6.14:11(F),
9-6.14:12(I). Where, by contrast, a hearing officer presides
5
This stage in the process is akin to the making of the
record in a court of law or equity. Indeed, judicial review of
agency decision-making is based solely upon the agency record,
or, where an informal agency proceeding does not require or make
such a record, judicial review is based on the agency file,
minutes, and records of its proceedings, which may be augmented
if necessary. See Code §§ 9-6.14:16, 9-6.14:17.
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over the fact-gathering, the hearing officer must make a
recommendation within ninety days of the date of the case
decision proceeding, unless good cause is shown for the delay.
Code § 9-6.14:14.1(D). From that point, the agency has thirty
days, without exception, to render a decision. Code
§§ 9-6.14:11(E), 9-6.14:12(H). We find these time limitations to
govern the agency's decision-rendering responsibility. They do
not address the fact-gathering role of the agency but, instead,
begin to run from the date the fact-finding proceeding is
completed.
Article 3, providing general rules for agency adjudications,
does not, and could not, address the scope of the fact-gathering
proceeding in each case. Rather, such a determination will
depend on the nature of the case, the case record, and the basic
law governing the agency. While a one-day hearing, whether
informal or formal, may be all that is needed to gather the
relevant factual information, a case may require further steps.
Indeed, the Revisers' Note to Code § 9-6.14:11 states that in
addition to conferences or consultations, "[t]o the extent that
basic laws permit, agencies may also proceed on the basis of
inspections, tests, or elections, followed by such
conference-consultation procedure as the case issues may
require." Thus, contrary to the finding of the trial court, we
find that the legislature clearly intended that the fact-finding
process could encompass more than a hearing.
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In the present case, VRS was not authorized to render a
decision until it had received the report of the Medical Board
pursuant to Code § 51.1-156, upon which Rizzo based his
application. This step in the process was of a fact-gathering
nature as the report would contain relevant information upon
which VRS would render its decision. Accordingly, we find that
the time requirements of Code § 9-6.14:11(D) did not begin to run
until VRS received the Medical Board's report. Applying those
requirements to this case, it is clear the trial court erred in
granting Rizzo's motion for summary judgment.
Accordingly, the decision is reversed and remanded for
further proceedings. 6
Reversed and remanded.
6
Contrary to Rizzo's contention, our decision does not
entitle VRS to circumvent an applicant's right "to receive a
prompt decision," see Code § 9-6.14:11(A)(iv), by unduly
extending the fact-gathering stage of the case decision process,
nor does it abrogate alternative remedies available to an
applicant to compel timely agency action.
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