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2010 SESSION
10103511DBe it enacted by the General Assembly of Virginia:
1. That §§ 2.2-4025, 2.2-4026, and 2.2-4027 of the Code of Virginia are amended and reenacted as follows:
§ 2.2-4025. Exemptions operation of this article; limitations.
A. This article shall not apply to any agency action that (i)
is placed beyond the control of the courts by constitutional or statutory
provisions expressly precluding court review, (ii) involves solely the internal
management or routine of an agency, (iii) is a decision resting entirely upon
an inspection, test, or election save as to want of authority therefor or claim
of arbitrariness or fraud therein, or (iv)
is a case in which the agency is acting as an agent for a court, or (v) encompasses matters subject by law to a
trial de novo in any court.
B. The provisions of this article, however, shall apply to
case decisions regarding the grant or denial of Temporary Assistance for Needy
Families, Medicaid, food stamps, general relief, auxiliary grants, or
state-local hospitalization. However, no appeal may be brought regarding the
adequacy of standards of need and payment levels for public assistance and
social services programs. Notwithstanding the
provisions of § 2.2-4027, the review shall be based
solely upon the agency record, and the court shall be limited to ascertaining
whether there was evidence in the agency record to support the case decision of
the agency acting as the trier of fact. The review shall be by trial de novo. If
the court finds in favor of the party complaining of agency action, the court
shall remand the case to the agency for further proceedings. The validity of
any statute, regulation, standard or policy, federal or state, upon which the
action of the agency was based shall not be subject to review by the court. No
intermediate relief shall be granted under § 2.2-4028.
§ 2.2-4026. Right, forms, venue.
Any person affected by and claiming the unlawfulness of any regulation, or party aggrieved by and claiming unlawfulness of a case decision and whether exempted from the procedural requirements of Article 2 (§ 2.2-4006 et seq.) or 3 (§ 2.2-4018 et seq.) of this chapter, shall have a right to seek the direct review by a de novo appeal 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 § 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. In addition, when any regulation or case decision is the subject of an enforcement action in court, it shall also be reviewable by the court as a defense to the action, and the judgment or decree therein shall be appealable as in other cases.
§ 2.2-4027. Issues on review; small business.
The burden shall be
upon the party complaining of agency action to designate and demonstrate an
error of law subject to review by the court. Such issues of law include: (i)
accordance with constitutional right, power, privilege, or immunity, (ii)
compliance with statutory authority, jurisdiction limitations, or right as
provided in the basic laws as to subject matter, the stated objectives for which
regulations may be made, and the factual showing respecting violations or
entitlement in connection with case decisions, (iii) observance of required
procedure where any failure therein is not mere harmless error, and (iv) the
substantiality of the evidentiary support for findings of fact. The
determination of such fact issue shall be made upon the whole
evidentiary record provided by the agency if its proceeding was required to be
conducted as provided in § 2.2-4009 or 2.2-4020 or, as to subjects exempted
from those sections, pursuant to constitutional requirement or statutory
provisions for opportunity for an agency record of and decision upon the
evidence therein.
In addition to any other judicial review provided by law, a small business, as defined in subsection A of § 2.2-4007.1, that is adversely affected or aggrieved by final agency action shall be entitled to judicial review of compliance with the requirements of subdivision A 2 of § 2.2-4007.04 and § 2.2-4007.1 within one year following the date of final agency action.
When the decision on
review is to be made on the agency record, the duty of the court with respect
to issues of fact shall be limited to ascertaining whether there was
substantial evidence in the agency record upon which the agency as the trier of
the facts could reasonably find them to be as it did.
Where there is no
agency record so required and made, any necessary facts in controversy shall be
determined by the court upon the basis of the agency file, minutes, and records
of its proceedings under § 2.2-4007.01 or 2.2-4019 as augmented, if need be, by
the agency pursuant to order of the court or supplemented by any allowable and
necessary proofs adduced in court except that the function of the court shall
be to determine only whether the result reached by the agency could reasonably
be said, on all such proofs, to be within the scope of the legal authority of
the agency.
Whether the
fact issues are reviewed on the agency record
or one made in the review action, the court shall take
due account of the presumption of official regularity, the experience and
specialized competence of the agency, and the purposes of the basic law under
which the agency has acted.