Russell v. Virginia Bd. of Agriculture & Consumer Servs.

• Decision Date: 22 November 2011
• Docket Number: Record No. 2443–10–2.
• Citation: 717 S.E.2d 413,59 Va.App. 86
• Court: Virginia Court of Appeals
• Parties: Wayne Allen RUSSELL, Administrator of the Estate of Kathryn O'Neil Russell v. VIRGINIA BOARD OF AGRICULTURE AND CONSUMER SERVICES.

59 Va.App. 86

717 S.E.2d 413

Wayne Allen RUSSELL, Administrator of the Estate of Kathryn O'Neil Russell

v.VIRGINIA BOARD OF AGRICULTURE AND CONSUMER SERVICES.

Record No. 2443–10–2.

Court of Appeals of Virginia, Richmond.

Nov. 22, 2011.

Norman Hunter Lamson, Charlottesville, for appellant.

Stephen P. Jack, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: HUMPHREYS and BEALES, JJ., and CLEMENTS, S.J.

HUMPHREYS, Judge.

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.

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.

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” 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 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...