SB944: Administrative Process Act; issues on review, duty of court.


SENATE BILL NO. 944
Senate Amendments in [ ] -- January 24, 2013
A BILL to amend and reenact § 2.2-4027 of the Code of Virginia, relating to the Administrative Process Act; issues on review.
Patron Prior to Engrossment--Senator Edwards

Referred to Committee on General Laws and Technology

Be it enacted by the General Assembly of Virginia:

1.  That § 2.2-4027 of the Code of Virginia is amended and reenacted as follows:

§ 2.2-4027. Issues on review.

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 to determine 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 to support the agency decision. The duty of the court with respect to the issues of law shall be to review the agency decision de novo.  [ Upon motion of any party, the court may augment the agency record in whole or in part.  ]  The court shall enter judgment either setting aside,  [ modifying, ]  remanding, or affirming the order or decision of the agency.

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.

SENATE BILL NO. 944

Offered January 9, 2013
Prefiled January 7, 2013
A BILL to amend and reenact 2.2-4027 of the Code of Virginia, relating to the Administrative Process Act; issues on review.
Patron-- Edwards

Referred to Committee on General Laws and Technology

Be it enacted by the General Assembly of Virginia:

1.  That 2.2-4027 of the Code of Virginia is amended and reenacted as follows:

2.2-4027. Issues on review.

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 to determine 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 to support the agency decision. The duty of the court with respect to the issues of law shall be to review the agency decision de novo. Upon motion of any party, the court may augment the agency record in whole or in part. The court shall enter judgment either setting aside, modifying, remanding, or affirming the order or decision of the agency.

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.