ANALYSIS OF NOVEMBER 22, 2011 CAV OPINIONS[Posted November 22, 2011] Today is a rarity: we get four published opinions from the Court of Appeals, and none of today’s decisions arise in criminal or domestic relations cases.
In contrast to garden-variety civil litigation, appeals over administrative regulations proceed at a lightning pace. Any person aggrieved by a regulation must note an appeal within 30 days after its adoption. A litigant who played with that short deadline gets burned today in Russell v. Board of Agriculture and Consumer Services. The decisive question is just when such a regulation is “adopted.”
The board promulgated a regulation dealing with livestock in 2008. The timeline was as follows:
March 20: Regulation approved as adopted by board
August 18: Regulation posted in Virginia Register of Regulations
September 17: Last day for Governor to propose changes, by statute
October 3: Effective date of regulation
Russell noted an appeal on October 30, which figures to be within the first 30 days of the regulation’s “life.” But the trial court dismissed the administrative appeal because it found that the notice came too late under the 30-day limit.
In today’s opinion, the Court of Appeals observes that the word adopt can refer to different things, given the wording of the statutes. But in the light most favorable to the appellant, the latest adoption date is what’s called “final adoption,” and that falls on September 17 in this example. Since the Governor chose not to tinker with the wording of this regulation, it was deemed finally adopted on that date, so an October 30 notice is too late.
Practitioners should note that the court has not specifically ruled that the September 17 deadline is the relevant one here; the court employed the “assuming without deciding” approach to analyze this question, so technically the matter remains unresolved.
There are a couple of other aspects of this ruling that merit mention here. First, the court rejects the appellant’s suggestion that the regulation is void, thus depriving the trial court of jurisdiction to decide the case. The appellate panel today rules that this isn’t a challenge to subject-matter jurisdiction, so the appellant’s failure to raise this issue in the trial court waives the matter.
Second, the court takes the appellant’s lawyer to task for crafting almost unfathomable assignments of error, describing them in a footnote (where the appellate goblins usually reside) as “unhelpfully voluminous and convoluted.” In order to craft a reasonably readable discussion, the court edits them for the benefit of its readership. I always counsel appellants to craft their assignments with care, and to avoid too-general wordings. Here, it appears that the appellant has gone too far in the other direction.
The issue of standing comes to the fore in Reston Hospital Center v. Remley. This is a challenge by a hospital to a decision by the State Health Commissioner to issue a certificate of public need to the hospital’s competitor for the provision of new radiation-therapy services.
COPN litigation sounds pretty dry to most trial lawyers, but the number of zeroes involved can make this kind of dispute vitally interesting for the participants. Reston operates a hospital in Fairfax, at which it provides radiation therapy to cancer patients. Inova Health Services wanted to open up a new treatment center a few miles away, and Reston got involved, claiming that its business would be harmed by the new facility.
Free-market capitalists might shrug off Reston’s objection, figuring that competition is the essence of a vibrant marketplace. After all, aren’t there three drug stores on every major street corner now, with the fourth one being constructed as we speak? But with hospitals, the legislature has decreed, it’s different. Those facilities spend millions on equipment and facilities on the assumption that they’ll be able to serve a given area. The last thing we need, this line of thinking goes, is to have hospitals shutting down because of cut-throat competition.
So much for ramblings in economic philosophy; let’s return to appellate analysis. The Commissioner issued the certificate, concluding that Reston would likely survive the new competition, and Reston appealed under the APA to the circuit court. That court agreed with the new certificate holder, Inova, that as a result of the Commissioner’s factual finding, Reston had no standing to appeal, since only “aggrieved” persons could go to court. The Commissioner’s factual determination, which was binding on the trial court, meant that Reston didn’t even get to walk in the courthouse door.
Today, a panel of the Court of Appeals unanimously reverses and sends the case back for a decision on the merits. In reaching this ruling, the court has to walk a fine line between which factual determinations (in this case, made by the Commissioner as factfinder) it must respect and which once are up to the assertions in the pleadings. In my view, the court walks that line effectively, concluding that in deciding the threshold issue of standing, the factfinder must accept the facts as pleaded.
I can go into the detailed reasons behind this conclusion, but for me, the clincher comes on page 16 of the opinion. There, the court notes that if a factual decision like this can determine standing, and if the appellate court has to accept the Commissioner’s factual determination, then the Commissioner will never have to fear appellate scrutiny, because she can insulate herself from all review. The legislature, in creating a framework for appellate review of these decisions, certainly did not envision an empty right of appeal.
This ruling is consistent with what I’ve seen in other contexts: Appellate courts will never allow trial courts to thwart appellate review. The first example that comes to mind is Bland v. Virginia State University (2006), where a trial judge refused to allow a pro se litigant to proffer material into the record. The Supreme Court reversed that one in about eight seconds, directing the trial judge to allow the litigant to make the proffer that would be essential for appellate review.
When an employee is injured on the job, his employer must furnish him with a list of three doctors, so the employee can select one of them as his treating physician. Turner Gilbane JV v. Guzman gives us an example of a panel that’s either too inclusive or under-inclusive, depending on your perspective.
The employee suffered the decided misfortune of being hit from behind by a truck while at work. At the hospital, he complained of “head, neck, and back pain.” Two days later, he went to a chiropractor, who suggested that he see a neurologist. The employee dutifully did that.
Meanwhile, the employer sent the employee a list of potential treating physicians (which list notably did not include the chiropractor). The list included the names of one physician, two clinics, and three orthopedic surgeons who specialized in hand and arm surgeries. The primary question in this appeal is whether that list complies with the mandate of at least three potential physicians.
It doesn’t, the CAV panel rules today. The doctor is fine, of course; but the two clinics don’t satisfy the mandate to identify three physicians. Another panel of the court ruled 22 years ago that naming a clinic doesn’t meet the requirement to name a doctor, and today’s panel declines the employer’s invitation to reverse that holding. As for the three orthopods with the unhelpful specialty, well . . . you see where this is going. The court rules today that since the employer didn’t furnish a satisfactory panel, the employee was free to choose a treating physician himself; that means that the chiropractor and the neurologist were the employee’s doctors for the purposes of this case.
Marshalls, Inc. v. Huffman is a straightforward adaptation of another decision by the court from earlier this year, Gordon v. Ford Motor Co. The court reaffirms that the two-year limitations period for filing a claim begins to run from the date of a change in condition (physical or, as here, procedural) where the employee has been kept on the payroll in light-duty capacity at or above his previous wage. The employer had argued that the change-in-condition language in the statute referred only to changes in medical condition, but the court points to some fairly plain language to the contrary: “a change in physical condition of the employee as well as any change in the conditions under which compensation was awarded, suspended, or terminated.” (emphasis supplied by the court)