(Posted February 20, 2018) The Court of Appeals of Virginia today dismisses an appeal on jurisdictional grounds, finding the case premature. The decision comes in Tesla, Inc. v. Virginia Automobile Dealers Ass’n, an administrative law appeal from the Richmond Circuit Court.

Tesla, the maker of high-tech electric vehicles, applied to the DMV for permission to open a dealership in Richmond. VADA asked for leave to intervene, and the DMV hearing officer allowed that; the officer subsequently denied the application after what I assume was opposition from VADA.

Undeterred, Tesla sought review by the DMV Commissioner. It had better luck this time; the Commissioner approved the application. VADA then filed an appeal to circuit court under the Administrative Process Act.

In circuit court, Tesla and the Commissioner demurred to the action, saying that VADA didn’t have standing to appeal. VADA answered that it had standing because it had intervened below and was thus a party. The trial court agreed with VADA and overruled the demurrers, simultaneously allowing VADA to amend by adding two dealerships on its side of the “v.”

That brought this proceeding: an immediate appeal by Tesla and the Commissioner to the court’s decision to overrule the demurrers. VADA moved to dismiss the appeals because of lack of finality. The appellees agreed that the order overruling the demurrers wasn’t final, but they turned to other language in Code §17.1-405, allowing appeals from interlocutory orders that adjudicate the principles of a cause.

Except the circuit court didn’t adjudicate this cause at all; it never reached the merits of VADA’s arguments against the Commissioner’s action. That won’t get the appellees anywhere. But they had one last arrow to launch, contending that “if VADA is not an aggrieved party then sovereign immunity prevents VADA from challenging the Commissioner’s decision.” The CAV agrees with this as a general principle, but notes that that argument “prevails only if we reverse on the merits the circuit court’s order. However, this is precisely what this Court does not have jurisdiction to do because here the circuit court’s interlocutory order regarding standing did not adjudicate the principles of the cause.” Describing the argument as “circular,” the judges find that they only thing they can do with this appeal is dismiss it.

Tesla and the Commissioner haven’t lost the war; just this battle. They can still go into the circuit court and try to prevail; indeed, they might win. They just don’t get the quick win they were hoping for.