A. 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.) 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 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.
B. In any court action under this section by a person affected by and claiming the unlawfulness of any regulation on the basis that an agency failed to follow any procedure for the promulgation or adoption of a regulation specified in this chapter or in such agency's basic law, the burden shall be upon the party complaining of the agency action to designate and demonstrate the unlawfulness of the regulation by a preponderance of the evidence. If the court finds in favor of the party complaining of the agency action, the court shall declare the regulation null and void and remand the case to the agency for further proceedings.
C. Notwithstanding any other provision of law or of any executive order issued under this chapter, with respect to any challenge of a regulation subject to judicial review under this chapter, the date of adoption or readoption of the regulation pursuant to § 2.2-4015 for purposes of appeal under the Rules of Supreme Court shall be the date of publication in the Register of Regulations.
1975, c. 503, § 9-6.14:16; 1986, c. 615; 1989, cc. 677, 734; 2001, c. 844; 2014, c. 699; 2016, c. 359.
Structure Code of Virginia
Title 2.2 - Administration of Government
Chapter 40 - Administrative Process Act
§ 2.2-4000. Short title; purpose
§ 2.2-4002. Exemptions from chapter generally
§ 2.2-4002.1. Guidance documents
§ 2.2-4006. Exemptions from requirements of this article
§ 2.2-4007. Petitions for new or amended regulations; opportunity for public comment
§ 2.2-4007.01. Notice of intended regulatory action; public hearing
§ 2.2-4007.02. Public participation guidelines
§ 2.2-4007.03. Informational proceedings; effect of noncompliance
§ 2.2-4007.04. Economic impact analysis
§ 2.2-4007.04:01. Notice required of certain departments
§ 2.2-4007.05. Submission of proposed regulations to the Registrar
§ 2.2-4007.06. Changes between proposed and final regulations
§ 2.2-4007.07. State Air Pollution Control Board; variances
§ 2.2-4007.1. Regulatory flexibility for small businesses; periodic review of regulations
§ 2.2-4007.2. Regulations requiring the submission of documents or payments
§ 2.2-4009. Evidentiary hearings on regulations
§ 2.2-4010. Pilot programs for regulations imposing local government mandates
§ 2.2-4011. Emergency regulations; publication; exceptions
§ 2.2-4012. Purpose; adoption; effective date; filing; duties of Registrar of Regulations
§ 2.2-4012.1. Fast-track rulemaking process
§ 2.2-4013. Executive review of proposed and final regulations; changes with substantial impact
§ 2.2-4014. Legislative review of proposed and final regulations
§ 2.2-4015. Effective date of regulation; exception
§ 2.2-4016. Withdrawal of regulation
§ 2.2-4017. Periodic review of regulations
§ 2.2-4018. Exemptions from operation of Article 3
§ 2.2-4019. Informal fact finding proceedings
§ 2.2-4020. Formal hearings; litigated issues
§ 2.2-4020.1. Summary case decisions
§ 2.2-4021. Timetable for decision; exemptions
§ 2.2-4022. Subpoenas, depositions and requests for admissions
§ 2.2-4024.1. Disqualification
§ 2.2-4024.2. Ex parte communications
§ 2.2-4025. Exemptions operation of this article; limitations
§ 2.2-4026. Right, forms, venue; date of adoption or readoption for purposes of appeal
§ 2.2-4028. Intermediate relief