PRESENT: Goodwyn, C.J., Powell, Kelsey, McCullough, and Chafin, JJ., and Koontz, S.J.

CHESAPEAKE HOSPITAL AUTHORITY,

D/B/A CHESAPEAKE REGIONAL MEDICAL CENTER

OPINION BY

v. Record No. 201510 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.

May 19, 2022

STATE HEALTH COMMISSIONER, ET AL.

FROM THE COURT OF APPEALS OF VIRGINIA

Chesapeake Hospital Authority, d/b/a Chesapeake Regional Medical Center (“CRMC”) 

appeals the Court of Appeals’ judgment affirming the circuit court’s decision to uphold a denial 

by the State Health Commissioner (“Commissioner”) of its application for a Certificate of Public 

Need (“COPN”) for a new open-heart surgery service and additional cardiac catheterization 

equipment. In this appeal, the principal issue we consider is whether the harmless error doctrine 

applies to an error of law in an administrative agency case under the Virginia Administrative 

Process Act, Code § 2.2-4000 et seq.

BACKGROUND

The material facts necessary to our resolution of this appeal are not in dispute. CRMC is 

a 310-bed, acute care general hospital located in the City of Chesapeake within Planning District 

20 (“PD 20”). On July 31, 2017, CRMC applied for a COPN with the Virginia Department of 

Health (“VDH”) pursuant to Code § 32.1-102.1 et seq. CRMC sought to develop an open heart 

surgery program and offer expanded cardiac catheterization services by creating a “hybrid” 

operating room at its existing Chesapeake facility. CRMC’s application was reviewed by the 

staff of VDH’s Division of Certificate of Public Need. Thereafter, the staff report recommended
2

conditional approval of CRMC’s application contingent upon CRMC’s acceptance of a charity 

care condition.

1

On November 27, 2017, Sentara Hospitals (“Sentara”), also located in PD 20, timely filed 

a petition seeking good cause to be made a party in the review of CRMC’s application, pursuant 

to Code § 32.1-102.6(E)(3).

2

 At Sentara’s request, an informal fact-finding conference (“IFFC”) 

was held on Sentara’s good cause petition. Following this IFFC, the Commissioner granted 

Sentara’s petition and added Sentara as a party to the review of CRMC’s application.

On April 12, 2018, an IFFC on the merits of CRMC’s COPN application was convened, 

with CRMC and Sentara presenting evidence and argument. In a case decision submitted to the 

Commissioner, the adjudication officer recommended that CRMC’s application be denied after 

evaluating the project in relation to the eight statutory considerations set forth in Code 

§ 32.1-102.3(B).

1 During the same COPN review cycle, Sentara Virginia Beach General Hospital 

(“SVBGH”), a competing hospital that operates an open heart surgery program in PD 20, filed a 

COPN application to expand cardiac catheterization services through the addition of cardiac 

catheterization equipment. SVBGH’s application was subsequently approved and was no longer 

under consideration at the time the Commissioner denied CRMC’s application. SVBGH’s 

corporate parent is Sentara Hospitals, an appellee to this appeal.

2 As defined in Code § 32.1-102.6(G), “Good cause” means that

(i) there is significant relevant information not previously presented at and not available 

at the time of the public hearing, (ii) there have been significant changes in factors or 

circumstances relating to the application subsequent to the public hearing, or (iii) there is 

a substantial material mistake of fact or law in the Department staff’s report on the 

application or in the report submitted by the health planning agency.
3

On August 24, 2018, the Commissioner, after reviewing the project and adopting the 

recommendation and report of the adjudication officer, denied CRMC’s application. The 

Commissioner cited the following reasons for the denial:

(i) CRMC’s proposed project is not consistent with the State Medical Facilities Plan;

(ii) The proposed project would likely decrease utilization at existing providers of 

open heart surgery, a type of surgery that consists of a highly-specialized, highacuity, utilization-sensitive and narrow subset of cardiac surgery procedures;

(iii) The project is duplicative of existing and accessible open heart surgery services in 

PD 20;

(iv) The project would not significantly improve geographic or financial access for 

residents of PD 20 to open heart surgery services; and

(v) Open heart surgery services are fully accessible and available in PD 20, in a 

timely manner and within applicable driving time standards.

The report relied upon by the Commissioner specified that CRMC’s proposed project was 

not consistent with the State Medical Facilities Plan (“SMFP”) as defined by VDH’s regulations. 

Citing 12 VAC § 5-230-450(A)(1), the report noted that, with respect to determining a need for a 

new open heart surgery service, the SMFP required CRMC to demonstrate that its existing 

cardiac catheterization service performed an average of 1,200 diagnostic equivalent procedures 

(“DEPs”) annually. During the IFFC, CRMC maintained this standard considered all services 

performed in its two existing cardiac catheterization laboratories, with the total number of 

services exceeding 1,200 DEPs during the relevant reporting period. CRMC reported a total of 

1,374 DEPs in 2015. Sentara maintained that CRMC’s two cardiac catheterization laboratories 

performed an average of 687 DEPs in 2015, and averaged 830 during the 2016-2017 period. The 

report concluded CRMC’s project did not appear to meet the standard set forth in 12 VAC 

§ 5-230-450(A)(1) with respect to average DEPs, finding that CRMC “conflated various 
4

procedures capable of being performed in a cardiac catheterization laboratory to arrive at its 

figures” and Sentara’s “more credible and reliable.”

The report also analyzed whether CRMC’s application complied with the SMFP 

provision within 12 VAC § 5-230-450(A)(2), which states that new open heart services would 

only be approved if “open heart surgery services located within the health planning district 

performed an average of 400 open heart and closed heart surgical procedures for the relevant 

reporting period.” CRMC argued that this provision referred to a service located at an acute care 

hospital, regardless of the number of operating rooms within the hospital. CRMC reported the 

three existing hospitals with open heart surgery services in PD 20 performed an average of 752 

open heart and closed heart procedures in 2015. Sentara argued that “open heart surgery 

services” referred to individual operating rooms within a hospital, and reported that the hospitals 

in PD 20 performed an average of 167 procedures per operating room in 2015. Sentara 

maintained that adopting CRMC’s interpretation of analyzing utilization per-service, rather than 

per-operating room, would be “inconsistent with the remainder of the open heart surgery SMFP” 

and that “one-high volume program . . . would skew the public need analysis to indicate a need 

for additional services, despite other existing and underutilized services in the PD.”

The report concluded that CRMC’s project did not meet the SMFP standard under 12 

VAC § 5-230-450(A)(2), reasoning that utilization rates were calculated per-operating room, 

rather than per-service. The report explained that this interpretation of 12 VAC

§ 5-230-450(A)(2) was “the most reasonable reading of [this regulation]” when read in context 

with 12 VAC § 5-230-450(A)(3), which requires a proposed new open heart service to estimate 

utilization rates prospectively on a per-operating room basis.
5

CRMC filed a petition for appeal in the Circuit Court of the City of Chesapeake, arguing 

that the Commissioner’s decision should be reversed, in part because the Commissioner erred in 

his interpretation that 12 VAC § 5-230-450(A)(2) required the average number of procedures to 

be determined on a per operating room basis, rather than per service; and further erred in finding 

that 12 VAC § 5-230-450(A)(1) required an average of 1,200 DEPs per cardiac catheterization 

laboratory, rather than per cardiac catheterization service. The circuit court held that while the 

Commissioner misinterpreted the provision of the SMFP within 12 VAC § 5-230-450(A)(2), as a 

matter of law, this misinterpretation constituted harmless error. The circuit court reasoned that 

this subparagraph of the regulation constituted only one part of the SMFP regarding new open 

heart surgery services, and compliance with the SMFP was only one of eight statutory factors for 

the Commissioner to consider under Code § 32.1-102.3(B). The circuit court also held that 12 

VAC § 5-230-450(A)(1) was genuinely ambiguous and the Commissioner’s interpretation 

warranted deference. Finding the Commissioner did not err with respect to CRMC’s remaining 

assignments of error, the circuit court affirmed the Commissioner’s decision and dismissed 

CRMC’s petition.

On appeal to the Court of Appeals, CRMC challenged the circuit court’s determination 

that the Commissioner’s incorrect interpretation and application of the SMFP in his case decision 

was harmless error. In an unpublished opinion, the Court of Appeals, relying in part on State 

Health Comm’r v. Sentara Norfolk Gen. Hosp., 260 Va. 267 (2000), held that the 

Commissioner’s error of law in misinterpreting the SMFP under 12 VAC § 5-230-450(A)(2) was 

harmless error, because the project’s consistency with the SMFP was only one of eight reasons 

cited by the Commissioner in denying CRMC’s application, and thus was not substantial in 
6

nature. Accordingly, the Court of Appeals affirmed the circuit court’s decision and denied 

CRMC’s petition for a rehearing en banc.

We awarded CRMC this appeal on the following assignments of error:

1. The Court of Appeals erred in applying the harmless error doctrine to an 

agency’s legal error in interpreting and applying its own regulations.

2. The Court of Appeals erred in deferring, without robust analysis, to an 

agency’s interpretation of its own regulations in contravention of recent 

United States Supreme Court precedent [in Kisor v. Wilkie, 139 S.Ct. 2400, 

(2019)].

By an order dated December 28, 2021, we permitted the City of Chesapeake and the 

Council of the City of Chesapeake to appear on brief as amici curiae. Both parties supported 

CRMC’s application for a COPN.

DISCUSSION

Section 32.1-102.3(A) provides in relevant part that, “No person shall commence any 

project without first obtaining a certificate issued by the Commissioner. No certificate may be 

issued unless the Commissioner has determined that a public need for the project has been 

demonstrated.”3 Any decision to issue a certificate must be consistent with the most recent 

applicable provision of the SMFP, unless the Commissioner finds an amendment to such plan is 

appropriate. Code § 32.1-102.3(A). In determining whether a public need for a project has been 

demonstrated, the Commissioner must consider eight statutory factors enumerated in Code 

§ 32.1-102.3(B), including the project’s consistency with the SMFP. The SMFP is the planning 

document adopted by the Board of Health, which includes methodologies for projecting need for 

3 The COPN statutory framework at Code § 32.1-102.1 et seq., was amended effective 

July 1, 2020. These amendments are not pertinent to the issue presented in this appeal. 

Accordingly, this opinion cites to the statutory provisions in effect at the time of the 

Commissioner’s case decision.
7

medical facilities and services, as well as procedures, criteria, and standards for review of 

applications for projects for medical care facilities and services. Code § 32.1-102.1.

Relevant to this appeal is whether CRMC’s proposed project demonstrates a public need 

for a new open heart surgery service based on certain utilization metrics, consistent with the 

SMFP provisions at 12 VAC § 5-230-450(A), which provides that no new open heart services 

should be approved unless:

1. The service will be available in an inpatient hospital with an established cardiac 

catheterization service that has performed an average of 1,200 DEPs for the relevant 

reporting period and has been in operation for at least 30 months;

2. Open heart surgery services located in the health planning district performed an average 

of 400 open heart and closed heart surgical procedures for the relevant reporting period; 

and

3. The proposed new service will perform at least 150 procedures per room in the first year 

of operation and 250 procedures per room in the second year of operation without 

significantly reducing the utilization of existing open heart surgery services in the health 

planning district.

12 VAC § 5-230-450(A)(1) – (3).

The provisions of the Virginia Administrative Process Act (“VAPA”), Code §§ 2.2-4000 

to 4031, govern the procedures for the appeal of case decisions issued by the Commissioner. See

Code § 2.2-4026. Under the VAPA, the burden is upon the party complaining of the agency 

action to demonstrate an error of law. Code § 2.2-4027; Aegis Waste Solutions, Inc. v. 

Concerned Taxpayers of Brunswick Cnty., 261 Va. 395, 403 (2001). The errors of law subject to 

review under Code § 2.2-4027 include: (i) the agency’s failure to accord constitutional right, 

power, privilege, or immunity; (ii) the agency’s failure to comply with statutory authority, 

jurisdiction limitations, or right as provided in the basic laws as to subject matter; (iii) the 

agency’s failure to observe required procedure where any failure therein is not mere harmless 

error; and (iv) the agency’s failure to have substantial evidentiary support for its findings of fact.
8

Code § 2.2-4029 provides that, in instances in which a case decision is found not to be in 

accordance with the law under Code § 2.2-4027, the court “shall suspend or set it aside and 

remand the matter to the agency for further proceedings, if any, as the court may permit or direct 

in accordance with law.” See Virginia Bd. of Medicine v. Fetta, 244 Va. 276, 280 (1992) (“The 

plain language of [Code § 2.2-4029] mandates where . . . a circuit court has made such a 

determination of invalidity, the court shall suspend or set the decision aside and remand the 

matter to the agency.”).

CRMC asserts that the Court of Appeals, as well as the circuit court, erred in applying the 

harmless error doctrine to the Commissioner’s legal error in misinterpreting the regulatory term 

“services” within the SMFP provision at 12 VAC § 5-230-450(A)(2), instead of remanding the 

matter to the Commissioner for further review as required by the VAPA. First, CRMC asserts 

that the Commissioner made a legal error in misinterpreting “services” to mean “operating 

rooms,” and under this interpretation, erroneously determined that CRMC could not meet the 

SMFP’s utilization standard requiring an average of 400 open heart and closed heart surgical 

procedures among existing open heart surgery services in PD 20 within the relevant reporting 

period. See 12 VAC § 5-230-450(A)(2). CRMC asserts that “service” in this context means a 

clinical health service, such as open heart surgery, whereas “operating room” is defined by 12 

VAC § 5-230-10 as “a room used solely or principally for the provision of surgical procedures.” 

Based on the plain meaning of “service” and its use within the SMFP open heart surgery 

regulations, CMRC contends that the Commissioner erred as a matter of law by misinterpreting 

the SMFP under the regulation when he denied CRMC’s application. We agree.

Although we “give deference to the decisions of administrative agencies when those 

decisions ‘fall within the area the agency’s specialized competence,’” such as an agency’s
9

interpretation of its regulations, an agency’s regulatory interpretation is not given deference if it 

is arbitrary and capricious and “constitutes a clear abuse of the agency’s delegated discretion.” 

Virginia Marine Resources Comm’n v. Chincoteague Inn, 287 Va. 371, 380 (2014) (quoting

Virginia Dept. of Health v. NRV Real Estate, LLC, 278 Va. 181, 185 (2009)); Frederick Cnty.

Bus. Park, LLC v. Virginia Dept. of Envt’l Quality, 278 Va. 207, 211 (2009). See also School 

Bd. of City of Norfolk v. Wescott, 254 Va. 218, 224 (1997) (“Actions are defined as arbitrary and 

capricious when they are ‘willful and unreasonable’ and taken ‘without consideration or in 

disregard of facts or law or without determining principle.’” (citing Black’s Law Dictionary 105 

(6th ed.1990)). Further, where a regulatory provision “is unambiguous, we will interpret it 

according to its plain language.” Corporate Executive Bd. Co. v. Virginia Dept. of Taxation, 297 

Va. 57, 75-76 (2019) (citing Mathews v. PHH Mortg. Corp., 283 Va. 723, 738 (2012)).

As a preliminary matter, the COPN statute defines “clinical health service” as a “single 

diagnostic, therapeutic, rehabilitative, preventative or palliative procedure or series of such 

procedures.” Code § 32.1-102.1. The SMFP defines “operating room” as “a room used solely or 

principally for the provision of surgical procedures involving the administration of anesthesia, 

multiple personnel, recovery room access, and a fully controlled environment.” 12 VAC 

§ 5-230-10. Even if there were ambiguity whether “service” as used in 12 VAC 

§ 5-230-450(A)(2) could be interpreted to mean “operating room,” regulations must be 

consistent with their governing statutes. See Manassas Autocars, Inc. v. Couth, 274 Va. 82, 87 

(2007). Further, the SMFP regulations at 12 VAC § 5-230-450(A)(1)-(3) clearly differentiate

between “service” and “room” in establishing utilization metrics that must be satisfied to 

demonstrate a public need for new open heart services. For example, while 12 VAC 

§ 5-230-450(A)(2) contains a per-service utilization requirement, 12 VAC § 5-230-450(A)(3) 
10

requires a COPN applicant to demonstrate its proposed new service would perform a specific 

number of procedures per-room during a given year of operation without reducing the utilization 

in existing open heart surgery services. (Emphasis added). Other provisions of the SMFP

establishing the criteria and standards for open heart surgery services also distinguish between 

per-service and per-room utilization metrics. Compare 12 VAC § 5-230-460 (governing

expansion of open heart surgery services; applicants must demonstrate that existing open heart 

surgery rooms meet specific utilization metrics) with 12 VAC § 5-230-470 (governing new 

pediatric open heart surgery services; applicants must demonstrate that existing pediatric cardiac 

catheterization services meet specific utilization metrics). Thus, “service” as used within 12 

VAC § 5-230-450(A)(2) is unambiguous and does not mean “operating room.” Accordingly, the 

Commissioner erred as a matter of law in misinterpreting that SMFP provision.

Next, CRMC contends that, because the Commissioner’s interpretation of “service” 

within 12 VAC § 5-230-450(A)(2) was a substantive error of law, the lower courts were required 

to remand CRMC’s application to the Commissioner for further proceedings, consistent with 

Code § 2.2-4029. Citing Code § 2.2-4027, CRMC asserts the VAPA does not permit the 

application of the harmless error doctrine for any type of error other than the agency’s failure to 

observe required procedure. Here, the Commissioner’s error was not an error of required 

procedure, but of the interpretation and application of a substantive SMFP provision. 

Additionally, CRMC maintains that the harmless error review set forth in Code § 8.01-678, 

which addresses appellate review of trials, does not apply to judicial review of agency actions, 

which are governed by Code § 2.2-4027, because the specific statute controls over a general 

provision addressing the same issue. See Natrella v. Bd. of Zoning Appeals of Arlington Cnty., 

231 Va. 451, 461 (1986).
11

Neither the Commissioner nor Sentara now argue that the Commissioner’s interpretation 

of “services” and its application to the SMFP’s utilization metric in 12 VAC § 5-230-450(A)(2)

were correct. Instead, they assert that Code § 8.01-678 requires a harmless error review in all 

appellate cases, including those that arise under the VAPA.

4

 Citing Commonwealth v. Swann, 

290 Va. 194, 200 (2015), the Commissioner and Sentara emphasize that “Code § 8.01-678 makes 

‘harmless-error review required in all cases,’” and note its applicability in both civil and criminal 

cases. See also Spruill v. Garcia, 298 Va. 120, 127 (2019) (applying Code § 8.01-678 in a civil 

case). Additionally, the Commissioner and Sentara argue that Code §§ 2.2-4027 and 8.01-678 

are complementary statutes, and should be interpreted to apply the harmless error doctrine to 

errors of law in cases arising under the VAPA.

We disagree with the contention of the Commissioner and Sentara that a harmless error 

review applies to all errors of law in cases that arise under the VAPA, based on the plain 

language of Code §§ 2.2-4027 and 4029. In issues of statutory interpretation, we seek “to 

effectuate the intent of the legislature as expressed by the plain meaning of the words used in the 

statute,” and as such, the plain language controls, “unless the words are ambiguous or such 

application would render the law internally inconsistent or incapable of operation.” Llewellyn v. 

White, 297 Va. 588, 595 (2019). Moreover, we assume the legislature chose its words with care 

when enacting a statute, and “‘we are bound by those words.’” Simon v. Forer, 265 Va. 483, 490 

4 Both the Commissioner and Sentara argue that CRMC failed to preserve its first 

assignment of error for appeal. Specifically, they argue that CRMC failed to properly raise in the

circuit court or in the Court of Appeals the issue of the applicability of the harmless error 

doctrine in agency appeals under the VAPA. Based upon a thorough review of the record, we 

conclude that this issue was adequately preserved for appeal.
12

(2003) (citing Barr v. Town & Country Properties, Inc., 240 Va. 292, 295 (1990)). “Courts are 

not permitted to rewrite statutes. This is a legislative function. The manifest intention of the 

legislature, clearly disclosed by its language, must be applied.” Anderson v. Commonwealth, 182 

Va. 560, 566 (1944).

The plain language of Code § 2.2-4027 specifies that issues of law subject to court review 

include “(i) accordance with constitutional right, power, privilege, or immunity, (ii) compliance 

with statutory authority, jurisdiction limitations, or right . . . , (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.” (Emphasis added). The phrase “where any failure 

therein is not mere harmless error,” only applies to procedural errors, and does not apply to any 

other error of law enumerated by Code § 2.2-4027, due to its location within the statute. See 

Alger v. Commonwealth, 267 Va. 255, 259-60 (2004) (“Referential and qualifying words and 

phrases, where no contrary intention appears, refer solely to the last antecedent [in statutory 

construction].”).

Here, Code § 2.2-4027 clearly distinguishes between administrative agency procedural 

errors and other errors of law, such as an agency’s failure to comply with its statutory authority, 

and specifies that only procedural errors are subject to a harmless error review. While the 

Commissioner and Sentara urge this Court to find that harmless error review under Code 

§ 8.01-678 is applicable to all errors of law under Code § 2.2-4027, the plain language of Code 

§ 2.2-4027 specifically limits the harmless error doctrine’s applicability. Under the rules of 

statutory construction, when one statute speaks generally on an issue and another addresses the 

same issue in a more specific manner, “the two should be harmonized, if possible, and where 

they conflict, the latter prevails.” Virginia Dept. of Health v. Kepa, Inc., 289 Va. 131, 142 
13

(2015) (citing Virginia Nat’l Bank v. Harris, 220 Va. 336, 340 (1979)). Code § 2.2-4027 applies 

to judicial review of administrative agency cases arising under the VAPA. In contrast, Code 

§ 8.01-678 applies more generally to appeals arising from issues at trial. Given that Code 

§ 2.2-4027 is specific to agency appeals and limits the applicability of the harmless error doctrine 

to procedural errors, we hold that the harmless error doctrine is not applicable to other errors of 

law in cases arising under the VAPA.

Our holding is consistent with prior decisions related to this issue. In Browning-Ferris 

Ind. v. Residents Involved in Saving the Env’t, Inc., 254 Va. 278 (1997), we considered whether 

the Director of the Department of Environmental Quality (“DEQ”) erred by failing to make an 

explicit determination before issuing a permit for a new solid waste management facility, as 

required by Code § 10.1-1408.1(D). We rejected the appellant’s argument that the Director’s 

failure to make an explicit determination was harmless error under then-Code § 9-6.14:17(iii) 

[now Code § 2.2-4027(iii)], noting that, “the statutory compliance issue involves a substantive 

provision which is a prerequisite to the issuance of a permit. Thus, the Director’s action is not 

subject to harmless error review.” Id. at 285. See also Virginia Retirement System v. Cirillo, 54 

Va. App. 193, 202-03, n.2 (2009) (discussing the difference between substantive and procedural 

administrative errors, and the applicability of the harmless error doctrine only to procedural 

errors).

Here, the Commissioner was required by Code § 32.1-102.3(A) to determine whether

CRMC’s application demonstrated a public need by evaluating the project’s consistency with the 

SMFP. The Commissioner was also statutorily required to consider the project’s consistency 

with the SMFP under Code § 32.1-102.3(B). The Commissioner erred in interpreting and 

applying a provision of the SMFP at 12 VAC § 5-230-450(A)(2), which none of the parties now 
14

dispute. Further, the Commissioner’s error was a substantive error of law because the 

Commissioner was required to evaluate CRMC’s COPN application for consistency with the 

SMFP as a condition for approval. See Code § 32.1-102.3(A). Because this error of law was not 

the agency’s failure to observe required procedure, see Code § 2.2-4027(iii), we hold that the 

harmless error doctrine was inapplicable, and the lower courts erred by failing to remand the case 

to the Commissioner for further proceedings, consistent with Code § 2.2-4029.5

CONCLUSION

For these reasons, we will reverse the judgment of the Court of Appeals and remand the 

case to the Commissioner to reconsider CRMC’s COPN application consistent with the views 

expressed in this opinion.

Reversed and remanded.

JUSTICE McCULLOUGH, concurring.

I concur in the conclusion the majority reaches, that Code § 2.2-4027, while allowing for 

harmless error review for procedural defects, does not provide for harmless error review for 

substantive errors committed by administrative agencies. The anomalous nature of this situation 

prompts some additional observations.

“The harmless-error check on judicial power has never been a begrudged limitation, but 

rather one ‘favored’ by Virginia courts,” Commonwealth v. White, 293 Va. 411, 420 (2017) 

(citation omitted), because it stems from the “imperative demands of common sense,” Oliver v. 

Commonwealth, 151 Va. 533, 541 (1928). In nearly all appeals, the harmless-error statute, Code 

5 Because of our holding on CRMC’s first assignment of error, we need not address 

CRMC’s second assignment of error, which related to whether the Court of Appeals erred in 

deferring to the Commissioner’s interpretation of the Board’s regulations.
15

§ 8.01-678, “puts a limitation on the powers of this court to reverse the judgment of the trial 

court — a limitation which we must consider on every application for an appeal and on the 

hearing of every case submitted to our judgment.” Walker v. Commonwealth, 144 Va. 648, 652 

(1926) (construing predecessor harmless-error statute). The idea of harmless error has deep roots 

in the common law. John M. Graebe, The Riddle of Harmless Error Revisited, 54 Hous. L. Rev. 

59, 66 (2016). It prevents appellate courts from turning into “impregnable citadels of 

technicality.” Kotteakos v. United States, 328 U.S. 750, 759 (1946) (quoting Marcus A. 

Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 

A.B.A.J. 217, 222 (1925)).

Yet, for reasons that are not clear, uniquely with administrative law appeals, the General 

Assembly has limited harmless error review to procedural defects. The absence of a harmless 

error review in administrative cases is striking. In civil and criminal trials, even errors “arising 

from the denial of a constitutional right are subject to a harmless error analysis.” Angel v. 

Commonwealth, 281 Va. 248, 264 (2011). It is not clear why, in appeals from administrative 

agencies, harmless error is available for procedural errors, but not for substantive errors. 

Virginia is an outlier in this respect. I am aware of no other state that provides such a 

limitation.1 Judicial review of the decisions of federal administrative agencies contemplates the 

applicability of harmless error across the board. See 5 U.S.C. § 706. Litigation, including in the 

1 See, e.g., Ferguson v. Hamrick, 388 So. 2d 981, 984 (Ala. 1980); Williams v. Dep’t of 

Public Safety, 369 P.3d 760, 782 (Colo. Ct. App. 2015); Levy v. Comm’n on Human Rights & 

Opportunities, 671 A.2d 349, 358-59 (Conn. 1996); Sherman v. Comm’n on Licensure to 

Practice Healing Art, 407 A.2d 595, 602 (D.C.A. 1979); Sylte v. Idaho Dep’t of Water 

Resources, 443 P.3d 252, 260 (Idaho 2019); Comm’r of Indiana Dep’t of Insurance v. 

Schumaker, 118 N.E.3d 11, 20 (Ind. Ct. App. 2018); Southwest Kansas Royalty Owners Ass’n v. 

State Corp. Comm’n, 769 P.2d 1, 12 (Kan. 1989); Vote Solar v. Montana Dep’t of Public Service 

Regulation, 473 P.3d 963, 975 (Mont. 2020).
16

administrative context, can be extraordinarily expensive and time consuming. A remand to 

revisit a decision when the error was plainly harmless drives up the cost of litigation with no 

apparent gain.

Public policy choices, of course, remain entirely the prerogative of the General 

Assembly. Transparent GMU v. George Mason Univ., 298 Va. 222, 250 (2019). To the extent 

the placement of the harmless error language in Code § 2.2-4207 was an oversight, it may be 

worth correcting.