COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Felton and Kelsey 

Argued at Richmond, Virginia 

E. DEAN CHRISTIAN 

 OPINION BY 

v. Record No. 0918-04-2 JUDGE D. ARTHUR KELSEY 

 MARCH 29, 2005 

VIRGINIA DEPARTMENT OF SOCIAL SERVICES 

 FROM THE CIRCUIT COURT OF FLUVANNA COUNTY 

John R. Cullen, Judge 

 Monica J. Chernin (The Law Offices of Monica J. Chernin, on brief), 

for appellant. 

 Allen T. Wilson, Special Counsel (Jerry W. Kilgore, Attorney 

General; David E. Johnson, Deputy Attorney General; Kim F. Piner, 

Senior Assistant Attorney General, on brief), for appellee. 

The circuit court dismissed an administrative appeal filed by E. Dean Christian on the 

ground that he failed to name the Virginia Department of Social Services (VDSS) as a party in 

his petition for appeal. We hold that the petition sufficiently identified VDSS as a party. For 

this reason, we reverse the circuit court’s dismissal order and remand this matter for further 

proceedings on the merits. 

I. 

To administer child protective services in the Commonwealth, the General Assembly 

delegates authority to VDSS, a state agency governed by a state board, Code § 63.2-215, and 

also requires that there “shall be a local department of social services for each county or city 

under the supervision and management of a local director.” Code § 63.2-324; see also 22 Va. 

Admin. Code § 40-705-10 (defining “Department” and “local department”). The responsibility 

to investigate complaints of child abuse and neglect rests primarily with the local departments. 
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See Code § 63.2-1503; 22 Va. Admin. Code § 40-705-50(B). Through the use of administrative 

hearing officers, VDSS reviews de novo any contested determination by a local department. See

Code 63.2-1526(B); 22 Va. Admin. Code § 40-705-190(H). 

In this case, the Fluvanna County Department of Social Services made an administrative 

finding that Christian physically abused his child. Christian requested and received an “informal 

conference” to dispute the finding. See Code § 63.2-1526(A); 22 Va. Admin. Code 

§ 40-705-120(E). The local department reaffirmed its earlier decision. Christian then filed a 

petition with VDSS for a “formal hearing” by an administrative hearing officer. See Code 

63.2-1526(B). The VDSS hearing officer affirmed the local department’s findings in a decision 

entered on July 30, 2003. His written opinion used the caption “In the matter of E. Dean 

Christian.” 

Christian filed a timely appeal to the circuit court seeking judicial review pursuant to the 

Virginia Administrative Process Act (VAPA), Code § 2.2-4000, et seq. See Code 63.2-1526(B) 

(authorizing VAPA appeals of decisions of VDSS hearing officers). The caption of the petition 

for appeal tracked the one used in the VDSS administrative process. Styled “In the matter of E. 

Dean Christian, appellant,” the caption identified the case number of the VDSS administrative 

proceeding and requested service on the “Commissioner” of the “Virginia Department of Social 

Services.” 

The text of the petition specifically identified the VDSS hearing officer by name and 

stated the order being appealed was the hearing officer’s July 30, 2003 final order. The petition 

also named the “Fluvanna County Department of Social Services” as a “party to this suit.” The 

petition complained about the final ruling of “the agency” and requested that it be set aside. The 

petition concluded with a certificate of service stating that a copy had been mailed both to the 
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“Commissioner of the Virginia Department of Social Services” and the “Department of Social 

Services of Fluvanna County.” 

After being served with process, VDSS filed a plea in bar seeking to dismiss the VAPA 

appeal. VDSS argued that Christian’s petition for appeal identified the local department, but 

failed to make clear VDSS was likewise a party to the VAPA appeal. Because Rule 2A:4’s 

mandatory thirty-day period following the notice of appeal had passed, VDSS reasoned, it could 

not be added to the petition by amendment. 

In response, Christian argued that the petition identified VDSS as a party by specifically 

naming the VDSS hearing officer by name, using the VDSS caption of the case, requesting 

service on VDSS, and appealing the very decision (identified by complaint number and date of 

entry) issued by VDSS. If that were not enough, Christian argued in the alternative, he would 

still be entitled to amend the petition under Rule 1:8 to clarify any perceived ambiguities about 

whether VDSS was a party to the VAPA appeal. Finding neither of Christian’s arguments 

persuasive, the circuit court dismissed the appeal. 

Christian appeals to us, arguing that his petition for appeal was sufficient because VDSS 

lacks any real basis for claiming it had not been made a party to the VAPA appeal. 

II. 

 When the VAPA authorizes judicial review, it must be conducted “in the manner 

provided by the rules of the Supreme Court of Virginia.” Code § 2.2-4206. Within thirty days 

of filing a notice of appeal, an appellant must file a petition for appeal in the circuit court. “Such 

filing shall include all steps provided in Rules 2:2 and 2:3 to cause a copy of the petition to be 

served (as in the case of a bill of complaint in equity) on the agency secretary and on every other 
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party.” Rule 2A:4(a).1

 In addition, Rule 2A:4(b) requires the petition to “designate the 

regulation or case decision appealed from, specify the errors assigned, state the reasons why the 

regulation or case decision is deemed to be unlawful and conclude with a specific statement of 

the relief requested.” The thirty-day deadline implicates the circuit court’s “jurisdiction over the 

subject of the appeal.” State Water Control Bd. v. Crutchfield, 265 Va. 416, 423, 578 S.E.2d 

762, 766 (2003); Va. Ret. Sys. v. Avery, 262 Va. 538, 542, 551 S.E.2d 612, 614 (2001); Sours v. 

Va. Bd. for Architects, 30 Va. App. 313, 318, 516 S.E.2d 712, 715 (1999) (holding that “the 

timely filing of a petition for appeal of an agency decision is jurisdictional”). 

In this case, VDSS does not contend Christian filed his petition out of time ⎯ but that it 

was fatally insufficient because it failed to identify, in so many words, VDSS as a party. We 

disagree. A fair reading of the petition alerted VDSS that it was being called upon, however 

obliquely, to respond to the appeal. This should have been reasonably apparent because the 

petition specifically: 

 identified the decision of the VDSS hearing officer ⎯ a 

designee of the VDSS Commissioner2 ⎯ as the agency ruling 

being appealed; 

 requested, in the caption of the case, service on the VDSS 

Commissioner, a task only required to be done under Rule 

2A:4(a) for parties; 

 used the same style as the VDSS administrative caption of the 

case; and 

 certified that it was being mailed to the Commissioner of the 

VDSS. 

 1

 It is better practice to identify all appellees by name in the caption of the case. By itself, 

however, the failure to do so does not require that the appeal be dismissed. See Williams Steel 

Erection Co. v. Dept. of Labor & Indus., 42 Va. App. 814, 821, 595 S.E.2d 45, 49 (2004). 

2

 Code § 63.2-1526(B) authorizes the VDSS Commissioner to “designate and authorize 

one or more members of his staff to conduct [administrative] hearings.” See also 22 Va. Admin. 

Code § 40-705-190(H)(1). 
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Given the unique statutory distribution of initial decisionmaking power to the local 

department and final authority to VDSS, the only administrative decision that could be appealed 

to the circuit court was the decision by the VDSS hearing officer. It takes little more effort to 

read the petition for appeal as necessarily identifying VDSS as the real party in interest. See

generally Williams Steel Erection Co. v. Dept. of Labor & Indus., 42 Va. App. 814, 822, 595 

S.E.2d 45, 49 (2004) (noting in parenthetical that “where an existing deficiency is one of form 

rather than substance, appellate jurisdiction will still be conferred if the notice fairly and 

accurately advises the successful party of the . . . appeal” (citation omitted)). 

As a general rule, insubstantial defects in a timely filed appeal “should not be fatal where 

no genuine doubt exists about who is appealing, from what judgment, to which appellate court.” 

Becker v. Montgomery, 532 U.S. 757, 767-68 (2001); see also Smith v. Barry, 502 U.S. 244, 

245, 248-49 (1992). Thus, when a “litigant files papers in a fashion that is technically at 

variance with the letter of a procedural rule, a court may nonetheless find that the litigant has 

complied with the rule if the litigant’s action is the functional equivalent of what the rule 

requires.” Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988); see also Foman v. 

Davis, 371 U.S. 178, 181 (1962) (holding that, despite its “inept” draftsmanship, the appellant’s 

intention to appeal the specific final order was “manifest”). 

That said, we do not hold that the mere mention of an agency anywhere in a VAPA 

petition, without more, necessarily makes it a party to the appeal. The natural pragmatism that 

accompanies principles of good pleading, as commendable as it may be, has its limits. In a 

VAPA appeal, an agency becomes a party only when identified in the petition as a party to the 

appeal ⎯ that is, where a reasonable reader would understand either from the petition’s text or 

context or both that the agency is being mentioned not as a mere historical reference within the 

larger background of the case, but as the party against whom the appeal is being taken. 
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III. 

Under the unique circumstances of this case, we hold Christian’s petition sufficiently 

identified VDSS as a party to this VAPA appeal. We reverse the circuit court’s dismissal order 

and remand the matter for further proceedings consistent with this opinion.3

 Reversed & remanded.

 3

 In the circuit court, Christian moved for leave to amend his petition in the event “it 

needs to be done” to ensure that the petition sufficiently identified VDSS as a party. The circuit 

court denied the motion. On appeal to us, Christian argues that, “assuming arguendo” his 

petition failed to identify VDSS as a party, the circuit court erred in refusing his proposed 

amendment. Because we hold the petition sufficiently identified VDSS as a party, we need not 

rule on this alternative argument.