COURT OF APPEALS OF VIRGINIA

Present: Judges Humphr eys, Felton and Kelsey Argued at Richmond, Virginia

E. DEAN CHRISTIAN OPINION BY v. Record No. 0918-04-2 J UDGE D. ARTHUR KELSEY MARCH 29, 2005 VIRGINIA DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT C OURT OF FLUV ANNA COUNTY John R. Cu llen, Judge Monica J. Chernin (The Law Offices of Monica J. Chernin, on brief), for appellant. Allen T. Wilson, Special Counse l (Jerry W. Kilgore, Attorney General; David E. Johnson, Deputy Attorney General; Kim F. Piner, Senior Assistant Attorney Gene ral, 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 petitio n sufficiently identified VDSS as a party. For this reason, we reverse the circuit court’s dism issal 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 mana gement of a local director .” Code § 63.2-324; see also 22 Va. Admin. Code § 40-705-10 (defining “Department” a nd “local department”). The responsibility to investigate complaints of child abuse and negl ect rests primarily with the local departments.- 2 - See Code § 63.2-1503; 22 Va. Admin. Code § 40-705- 50(B). Through the us e of administrative hearing officers, VDSS reviews de novo any contested determination by a local department. See Code 63.2-1526(B); 22 Va. Ad min. 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 reque sted 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 depart ment reaffirmed its earlier deci sion. 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 th e local department’s findings in a decision entered on July 30, 2003. His written opinion us ed 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 Proce ss Act (VAPA), Code § 2.2-4000, et seq. See Code 63.2-1526(B) (authorizing VAPA appeals of deci sions of VDSS hearing officers) . The caption of the petition for appeal tracked the one used in the VDSS admini strative 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 “Commissione r” of the “Virginia Department of Social Services.” The text of the petition specifically iden tified 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 Soci al Services” as a “party to this suit.” The petition complained about the final ruling of “the ag ency” and requested that it be set aside. The petition concluded with a certific ate of service stating that a copy had been mailed both to the- 3 - “Commissioner of the Virginia Department of So cial Services” and the “Department of Social Services of Fluvanna County.” After being served with process, VDSS file d a plea in bar seeking to dismiss the VAPA appeal. VDSS argued that Christian’s petition fo r appeal identified th e 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 notic e of appeal had passed, VDSS reasoned, it could not be added to the petition by amendment. In response, Christian argued that the petition id entified VDSS as a party by specifically naming the VDSS hearing officer by name, usi ng 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 co urt dismissed the appeal. Christian appeals to us, arguing that his pe tition 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 re view, it must be conducted “in the manner provided by the rules of the Suprem e 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 th e circuit court. “Such filing shall include all steps provi ded 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- 4 - party.” Rule 2A:4(a). 1 In addition, Rule 2A:4(b) require s 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 unlaw ful and conclude with a specific statement of the relief requested.” The thirty-day deadline imp licates 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 Chri stian filed his petition out of time

⎯ but that it was fatally insufficient because it failedto 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 shoul d have been reasonably apparent because the petition specifically:

 identified the decision of the VDSS hearing officer

⎯ a designee of the VDSS Commissioner 2

⎯ as the agency ruling being appealed;

 requested, in the cap tion 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 iden tify all appellees by name in the caption of the case. By itself, however, the failure to do so does not requ ire 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 c onduct [administrative] hearings.” See also 22 Va. Admin. Code § 40-705-190(H)(1).- 5 - 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 h earing officer. It takes little more effort to read the petition for appeal as necessarily identifying VDSS as th e 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 parent hetical that “where an existi ng deficiency is one of form rather than substance, appellate jurisdiction w ill 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 pa pers in a fashion that is technically at variance with the letter of a pro cedural rule, a court may nonethele ss find that the litigant has complied with the rule if the l itigant’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 me ntion of an agency anywhere in a VAPA petition, without more, necessarily makes it a part y to the appeal. The natural pragmatism that accompanies principles of good pleading, as comme ndable 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 reas onable reader would understand eith er from the petition’s text or context or both that the agency is being mentione d not as a mere historical reference within the larger background of the case, but as the party against whom the appeal is being taken.- 6 - 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 su fficiently 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 suffici ently identified VDSS as a party, we need not rule on this alternative argument.