The Virginia adjudicatory hearing process is governed by the Administrative Process Act (VAPA), codified at Virginia Code §§ 2.2-4000 through 2.2-4033. It gives you the right to an informal fact-finding conference first, then, if the dispute is not resolved, a formal hearing before a qualified hearing officer where you can present evidence, cross-examine witnesses, and be represented by counsel. The hearing officer issues a written recommendation, the agency issues a final order, and you can ask a circuit court to review that order for legal error.
Here is how each step works and what to watch for.
The Informal Conference Comes First
Most cases do not go straight to a formal hearing. Under § 2.2-4019, the agency must first offer an informal fact-finding conference unless both you and the agency agree to skip it.1Virginia Code Commission. Virginia Code 2.2-4019 – Informal Fact Finding Proceedings The conference is less structured than a formal hearing. You can appear in person or through a representative, present factual information and arguments, and receive a written explanation if the agency rules against you. The agency has to tell you about any contrary facts or information it holds that could support an adverse decision.
If the informal process does not resolve the dispute, the case moves to a formal adjudicatory hearing under § 2.2-4020. Skipping the informal conference without a proper waiver can create procedural problems later, so pay attention to how the agency frames the first step.
What Notice You Should Receive
Before a formal hearing, the agency must give you reasonable notice covering four things: the time, place, and nature of the hearing; the law the agency believes authorizes its action; the factual and legal issues raised or questioned; and the name, phone number, and email address of a contact person.2Virginia Code Commission. Virginia Code 2.2-4020 – Formal Hearings; Litigated Issues
The VAPA itself does not set a fixed number of days or require certified mail. It uses the phrase “reasonable notice,” giving agencies discretion. Individual agency regulations often impose stricter timelines. Virginia’s waterworks regulations, for instance, require certified mail at least 15 calendar days before the hearing.3Virginia Code Commission. 12VAC5-462-240 – Adjudicatory Hearing Check the regulations that govern your specific agency; the “reasonable notice” standard is the floor, not the ceiling.
If you are the one applying for a license, benefit, or renewal, you bear the initial burden of approaching the agency, so you do not get advance notice before that first contact. Once the process is underway, though, the agency must keep you informed of time, place, and issues going forward.2Virginia Code Commission. Virginia Code 2.2-4020 – Formal Hearings; Litigated Issues
Your Rights at the Formal Hearing
At a formal hearing, you can be represented by a lawyer, submit oral and written evidence, offer rebuttal testimony, and cross-examine witnesses.2Virginia Code Commission. Virginia Code 2.2-4020 – Formal Hearings; Litigated Issues The statute also directs that proceedings be completed and a decision rendered “with dispatch,” so agencies cannot let cases sit indefinitely.
The presiding officer controls what evidence comes in and can exclude anything irrelevant, immaterial, repetitive, or privileged. The officer administers oaths, rules on objections, may hold settlement conferences, and oversees a verbatim recording that becomes the official record for any later review.
Who Carries the Burden of Proof
The burden falls on the party proposing action or seeking something from the agency. If you are applying for a license or benefit, you have to prove you qualify. If the agency is trying to revoke or suspend a license you already hold, the agency typically has to show grounds for that action.2Virginia Code Commission. Virginia Code 2.2-4020 – Formal Hearings; Litigated Issues The VAPA does not set a single standard of proof for every kind of hearing; the standard depends on the statute or regulation governing your particular proceeding.
Extra Rules by Agency
Some agencies add procedural layers. Waterworks hearings, for example, follow the VAPA’s evidence framework but also allow all interested parties to submit expert testimony and require a court reporter to document the proceeding.3Virginia Code Commission. 12VAC5-462-240 – Adjudicatory Hearing Read the specific agency regulation before you prepare your case.
Who Presides Over the Hearing
Every formal hearing under § 2.2-4020 must be presided over by a hearing officer drawn from a list maintained by the Executive Secretary of the Supreme Court of Virginia. The agency requests an officer, and the Executive Secretary assigns one on a rotating basis.4Virginia Code Commission. Virginia Code Title 2.2 Chapter 40 Article 4 – Hearing Officers To make the list, an officer must be an active member in good standing of the Virginia State Bar, have actively practiced law for at least five years, and complete a training course approved by the Executive Secretary, plus any specialized training required for hearings before particular agencies.
After the hearing, the officer issues a written recommendation with findings of fact, conclusions, and reasoning. If the agency’s regulations set a deadline, the officer has to meet it. Otherwise, the default is 90 days from the hearing date, unless the parties agree to a later date.5Virginia Code Commission. Virginia Code 2.2-4024 – Hearing Officers The deadline has teeth. If a hearing officer does not issue a decision within 30 days of receiving a written reminder, the Executive Secretary removes them from the list and reports them to the Virginia State Bar for possible discipline.
When the agency reviews the recommendation, it must give deference to any findings the officer based explicitly on witness demeanor, since the officer actually watched the witnesses testify.
Subpoenas and the Limits on Discovery
If you need a reluctant witness to appear or an opposing party to produce documents, agencies have the power to issue subpoenas for testimony and for books, papers, and other evidence. The agency can issue one on its own initiative, and it must issue one when a party requests it.6Virginia Code Commission. Virginia Code 2.2-4022 – Subpoenas, Depositions and Requests for Admissions Depositions and requests for admissions are available too, but only when the agency orders them for good cause shown.
The toolkit is narrower than civil litigation discovery. Section 2.2-4022 explicitly states that nothing in it authorizes general discovery proceedings. You can compel witnesses and documents through subpoenas and take depositions or serve admissions with agency approval, and that is the extent of it.
Challenging or Enforcing a Subpoena
If you receive a subpoena you think is improper, ask the agency to quash or modify it first. If the agency refuses, you can petition the circuit court under § 2.2-4003 to rule on whether the subpoena is valid. Going straight to court without first asking the agency is not the path the statute contemplates. On the other side, if someone ignores your subpoena, the agency can go to circuit court for an enforcement order, and noncompliance with a court-enforced subpoena exposes the person to contempt.
Proposed Findings, the Final Order, and How It Reaches You
Before the hearing officer issues recommendations, both sides get a chance to submit proposed findings, conclusions, and a written explanation of their reasoning. Either side can also request oral argument, either to the hearing officer or, at the agency’s discretion, to the agency itself. The agency then reviews the recommendation and issues the final decision. It can accept, modify, or reject the recommendation, subject to the deference owed to credibility findings.
The final order must be signed by the agency and served on the named parties by mail. If service happens some other way, the parties must acknowledge it in writing.7Virginia Code Commission. Virginia Code 2.2-4023 – Final Orders Some agencies require certified mail with return receipt, but the VAPA itself requires only regular mail. Track the date you receive the final order carefully; the clock for filing an appeal runs from that point.
Appealing to Circuit Court
If you lose at the agency level, the judicial review provisions in Article 5 of the VAPA (§§ 2.2-4025 through 2.2-4030) let you challenge the decision in circuit court. A few categories of agency action are exempt: decisions placed beyond judicial control by the Virginia Constitution, routine internal management decisions, and cases where the law already provides for a brand-new trial in court.8Virginia Code Commission. Virginia Code Title 2.2 Chapter 40 Article 5 – Court Review
For everything else, the court reviews the agency record. It does not hold a new hearing or take new evidence. Unless the court identifies an error of law, it will dismiss the challenge or affirm the agency. If the court finds the agency acted outside its legal authority or reached a decision the record does not support, it can suspend or set aside the order and send the case back for further proceedings. The court will not substitute its judgment for the agency’s or issue the decision the agency should have made.
You generally must exhaust all administrative remedies before going to court. That means completing the informal conference, going through the formal hearing, and receiving a final order. Jumping to court before the agency process is finished will usually send you back to finish it.
Attorney Fees
The federal Equal Access to Justice Act (5 U.S.C. § 504) lets a prevailing party in certain adversary adjudications recover attorney fees and expenses from the government when the agency’s position was not substantially justified, subject to net-worth and employee-count eligibility caps and an hourly rate cap of $125 unless a cost-of-living increase or special factor justifies more.9Office of the Law Revision Counsel. 5 USC 504 – Costs and Fees of Parties That is a federal provision. Whether fees are recoverable against a Virginia state agency depends on the specific statute authorizing your hearing, so check the applicable law before assuming fees are on the table.