The Virginia adjudicatory hearing process is a two-stage administrative procedure under the Virginia Administrative Process Act (VAPA), codified at Virginia Code §§ 2.2-4000 through 2.2-4033. In most cases, a state agency must first offer an informal fact-finding conference, and only if that fails to resolve the dispute does the case move to a formal hearing before a qualified hearing officer, with the right to appeal the final decision to circuit court. These procedures matter most when an agency is deciding whether to grant, deny, suspend, or revoke a license, benefit, or certification.
The Informal Fact-Finding Conference Comes First
Under § 2.2-4019, agencies must offer an informal fact-finding conference before holding a formal hearing, 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 a less structured proceeding where you can appear personally or through a representative, present factual information and arguments, and receive a written explanation if the agency decides against you.
Before the conference, the agency must tell you about any contrary facts or information in its possession that could support an adverse decision. If the informal process does not resolve the matter, the case moves on to a formal adjudicatory hearing under § 2.2-4020. Skipping the informal conference without a proper waiver can create procedural problems later, so treat it as a real step, not a formality.
Notice Before a Formal Hearing
Once a formal hearing is set, the agency owes you reasonable notice covering four specific items: the time, place, and nature of the hearing; the law the agency believes authorizes its action; the factual and legal issues in dispute; and the name, phone number, and email address of a contact person who can answer your questions.2Virginia Code Commission. Virginia Code 2.2-4020 – Formal Hearings; Litigated Issues
The VAPA does not fix a specific number of days or require certified mail. It uses the phrase “reasonable notice,” which gives agencies some discretion. Individual agency regulations often add stricter rules. Check the regulations of the agency you are dealing with, because the general “reasonable notice” standard is only the floor.
One wrinkle: if you are the one applying for a license, benefit, or renewal, you take the first step by approaching the agency, so there is no advance notice before that initial contact. Once the process is moving, 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
A formal hearing under § 2.2-4020 guarantees you several core rights. You can bring a lawyer. You can submit oral and written evidence, offer rebuttal testimony, and cross-examine witnesses. The statute also requires that proceedings be completed and a decision rendered “with dispatch,” which signals that agencies cannot let cases drift indefinitely.2Virginia Code Commission. Virginia Code 2.2-4020 – Formal Hearings; Litigated Issues
The presiding officer controls the evidence. They can exclude material that is irrelevant, immaterial, repetitive, or privileged. They administer oaths, rule on objections, hold settlement conferences, and oversee a verbatim recording of the proceeding. That recording becomes the official record for any later review or appeal, so everything said is preserved.
Who Carries the Burden of Proof
The burden falls on the party asking for action. If you are applying for a license or benefit, you must prove you qualify. If the agency is trying to revoke or suspend something you already hold, the agency typically must show the 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 all hearing types. The specific standard depends on the statute or regulation governing your particular proceeding, which is another reason to read the agency’s rules closely before preparing your case.
The Hearing Officer
Every formal hearing under § 2.2-4020 is presided over by a hearing officer drawn from a list maintained by the Executive Secretary of the Supreme Court of Virginia. To make the list, the hearing officer must be an active member in good standing of the Virginia State Bar, must have actively practiced law for at least five years, and must complete a training course approved by the Executive Secretary.3Virginia Code Commission. Virginia Code Title 2.2 Chapter 40 Article 4 – Hearing Officers
After the hearing, the officer issues a written recommendation with findings of fact, conclusions, and the reasoning behind them. If the agency’s own regulations set a deadline, that controls. Otherwise, the default is 90 days from the hearing date, unless the parties agree to extend it.4Virginia Code Commission. Virginia Code 2.2-4024 – Hearing Officers That deadline has teeth: if the officer does not issue a decision within 30 days of a written reminder, the Executive Secretary removes them from the list and reports them to the Virginia State Bar for possible discipline.
The agency reviews the recommendation and makes the final decision. It can accept, modify, or reject what the hearing officer proposed, but it must give deference to any findings the officer based explicitly on the demeanor of witnesses, since the hearing officer actually watched them testify.
Subpoenas for Witnesses and Documents
If a witness will not appear voluntarily, or an opposing party is holding documents you need, Virginia law lets the agency issue subpoenas for testimony and for the production of books, papers, and other evidence. The agency can issue subpoenas on its own, and it must issue them when a party requests one.5Virginia 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.
One limitation to keep in mind: § 2.2-4022 explicitly says nothing in it authorizes general discovery. The toolkit is narrower than civil litigation. You can compel witnesses and documents, and with agency approval you can take depositions and request admissions, but you do not get the broad discovery rights you would have in court.
Challenging or Enforcing a Subpoena
If you receive a subpoena you believe is improper, start by asking the agency itself to quash or modify it. If the agency refuses, you can petition the circuit court under § 2.2-4003 to rule on whether the subpoena is valid.5Virginia Code Commission. Virginia Code 2.2-4022 – Subpoenas, Depositions and Requests for Admissions Going straight to court without first asking the agency to reconsider is not the usual path.
If someone on the other side ignores a subpoena you obtained, the agency can go to circuit court for an enforcement order. Failing to comply with a court-enforced subpoena exposes the person to contempt, so these subpoenas carry real consequences.
The Final Order
Before the hearing officer issues recommendations, both sides can submit proposed findings, conclusions, and written explanations of their reasoning. Both sides can also request oral argument, either to the hearing officer or, at the agency’s discretion, to the agency itself.2Virginia Code Commission. Virginia Code 2.2-4020 – Formal Hearings; Litigated Issues
The agency then issues a final order, signed by the agency and served on the named parties by mail. If service is made some other way, the parties must acknowledge it in writing.6Virginia Code Commission. Virginia Code 2.2-4023 – Final Orders Some agencies require certified mail with return receipt by their own regulation, but the VAPA itself only requires regular mail. Track the date you receive the order carefully, because the clock for filing an appeal starts then.
Appealing to Circuit Court
If you lose at the agency level, Virginia law lets you challenge the decision in circuit court under Article 5 of the VAPA (§§ 2.2-4025 through 2.2-4030). A few categories of agency action are not reviewable, including decisions placed beyond judicial control by the Virginia Constitution, routine internal management decisions, and cases where the law already provides for a new trial in court.7Virginia 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 does find that the agency acted outside its authority or reached a decision not supported by the record, it can suspend or set aside the order and send the case back to the agency. The court will not substitute its own judgment or issue the decision the agency should have made; its job is to check whether the agency followed the law.
You generally have to exhaust all administrative remedies first. That means completing the informal conference, going through the formal hearing, and receiving a final order before going to court. Jumping to court early usually results in being sent back to finish the administrative process.
Attorney Fees
Under federal law, the Equal Access to Justice Act (5 U.S.C. § 504) allows a prevailing party in certain adversary adjudications to recover attorney fees and expenses from the government if the agency’s position was not substantially justified.8Office of the Law Revision Counsel. 5 USC 504 – Costs and Fees of Parties To qualify under the federal standard, an individual’s net worth cannot exceed $2,000,000, and a business or organization must have a net worth below $7,000,000 with no more than 500 employees. Fees are capped at $125 per hour unless a cost-of-living increase or special factor justifies more. An application for fees must be filed within 30 days of a final disposition, and awards can be reduced or denied if the applicant unreasonably prolonged the proceedings.
That provision applies to federal agency proceedings. Whether a Virginia state agency can be made to pay fees depends on the particular statute authorizing the hearing. Check the specific law governing your proceeding before assuming fees are recoverable.