Rizzo v. Virginia Retirement System

497 S.E.2d 852, 255 Va. 375, 1998 Va. LEXIS 36
CourtSupreme Court of Virginia
DecidedFebruary 27, 1998
DocketRecord 970596
StatusPublished
Cited by4 cases

This text of 497 S.E.2d 852 (Rizzo v. Virginia Retirement System) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rizzo v. Virginia Retirement System, 497 S.E.2d 852, 255 Va. 375, 1998 Va. LEXIS 36 (Va. 1998).

Opinions

JUSTICE KINSER delivered the opinion of the Court.

In this appeal, we determine when the ninety-day limitation in Code § 9-6.14:ll(D), during which an agency is required to render a case decision, begins to run. Because we find that the ninety days must be counted from the date that the agency representative held a fact-finding conference, we will reverse the judgment of the Court of Appeals.

I.

This case involves the claim of Anthony M. Rizzo, Jr., for disability retirement benefits under the Virginia Retirement System (VRS). As a VRS member, Rizzo applied for disability retirement benefits on November 14, 1988. Following an initial denial of his claim and subsequent judicial appeals that resulted in a remand to VRS,1 a VRS agency representative conducted an informal fact-finding proceeding pursuant to Code § 9-6.14.11(D) on April 25, 1995.2 At this proceeding, Rizzo incorporated all the evidence from the previous administrative hearing and introduced additional psychiatric evidence from Dr. Robert Stanley Brown, Jr.

Over Rizzo’s objection, the agency representative sent the transcript of the hearing to VRS on May 24, 1995, and asked VRS to forward the transcript to the Medical Board3 since it contained Dr. Brown’s testimony regarding Rizzo’s condition. On June 19, 1995, [379]*379VRS transmitted Dr. Brown’s testimony to the Medical Board and asked it to examine the new evidence, review for the second time the previous medical evidence, and comment on all of it. Then on June 28, 1995, the Medical Board decided that Dr. Merritt W. Foster, Jr., a consulting psychiatrist, should review the evidence. Almost a month later, VRS directed the Medical Board to proceed with Dr. Foster’s analysis. On September 27, 1995, the Medical Board forwarded Dr. Foster’s report to VRS, and VRS sent the report to the agency representative on October 4, 1995.

Before the Medical Board received Dr. Foster’s report, Rizzo notified VRS on August 11, 1995, more than ninety days after the April informal fact-finding proceeding, that a decision was due. In response, VRS informed Rizzo that it would endeavor to have the Medical Board “move forward.” On September 27, 1995, Rizzo again notified VRS that a decision was due. Finally, on October 6, 1995, Rizzo informed the agency representative and VRS that, pursuant to Code § 9-6.14:11(D), there was a decision now “ ‘deemed to be in his favor’ ” for the following reasons:

(1) more than 90 days elapsed since the date of the informal fact-finding proceeding on remand ... (2) after the lapse of such period and by at least 21 August 1995 ... the VRS received our notice that “a decision is due”, notwithstanding which (3) no final decision of the System, from its board of trustees, was made within a further 30 days from the System’s receipt of our notice.

Therefore, Rizzo requested VRS to calculate and pay him the benefits he sought. VRS responded on October 22, 1995, by stating that, under Code § 9-6.14:ll(D), the “proceeding” envisioned was not concluded until VRS received the Medical Board’s report.

On November 6, 1995, the agency representative submitted a recommendation to VRS that Rizzo be awarded disability retirement benefits. On the same day, however, VRS issued its final case deci[380]*380sion denying Rizzo benefits. This case decision came 195 days after the agency representative had conducted the informal hearing.

Rizzo then appealed again to the Circuit Court of Orange County and filed a motion for summary judgment. In his motion, Rizzo argued, inter alia, that VRS failed to render a decision within the prescribed time limits and, therefore, in accord with Code § 9-6.14:11(D), a decision had been “deemed” in his favor. After hearing argument by both parties, the circuit court stated the following reasons for granting Rizzo’s motion:

[T]he General Assembly, by using the phrase “from the date of the informal fact-finding proceeding” in the statute intended that the 90 day period begin to run in a case such as the case at bar when the agency representative holds the fact-finding hearing. Otherwise, the agency representative and the agency’s medical board would wholly control the time of decision and the limitation in the statute would be practically meaningless.

VRS appealed, and the Court of Appeals reversed. Distinguishing between the responsibility of VRS to gather facts and its responsibility to render a decision, the Court of Appeals concluded that the “legislature intended [the time limitations of Code § 9-6.14:ll(D)] to begin running at the close of the fact-gathering stage of the adjudication process,” in this case, when VRS received the Medical Board’s report. Virginia Retirement System v. Rizzo, 23 Va. App. 698, 705, 479 S.E.2d 535, 538 (1997).

The Court of Appeals denied Rizzo’s subsequent petition for a rehearing en banc. We awarded Rizzo an appeal.

II.

VRS is established pursuant to Chapter 1 of Title 51.1 of the Virginia Code and is administered by a Board of Trustees. Code §51.1-124.22. Part of the responsibilities and duties of VRS is to determine entitlement to retirement benefits, including disability retirement. See Code §51.1-156.

As an agency empowered to make regulations and decide cases, VRS is subject to the Administrative Process Act (APA), Code §§ 9-6.14:1 to .14:25. The purpose of the APA is to “supplement. . . basic laws conferring authority on agencies . . . [to] decide cases [381]*381. 4 Code § 9-6.14:3. It does not “supersede or repeal additional procedural requirements in such basic laws.” Id.

The APA establishes two procedures that an agency can utilize to render a “case decision”5 — an informal procedure and a formal or trial-like procedure. VRS utilized the informal procedure to decide Rizzo’s claim.6 The informal procedure requires agencies to “ascertain the fact basis for their decisions of cases through informal conference or consultation proceedings.” Code § 9-6.14:ll(A). During such “conference-consultation procedures,” the parties have the right to notice thereof, to appear in person or by a representative for the “informal presentation of factual data, argument, or proof,” to have notice of any contrary fact basis or information, to receive a prompt decision, and to be advised, generally in writing, of the basis for an adverse decision. Id.

At issue in this appeal is the time frame in which VRS was required to render a decision in Rizzo’s case under the informal procedure. The relevant subsection states the following:

In any informal fact-finding proceeding in which a hearing officer, as described in §9-6.14:14.1, is not used or is not empowered to recommend a finding, the board, commission, or agency personnel responsible for rendering a decision shall render that decision within ninety days from the date of the informal fact-finding proceeding or from a later date agreed to by the named party and the agency. If the agency does not render a decision within ninety days, the named party to the case decision may provide written notice to the agency that a decision is due.

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Cite This Page — Counsel Stack

Bluebook (online)
497 S.E.2d 852, 255 Va. 375, 1998 Va. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rizzo-v-virginia-retirement-system-va-1998.