Va. Physical Therapy v. Va. Bd. of Med

Full title: VIRGINIA PHYSICAL THERAPY ASSOCIATION, ET AL. v. VIRGINIA BOARD OF MEDICINE

Court: Supreme Court of Virginia

Date published: Feb 26, 1993

245 Va. 125 (Va. 1993)

427 S.E.2d 183

Opinion

48418 Record No. 920097

February 26, 1993

Present: Carrico, C.J., Compton, Stephenson, Whiting, Lacy, and Hassell, JJ., and Poff, Senior Justice

The Court of Appeals did not err in holding that the circuit court lacked subject matter jurisdiction over a decision of the Virginia Board of Medicine, since the action did not amount to a case decision or the promulgation of a rule within the meaning of the Virginia Administrative Process Act and was therefore not appealable. That holding is affirmed.

Practice and Procedure — Appeals — Jurisdiction — Subject Matter — Virginia Administrative Process Act — Virginia Board of Medicine

The trial court permanently enjoined the Virginia Board of Medicine from enforcing any rule against the performance of electromyographic examinations by physical therapists. The Court of Appeals reversed, holding that the action taken by the Board did not amount to a case decision or the promulgation of a rule and was not subject to judicial review. The Court of Appeals dismissed the case without prejudice to the complainants, who appeal.

1. The Court of Appeals did not err in holding that the circuit court lacked subject matter jurisdiction over an action of the Virginia Board of Medicine that did not amount to a case decision or the promulgation of a rule within the meaning of the Virginia Administrative Process Act.

Appeal from a judgment of the Court of Appeals of Virginia

Affirmed.

Gregory M. Luce (James E. Anklam; Dwayne O. Leslie; Jones, Day, Reavis Pogue, on briefs), for appellants.

Lynne R. Fleming, Assistant Attorney General (Mary Sue Terry, Attorney General; Jessica S. Jones, Senior Assistant Attorney General; Howard M. Casway, Assistant Attorney General, on brief), for appellee.

CHIEF JUSTICE CARRICO delivered the opinion of the Court.Page 126

Acting upon a bill of complaint for declaratory judgment filed by the Virginia Physical Therapy Association and Martin Boytek, Jr. (the complainants), the trial court permanently enjoined the Virginia Board of Medicine (the Board) from enforcing any rule against the performance of electromyographic examinations by physical therapists. The Court of Appeals reversed, holding that because the action taken by the Board did not amount to a case decision or the promulgation of a rule within the meaning of the Virginia Administrative Process Act, the Board's action was not appealable or subject to judicial review and, therefore, that the trial court lacked subject matter jurisdiction. The Court of Appeals dismissed the case without prejudice to the complainants to bring another action should the Board reach a case decision adverse to Boytek. Virginia Bd. of Medicine v. VPTA, 13 Va. App. 458, 413 S.E.2d 59 (1991).

We awarded the complainants an appeal to consider the question whether the Court of Appeals erred in holding that the circuit court lacked subject matter jurisdiction. We have considered this question and, for the reasons assigned by the Court of Appeals in its opinion, we will affirm its judgment.

Affirmed.