Issue Preservation and the Limits of Judicial Modification in Administrative Appeals: Commentary on Lydia Downs‑Jamal v. West Virginia Department of Human Services

Issue Preservation and the Limits of Judicial Modification in Administrative Appeals: Commentary on Lydia Downs‑Jamal v. West Virginia Department of Human Services

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in Lydia Downs‑Jamal v. West Virginia Department of Human Services, No. 23‑432 (Nov. 13, 2025), addresses a recurring but often misunderstood question in state administrative law: how far may a reviewing court go in “modifying” an agency decision under the State Administrative Procedures Act, and what happens when a party seeks, for the first time on judicial review, a form of relief (here, backpay damages) that was never presented to the administrative agency?

Although the underlying dispute concerns a childcare provider’s contract to receive state subsidy payments, the Court’s reasoning has broader implications for issue preservation and the scope of judicial remedies in administrative appeals under West Virginia Code § 29A‑5‑4(g)(1). The decision reinforces the traditional rule that appellate tribunals—whether circuit courts, the Intermediate Court of Appeals (ICA), or the Supreme Court itself—ordinarily will not adjudicate nonjurisdictional issues that were not raised and decided in the forum below.

This commentary explains the factual and procedural background, distills the Court’s holding, examines its statutory and precedential underpinnings, and analyzes its impact on administrative litigation strategy and on the law of judicial review in West Virginia.

II. Factual and Procedural Background

A. The Parties and the Contractual Framework

Petitioner Lydia Downs‑Jamal is a licensed childcare provider owning and operating two childcare facilities in Berkeley County, West Virginia. In April 2018 she entered into a Provider Services Agreement (PSA) with the West Virginia Department of Health and Human Resources (DHHR), now reorganized and succeeded in relevant part by the West Virginia Department of Human Services (the “Department”).1 Under the PSA, she would be reimbursed for providing childcare to children who qualified for state subsidies under the Department’s programs.

The Department administered this program under its Child Care Subsidy Policy & Procedures Manual (2020). Section 11.2.1 of that Manual specifies what constitutes “[a]dequate notice of a decision affecting benefits,” requiring that a notice of adverse action include:

  • 11.2.1.1 – The action or proposed action to be taken;
  • 11.2.1.2 – The reasons for the action, stated in terms readily understandable by the applicant; and
  • 11.2.1.3 – Citations to the relevant policy sections supporting the action.

B. The Cancellation Notice and Administrative Proceedings

On March 16, 2021, the Department sent Downs‑Jamal a notice stating simply that her PSA “is cancelled effective March 29, 2021.” The notice reproduced several paragraphs from the Manual and from the PSA, but it did not articulate any specific factual reasons for the cancellation— for example, no description of alleged misconduct, billing anomalies, or regulatory violations.

Downs‑Jamal appealed to the Department’s Board of Review (“the Board”). In advance of the Board hearing, she moved to dismiss the cancellation notice, arguing:

  • The notice violated the Department’s own Manual because it provided no factual reasons for the adverse action;
  • The Department’s discovery responses likewise failed to specify the factual basis for the termination;
  • This lack of factual notice deprived her of constitutional due process under Article III, § 10 of the West Virginia Constitution and the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution by preventing her from preparing an adequate defense; and
  • Because of the Department’s late discovery responses, she needed a continuance to subpoena witnesses and build her defense (a request the Board denied).

At the hearing, the Department presented evidence that a late‑2020 review of Downs‑Jamal’s records revealed “discrepancies suggesting that the petitioner sought subsidy payments for several children who were either not enrolled or did not attend her facilities in person.” Downs‑Jamal characterized these discrepancies as mere data‑entry errors.

In a decision dated June 23, 2021, the Board:

  • Rejected her challenge to the adequacy of the cancellation notice, finding simply that “the notice of termination of the [petitioner’s] PSA met the notice required by policy”; and
  • Upheld the Department’s cancellation of the PSA.

C. Circuit Court Review: Due Process and Backpay

Downs‑Jamal then sought judicial review in the Circuit Court of Berkeley County under the State Administrative Procedures Act (SAPA), West Virginia Code § 29A‑5‑4. In its August 29, 2022, order, the circuit court held:

  1. Notice and due process. The Department’s cancellation notice “violated its own rules” by failing to provide “any information as to the factual reasons for the decision.” The court further concluded that the Department’s conduct violated Downs‑Jamal’s constitutional due process rights by denying her proper notice and a meaningful opportunity to be heard and to defend against the allegations.
  2. Remedy – reinstatement and backpay. The court (a) reversed the Board’s decision upholding termination of the PSA and remanded for further proceedings, and (b) ordered that Downs‑Jamal was entitled to:
    • “back payments of monies she would have received under the PSA,” and
    • ongoing payments “until the Department properly terminated the PSA.”
    The order specified that on remand she would be entitled to “back payment of all subsidies, grants, and other payments which she would have been entitled to as a provider of subsidized child care services with the [Department], and that all such payments and other benefits shall continue until such time as [p]etitioner’s rights are terminated in accordance with relevant rules and the Constitutional requirements of due process.”

In other words, the circuit court not only vacated the termination decision but also effectively reinstated the PSA and declared a right to past and future subsidy payments unless and until a constitutionally valid termination occurred.

D. Intermediate Court of Appeals Decision

The Department appealed to the Intermediate Court of Appeals (ICA). The ICA’s memorandum decision in W. Va. Dep’t of Health & Hum. Res. v. Downs‑Jamal, No. 22‑ICA‑129, 2023 WL 4027502 (W. Va. Ct. App. June 15, 2023):

  • Affirmed the circuit court’s conclusion that the cancellation notice failed to comply with the Department’s Manual. The ICA held that the notice “was insufficient to put [the petitioner] on notice of the facts and circumstances that led to the Department’s action regarding the PSA.” It did not reach the separate constitutional due process analysis because the Manual violation alone justified reversal and remand.
  • Reversed the portion of the circuit court’s order awarding backpay and ongoing payments. The ICA observed that the question of back payments:
    • had not been raised to the Board or addressed in its order, and
    • involved “a significant dispute over what sum, if any, [the petitioner] would be entitled to if she were to prevail.”
    It concluded that the backpay issue “was not ripe” for the circuit court’s consideration.

Accordingly, the ICA affirmed in part, reversed in part, and remanded the case to the Board for further proceedings.

E. Supreme Court Appeal

Downs‑Jamal then appealed to the Supreme Court of Appeals of West Virginia. Importantly, her petition focused only on the ICA’s reversal of the backpay and ongoing‑payment remedy. She did not seek review of the ICA’s affirmance of the remand order (which was favorable to her) or of any aspect of the ICA’s analysis of the notice requirements.

The Supreme Court issued a Rule 21 memorandum decision on November 13, 2025, affirming the ICA’s judgment in full. The opinion therefore concerns only the scope of judicial authority to award monetary relief in an administrative appeal when that issue was not raised or decided in the agency proceedings below.

1 The opinion notes that the former Department of Health and Human Resources was terminated and split into three agencies by West Virginia Code § 5F‑2‑1a (2023), including the Department of Human Services, which now administers childcare programs.

III. Summary of the Supreme Court’s Decision

The Supreme Court affirmed the ICA’s determination that the circuit court exceeded its authority when it ordered the Department to:

  • pay “all monies that were withheld” after the PSA’s cancellation, and
  • continue payments until a proper termination occurred.

The Court’s central holdings can be summarized as follows:

  1. Limited scope of modification under § 29A‑5‑4(g)(1). Although West Virginia Code § 29A‑5‑4(g)(1) empowers a reviewing court to “reverse, vacate, or modify” an agency decision if the petitioner’s substantial rights have been prejudiced—e.g., by a violation of constitutional or statutory provisions—this does not authorize the court to construct an entirely new damages award on an issue the agency never considered or decided.
  2. Issue preservation requirement. Because Downs‑Jamal did not seek backpay or monetary relief before the Board of Review, the question of backpay was not preserved for review by the circuit court. Applying long‑standing principles from Whitlow v. Board of Education of Kanawha County, 190 W. Va. 223, 438 S.E.2d 15 (1993), the Court declined to consider a nonjurisdictional issue raised for the first time on appeal.
  3. No ruling on ultimate entitlement to relief. The Court emphasized that it was expressing no opinion on whether Downs‑Jamal might be entitled to damages or other relief through other legal avenues, citing West Virginia Code § 29A‑5‑4(a), which preserves “other means of review, redress, or relief provided by law.”

Thus, the remedy for the defective notice and potential due process violations remains limited to administrative reconsideration on remand; any separate claim for monetary damages must be pursued, if at all, through appropriate channels other than this particular SAPA appeal.

IV. Detailed Analysis

A. Statutory Framework: Judicial Review Under the State Administrative Procedures Act

Judicial review of contested administrative cases in West Virginia is governed by West Virginia Code § 29A‑5‑4. Two subsections are central to this decision.

1. West Virginia Code § 29A‑5‑4(g)(1): “Reverse, Vacate, or Modify”

Section 29A‑5‑4(g)(1) authorizes courts to set aside or alter agency decisions where the petitioner’s substantial rights have been prejudiced by, among other grounds, “violations of constitutional or statutory provisions.” In relevant part, it provides that the court may:

“reverse, vacate, or modify the order or decision of the agency if the substantial rights of the petitioner … have been prejudiced” by specified legal errors, including constitutional violations. (Emphasis added.)

Downs‑Jamal argued that the circuit court was simply exercising this “modify” power: having concluded that her rights were prejudiced by constitutional and policy violations, the circuit court modified the Board’s order by adding a backpay remedy “naturally” flowing from those violations.

The Supreme Court rejected this expansive reading, holding that § 29A‑5‑4(g)(1) does not permit an appellate tribunal to award a category of relief (here, damages/backpay) on a question that:

  • the agency was never asked to decide, and
  • in fact, the agency never ruled upon.

Put differently, “modify” presupposes an existing agency ruling on a particular matter that the reviewing court can alter; it does not authorize a reviewing court to undertake an initial fact‑finding and remedial determination on a brand‑new issue.

2. West Virginia Code § 29A‑5‑4(a): Preservation of Other Remedies

Section 29A‑5‑4(a) states that nothing in the SAPA “shall be deemed to prevent other means of review, redress, or relief provided by law.” By citing this provision at the end of its opinion, the Court underscores that its refusal to uphold a backpay award in this administrative appeal does not foreclose:

  • separate civil actions (for example, based on contract or tort theories, if otherwise available), or
  • other statutory or equitable remedies outside the SAPA framework.

The point is narrow: this SAPA appeal, on this record, could not be used to create a backpay remedy that had never been presented to the agency.

B. Precedents and Authorities Cited

1. Chrystal R.M. v. Charlie A.L. and Subcarrier Communications, Inc. v. Nield – Standard of Review

The Court begins by citing Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995), and Subcarrier Communications, Inc. v. Nield, 218 W. Va. 292, 624 S.E.2d 729 (2005), for the proposition that issues involving the “interpretation or application of a statute” are reviewed de novo.

This sets the stage for a fresh judicial construction of § 29A‑5‑4(g)(1) and its “modify” language, without deference to the conclusions of the circuit court or the ICA on that interpretive question.

2. Whitlow v. Board of Education of Kanawha County – Issue Preservation on Appeal

The linchpin precedent is Whitlow v. Board of Education of Kanawha County, 190 W. Va. 223, 438 S.E.2d 15 (1993), where the Court articulated a “general rule” governing appellate practice:

“when a nonjurisdictional question has not been considered by the lower tribunal and is then first raised to an appellate tribunal, it ‘will not be considered on appeal.’”

Whitlow identifies three main rationales, which the Court quotes and applies:

  1. Incomplete factual development. If an issue was not raised below, the facts underlying that issue “will not have been developed in such a way so that a disposition can be made on appeal.”
  2. Fairness to the parties. It is “manifestly unfair” for a party to present new arguments or claims after the matter has already been fully litigated in the tribunal below.
  3. Value of lower tribunal’s analysis. The appellate court benefits from having issues “refined, developed, and adjudicated by the [lower tribunal], so that [the appellate tribunal] may have the benefit of its wisdom.”

The Supreme Court applies this reasoning directly to Downs‑Jamal’s request for backpay: because she never asked the Board for backpay, the Board never developed a factual record or issued findings on the question; therefore the circuit court could not properly adjudicate that issue for the first time on appeal.

3. Constitutional and Policy Manual Authorities

While the Supreme Court does not revisit the circuit court’s constitutional analysis in depth, the decision is framed against a backdrop of:

  • Article III, § 10 of the West Virginia Constitution;
  • The Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution; and
  • The Department’s own Child Care Subsidy Policy & Procedures Manual (Section 11.2.1).

The ICA had already concluded that the Department’s cancellation notice failed to comply with the Manual, rendering the notice insufficient to put Downs‑Jamal on notice of the factual basis for the termination. The Supreme Court does not disturb that conclusion. Its focus is solely on the remedy, not on the underlying due process/source‑of‑law issues.

C. The Court’s Legal Reasoning

1. No Agency Ruling to “Modify” on Backpay

The central interpretive move is the Court’s narrow reading of § 29A‑5‑4(g)(1)’s “modify” language. The Court notes:

“While Section 4(g)(1) permits an appellate tribunal to ‘modify’ an agency’s decision in a contested case, the record below shows there was no ruling by the Board respecting backpay damages for the circuit court to modify.”

This is critical: “modification” presupposes the existence of some decision on a question—for example, an agency finding on liability or entitlement that might be adjusted or conditioned by the court. Here, the Board never addressed backpay or damages at all. There was literally nothing in the Board’s order on that point.

Because of that absence, the circuit court’s order did not “modify” the Board’s decision in the sense intended by § 29A‑5‑4(g)(1); instead, it functionally acted as a court of first instance on the damages question, creating a new substantive determination without any agency findings or record‑based analysis to review.

2. Application of the Issue Preservation Rule

The Court then directly applies Whitlow:

“On this record, because the petitioner did not seek backpay damages before the Board, that issue was not preserved for review by the circuit court. Hence, the ICA correctly concluded that the circuit court erred when it ordered the Board to award the petitioner damages on remand.”

Several points are implicit in this reasoning:

  • Backpay is a distinct legal question. It is not merely a mechanical or automatic consequence of finding a due process or policy‑manual violation. It requires separate factual development (e.g., amounts, causation, mitigation, overpayments vs. underpayments, etc.).
  • Lack of factual record. The Board’s hearing focused on whether the PSA termination was justified; there is no indication that evidence or argument was presented regarding the quantum of any lost subsidy payments or how to calculate them.
  • Fairness and role allocation. Neither the Board nor the Department had an opportunity to litigate the backpay issue, and the court stressed the need to respect the distinct institutional roles of administrative agencies and reviewing courts.

3. Relationship Between Due Process Violations and Remedies

The petitioner’s argument, as characterized by the Court, was that once the circuit court concluded that her substantial rights had been prejudiced (by notice defects and due process violations), § 29A‑5‑4(g)(1) allowed the court to craft a remedial “modification” that would make her whole— including backpay for what she would have received absent the improper termination.

The Court’s response effectively severs the link between finding a violation and automatically awarding monetary relief in the same SAPA proceeding:

  • The proper focus of SAPA review is on the legality and validity of the agency decision as made, not on constructing a comprehensive remedial package in the first instance.
  • The typical remedies under § 29A‑5‑4(g) are to reverse, vacate, or modify the challenged agency decision and, as here, to remand for further proceedings consistent with law and due process.
  • Whether and how to award monetary compensation may require distinct legal authority, separate fact‑finding, and potentially a different forum.

The decision thus implicitly differentiates between:

  • Corrective relief within the administrative scheme (e.g., remand, rehearing, new notice), and
  • Compensatory relief (e.g., backpay damages), which was not properly before the court in this SAPA appeal.

4. Endorsement of the ICA’s “Ripeness” Concern

The ICA had described the backpay question as “not ripe” because:

  • it was not raised before or resolved by the Board, and
  • there was significant dispute about “what sum, if any” would be due if the petitioner ultimately prevailed.

Although the Supreme Court frames its analysis in terms of issue preservation and § 29A‑5‑4(g), it effectively endorses the ICA’s concern that the record was not ready for judicial resolution of backpay. No factual findings existed regarding:

  • the precise period of wrongful termination,
  • the number of subsidized children who would have been served,
  • the subsidy rates applicable during that period, or
  • offsets, mitigation, or overpayments, if any.

Without such findings, the circuit court’s broad command to pay “all monies that were withheld” and to continue payments indefinitely until proper termination was both legally and practically problematic.

D. Complex Concepts Simplified

1. “Contested Case” and the Board of Review

A contested case in administrative law is one where legal rights, duties, or privileges must be determined after an opportunity for an agency hearing. Here, the termination of a PSA and associated subsidy payments clearly affects the provider’s rights, making it a contested case subject to the SAPA’s judicial review provisions.

2. Due Process and Adequate Notice

Due process in this context has two basic components:

  • Notice. The affected party must be told, in clear and understandable terms, what the government proposes to do (e.g., terminate a contract or benefit) and the factual reasons for that action.
  • Opportunity to be heard. The party must have a meaningful chance to respond—by presenting evidence, cross‑examining witnesses, and arguing the law—before an impartial decision‑maker.

The Department’s own Manual embodies these principles by requiring that adverse action notices specify: the action, the reasons “provided in terms readily understandable by the applicant,” and citations to applicable policies. The ICA found the notice deficient on these grounds; the Supreme Court does not disturb that conclusion.

3. Issue Preservation

Issue preservation means that to obtain appellate review of a question, a party must:

  • Raise the issue in the tribunal below (here, the Board of Review), and
  • Secure a ruling on that issue (even if adverse).

If the party does not do so, the issue is typically considered waived for purposes of appeal. The appellate court will not act as a forum of first resort for new claims or theories, particularly when they require factual development the lower tribunal never undertook.

4. “Modify” vs. “Reverse” or “Vacate” in Judicial Review

Under § 29A‑5‑4(g)(1), a reviewing court may:

  • Reverse – declare that the agency’s order is wrong and substitute a different conclusion (e.g., overturning a finding of violation);
  • Vacate – nullify the agency’s order, often accompanied by a remand for further proceedings;
  • Modify – adjust or refine aspects of the agency’s decision without completely discarding it (for example, correcting a legal standard or limiting the scope of relief).

The Supreme Court’s decision clarifies that “modify” does not encompass creating and awarding an entirely new category of relief on an issue the agency never addressed. The power to “modify” exists within the boundaries of the issues actually decided below.

5. Ripeness

Ripeness refers to whether a dispute has developed sufficiently to be ready for judicial resolution. An issue is unripe if:

  • critical facts are speculative or undeveloped, or
  • the agency itself has not taken a final position or made a decision on that specific matter.

The ICA’s description of the backpay claim as not ripe reflects both concerns: there was no agency decision on entitlement or amount, and the factual underpinnings of any monetary remedy had not been explored.

E. Impact and Implications

1. For Administrative Litigants and Counsel

The decision sends a clear message to practitioners: if a party in an administrative contested case believes it is entitled to monetary relief (such as backpay, restitution, or compensation for wrongful termination of a program contract), counsel must:

  • Explicitly raise that claim before the agency and
  • Develop an evidentiary record supporting the requested relief.

Waiting until judicial review to request damages, on the theory that they “naturally” flow from a due process violation, is risky. Under Downs‑Jamal, courts may view such requests as unpreserved and beyond the scope of their authority under § 29A‑5‑4(g).

2. For Circuit Courts Reviewing Agency Decisions

Circuit courts are reminded that their role in SAPA appeals is primarily reviewing agency action, not acting as trial courts of first instance on new remedial claims. Courts must:

  • Confine themselves to issues raised and decided in the agency proceedings;
  • Use their “reverse, vacate, or modify” power to correct legal errors within the agency’s decision, not to create new determinations unrelated to the issues litigated below; and
  • Be cautious about ordering specific monetary payments or ongoing benefits where the agency has not yet made determinations regarding entitlement or quantum.

In cases of procedural or due process defects, the standard remedy will often be to vacate the flawed decision and remand for new proceedings that comply with law and agency policy.

3. For Administrative Agencies

Agencies, including the Department of Human Services, can take several lessons:

  • Notice practices matter. The decision indirectly reinforces the importance of adhering to internal policy manuals. Notices of adverse action must provide clear, factual reasons, not merely citations or conclusory statements.
  • Record development is essential. If parties raise claims for monetary relief during administrative proceedings, agencies need to develop a factual record and issue findings on those claims, recognizing that reviewing courts will scrutinize such determinations.
  • Separation of functions. Agencies should be prepared to argue, where appropriate, that certain forms of relief (especially damages) may fall outside their authority and must be pursued through other legal channels, consistent with § 29A‑5‑4(a).

4. For Childcare Providers and Other State‑Contracted Service Providers

For childcare providers and similar service vendors who contract with the state:

  • Procedural rights exist—but so do procedural obligations. Providers are entitled to adequate notice and fair process before subsidy agreements are canceled. But to obtain full relief, including any claim for lost payments, they must comply with procedural rules on issue preservation.
  • Remedies may be fragmented. Invalidating a termination within the administrative process does not automatically translate into a backpay judgment. Providers may need to:
    • pursue administrative remedies to correct or redo the termination decision, and
    • consider separate civil actions (e.g., for breach of contract) to seek compensation for financial harm, where permissible.

5. Doctrinal Clarification: SAPA Review vs. Separate Causes of Action

By citing § 29A‑5‑4(a) and explicitly stating that it “take[s] no position on the petitioner’s entitlement to relief,” the Supreme Court carefully cabins its holding to the judicial review context:

“nothing in the State Administrative Procedures Act ‘shall be deemed to prevent other means of review, redress, or relief provided by law.’”

This underscores a key doctrinal distinction:

  • A SAPA appeal is focused on whether the agency’s decision complied with law and what to do with that decision (reverse, vacate, or modify, usually via remand);
  • Separate lawsuits—contract, tort, constitutional claims under other statutes, etc.—may address compensatory or injunctive remedies not available in, or appropriate for, the SAPA appeal.

Downs‑Jamal thus reinforces that litigants must think strategically about which forum will adjudicate which aspects of their claims, and that they cannot rely on SAPA review alone to secure monetary relief not presented to the agency.

V. Conclusion

The Supreme Court’s memorandum decision in Lydia Downs‑Jamal v. West Virginia Department of Human Services does not create sweeping new doctrine, but it meaningfully clarifies two critical points in West Virginia administrative law:

  1. Issue preservation is essential. Nonjurisdictional questions, including claims for backpay or damages, must be raised and decided in the agency proceedings to be reviewable on appeal. Courts will not use SAPA review as a vehicle to adjudicate new claims that were never presented to the administrative tribunal.
  2. The “modify” power under § 29A‑5‑4(g)(1) is limited. While courts may reverse, vacate, or modify agency decisions where substantial rights have been prejudiced, that authority does not extend to creating new remedies on unaddressed issues, especially where no factual record exists. Remedial creativity is constrained by the matters actually litigated and adjudicated below.

Against this backdrop, the decision also reaffirms the importance of agency adherence to internal policy manuals and due process principles in providing adequate notice, as recognized by the ICA and the circuit court. But the remedy for those violations in a SAPA appeal is primarily procedural correction—vacatur and remand— not automatic monetary compensation.

In the broader legal landscape, Downs‑Jamal serves as a cautionary reminder: administrative appeals are not a blank check for courts to reconstruct disputes from the ground up. They are structured, record‑based reviews of the decisions agencies in fact made—and only of the issues those agencies in fact decided. Parties who seek more must both preserve their claims in the agency and, when necessary, pursue “other means of review, redress, or relief” provided by law.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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