I’m always amazed at how people find new ways to lose appeals. Longtime friend of De Novo Monica Monday showed me a new one earlier this year: In two interlocutory appeals she was resisting, the petitioner missed the 15-day deadline for filing a petition for appeal. Because the Court of Appeals lacked authority to extend that deadline, the appeals were dismissed.
I’ll run through the issue a few potential solutions below.
To start, Code § 8.01-675.5(A) authorizes interlocutory appeals from a circuit court to the Court of Appeals, provided that the circuit court makes a specific, four-part certification. The statute then says that a petition for appeal may be filed within 15 days of that certification order, making no provision for extending that deadline. Rule 5A:12 governs petitions for appeal and other petitions for discretionary review, including petitions for appeal under Code § 8.01-675.5(A). It, too, specifies that the petition for appeal is due within 15 days of the trial court’s certification, and without providing for an extension of time. Rule 5A:3 explains that the time prescribed for filing a petition for appeal is “mandatory.” While the Rule allows the Court of Appeals to extend the deadlines for filing a notice of appeal, a petition for rehearing, or a petition for rehearing en banc, it affords no such relief for a petition for appeal. Instead, the deadline for filing a petition for appeal under Rule 5A:12 is a jurisdictional requirement. Long v. Commonwealth, 7 Va. App. 503, 506 (1988). “A petition for appeal that is filed after the deadline must be dismissed.” Chatman v. Commonwealth, 61 Va. App. 618, 627 (2013).
Thus, it seems that the Court of Appeals lacks authority to extend the petition for appeal deadline under Code § 8.01-675.5. (The rules governing respondents are more forgiving. While the brief in opposition is due within 7 days of the petition for appeal, Rule 5A:13(a) allows the respondent to move for an extension of this deadline.)
Set aside, for a minute, that it should be impossible to miss this deadline: Code § 8.01-675.5(A) clearly sets out the timeline. Securing certification will require a petitioner to study that statute, and it is hard to see how they could miss the part about the deadline. Nor is the 15-day deadline particularly onerous. Assembling a petition for appeal will be relatively little work once the petitioner has gone through the process of securing certification, as the research and analysis needed for the petition will largely duplicate the work done to support the motion for certification.
Even so, you can imagine things happening that would prevent even a diligent petitioner from making the 15-day deadline—the petitioner’s attorney could get sick, for example, or suffer a death in the family.
So what then? True, the petitioner can’t ask the Court of Appeals for an extension. But if they catch the problem before the 15 days run, they could ask the circuit court to suspend, modify, or vacate its certification order, which would presumably toll the deadline for filing a petition for appeal. After all, it preserve the trial court’s jurisdiction and tolls the deadline for filing a notice of appeal.
If more time has passed and the petitioner has already missed the 15-day deadline, they could ask the circuit court to recertify its order. Note that in the federal system, the circuits split over the efficacy of recertification. Most, including the Fourth Circuit, hold that recertification resets the 10-day petition deadline, though in more recent opinions the Seventh Circuit and the D.C. Circuit have disagreed. See Strange v. Islamic Rep. of Iran, 964 F.3d 1190, 1202 (D.C. 2020) (discussing split). The outlier Seventh and D.C. Circuits focus on SCOTUS’s “renewed emphasis on the federal courts’ lack of authority to read equitable exceptions into fixed statutory deadlines . . . .” Id. at 1198. For obvious reasons, that factor is less relevant in state-court practice.
Finally, they could wait until the end of the case, then appeal the circuit court’s final order.