Federal Rules Often Forgive Missed Deadlines While Virginia Still Traps the Unwary

“A deadline means what it says,” is a simple enough concept. But it’s not always true.

In federal practice, there are avenues for escaping the harsh effects of a missed deadline. In Virginia practice, though, deadlines are often characterized as jurisdictional. Timely filings open the door to court jurisdiction. Untimely filers find the door to the courthouse shut.

Two recent examples illustrate the dichotomy between federal and state practice.

Federal Practice

In Harrow v. Department of Defense, the Supreme Court of the United States examined whether appeals from Merit Systems Protection Board could be filed late with the US Court of Appeals for the Federal Circuit. The applicable statute provided that Mr. Harrow’s appeal “shall be filed” “within 60 days” of his loss before the Board. Yet, he didn’t file until 120 days after the Board’s ruling.

Mr. Harrow explained that his late filing was because his work email address had changed while the Board was considering his case. Because of that, he didn’t receive the Board’s emailed notice of a ruling. He asked that his late filing in the Federal Circuit be excused. That court sympathized, but ruled that the law’s the law and, no matter how much the court sympathized with Mr. Harrow’s excuse for missing the deadline, the excuse didn’t matter. The court ruled it had no jurisdiction, which is to say no lawful power, to hear the late appeal. Harrow appealed his loss in the Federal Circuit to the US Supreme Court.

And the Supreme Court said, essentially, “Easy, now, Federal Circuit.”

Justice Kagan, writing for a unanimous Court, wrote that the deadline Harrow missed, “like most filing deadlines, is not jurisdictional.” “[P]rocedural requirements that Congress enacts to govern the litigation process are only occasionally as strict as they seem.” When Congress sets what appear to be mandatory filing deadlines, it sets those deadlines with full knowledge that there are judicial doctrines that excuse, in the interests of equity, late filings when there’s a good reason.

Only in a very limited circumstance will a litigant’s failure to follow strict deadlines deprive a federal court of jurisdiction to hear a case. If Congress imposes a deadline with the clear and express intent that the deadline is jurisdictional, only then will the federal courts be deprived of the authority to excuse the missed deadline.

The Supreme Court sent Mr. Harrow’s case back to the lower courts to decide if he had a good reason after all.

Virginia State Court Practice

Compare that forgiving, even empathetic, ruling in Harrow with the recent decisions by the Virginia Court of Appeals in Sidar v. Doe. In that case Ms. Doe had sued Mr. Sidar for what the Court described as “egregious intentional torts” “of a sexual nature.” In the trial court, she won attorney fees against Mr. Sidar because he filed a meritless motion to dismiss. Sidar appealed that ruling to the Virginia Supreme Court where he lost again.

After her victory in the Virginia Supreme Court, Ms. Doe asked the trial court to award her attorney fees she incurred defending Mr. Sidar’s meritless appeal. The trial court agreed and awarded her even more fees.

But, Mr. Sidar claimed that the second fee award was improper. He argued that under Virginia’s Rule 1:1A, Ms. Doe had only 30 days after her win in the Supreme Court to request more attorney’s fees. Ms. Doe didn’t file her request for fees until 62 days after her Supreme Court win. So, Mr. Sidar argued, the deadline was missed and the trial court had no jurisdiction to award any more attorney fees.

Ms. Doe explained, though, that she had an excellent reason for not filing her second request for attorney fees on time. She tried to file the request on the 28th day after her Supreme Court win. But the trial court clerk, mistakenly, refused to accept her petition. Relying on the clerk’s instruction, Ms. Doe waited to file the petition.

You might think that Ms. Doe, obviously wronged by Mr. Sidar and obviously trying to comply with official instructions on how to file her petition by the required deadline, would get a short extension.

You’d be wrong.

The Virginia Court of Appeals concluded that the 30-day deadline in Rule 1:1A wasn’t just a procedural instruction. Rather, the deadline defined the jurisdiction of the trial court to hear the case at all.

And what about the court clerk’s refusal to accept Ms. Doe’s timely filing? The Court of Appeals concluded: “This Court recognizes that the circuit court clerk’s error in not allowing Doe to file her application for fees ... created a substantial hardship for Doe. The unfortunate circumstances, however, do not entitle her to relief in this court. …. ‘Our province is not to make law, but to administer it, and we must, therefore, decide this case according to the settled law as it is written, and not permit a hard case to make bad law.’”

In short, Ms. Doe is out of luck.

Virginia’s unforgiving rules concerning compliance with filing deadlines stand in sharp contrast with the flexible process the federal courts apply. Reasonable minds may differ on which approach is more consistent with the fair administration of justice. But practitioners are undeniably on notice: fluency with the operation of deadlines is the price of admission to our work and for our clients’ access to justice.