Hutchins v. Carrillo

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia

ROBERT W. HUTCHINS
OPINION BY
v. Record No. 2241-97-4 JUDGE LARRY G. ELDER
JUNE 16, 1998
ROSANA L. CARRILLO

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard J. Jamborsky, Judge Designate
Robert W. Hutchins, pro se.

(Robert J. Hill, on brief), for appellee.

Robert W. Hutchins ("father") appeals the order of the

Circuit Court of Prince William County ("circuit court")

dismissing his appeal of a decision by the Juvenile and Domestic

Relations District Court of Prince William County ("J&DR court")

regarding the custody and support of his two children. Father

contends the circuit court erroneously concluded it lacked

jurisdiction over his appeal when the sole reason for his

noncompliance with the appeal bond requirement of Code

§ 16.1-296(H) was due to the unauthorized early closing of the

J&DR court clerk's office on the last day of the filing period.

For the reasons that follow, we reverse and remand.

I.

FACTS

On May 28, 1997, the J&DR court entered an order denying

father's petition to change child custody and ordering him to pay
$1,212.40 per month to Rosana L. Carrillo ("mother") for the

support of their two minor children. The J&DR court also found

that father owed a support arrearage of $532.20 to mother and

ordered him to pay $300 to a guardian ad litem who had been

appointed to represent the parties' children. On June 6, 1997,

father noted his appeal of the J&DR court's order. On this date,

the J&DR court set father's appeal bond at $832.20. Under Code

§ 16.1-296(H), the deadline for father to file his appeal bond

was Friday, June 27, 1997.
At 2:00 p.m. on June 27, father arrived at the clerk's

office of the J&DR court to file his appeal bond. The

established hours of the J&DR court clerk's office on this date

were 8:00 a.m. to 4:00 p.m. See Rules of Sup. Ct. of Va.

1:15(d), App. of General Information Relating to the Courts

within each Circuit and District in Virginia 119 (1997) (stating

the established hours of each court's clerk's office). However,

the clerk's office had closed for the day sometime before 2:00

p.m. in order to "process a backlog of support petitions."

Because the clerk's office was closed, father could not file his

appeal bond with the J&DR court that day. Father's obligations

to his employer prevented him from returning to the J&DR court

until July 3, 1997. On this date, the J&DR court accepted

father's appeal bond and scheduled his trial in the circuit court

on July 17, 1997.

On July 17, mother moved the circuit court to dismiss

-2-
father's appeal. Mother argued that the circuit court was

without jurisdiction to hear father's appeal because father had

failed to file his appeal bond on or before June 27. The circuit

court agreed and dismissed father's appeal. Citing Commonwealth,

Virginia Dept. of Soc. Services, Div. of Child Support

Enforcement, ex rel. May v. Walker, 253 Va. 319, 485 S.E.2d 134

(1997), the circuit court concluded it could not rely upon Code

§ 16.1-114.1 to obtain jurisdiction over father's appeal. Father

excepted to "the dismissal of this appeal, due to the

unauthorized closing of the [J&DR court clerk's office] during

the final hours of the time limit set to post bond."
II.
UNAUTHORIZED EARLY CLOSING OF CLERK'S OFFICE

ON LAST DAY OF PERIOD TO FILE APPEAL BOND

Father contends the early closing of the J&DR court clerk's

office on June 27 was an unauthorized act that "grievously

interfered" with his right to appeal. We agree.

A deprivation of a protected property interest caused by a
random, unauthorized act of a state employee is a violation of

the Fourteenth Amendment's Due Process Clause if the state "fails

to provide an adequate postdeprivation remedy." 1 Zinermon v.

1
Father's right to appeal the J&DR court's decision set forth
in Code § 16.1-296 is a protected "property interest" under the
Due Process Clause of the Fourteenth Amendment. The "property
interests" protected by the Fourteenth Amendment are not created
by the Constitution; rather, they are created by existing rules or
understandings that stem from an independent legal source, such as
state laws, "that secure benefits and . . . support claims of
entitlement to those benefits." Board of Regents of State

-3-
Burch, 494 U.S. 113, 115, 110 S. Ct. 975, 977-78, 108 L.Ed.2d 100

(1990) (citing Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct.

3194, 3204, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S.

527, 541, 101 S. Ct. 1908, 1916, 68 L.Ed.2d 420 (1981), overruled

in part not relevant here by Daniels v. Williams, 474 U.S. 327,

330-31, 106 S. Ct. 662, 88 L.Ed.2d 662 (1986)).

Applying this principle to the unique facts of this case, we

hold that the circuit court erred when it overruled father's

exception to its order dismissing his appeal based upon the

unauthorized closing of the clerk's office on June 27. The early

Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33
L.Ed.2d 548 (1972).

The hallmark of property . . . is an
individual entitlement grounded in state law,
which cannot be removed except "for cause."
Once that characteristic is found, the types
of interests protected as "property" are
varied and, as often as not, intangible,
relating "to the whole domain of social and
economic fact."

Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S. Ct. 1148,
1155, 71 L.Ed.2d 265 (1982) (citations omitted). The right to
appeal created by Code § 16.1-296 is an entitlement grounded in
state law that can be removed only "for cause" -- either because
the substance of the appeal does not merit the remedy sought or
because of procedural default. Moreover, the United States
Supreme Court has previously held that a statutorily created cause
of action "is a species of property protected by the Fourteenth
Amendment's Due Process Clause." Id. at 428, 431, 102 S. Ct. at
1154, 1155. "The right to appeal would be unique among state
actions if it could be withdrawn without consideration of
applicable due process norms." Evitts v. Lucey, 469 U.S. 387,
400-01, 105 S. Ct. 830, 839, 83 L.Ed.2d 821 (1985).

-4-
closing of the J&DR court clerk's office on the last day father

was permitted to file his appeal bond was a random, unauthorized

act. Furthermore, our review of Virginia law indicates that

father had no adequate postdeprivation remedy for the loss of his

right to appeal in this manner. As such, father's right to

appeal was deprived without due process of law.

A.

UNAUTHORIZED ACT
The early closing of the clerk's office on June 27 was a

random, unauthorized act. The legal authority to establish the

business hours of a district court clerk's office is shared by

two parties: the Committee on District Courts ("committee") and

the chief judge of each district. 2 The committee has adopted a

policy that sets forth the extent of each party's authority to

establish the business hours for a particular district court

clerk's office. See Office of the Executive Secretary, Sup. Ct.

of Va., Personnel Policy Manual ch. VII (1990). Under the

policy, the committee has established a flexible range of

hours -- "8:00 a.m. to 5:00 p.m., Monday through Friday" --

within which each district court clerk's office must be open at

least eight hours. Id. at VII-1, VII-2. The chief judge
2
Under Code § 16.1-69.33, the committee has the power to
authorize the establishment of district courts' clerk's offices
and to establish "when such offices shall be open for business."
Under Code § 16.1-69.35(5), the chief judge of each district has
administrative authority to determine when his or her court "shall
be open for the transaction of business."

-5-
determines the exact business hours of his or her court clerk's

office, provided they are within the range set forth by the

-6-
committee. 3 The only exceptions to the required working hours

enumerated in the policy are the occurrence of inclement weather

and legal holidays. See id. at VII-2 to VII-3. Significantly,

the policy does not authorize the chief judge of a district court

to unilaterally close his or her clerk's office before the

expiration of the required eight-hour period on a particular

business day for the purpose of processing a backlog of work.

In this case, the decision to close the J&DR court clerk's

office on June 27 violated the committee's policy. The regular

business hours established for the J&DR court clerk's office by

the chief judge were 8:00 a.m. to 4:00 p.m. However, the record

indicates that, on June 27, the clerk's office closed sometime

before 2:00 p.m., less than six hours after it opened. Although

3
The committee's policy states:

It is the policy of the Court System that
normal business hours be defined as eight
hours between the hours of 8:00 a.m. to 5:00
p.m., Monday through Friday . . . .

Personnel Policy Manual at VII-1. The policy explains the extent
of the chief judge's discretion to set the particular hours for
his or her court:

The hours for clerk's offices shall be set by
the chief judge(s) with the provision that on
each business day (Monday through Friday) at
least eight hours fall between the 8:00 a.m.
to 5:00 p.m. period. This is to assure that
court services are available to the public
during normal business hours.

Id. at VII-2.

-7-
the record established that the clerk's office closed in order to

"process a backlog of support petitions," neither the chief judge

nor any employee of the clerk's office had legal authority to

unilaterally close the clerk's office for this purpose.

Furthermore, the unauthorized early closing of the J&DR

court clerk's office on June 27 caused the deprivation of

father's right to appeal. Code § 16.1-296(H) provides that, in

cases involving support that are adjudicated by a J&DR court, "no

appeal shall be allowed" unless and until the appellant "gives

bond" which adequately secures "that portion of any order or

judgment establishing a support arrearage or suspending payment

of support during pendency of [the] appeal." Code § 16.1-296(H).

"An appeal will not be perfected unless such appeal bond as may

be required is filed within thirty days from the entry of the

[J&DR court's] final judgment or order." Code § 16.1-296(H)

(emphasis added). The failure to substantially comply with the

procedures attendant to filing an appeal bond "'constitutes a

jurisdictional defect which cannot be corrected after the

expiration of the time within which an appeal may be taken.'"
Walker, 253 Va. at 322, 485 S.E.2d at 136 (quoting Parker v.

Prince William County, 198 Va. 231, 235, 93 S.E.2d 136, 139

(1956)). Thus, when father was prevented from filing his appeal

bond on June 27 -- the thirtieth day of the statutory period --

by the early closing of the J&DR court clerk's office, his right

to appeal under Code § 16.1-296 was terminated.

-8-
 B.

POSSIBLE REMEDIES UNDER VIRGINIA LAW

Next, we consider whether Virginia law provided father with

an adequate postdeprivation remedy for the loss of his appeal

caused by the unauthorized closing of the J&DR court clerk's

office. "[T]o determine whether a procedural due process

violation has occurred, courts must consult the entire panoply of

. . . postdeprivation process provided by the state." Fields v.
Durham, 909 F.2d 94, 97 (4th Cir. 1990) (citing Zinermon, 494

U.S. at 126, 110 S. Ct. at 983). Our review of Virginia law

revealed six avenues of relief potentially available to father --

(1) Code § 16.1-296(H), (2) Code § 16.1-114.1, (3) a writ of

mandamus, (4) a mandatory injunction, (5) a claim for monetary

damages under the Virginia Tort Claims Act, and (6) Code

§ 1-13.3:1. None of these potential avenues of relief could have

remedied the loss of his appeal.

1.
Code § 16.1-296(H) and § 16.1-114.1

Neither of the two narrow exceptions to the appeal bond

requirement of Code § 16.1-296(H) was available to enable the

circuit court to retain jurisdiction over father's appeal.

Virginia jurisprudence regarding the procedures attendant to

filing an appeal bond is "clear, unequivocal, and emphatic."

Covington Virginian, Inc. v. Woods, 182 Va. 538, 543, 29 S.E.2d

406, 408 (1944). When applicable, the appeal bond requirement of

-9-
Code § 16.1-296(H) is mandatory, and noncompliance with it is an

incurable defect that deprives the circuit court of jurisdiction

over the case. See Walker, 253 Va. at 322, 485 S.E.2d at 136.

Currently, the Code provides two narrow exceptions to the

rule that compliance with the appeal bond requirement must be

flawless in order to confer jurisdiction upon the circuit court.

The first, which is implicit in Code § 16.1-296(H), occurs when

a party is in "substantial compliance" with the statutory

requirements. Cf. Brooks v. Epperson, 164 Va. 37, 43, 178 S.E.

787, 788 (1935) (stating that "substantial compliance with

statutory [appeal bond] requirements is all that is necessary").

The second, which is provided by Code § 16.1-114.1, occurs when

the noncompliance with the statutory requirements is "a mere

defect, irregularity or omission in the proceedings in the

district court, or in the form of any such pleading, [that] may

be corrected by a proper order of the [circuit court]." Code

§ 16.1-114.1; see Burks v. Three Hills Corp., 214 Va. 322,

323-24, 200 S.E.2d 521, 522 (1973); Jenkins v. Bertram, 163 Va.
672, 674-75, 177 S.E. 204, 205 (1934).

Neither of these limited exceptions to the appeal bond

requirement was available to remedy father's inability to file

his appeal bond before the close of business on June 27. First,

father's right to appeal could not be resuscitated on the ground

that he substantially complied with Code § 16.1-296(H). The

express, unambiguous language of Code § 16.1-296(H) requires that

-10-
the appeal bond be actually "filed" with the J&DR court within

the prescribed time period. Based on the Virginia Supreme

Court's strict application of the appeal bond requirement in

prior cases, we cannot say father's actions in this case

constituted substantial compliance with Code § 16.1-296(H). In

Brooks, the Supreme Court held that filing an appeal bond without

surety but with a certified check covering the amount of the

judgment was not substantial compliance with the statutory

requirement of "sufficient surety." See Brooks, 164 Va. at

42-44, 178 S.E. at 789-90. In Covington Virginian, Inc., the

Supreme Court held that filing an appeal bond without affixing

the appellant's corporate seal was not substantial compliance

even though "the executed instrument provided ample security for

the payment of any judgment in [appellee]'s favor, in that the

[appellant] was bound by its written obligation and its surety

could not . . . deny its liability." Covington Virginian, Inc.,

182 Va. at 544, 29 S.E.2d at 409. In both cases, the instrument

that was filed was adequate to satisfy the essential function of

an appeal bond -- "to protect the [appellee] against any loss or

damage he may sustain by reason of the suspension of his right to

proceed with the collection of his judgment against the

[appellant]." Jacob v. Commonwealth ex rel. Myers, 148 Va. 236,

242, 138 S.E. 574, 576 (1927). Nevertheless, in both cases, the

appellants' noncompliance with technical requirements that had no

effect on the instruments' ability to secure the appellees'

-11-
judgments rendered the instruments inadequate to satisfy the

apparently rigid standard of substantial compliance.

In this case, father arrived at the courthouse with appeal

bond in hand two hours before the clerk's office was scheduled to

close on the thirtieth day of the statutory period. However,

because the clerk's office had closed early, he was unable to

file his appeal bond with the clerk of the J&DR court. Thus, we

cannot say father "substantially complied" with the requirement

of Code § 16.1-296(H) that the appeal bond be "filed" within

thirty days of the entry of the J&DR court's order.

In addition, the circuit court correctly concluded that Code

§ 16.1-114.1 could not be utilized to cure father's untimely

filing of his appeal bond. The early closing of the J&DR court

clerk's office on the thirtieth day of the statutory period, even

when unauthorized, is not among the "irregularities" covered by

Code § 16.1-114.1. By its express terms, Code § 16.1-114.1

applies only to an "irregularity . . . in the proceedings in the

district court, or in the form of any such pleading." (Emphasis

added); cf. Hurst v. Ballard, 230 Va. 365, 367, 337 S.E.2d 284,
285 (1985) (stating that "the curative provisions of [Code

§ 16.1-114.1] . . . cannot be used to correct jurisdictional

defects"); Scheer v. Isaacs, 10 Va. App. 338, 342, 392 S.E.2d

201, 203 (1990) (stating that Code § 16.1-114.1 "does not

envision or authorize the exercise of discretion to excuse the

total failure to comply with a mandatory statutory requirement

-12-
for an appeal bond"). As currently written, Code § 16.1-114.1

does not empower a circuit court to correct an irregularity in

the day-to-day operations of a district court clerk's office that

inadvertently causes an appellant to miss the statutory deadline

for timely filing an appeal bond.

2.

Writ of Mandamus

Father could not obtain a writ of mandamus to remedy the

loss of his right to appeal caused by the unauthorized early

closing of the J&DR court clerk's office on June 27.
In this case, the "deprivation" of father's right to appeal

did not occur until he failed to file his appeal bond by 4:00

p.m. on June 27, the end of the J&DR court's normal business

hours. Thus, in order for a writ of mandamus to provide father

with an adequate postdeprivation remedy, father must have been

able to obtain it after June 27.

No writ of mandamus issued after June 27 could have restored

father's right to appeal. "Mandamus is an extraordinary remedy

which may be used to compel a public official to perform a purely

ministerial duty that is imposed upon the official by law." Town

of Front Royal v. Front Royal and Warren County Indus. Park

Corp., 248 Va. 581, 584, 449 S.E.2d 794, 796 (1994). However,

the remedy provided by a writ of mandamus cannot be applied

retroactively and is not available "to correct action, however

erroneous it may have been." Board of Supervisors of Amherst

-13-
County v. Combs, 160 Va. 487, 498, 169 S.E. 589, 593 (1933). In

order to cure father's noncompliance with the filing requirement

of Code § 16.1-296(H), the writ would have to render father's

bond "filed" on or before June 27. But, any writ obtained by

father after June 27 could have a prospective application only.

See id. A writ of mandamus "is not granted to undo an act

already done." Id. (citation omitted). Regardless of how

erroneous the closing of the J&DR court clerk's office on June 27

may have been, a writ of mandamus could not lie to retroactively

correct this error.
Although, in theory, a writ of mandamus did lie on June 27

to compel the clerk's office to reopen before its official

closing time of 4:00 p.m., appellant is not precluded from

claiming that his appeal was terminated without due process

solely because he failed to utilize this possible predeprivation

remedy. As discussed previously, the deprivation in this case

was caused by a random, unauthorized governmental act and not an

established state procedure. The United States Supreme Court has

held that, when a protected interest is deprived by "random,

unauthorized conduct of a state employee," the state is not

constitutionally required to provide any form of predeprivation

procedure. See Hudson, 468 U.S. at 533, 104 S. Ct. at 3203-04

(discussing the holding of Parratt). The Supreme Court reasoned

that the Due Process Clause cannot impose such a requirement

because, as a practical matter, "the state cannot know when such

-14-
deprivations will occur." Hudson, 468 U.S. at 533, 104 S. Ct. at

3203; see also Parratt, 451 U.S. at 541, 101 S. Ct. at 1916

(stating that the Due Process Clause does not require

predeprivation process for deprivations caused by unauthorized

conduct because the state "cannot predict precisely when the loss

will occur").
In situations where the State feasibly can
provide a predeprivation hearing before
taking property, it generally must do so
regardless of the adequacy of a
postdeprivation tort remedy to compensate for
the taking. Conversely, in situations where
a predeprivation hearing is unduly burdensome
in proportion to the liberty interest at
stake or where the State is truly unable to
anticipate and prevent a random deprivation
of a liberty interest, postdeprivation
remedies might satisfy due process.

Zinermon, 494 U.S. at 132, 110 S. Ct. at 987 (citations omitted).

When a deprivation of a protected interest is caused by a

random, unauthorized governmental act, the victimized citizen is

in a position similar to that of the state. Like the state, a

citizen is unable to predict when such deprivations will occur.

Just as the state is required to provide predeprivation

procedures only when feasible, citizens whose protected interests

are lost in this manner should not be deemed to have waived their

right to postdeprivation process by failing to seek theoretical

predeprivation remedies that a reasonable person would consider

unobtainable as a practical matter.

In this case, father could not reasonably have expected to

obtain a writ of mandamus in the two hours remaining before the

-15-
J&DR court clerk's office officially closed for the day. The

procedural requirements for obtaining such a writ, particularly

the notice requirement of Code § 8.01-644, made obtaining this

remedy impossible as a practical matter in this short period of

time.

3.

Mandatory Injunction

A mandatory injunction could not have remedied the loss of

father's appeal after it was deprived by the unauthorized closing

of the clerk's office on June 27.
In a proceeding in equity, a circuit court has the power to

"interfere by injunction with the performance of a ministerial

act of a public officer under a valid statute [when] the manner

of performance is in violation of the law or is contrary to

plain, official duty." Yoder v. Givens, 179 Va. 229, 235, 18

S.E.2d 380, 382 (1942). "[E]quity may be employed, if necessary,

for the preservation of property rights which are imperiled by

the unauthorized . . . exercise of power . . . ." Id. "The

function of a mandatory injunction is to undo an existing

wrongful condition" that is likely to continue in the absence of

an injunction, WTAR Radio-TV Corp. v. City Council of the City of

Virginia Beach, 216 Va. 892, 894, 223 S.E.2d 895, 898 (1976), and

a bill in equity seeking a mandatory injunction is the "proper

remedy" to redress the past privation of a right by a government

official. Combs, 160 Va. at 498, 169 S.E. at 593; see also

-16-
Vaughan v. State Bd. of Embalmers and Funeral Directors, 196 Va.

141, 153, 82 S.E.2d 618, 625 (1954). Through such a suit, a

court can compel the government official to restore in the future

the right that was illegally withdrawn. See Vaughan, 196 Va. at

153, 82 S.E.2d at 625.

A mandatory injunction could not help father in this case.

Unlike in Vaughan, the state actor responsible for the

deprivation of father's right to appeal has no authority to

restore it. The party responsible for the closure of the clerk's

office on June 27 could not be legally ordered to do anything

that could effect the restoration of father's right to appeal.
Because father's right to appeal was terminated when he

failed to file his appeal bond on June 27, the only mandatory

injunction that could conceivably restore father's right to

appeal would be one compelling the J&DR court to treat father's

appeal bond as if it was filed on that date. Such an injunction

would effectively order the J&DR court to make a nunc pro tunc

entry in the record of father's case indicating that his appeal

bond was filed on June 27 rather than July 3. However, such an

injunction could not be issued because it would require the J&DR

court to exceed the scope of its power to enter nunc pro tunc
orders. The inherent power of a court to correct clerical errors

in the record "is restricted to placing upon the record evidence

of judicial action which has actually been taken" and does not

extend "to show[ing] what the court should have done as

-17-
distinguished from what actually occurred." Council v.

Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248 (1956).
[T]he purpose of a nunc pro tunc entry is to
correct mistakes of the clerk or other court
officials, or to settle defects or omissions
in the record so as to make the record show
what actually took place. It is not the
function of such entry by a fiction to
antedate the actual performance of an act
which never occurred, to represent an event
as occurring at a date prior to the time of
the actual event, "or to make the record show
that which never existed."

Id. at 293, 94 S.E.2d at 248 (citation omitted). A nunc pro tunc

entry by the J&DR court that it received father's appeal bond on

June 27 rather than July 3 would be improper because it would

create a fiction that father filed his appeal with the clerk's

office on a date before he actually did so. Cf. Holley v. City

of Newport News, 6 Va. App. 567, 569, 370 S.E.2d 320, 321 (1988).

It is axiomatic that no court can issue an injunction compelling

the performance of an unlawful act. Because the only mandatory

injunction that could restore father's right to appeal would

compel the chief judge to enter an unlawful nunc pro tunc order,
this remedy could not be utilized by father to obtain

postdeprivation relief for the loss of this right.

Furthermore, it was just as impractical for father to seek a

mandatory injunction after he discovered the closing of the

clerk's office at 2:00 p.m. on June 27 as it was for him to

petition for a writ of mandamus. Although a preliminary

injunction may be obtained through an ex parte proceeding, see

-18-
Cohen v. Rosen, 157 Va. 71, 75-76, 160 S.E. 36, 37 (1931)

(holding that the notice requirement of now-Code § 8.01-329 is

discretionary when necessary to prevent threatened and

irreparable damage), we cannot say that having a request for such

an injunction adjudicated by a circuit court and the court's

order executed before the 4:00 p.m. filing deadline passed was a

realistic probability. This theoretical predeprivation remedy

was not sufficiently practicable under the circumstances

presented to father so as to provide him with a meaningful

opportunity to prevent the termination of his appeal by the

unauthorized closing of the J&DR court clerk's office.
4.

Virginia Tort Claims Act

The Virginia Tort Claims Act ("Act") also fails to provide

father an adequate postdeprivation remedy for the loss of his

right to appeal the J&DR court's decision. Any claim brought by

father for the loss of his appeal would be excluded from recovery

under the Act because the early closing of the J&DR court on June

27 was the act of a court. See Code § 8.01-195.3(3) (expressly

excluding compensation of any claims "based upon an act or

omission of any court of the Commonwealth . . .").

Moreover, even assuming that father's claim was not excluded

from recovery, the sole remedy available to father under the Act,

a claim for "money," Code § 8.01-195.3, is not adequate to

compensate him for the nature of his loss -- his inability to

-19-
appeal a determination regarding which custody and support

arrangement is in the best interests of his children. Attempting

to redress the loss of this property interest through a suit for

monetary damages would be a lengthy and speculative process. Cf.

Logan v. Zimmerman Brush Co., 455 U.S. 422, 436-37, 102 S. Ct.

1148, 1158, 71 L.Ed.2d 265 (1982). Furthermore, because the

remedies available under the Act do not include reinstatement of

a deprived right to appeal, even a suit that successfully

established the Commonwealth's liability could not fully

vindicate father's interest in having the circuit court review

his claim that the J&DR court's decision was not in the best

interests of his children. Cf. id.

5.

Code § 1-13.3:1

Finally, father could not utilize the extension of filing

periods provided by Code § 1-13.3:1 for "authorized" closings of

clerks' offices.

Code § 1-13.3:1 extends the filing period for appeal bonds

by one day when the clerk's office is closed "as authorized by

statute" on the last day of the filing period. It states:
When the last day fixed by statute, or by
rule of the Supreme Court of Virginia for the
commencement of any proceeding, for any paper
to be served, delivered, or filed, or for any
other act to be done in the course of
judicial proceedings falls on a Saturday,
Sunday, legal holiday, or any day on which
the clerk's office is closed as authorized by
statute, the proceeding may be commenced, the
paper may be served, delivered or filed and

-20-
 the act may be done on the next day that is
not a Saturday, Sunday or legal holiday or
day on which the clerk's office is closed as
authorized by statute.

Code § 1-13.3:1 (emphasis added).

By its terms, the statute was not intended to remedy the

situation that confronted father on June 27. Code § 1-13.3:1

expressly states that it applies only when the closing of a

clerk's office is "authorized by statute." As previously

discussed, the early closing of the J&DR court clerk's office on

June 27 was unauthorized. The General Assembly intended to limit

the application of Code § 1-13.3:1 to authorized closings of

clerk's offices apparently because a litigant can reasonably

expect such a clerk's office to reopen on the next business day

in accordance with the law. Such an expectation does not exist

when the closing of a clerk's office on the last day of a filing

period is both unexpected and unauthorized. If Code § 1-13.3:1

applied to unauthorized closings of clerks' offices, a clerk's

office could string litigants along by closing early on

consecutive days and requiring those needing access to the office

to return day-after-day until they found the office open. As

long as a particular court paper was filed on the next day that

the offending clerk's office decided to operate in accordance

with the law, due process would be satisfied. The unambiguous

language of the statute indicates that the General Assembly did

not intend for Code § 1-13.3:1 to be utilized to promote such an

-21-
abuse of authority by those responsible for administering justice

in the Commonwealth.

III.

CONCLUSION

Because the early closing of the J&DR court clerk's office

on June 27 was an unauthorized governmental act that caused

father to lose his right to appeal and because Virginia law

currently provides no adequate postdeprivation remedy for the

loss of this constitutionally protected property interest,

father's right to appeal was deprived without due process of law.

As such, the circuit court erred when it overruled father's

exception, and we reverse its order dismissing his appeal.
Regarding the remedy in this case, the record indicates that

the appeal bond tendered by father on July 3 was in an

appropriate amount and that it was accepted by the J&DR court and

transferred to the circuit court. In light of these facts, we

remand this case to the circuit court with instructions to

proceed as if father timely satisfied the appeal bond requirement

of Code § 16.1-296(H).

Reversed and remanded.

-22-