If you have ever litigated an appeal to the Court of Appeals of Virginia, you may have seen a letter from the Court like this:
This letter is designed to give the Appellant an opportunity to rectify or address procedural and technical deficiencies in the Appellant’s opening brief. But it presents some choices and challenges for the Appellant, the Appellee, and the appellate bar at large.
Appellants Should Promptly Heed the Court’s Warnings
When receiving a letter like this, there is a natural human instinct—procrastination. Resist the temptation.
Virginia state courts recently moved to permitting appeals of right from Virginia circuit courts to the Court of Appeals of Virginia. That does not mean your case is immune from appellate procedural violations. In fact, the Court of Appeals usually gives this warning in the letter: “Failure to comply may result in dismissal of this appeal.” Don’t risk dismissal of a meritorious appeal on a procedural violation. “Appeals of right,” as a general concept, won’t save you.
More importantly, in some instances, the appellate procedural rules in the Rules of the Supreme Court of Virginia are, or can be, jurisdictional. While the Court may have some discretion to ignore technical deficiencies like failing to put assignments of error in a “separate heading” (see Va. Sup. Ct. R. 5A:20), other defects may tie the Court’s jurisdictional hands altogether. An Appellant should address such an important issue promptly.
More broadly, the Court does not have to issue letters like this—it is doing you a favor because it wants appellate practice to be accessible to the public. Because many of these deficiencies are discretionary with the Court, buy yourself some credibility and grace by filing your amended opening brief early, and don’t risk having to file a motion for extension on the amended deadline day, even if for a legitimate reason.
Appellees Have Options
An Appellee may think that a letter like the above is an issue between the Appellant and the Court exclusively. That is not the case.
These letters usually contain a sentence stating that the letter “does not affect the filing periods in Rule 5A:19.” This is important: the Appellee must still comply with all applicable deadlines, including a brief in response within 30 days of the Appellant’s original opening brief. This can cause some confusion because that deadline may arrive before the Court’s new deadline for the Appellant to file an amended opening brief. How can an Appellee respond to something before its filed?
There are several ways to address this. The first is to not worry. The letter usually directs the Appellant to correct “only the deficiencies noted” in the letter. In other words, the Appellant cannot re-draft and edit their argument from their original opening brief. The Appellee therefore can rely on the original opening brief to draft their response, as any new argument in the amended opening brief would be improper. Thus, file the Appellee’s brief within 30 days of the original brief and direct your arguments thereto.
The second option is to file for an extension. If you think the letter’s new amended opening brief deadline presents a unique problem with your appeal, file a concise motion for extension pointing out that problem and asking for a deadline to respond after the amended opening brief deadline. For instance, the original opening brief may have violated Rule 5A:20(d) by failing to have proper factual citations. The appellant may have stated a fact that you can’t find. An extension would therefore be appropriate because you want to see where such fact exists in the record as indicated by the amended opening brief.
The third option is to file a motion to dismiss. As noted above, some errors are jurisdictional. There may be a ground to dismiss the appeal altogether because of the Appellant’s procedural deficiency. Don’t rely on the Court to find that issue—it has an extensive caseload and its letter isn’t an official adjudication of such procedural issues.
The Appellate Bar Should Take Note: Are these Letters Ignoring Mandatory Grounds for Dismissal?
Lastly, these letters present a legal issue going forward for appellate litigators: when is a procedural error a discretionary ground to dismiss an appeal versus a mandatory one?
For instance, the Court of Appeals may send a letter stating that the Appellant’s opening brief violates Rule 5A:20 by failing to include assignments of error. The remainder of the letter may give the Appellant an opportunity to amend this deficiency by filing an amended opening brief with those assignments of error.
The opportunity to amend and add an assignment of error, however, appears inconsistent with prior case law and the Rules of the Supreme Court. The failure to include assignments of error “is a jurisdictional defect that [can]not be corrected by a subsequent amendment.” Commonwealth v. Stanley, No. 0962-19-3, 2019 WL 5876449, at *9 (Va. Ct. App. Nov. 12, 2019) (unpublished opinion) (emphasis added) (citing Davis v. Commonwealth, 282 Va. 339, 339 (2011)). By rule, such an error means the appeal “will be dismissed.” Rule 5A:20(c)(1) (emphasis added).
So, if a brief fails to contain any assignments of error, doesn’t that mean the appeal must be dismissed? Is the opportunity to amend pointless if there is a mandatory ground for dismissal? While these arguments can be made on brief or in a motion to dismiss, it remains unclear for the appellate bar whether these Court letters change some of the standards for appellate procedure going forward.
