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 
 -2- 

$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 
 -3- 

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. 

 

 1Father'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 
 -4- 

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). 
 -5- 

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 

 

 2Under 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." 
 -6- 

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

office, provided they are within the range set forth by the 
 -7- 

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 

 

 3The 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. 
 -8- 

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. 
 -9- 

 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 
 -10- 

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 
 -11- 

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' 
 -12- 

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 
 -13- 

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 
 -14- 

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 
 -15- 

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 
 -16- 

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
 -17- 

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 
 -18- 

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
 -19- 

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 
 -20- 

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 
 -21- 

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 
 -22- 

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.