717 S.E.2d 413
Va. Ct. App.2011Background
- Board adopted a Scrapie regulation; final adoption occurred after a 30-day final adoption period.
- Final regulation was published August 18, 2008 and had an effective date October 3, 2008.
- Kathryn Russell served a notice of appeal October 30, 2008 and filed a Petition for Appeal in circuit court.
- Russell died and Wayne Russell was substituted as administrator of her estate.
- Circuit court granted Board’s motion to dismiss for failure to timely file under Rule 2A:2(a).
- Court of Appeals affirmed, holding the 30-day appeal period had expired and circuit court lacked jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does Rule 2A:2(a) begin the 30-day period? | Russell contends the 30 days run from final adoption after Governor’s review, i.e., October 3, 2008. | Board argues the 30 days start after publication and final adoption, i.e., September 17, 2008 or when the regulation becomes effective. | Untimely notice; final adoption deadline not satisfied; circuit court lacked jurisdiction. |
Key Cases Cited
- Ghameshlouy v. Commonwealth, 279 Va. 379 (2010) (strict enforcement of notice-of-appeal timeframes)
- Morrison v. Bestler, 239 Va. 166 (1990) (timeliness as an issue distinct from subject-matter jurisdiction)
- Nelson v. Warden of Keen Mt. Corr. Ctr., 262 Va. 276 (2001) (timeliness not jurisdictional where waivable)
- Bd. of Supervisors v. Bd. of Zoning Appeals, 271 Va. 336 (2006) (timeliness can be waived if not raised timely)
- Avery v. County School Bd., 192 Va. 329 (1951) (right to know when litigation ends; policy for timely filing)