Virginia is changing who controls a case during an interlocutory appeal.
For five years, a Virginia circuit court kept concurrent jurisdiction during most interlocutory appeals. An order entered in July rewrites that rule, and on September 15 the appellate court takes exclusive control of the appealed order in five kinds of case. Three consequences for practicing attorneys.
By Helena Harper, Editorial Director
The change
On Friday, July 17, 2026, sitting at the Supreme Court Building in Richmond, the Supreme Court of Virginia entered an order amending five of its rules, effective September 15, 2026. The rules are 1:1C, 3A:25, 5:5, 5A:3 and 5A:31. They are not obviously related to one another. One governs which court holds a case while an interlocutory appeal is pending. Three govern when a paper mailed from inside an institution counts as filed on time. The last governs the mandate of the Court of Appeals.
The first of them is the one that will change how a civil case is managed. Rule 1:1C is titled Jurisdictional Transfer During Appeal of Interlocutory Orders, and until September 15 it answers the transfer question two different ways depending on the kind of appeal. After September 15 it answers it one way.
What the rule says now
Rule 1:1C was promulgated by an order entered November 23, 2020, effective March 1, 2021, in two lettered paragraphs. Paragraph (a) covers petitions for review filed under Code section 8.01-626, the route used to seek review of injunction rulings. Where that route is used, the appellate court has exclusive jurisdiction over the appealable interlocutory order, and the circuit court keeps jurisdiction over any part of the case that has not been appealed, unless one of the two courts stays the circuit court proceedings.
Paragraph (b) is the catch-all, and it points the other way. In any other appeal of an interlocutory order, the circuit court retains concurrent jurisdiction over the case unless the circuit court or the appellate court enters an order staying all or part of the proceedings below. Under the current rule, then, an interlocutory appeal outside the injunction route leaves both courts holding the case at once, and a party who wants that to stop has to go and ask for a stay.
What the rule will say
The amended Rule 1:1C drops the lettered structure and states a single proposition. When an appeal has been sought from an interlocutory order under Code sections 8.01-626, 8.01-670.2, 8.01-670.3, 17.1-405(A)(4) or 17.1-405(A)(5), the appellate court has exclusive jurisdiction over the appealable interlocutory order, and the circuit court retains jurisdiction over any part of the case that has not been appealed, unless the circuit court or the appellate court enters an order staying the proceedings in the circuit court.
The treatment that paragraph (a) reserved for injunction petitions is now the treatment for all five routes, and the concurrent jurisdiction sentence is gone. A second sentence supplies what the old rule did not have. Upon motion of a party for good cause shown, the appellate court may permit the circuit court to withdraw or modify the interlocutory order.
The five routes
The list of Code sections is the operative part, because coverage now turns on it rather than on a general description of interlocutory appeals. Section 8.01-626 supplies the petition for review procedure associated with injunction rulings. Section 8.01-670.2 allows immediate review of a pretrial order granting or denying a plea of sovereign, absolute or qualified immunity that would immunize the movant from having to take part in the proceeding, on a petition for review filed within 15 days and following the section 8.01-626 procedures. Section 8.01-670.3 governs review of an order closing a proceeding or sealing a record.
The two remaining routes come from the Court of Appeals jurisdiction statute. Section 17.1-405(A)(4) covers an interlocutory decree or order entered under section 8.01-267.8 or section 8.01-675.5. Section 17.1-405(A)(5) covers an interlocutory decree or order in a case involving an equitable claim that requires money to be paid or the possession or title of property to be changed, or that adjudicates the principles of a cause, subject to the exceptions in subsection B.
The filing rules, and a three day cushion
The other four amended rules are narrower and share a single sentence between them. Rule 3A:25 governs papers filed by an inmate in the trial courts in a post-conviction proceeding under Code section 8.01-654. Rule 5:5 governs filing deadlines in the Supreme Court of Virginia and Rule 5A:3 does the same in the Court of Appeals. Each contains a version of the prison mailbox rule: a paper is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing.
Each also lists three ways to establish that it was. The first is an official stamp of the institution showing the deposit date. The third is a notarized statement signed by an institution official showing the same thing. The second is a postmark, and the second is what the July order changes. Before the amendment the postmark had to be dated on or before the last day for filing, which meant that institutional mail moving slowly could defeat a filing that was handed over in time. As amended, the postmark method applies only if there is no official stamp of the institution, and it is satisfied by an official postmark dated no later than three business days after the last day for filing.
It is worth being precise about what this order did not do, because Rules 5:5 and 5A:3 were also amended recently. An order entered June 18, 2025, effective August 17, 2025, rewrote Rule 5:5(c) to make electronic filing the method of filing in the Supreme Court of Virginia, with the mail provisions preserved for parties exempt from e-filing under Rule 5:1B(b). That same 2025 order added the paragraph allowing a confined individual who never received the final order in time, because the lower tribunal mailed it to the wrong address or mailed it 30 days or more after entry, to move for an extension of the appellate filing deadline within 30 days of receiving the order. Both provisions predate the July 2026 order and are carried forward by it unchanged.
One further change is textual rather than procedural. In Rules 5:5 and 5A:3 the paragraph heading becomes Filings by Incarcerated Individuals, and Rule 5A:3 now describes an individual confined in an institution, including a prison, jail, or the Virginia Center for Behavioral Rehabilitation, matching the language Rule 5:5 already used. Rule 3A:25 keeps its existing terminology.
The mandate rule
Rule 5A:31 is the Court of Appeals mandate rule, and the amended version reads in two paragraphs. Under paragraph (a), when there can be no further proceedings in the Court of Appeals or in the Supreme Court with respect to a decision of the Court of Appeals, its clerk must forward the mandate promptly to the clerk of the court or commission from which the appeal proceeded. When the Court of Appeals disposes of an appeal through an order for which no separate mandate issues, its clerk will not return the record or transmit the order to the court or commission below until there can be no further proceedings in either court. Under paragraph (b), if the judgment or order is supported by an opinion, a certified copy of the opinion must accompany the mandate.
Three consequences for practicing attorneys
What changes, in practice, for lawyers with a case in a Virginia circuit court:
The default flips, and it flips by statute
The question is no longer whether a stay was entered. It is whether the appeal was taken under one of the five Code sections named in the amended rule. If it was, the circuit court is out of the appealed order from the moment review is sought, and keeps only the parts of the case nobody appealed.
Fixing an order now takes a motion upstairs
Where a trial judge might once have revisited a challenged interlocutory ruling while the appeal ran, the amended rule routes that through the appellate court: on motion of a party for good cause shown, it may permit the circuit court to withdraw or modify the order. The request goes to the court that has the order.
A postmark can now be late and still be timely
For a filing from a prison, jail, or the Virginia Center for Behavioral Rehabilitation, the postmark method becomes a fallback used only when the institution has no official stamp, and it works if dated within three business days after the deadline. That is a wider window than the rule allowed before.
The stay analysis does not disappear. Both the old rule and the new one let either court stay the circuit court proceedings, and the new rule still leaves the unappealed portions of the case below. What moves is the starting position. An appeal taken under one of the five listed sections no longer needs a stay to strip the circuit court of the appealed order, and a party who wants the trial court to be able to revisit that order has to ask the appellate court for permission rather than ask the trial judge for relief.
The September 15 date matters for the same reason effective dates usually matter in procedure. The amended rule speaks to when an appeal has been sought, so an interlocutory appeal already pending on that date runs into the new allocation of authority without anyone filing anything to bring it about.
Interlocutory appeals are unusual in that the case does not stop. Discovery continues, motions are heard, dates hold, and somewhere above the courthouse an appellate court is deciding whether one ruling in the middle of all that was right.
Virginia has been answering the resulting question, who may act on that ruling in the meantime, one way for injunctions and another way for everything else. From September 15 the answer is the same across five statutory routes, and the trial court's authority over the appealed order returns only if the appellate court says so.
Archivar
The Archivar Editorial Desk
Fact-checked against the authorities listed below. This article is for general informational purposes and is not legal advice.
Sources: Supreme Court of Virginia, order entered July 17, 2026 amending Rules 1:1C, 3A:25, 5:5, 5A:3 and 5A:31, effective September 15, 2026 (Virginia Court System, Amendments to Rules of the Supreme Court of Virginia); Supreme Court of Virginia, order entered November 23, 2020, effective March 1, 2021, promulgating Rule 1:1C; Supreme Court of Virginia, order entered June 18, 2025, effective August 17, 2025, amending Rules 3:8, 4:7, 5:5, 5:30, 5:38, 5A:3, 5A:23 and 5A:36; Supreme Court of Virginia, interlineated text of Rule 3A:25 as last amended by order dated July 2, 2019, effective September 1, 2019; Code of Virginia sections 8.01-626, 8.01-654, 8.01-670.2, 8.01-670.3, 8.01-675.5 and 17.1-405 (Virginia Law Portal).
