The Supreme Court of Virginia releases two opinions today. In this one, it holds that sovereign immunity bars a group of Department of Corrections employees from suing the Commonwealth for unpaid overtime.
This case arose under a 2021 statute (which the plaintiffs call the Virginia Overtime Wage Act) that originally included both a right to recover unpaid overtime and an explicit waiver of sovereign immunity. However, when the General Assembly comprehensively revised the statute in 2022, it deleted the sovereign immunity waiver. The revised law took effect July 1, 2022. The employees filed suit to recover unpaid wages in August 2024—more than two years after the waiver had been repealed—but sought compensation for overtime that was owed during the original 2021–2022 period when the waiver was still in place.
The Commonwealth filed a plea of sovereign immunity, but the circuit court sided with the employees. It framed the issue as one of retroactivity and reasoned that the amended statute should not apply retroactively to conduct that occurred while the waiver was in effect.
But the Supreme Court disagreed. It held that the dispositive question was not retroactivity, but subject matter jurisdiction. Because sovereign immunity is a component of subject matter jurisdiction, and jurisdiction is determined at the time a suit is filed, the repealed waiver meant no jurisdiction existed when the employees brought their claim.
The Court also took the opportunity to clarify the relationship between sovereign immunity and subject matter jurisdiction more broadly. The Court acknowledged that sovereign immunity is a distinct facet of subject matter jurisdiction. Sovereign immunity operates as an affirmative defense with burden-of-proof requirements and cannot be used to collaterally attack final judgments, unlike other jurisdictional defects. Nevertheless, the core principle holds: if sovereign immunity applies, the court lacks jurisdiction, and the case must be dismissed. Because only the legislature can waive the Commonwealth’s immunity, and the General Assembly had repealed that waiver before suit was filed, the Court entered final judgment for the Commonwealth.
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