Date: Feb 22, 2026

Time-of-Filing Rule for Sovereign Immunity After Repeal of a Statutory Waiver

Introduction

In Commonwealth v. Mattocks (Va. Feb. 19, 2026), a group of Department of Corrections employees sued the Commonwealth of Virginia (and the Department of Corrections) seeking unpaid overtime under a statute enacted in 2021 that initially included an express waiver of sovereign immunity. In 2022, the General Assembly comprehensively amended and reenacted the statute, deleting the waiver language.

The employees filed suit in August 2024—after the waiver had been repealed—but sought overtime allegedly earned between July 1, 2021 and June 30, 2022 (i.e., during the period when the earlier version contained a waiver). The Commonwealth raised a plea of sovereign immunity. The circuit court denied the plea, reasoning in retroactivity terms: because the underlying conduct occurred while the waiver existed, the 2022 deletion should not be applied “retroactively” to bar the claim. The Supreme Court of Virginia granted an interlocutory appeal under Code §§ 8.01-626 and 8.01-670.2 and reversed.

Summary of the Opinion

The Court held that sovereign immunity barred the action because subject matter jurisdiction (including sovereign immunity) is determined at the time the lawsuit is filed. Since the employees filed their complaint after July 1, 2022—when the General Assembly’s repeal of the waiver was in effect—the circuit court lacked jurisdiction to adjudicate the claim. The Court rejected the circuit court’s retroactivity framing, distinguishing retroactive application of substantive statutes from the threshold jurisdictional question of whether the Commonwealth has consented to be sued at the time suit is brought.

Analysis

New Principle / Clarification Announced

The decision clarifies Virginia doctrine by explaining that sovereign immunity is a facet of subject matter jurisdiction, but not identical to the court’s power to hear a “class of cases.” Most importantly, the Court applies a time-of-filing rule:

Where the General Assembly has repealed a statutory waiver of the Commonwealth’s sovereign immunity, a suit filed after the repeal is barred—even if the underlying events occurred during the earlier period when the waiver existed— because subject matter jurisdiction is determined when the litigation is filed.

Precedents Cited (and How They Shaped the Decision)

1) Sovereign immunity as jurisdictional and reviewable de novo

Lee v. City of Norfolk, 281 Va. 423, 439 (2011) (quoting City of Chesapeake v. Cunningham, 268 Va. 624, 633 (2004)): establishes the standard of review—sovereign immunity presents a legal question reviewed de novo. This framing enabled the Court to treat the circuit court’s denial of the plea as a purely legal error.
Board of Public Works v. Gannt, 76 Va. 455, 461 (1882): supplies the classical statement of the sovereign-immunity baseline—no suit against the State without consent—supporting the Court’s insistence that waiver must be explicit and current.
Afzall v. Commonwealth, 273 Va. 226, 230 (2007): provides the key proposition that if sovereign immunity applies, “the court is without subject matter jurisdiction.” The Court uses Afzall as the anchor for treating the case as a jurisdictional/time-of-filing inquiry rather than a retroactivity question.
The Court also notes that other courts have characterized sovereign immunity as subject-matter-jurisdictional, citing: Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015); Iowa Tribe v. Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010); State v. Fed. Defender Program, Inc., 882 S.E.2d 257, 281 (Ga. 2022); Burke v. Bd. of Trs. of the Neb. State Colls., 924 N.W.2d 304, 310 (Neb. 2019); and Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528, 530 (Tex. 2012). These citations strengthen the Court’s doctrinal legitimacy while it refines Virginia’s own taxonomy.

2) What “subject matter jurisdiction” means—and how sovereign immunity fits (but differs)

Hannah v. Commonwealth, 303 Va. 106, 123 (2024) (quoting Pure Presbyterian Church of Wash. v. Grace of God Presbyterian Church, 296 Va. 42, 49 (2018)): defines subject matter jurisdiction as the court’s “power to adjudicate a case,” providing a general conceptual framework for the Court’s later distinction between jurisdiction types.
Cilwa v. Commonwealth, 298 Va. 259, 266 (2019): supplies the common usage of subject matter jurisdiction as power to adjudicate a “class of cases,” which the Court uses to explain why sovereign immunity is related to, but not the same as, “class-of-cases” authority.
Andrews v. Richmond Redev. & Hous. Auth., 292 Va. 79, 84 (2016): shows that challenges to statutory jurisdiction (a court’s authority to hear a particular category of appeal) can be raised for the first time on appeal. The Court pairs this with sovereign immunity’s similar procedural treatment to demonstrate overlap between doctrines.
Williams v. Williams, 61 Va. App. 170, 184 (2012): cited for the proposition that when subject matter jurisdiction is absent, dismissal is required—paralleling the sovereign immunity outcome.

3) Sovereign immunity’s “affirmative defense” features and limits on collateral attack

Patterson v. City of Danville, 301 Va. 181, 196 n.8 (2022); Lewis v. Kei, 281 Va. 715, 721 n.1 (2011); and Heider v. Clemons, 241 Va. 143, 144 (1991): support the Court’s observation that Virginia repeatedly treats sovereign immunity as an affirmative defense.
Gambrell v. City of Norfolk, 267 Va. 353, 357 (2004): used to emphasize that when factual disputes exist, the party asserting sovereign immunity bears the burden—another feature that distinguishes sovereign immunity from classic “power to hear the class of cases” jurisdictional defects.
Bonanno v. Quinn, 299 Va. 722, 736-38 (2021): contrasts true “class-of-cases” jurisdictional defects, which can render a judgment vulnerable to collateral attack, with sovereign immunity, which the Court notes has not been treated as a basis to set aside final judgments if not timely raised. This contrast is central to the Court’s nuanced clarification: sovereign immunity is “part of” subject matter jurisdiction, but it does not behave identically to every other jurisdictional doctrine.

4) The decisive time-of-filing rule

E.C. v. Virginia Dep't of Juv. Just., 283 Va. 522, 527-28 (2012): supplies the general rule that subject matter jurisdiction is determined at filing and continues through the litigation once established. The Court applies this proposition directly: at filing in 2024, there was no waiver in effect.
Seabolt v. County of Albemarle, 283 Va. 717, 722 (2012) (citing Afzall v. Commonwealth, 273 Va. at 230): provides a strong formulation: absent a legislative waiver, the circuit court has no jurisdiction to adjudicate the claim and “had no jurisdiction to decide the case on any other basis.” This supports reversal and entry of final judgment rather than remand for alternative merits reasoning.

5) Retroactivity cases acknowledged—but held inapposite

Doe v. Green, 304 Va. 536, 546 (2025) (quoting City of Charlottesville v. Payne, 299 Va. 515, 528 (2021) and Town of Culpeper v. Virginia Elec. & Power Co., 215 Va. 189, 194 (1974)): provides the familiar presumption against retroactivity absent clear legislative intent. The Court accepts this general principle but explains it does not control where the issue is the court’s jurisdiction to entertain a suit against the sovereign at the time it is filed.

6) Legislative supremacy over waiver and repeal

Commonwealth v. Luzik, 259 Va. 198, 206 (2000): states that only the legislature can abrogate the Commonwealth’s sovereign immunity. This principle drives the Court’s holding that the 2022 repeal controls: the judiciary cannot preserve a waived forum once the General Assembly has withdrawn consent, unless another valid waiver applies.

Legal Reasoning

Identify the controlling legal nature of the question. Because sovereign immunity is jurisdictional in the sense that it deprives courts of authority to adjudicate claims against the Commonwealth without consent, the Court treats the plea as a threshold bar, not as an ordinary merits dispute.
Clarify “subject matter jurisdiction” taxonomy. The Court distinguishes (a) “class-of-cases” jurisdiction (e.g., statutory grants to particular courts) from (b) sovereign immunity, which is conceptually related and treated as part of subject matter jurisdiction, but also bears traits of an affirmative defense (burden of proof on the proponent; not typically a basis for collateral attack on final judgments).
Apply the time-of-filing rule. Under E.C. v. Virginia Dep't of Juv. Just., jurisdiction is determined when the action is filed. In August 2024, the 2022 version of the overtime statute was in effect and did not waive immunity. Therefore, the circuit court lacked jurisdiction.
Reject retroactivity as a category error. The employees’ argument focused on whether applying the 2022 repeal to 2021–2022 conduct would be retroactive. The Court reasons that this misunderstands the issue: regardless of when the alleged overtime was earned, the decisive question is whether the Commonwealth has consented to be sued now, i.e., when the case was filed.
Enforce legislative control over consent to suit. Relying on Commonwealth v. Luzik, the Court emphasizes the General Assembly’s authority to waive, retain, or repeal waivers of immunity—and the judiciary’s obligation to apply that choice as of the suit’s filing.

Impact

Practical consequences for claims relying on repealed waivers. Plaintiffs cannot file after a waiver is repealed and argue that earlier conduct “vested” a right to sue the Commonwealth in court. Unless another statute independently waives immunity (or the Commonwealth consents), the courthouse door is closed even for pre-repeal events.
Greater doctrinal clarity for trial courts. Trial courts are directed to treat sovereign immunity as a jurisdictional threshold governed by the law in effect at filing, and not to convert immunity disputes into retroactivity analyses where the waiver has been withdrawn.
Legislative drafting and transitional provisions become decisive. If the General Assembly intends to preserve suits for pre-repeal conduct, it must do so expressly—e.g., by including a savings clause, a claims-processing mechanism, or a continued consent-to-suit window. Absent such language, Mattocks signals that repeal governs new filings.
Strategic timing for litigants. For claims against the Commonwealth dependent on a statutory waiver, the filing date is critical. Delay past the effective date of repeal risks total dismissal for lack of jurisdiction.

Complex Concepts Simplified

Sovereign immunity: A default rule that the Commonwealth cannot be sued in its own courts unless it has clearly agreed (usually by statute). Without consent, courts must dismiss.
Waiver of sovereign immunity: A statute (or other authorized act) in which the General Assembly permits lawsuits against the Commonwealth under specified conditions. In this case, the original overtime law included explicit language stating it “constitutes a waiver of sovereign immunity,” but that language was later deleted.
Subject matter jurisdiction: The court’s legal authority to hear a case. The Court explains that sovereign immunity is part of this concept because it determines whether the court may adjudicate a claim against the Commonwealth at all.
“Class of cases” jurisdiction vs. sovereign immunity: “Class of cases” jurisdiction asks whether a court type (e.g., circuit court, general district court) is empowered to hear a category of disputes. Sovereign immunity asks whether the defendant sovereign has consented to be sued. Related in effect (both can require dismissal), but they function differently in procedure and collateral-attack consequences.
Retroactivity: Whether a new statute is being applied to past events. The Court holds that retroactivity principles do not govern when the issue is whether the Commonwealth has consented to suit at the time the complaint is filed.
Plea in bar / plea of sovereign immunity: A procedural device raising a legal bar that defeats the claim without reaching the merits. Here, sovereign immunity—if applicable—removes the court’s authority to proceed.

Conclusion

Commonwealth v. Mattocks establishes a clear, filing-date-centered rule for suits against the Commonwealth when a statutory waiver has been repealed: courts look to the law in effect when the lawsuit is filed, not the timing of the underlying conduct. The decision also usefully refines Virginia’s conceptual framework by explaining how sovereign immunity is “part of” subject matter jurisdiction while still exhibiting affirmative-defense characteristics. The broader significance is a strong reaffirmation of legislative primacy: only the General Assembly can open—and close—the Commonwealth to suit, and litigants must comply with the waiver that exists at filing or face dismissal for lack of jurisdiction.