Practice Note - Follow Statutory Provisions under the State Tort Claims Act

           Sovereign immunity does not invalidate a claim, it only makes the defendant immune from suit and the relief to which the immunity applies.  Further, government actors, in their individual and official capacities, are not protected by sovereign immunity for intentional torts or for actions committed outside of the scope of their employment. 

"[T]he doctrine of sovereign immunity is 'alive and well' in Virginia ." Niese v. City of Alexandria, 264 Va. 230, 238, 564 S.E.2d 127, 132 (2002) (quoting Messina v. Burden, 228 Va. 301, 307, 321 S.E.2d 657, 660 (1984)). "Sovereign immunity is a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities." City of Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000)  

City of Chesapeake v. Cunningham  604 S.E.2d 420, 426 (2004).

 Notwithstanding the Virginia Supreme Court has not backed off of its clarifying decision in Fox v. Deese, 234 Va. 412, 423-24, 362 S.E.2d 699 (1987).  There the Virginia Supreme Court reversed the decision of the trial court to grant defendants sovereign immunity from the tort claims, explaining “The tort counts not only allege that these defendants committed intentional torts, but that they were acting outside the scope of their employment as well. Resolution of these allegations requires an evidentiary hearing. (In Neise, the plaintiff sued the City of Alexandria only, which asserted sovereign immunity.)  The defendants are not immune if the evidence establishes that (1) they committed intentional torts, irrespective of whether they acted within or without the scope of their employment, Elder v. Holland, 208 Va. 15, 19, 155 S.E.2d 369, 372_73 (1967), or (2) they acted outside the scope of their employment, see Messina v. Burden, 228 Va. 301, 311, 321 S.E.2d 657, 662 (1984).”

Additionally, sovereign immunity has never been applied to contract claims.  The notion that sovereign immunity applies to contract claims has been specifically rejected by Virginia 's Supreme Court on several occasions. In Wiecking v. Allied Medical Supply, 239 Va. 548, 391 S.E.2d 258 (1990), the Court said:

The doctrine of sovereign immunity is "alive and well" in Virginia , as a defense to actions in tort ... but we have never extended that defense to actions based upon valid contracts entered into by duly authorized agents of the government.... [T]he enactment of tort-claims legislation leaves unimpaired the existing remedies against the government for breaches of contract, even for contracts implied in fact which contain elements of a tort.  

239 Va. at 551-52. See also Bell Atlantic-Virginia v. Arlington County , 254 Va. 60, 62, 486 S.E.2d 297 (1997); Jenkins v. County of Shenandoah, 246 Va. 467, 470, 436 S.E.2d 607 (1993).  As was said by Justice Russell in County of York v. King's Villa, 226 Va. 447, 309 S.E.2d 332 (1983)(dissenting), "[t]here is no doctrine of sovereign immunity in the law of contracts; a governing body is as accountable for breach of a valid contract as any other party would be." 226 Va. at 554.   See Goff v. J. Sargeant Reynolds Community College  2004 WL 2093444, *1 ( Va. Cir. Ct. ) ( Va. Cir. Ct. ,2004)

Defendants are not immune from suit based upon sovereign immunity for the equitable relief of declaratory judgment and injunctive relief.  But See contra, Hinchey v. Ogden, 226 Va. 234, 307 S.E.2d 891 (1983).

      An action is not against the state for purposes of sovereign immunity when it seeks to restrain action or compel state officials to perform their duties.  See Pennsylvania Academy of Chiropractic Physicians v. Com., Dept of State, Bureau of Professional & Occupational Affairs, 129 Pa. Commw. 12, 564 A.2d 551 (1989)(defense of sovereign immunity inapplicable where petitioner sought declaration which would result in restraining state officials from revoking or suspending licenses of chiropractors who use term “chiropractic physicians”), Franks v. Tucker, 132 Ill. App. 3d 455, 476 N.E.2d 1315 (1^st Dist. 1985)(where suit brought against state officials seeks to compel them to perform their duty, it is not action against state).