FOURTH ANNOUNCES SIGNIFICANT LIMITATIONS RULING
(Posted August 1, 2023) A panel of the Fourth Circuit has announced an important ruling involving Virginia’s statute-of-limitations tolling provision. The case is Massey v. Virginia Tech, and comes from the Western District of Virginia.
The plaintiff was a long-time employee of the university. He alleged in his suit that the school had laid him off in 2019 as a pretext; he contended that the real reason was his taking ten days’ leave to recover from surgery. He first sued in state court within a year after the school notified him of the personnel action, claiming a violation of the federal Rehabilitation Act.
Six months later, the employee nonsuited his case; he refiled, this time in federal court, eleven days later. The school moved to dismiss, arguing that the suit was time-barred.
The employee pointed to the plain language of the tolling statute, Code §8.01-229. It says right there that his filing the first suit – the one in state court – tolls the running of the statute and gives him six months after the nonsuit to refile.
He’s right; it does say that. But the school had a different tack: It asserted that it enjoys the Commonwealth’s absolute sovereign immunity from being sued in state court. The Supreme Court of Virginia has described sovereign immunity as a jurisdictional defense – our courts don’t have jurisdiction to adjudicate claims against Aunt Virginia unless the Commonwealth has waived the immunity. Because Virginia has never waived its immunity from Rehabilitation Act claims brought here, that means that the state court didn’t have jurisdiction, even if a federal court would have.
That, in turn, could be case-dispositive because of this cite in the Fourth’s opinion: “The commencement of an action in a clearly inappropriate forum, a court that clearly lacks jurisdiction, will not toll the statute of limitations.” If the school is right, then the state court didn’t have jurisdiction to enter the nonsuit order; all it could do was enter an order dismissing the original case for lack of jurisdiction. And the absence of any tolling means that the employee’s federal suit came too late.
That line of argument convinced the district judge, who dismissed the suit. On appeal, a Fourth Circuit panel unanimously disagrees, vacating the judgment and remanding the case for further proceedings. In doing so, it separates two components of subject-matter jurisdiction, that fire-breathing dragon that cannot be waived.
The first component is potential jurisdiction – the power to adjudicate claims of a particular class. The court today finds that the state court did possess the power to adjudicate this kind of claim, as it sounded either in tort or contract. The second component is active jurisdiction, “the power to adjudicate a particular case upon the merits.”
The Fourth Circuit rules that even if the immunity deprived the state court of active jurisdiction, that court still had potential jurisdiction, which includes, for one ironic example, the power to ascertain whether it has jurisdiction. In exercising potential jurisdiction, a court may enter ancillary orders and issue rulings that stop short of “adjudicating a particular case upon the merits.” Because a nonsuit is one such ancillary matter – nonsuits aren’t judgments on the merits – the Virginia tolling statute protects the employee here.
Senior Judge Traxler writes today’s opinion, joined fully by Judges Wynn and Richardson.