§ 8.01-216.8.Certain actions barred; relief from employment discrimination; waiver of sovereign immunity.

Section 8.01-216.8 fences off several categories of qui tam suits. No court has jurisdiction over an action brought under the article by a person incarcerated in a state or local correctional facility. No court has jurisdiction over an action against a Commonwealth agency or political subdivision, a General Assembly member, a member of the judiciary, or an “exempt official” — a term covering the Governor, Lieutenant Governor, Attorney General, and the directors or members of state or local agencies — if the suit rests on evidence or information the Commonwealth already had when it was filed. A person also cannot bring an action based on allegations already the subject of a pending civil suit or administrative proceeding in which the Commonwealth is a party.

A separate public-disclosure bar requires the court to dismiss an action under § 8.01-216.5, unless the Commonwealth opposes dismissal, when substantially the same allegations were already publicly disclosed through a hearing involving the Commonwealth, a state legislative, administrative, or Auditor of Public Accounts report or investigation, or the news media. That bar does not apply if the Attorney General brings the action, or if the plaintiff qualifies as an “original source” — someone who voluntarily gave the Commonwealth the underlying information before the public disclosure, or whose independent knowledge materially adds to what was disclosed and who voluntarily shared that knowledge with the Commonwealth before suing. Apart from what the article otherwise allows, the Commonwealth is not liable for a plaintiff’s expenses in bringing the action.

The section closes with a retaliation remedy for employees, contractors, and agents who suffer discharge, demotion, suspension, threats, harassment, or other discrimination in their employment because of lawful acts taken to further an action under the article or to stop a violation of it. Relief includes reinstatement with the seniority the person would otherwise have had, twice the back pay owed, interest on that back pay, and compensation for special damages including litigation costs and reasonable attorney fees, reduced by anything already awarded through a state or local grievance process. The suit must be filed within three years of the discriminatory act, and this paragraph waives the Commonwealth’s sovereign immunity, creating a cause of action against the Commonwealth when it is the employer responsible for the retaliation.