### I N THE 

### I NTERMEDIATE 

### C OURT OF 

### A PPEALS OF 

### W EST 

### V IRGINIA
Spring 2024 Term

_____________________ No s. 23

- ICA

- 127 & 23

- ICA

- 135

_____________________ BRIAN CUNNINGHAM, in his capacity as Director of the Public Employees Insurance Agency and MARK D. SCOTT, GEOFF S. CHRISTIAN, AMANDA D. MEADOWS, JARED ROBERTSON, DAMITA JOHNSON, JASON MYERS, MICHAEL COOK, WILLIAM MILAM, and MICHAEL T. SMITH, in their capacities as Members of the

Public Employees Insurance Agency Finance Board,

Respondents Below, Petitioners

v. ) No. 23

- ICA

- 127 AIR EVAC EMS, INC., Petitioner Below, Respondent

_____________________

AND

_____________________
AIR EVAC EMS, INC., Petitioner Below, Petitioner

v. ) No. 23

- ICA

- 135 BRIAN CUNNINGHAM, in his capacity as Director of the Public Employees Insurance Agency and MARK D. SCOTT, GEOFF S. CHRISTIAN, AMANDA D. MEADOWS, JARED ROBERTSON, DAMITA JOHNSON, JASON MYERS, MICHAEL COOK, WILLIAM MILAM, and MICHAEL T. SMITH, in their capac ities as Members of the

Public Employees Insurance Agency Finance Board , Respondents Below, Respondents 

### FILED June 13, 2024
released at 3:00 p.m. ASHLEY N. DEEM , DEPUTY CLERK INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA___________________________________________________________
Appeal from the Circuit Court of Kanawha County Honorable Carrie L. Webster , Judge Civil Action No. 19

- AA

- 169
REVERSED AND REMANDED

_________________________________________________________

Submitted: February 6, 2024 Filed: June 13 , 2024
Michael R. Williams , Esq. Deputy Solicitor General Sean M. Whelan , Esq. Deputy Attorney General Charleston, West Virginia Counsel for Petitioner s Carte P. Goodwin, Esq. Alex J. Zurb uch, Esq. Mary Claire Davis, Esq. F ROST B ROWN T ODD LLP Charleston, West Virginia Counsel for Respondent

JUDGE LORENSEN delivered the Opinion of the Court. CHIEF JUDGE SCARR dissents and reserves the right to file a separate opinion. JUDGE GREEAR voluntarily recused. JUDGE R OBERT E. R YAN sitting by temporary assignment

.1

LORENSEN , JUDGE :

This consolidated matter arises from Air Evac EMS, Inc. ’s (“Air Evac”)
attempt s to collect additional payment for providing air ambulance transports to individuals insured by the West Virginia Public Employees Insurance Agency (“PEIA ”) 1 over three

years. 2 Both parties appeal the December 16, 2022 , order of the Circuit Court of Kanawha County , which h e ld that : (1) PEIA is not entitled to sovereign immunity against Air Evac’s
claims ; (2) the payment dispute between Air Evac and PEIA was subject to the
Adminis trative Procedures Act (“APA”) and Contested Case Rules (“CCR”) ; ( 3 ) pursuant to the CCR, Air Evac is entitled to a contested hearing on the merits of its demand for additional payments from PEIA ; and ( 4 ) on remand, PEIA and Air Evac were ordered to negotiate a fair price before pursuing further administrative proceedings , concluding it was improper to set reimbursement at either the Medicare Rural Rate or Air Evac’s “ full billed ” charges.

On review, we hold that the circuit court erred in concluding that sovereign immunity did not bar Air Evac’s claim for damages against PEIA

. Therefore, we reverse
the circuit court’s December 16, 2022, Final Order Granting, in Part and Denying, in Part

1 Since the filing of this consolidated appeal, Brian Cunningham was appointed as Director of the Public Employees Insurance Agency. Accordingly, by order dated February 1, 2024, this Court made the necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure.

2 The transports at issue occurred b etween June 9, 2016, and June 4, 2019

.2

Air Evac EMS, Inc.’s Petiti on for Appeal and remand this matter to be dismiss ed with prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

This action follows extensive federal litigation that resulted in PEIA’s air ambulance reimbursement rate caps being found to be preempted by federal law. 3 As
relevant context , we provide a brief overview of the federal litigation. On June 9, 2016, Air
Evac initiated a n action in the United States District Court for the Southern District of West Virginia, seeking a declaratory judgment that PEI A’s reimbursement rate cap s 4 were preempted by the federal Airline Deregulation Act (“ADA”)

. See Cheatham II , 2017 WL 4765966, at * 1 , 10

. The rate cap provisions limited PEIA’s reimbursement rates for air ambulance providers to either the Medicare R ural R ate or the annual cost of an air ambulance provider’s membership program

— both being rate s below Air Evac’s “ full

billed ” charges. See id. at *1

. At summary judgment, the district court found that th e ADA preempted the provisions, and enjoined PEIA from enforcing th e reimbursement caps
. Id.

3 See Air Evac EMS, Inc. v. Cheatham ( Cheatham I ) , 260 F. Supp. 3d 628, 633 (S.D.W. Va. 2017) ; Air Evac EMS, Inc. v. Cheatham ( Cheatham II ) , No. 2:16

- cv
- 05224, 2017 WL 4765966, at *1 (S.D.W. Va. Oct. 20, 2017), aff'd , 910 F.3d 751 (4th Cir. 2018) ; Air Evac EMS, Inc. v. Cheatham ( Cheatham III ) , 910 F.3d 751, 759 (4th Cir. 2018 ); see also W. Va. Code § § 5

- 16

- 8a(a)

– (b) (2016) (amended 2019) , 5

- 1 6

- 5(c) (1) (2007) (amended 2023)

.

4 See W. Va. Code §§ 5

- 16

- 8a(a)

– (b) (2016) (amended 2019), 5

- 16

- 5(c)(1) (2007) (amended 2023).3 During PEIA’s appeal of the district court’s decision, Air Evac sent written demands to PEIA, asserting that , in light of the injunction, PEIA was now obligated to pay
its “ full billed ” charges for air transports it had provided since initiating the f ederal litigation. PEIA refused, arguing that it was not mandated to “unquestionably pay whatever amount Air Evac unilaterally establishes as its charge” and maintaining that it had
discretion to negotiate

. Instead, PEIA offered to pay a portion of Air Evac’s billed charges
at the Medicare Ru r al R ate, which Air Evac accepted , considering it partial compensation

. 5

Before the United States Court of Appeals for the Fourth Circuit , the district

court ’s decision was affirmed in full , and the Fourth Circuit agree d that PEIA’s rate capping provisions were preempted by the ADA

. See Cheatham III , 910 F.3d 751, 755

. Once the Fourth Circuit had issued its ruling, a second exchange of demands and refusals began

. Over the summer of 2019, the parties continued to dispute w hether PEIA had an obligation to further compensate Air Evac

. Eventually, the parties reached an impasse, and
on October 24 , 2019, Air Evac demanded a contested case hearing before the PEIA Board regarding the disputed charges

. In response, on November 13, 2019, PEIA declined to
schedule a hearing, asserting that Air Evac’s demand was exempt from APA procedures,
and therefore not subject to the CCR

. 6

5 PEIA paid $754,988.00 of Air Evac’s $4,773,034.00 “ full billed ” charges.

6 See W. Va. Code R. §§ 151

- 1

- 1 et seq

.4 Construing PEIA’s response as a summary denial, on December 13, 2019,
Air Evac appealed PEIA’s decis ion to the Circuit Court of Kanawha County

. There , Air Evac sought a declaration that it was entitled to a contested hearing under the APA , and
further , sought the circuit court to order PEIA to pay the remaining balance of $4,018,04 6
for the 115 transports it provided to PEIA members between June 9, 2016, and June 4,
2019

. In support, Air Evac claimed that, in light of the federal injunction modifying the
reimbursement statutes , 7 severability principles now mandate d PEIA to pay Air Evac’s

“ full billed ” charges

. Further , Air Evac contended that PEIA’s refusal to budge from the
Medicare Rural R ate

— the same rate PEIA would have previously paid under the now

enjoined rate caps

— amount ed to ignoring the federal injunction.

In response , PEIA , citing its ow n regulations, maintained that the APA was inapplicable because this matter constituted a provider payment dispute , and as such , it was exempt from APA procedure s
. 8 Further, addressing severability, PEIA contended that the remaining statutory language would not amount to a mandate for PEIA to pay whatever price Air Evac demanded

. PEIA also raised an issue of its own challeng ing the circuit court’s jurisdiction by invoking sovereign immunity as a defense.

7 See Cheatham III , 910 F.3d 751, 759 ; see also W. Va. Code §§ 5

- 16

- 8a(a)

– (b) (2016) (amended 2019), 5

- 16

- 5(c)(1) (2007) (amended 2023).

8 See W. Va. Code R. §§ 151

- 1

- 1 et seq

.5 On December 16, 2022, the circuit court issued its Final Order Granting, in Part and Denying, in Part Air Evac EMS, Inc.’s Petition for Appeal

. The circuit court
concluded that PEIA was not entitled to sovereign immunity , as Air Evac was seeking recovery from legislatively appropriated funds

. Specifically, the funds sought were , in part, appropriated to PEIA for the purpose of satisfying payments like the medical transports at
issue , placing Air Evac’s claim within an exception to PEIA’s sovereign immunity. Further, the circuit court determin ed that this matter was subject to APA procedures and
PEIA’s Contested Case Rules

. Regarding the disputed payments, the circuit court reasoned
that PEIA’s decision to reimburse Air Evac at the Medicar e Rural R ate failed to comply
with the Fourth Circuit’s mandate in Cheatham III ; however, the circuit court also rejected Air Evac’s assertions that it was entitled to payment of its “ fully billed ” cha rge s
. Instead,
the circuit court ordered the parties to engage in good faith negotiations regarding the disputed charges , and if no resolution materialized, for further proceedings pursuant to the
APA and CCR

. 9 It is from this order both parties appeal.

9 The circuit court also rejec ted PEIA ’s conten tion that , pursuant to its authority under West Virginia Code § 5

- 16

- 3(c) ( 201 3 ) , it had retroactively lifted the ban on balance

billing for the transports in question , which would permit Air Evac to recover any un paid balance from PEIA members.6 II. STANDARD OF REVIEW When reviewing a question of sovereign immunity, o ur standard of review 10
is as follows : [The Supreme Court of Appeals of West Virginia ] has held that

“[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Further, “[a]s jurisdictional issues are questions of law, our review is de novo.” Holley v. Feagley , 242 W. Va. 240, 242, 834 S.E.2d 536, 538 (2019) (footnotes omitted) (first quoting Syl. Pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995) ; and then quoting State ex rel. Universal Underwriters Ins. Co. v. Wilso n , 239 W. Va. 338, 343, 801 S.E.2d 216, 221 (2017))

.

III. DISCUS SION At the outset, we address our jurisdiction. O ur jurisdiction stems from the
circuit court ’s denial of PEIA’s sovereign immunity defense

. W e consider the circuit
court’s order to be a n appealable order on the issue of sovereign immunity :

“ [ A ] circuit court's denial of a motion to dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the ‘collateral order’ doc trine. ” Likewise, w hen the issue relates to sovereign immunity, it is well

- settled that “ the denial of a substantial

10 The parties dispute whether this matter is properly subject to judicial review as a contested case pursuant to the Administrative Procedures Act. In such cases, a specific statutory standard of review is to be applied. S ee W. Va. Code § 29A

- 5

- 4(g) (2021)

. However, because we dispose of this case on sovereign immunity grounds, we decline to apply the standards of review applicable to the other assignments of error raised by the parties.7 claim of absolute immunity is an order appealable before final judgment[.] ” W. Virginia Lottery v. A

- 1 Amusement, Inc. , 240 W. Va. 89, 94 , 807 S.E.2d 760, 765 (2017) (second alteration in original) ( first quoting W. Virginia Bd. of Educ. v. Marple , 236 W. Va. 654, 660, 783 S.E.2d 75, 81 (2015) ; and then quoting Mitchell v. Forsyth , 472 U.S

. 511, 525 (1985)). 11 With our jurisdiction to review the circuit court’s order established, we proceed to consider the principles of our sovereign immunity jurisprudence.

A. Sovereign Immunity

The State’s sovereign immunity against suit is enshrined within Article VI, § 35 ( “ Section 35 ” ) of the West Virginia Constitution , which provides that: “The state of West Virginia shall never be made defendant in any court of law or equity . . . .” Accordingly, if applicable, sovereign immunity deprives a court of jurisdiction to hear the

11 See W. Va. Code § 51

- 11

- 4 (b) (1) (granting the Intermediate Court of Appeals jurisdiction over “[f]inal judgments or orders of a circuit court in all civil cases

. . . entered after June 30, 2022 . . .”)

.8

ca se. 12 This immunity is “facially absolute [,] ” 13 unwaivable, 14 and extends to agencies of
the State. 15 The underlying purpose of s overeign immunity is “designed to protect the public purse” 16 from the “ diversion of state money from legislatively appropriate d purposes to the payment of court awards [.] ” 17

12 See W. Va. Const. art. VI, § 35; Arnold Agency v. W. Virginia Lottery Comm'n , 206 W. Va. 583, 593, 526 S.E.2d 814, 824 (1999) ; Skaff v. Pridemore , 200 W. Va. 700, 704

– 05 , 490 S.E.2d 787, 791

– 92 (1997) (per curiam); Parkulo v. W. Virginia Bd. of Prob. & Parole , 199 W. Va. 161, 167, 483 S.E.2d 507, 513 (1996)

.

13 Davari v. W. Virginia Univ. Bd. of Governors , 245 W. Va. 95, 99, 857 S.E.2d 435, 439 (2021) ; see also Gribben v. Kirk , 195 W. Va. 488, 493, 466 S.E.2d 147, 152 (1995) (citations omitted) (“the constitutional grounding of the State's immunity is not judicially revocable ” ); Mellon

- Stuart Co. v. Hall , 178 W. Va. 291, 296, 359 S.E.2d 124, 129 (1987) (“This constitutional grant of immunity is absolute and, as we have consistently held, cannot be waived by the legislature or any other instrumentality of the State.”).

14 See U niv. of W. Virginia Bd. of Trustees ex rel. W. Virginia Univ. v. Graf , 205 W. Va. 118, 121, 516 S.E.2d 741, 744 (1998 ); Skaff v. Pridemore , 200 W. Va. 700, 70 5

– 0 6, 490 S.E.2d 787, 79 2

– 9 3 (1997) (per curiam) (“ [ I ] t is clear that ‘ the constitutional immunity of the State of West Virginia from suit by Article VI, Section 35 of the Constitution of this State can not be waived by the Legislature or any other instrumentality of the State. ’ ” ) (quoting Morgantown v. Ducker , 153 W. Va. 121, 13 0, 168 S.E.2d 298, 303 (1969) )

.

15 See Syl. Pt. 7, Shaffer v. Stanley , 215 W. Va. 58, 593 S.E.2d 629 (2003) (quoting Syl. Pt. 2, Stewart v. State Road Comm ’n , 117 W. Va. 352, 185 S.E. 567 (1936)) ; Parkulo v. W. Virginia Bd. of Prob. & Parole , 199 W. Va. 1 61, 168, 483 S.E.2d 507, 514 (1996) )

.

16 Pittsburgh Elevator Co. v. W. Virginia Bd. of Regents , 172 W. Va. 743, 756, 310 S.E.2d 675, 689 (1983).

17 Kerns v. Bucklew , 178 W. Va. 68, 72, 357 S.E.2d 750, 754 (1987) ; see also Mellon

- Stuart Co. v. Hall , 178 W. Va. 291, 296, 359 S.E.2d 124, 129 (1987)

.9 Nevertheless, West Virginia law has recognized exceptions to this immunity. 18 In applying these exceptions, specific focus is placed on the nature of the relief

18 In Univ. of W. Virginia Bd. of Trustees ex rel

. W. Virginia Univ . v. Graf , 205 W. Va. 118, 122

– 23, 516 S.E.2d 741, 745

– 46 (1998) , the Supreme Court of Appeals of West Virginia highlighted many such exceptions:

These exceptio ns include injunctions to restrain or require State officers to perform ministerial duties, C & O R'y Co. v. Miller, Auditor, 19 W.Va. 408 (1882), aff'd, 114 U.S. 176, 5 S.Ct. 813, 29 L.Ed. 121 (1885); suits against State officers acting or threatening to act, under allegedly unconstitutional statutes, Blue Jacket Consol. Copper. v. Scherr, 50 W.Va. 533, 40 S.E. 514 (1901); recognition of a moral obligation by the State, State ex rel. Davis Trust Co. v. Sims, 130 W.Va. 623, 46 S.E.2d 90 (1947); counterclaim s growing out of transactions wherein the State institutes actions at law against a citizen, State v. Ruthbell Coal Co., 133 W.Va. 319, 56 S.E.2d 549 (1949); suits for declaratory judgment, Douglass v. Koontz, 137 W.Va. 345, 71 S.E.2d 319 (1952); mandamus relief to require the State Road Commission to institute proper condemnation proceedings upon the taking or damaging of land for public purposes, Stewart v. State Road Commission of West Virginia, 117 W.Va. 352, 185 S.E. 567 (1936); suits alleging liabilit y arising from the State's performance of proprietary functions, Ward v. County Court of Raleigh County, 141 W.Va. 730, 93 S.E.2d 44 (1956); suits against quasi

- public corporations which have no taxing power or dependency upon the State for financial suppo rt, Hope Natural Gas v. West Virginia Turn. Com'n, 143 W.Va. 913, 105 S.E.2d 630 (1958); mandamus relief to compel State officers, who have acted arbitrarily, capriciously or outside the law, to perform their lawful duties, State ex rel. Ritchie v. Triplet t, 160 W.Va. 599, 236 S.E.2d 474 (1977); suits in which constitutional immunity is superseded by federal law, Kerns v. Bucklew, 178 W.Va. 68, 357 S.E.2d 750 (1987); suits that seek recovery under and up to the limits of the State's liability insurance cove rage, Pittsburgh Elevator v. W.Va. Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983); and suits by state employees seeking an award of back wages which is10

sought

. Accordingly, “w here monetary relief is sought against the State treasury for which a proper legislative appropriation has not been made, sovereign immunity raises a bar to
suit. ” Davari v. W. Virginia Univ. Bd. of Governors , 245 W. Va. 95, 102, 857 S.E.2d 435, 442 (2021) (cit ing Mellon

- Stuart Co. v. Hall , 178 W. Va. 291, 296, 359 S.E.2d 124, 129 (1987) ). Further, a distinction is drawn between requests for prospectiv e and retroactive
relief. “‘ [ T ] he sovereign immunity doctrine is implicated when retroactive money relief against the State is sought, but does not operate to bar an award which is prospective in

nature

. ’” Univ. of W. Virginia Bd. of Trustees ex rel. W. Virginia Univ. v. Graf , 205 W. Va. 118, 121, 516 S.E.2d 741, 744 (1998) (quoting Skaff v. Pridemore , 200 W. Va. 700 , 706, 490 S.E.2d 787, 793 (1997) (per curiam)).

Mindful of these principles , we consider the parties’ arguments regarding the application of sovereign immunity to this matter.

B. A pplication of Law

In No. 23

- ICA

- 127, PEIA argues that the circuit court erred in declining to recognize its sovereign immunity. PEIA contends that the circuit court ’s reliance on
Mellon

- Stuart Co. v. Hall 19 creates a new , unrecognized, general “legislative appropriation” exception to sovereign immunity

. Further, the circuit court violated a

prospective in nature, Gribben v. Kirk, 195 W.Va. 488, 466 S.E.2d 147 (1995).

19 178 W. Va. 291, 296 , 359 S.E.2d 124, 1 29 (1987)

.11

second sovereign immunity principl e by not recognizing that Air Evac impermissibly seek s retroactive monetary relief

— payment for its past transports

— from the State in an
administrative action and associated lawsuit filed in circuit court in late 2019

. Conversely,
Air Evac maintains that sovereign immunity is inapplicable for three reasons: (1) PEIA is
not named as a “defendant” in this action within the meaning of Section 35 to trigger immunity ; (2) p ursuant to the circuit co urt’s reading of Mellon

- Stuart , Air Evac only seek s recovery from funds that have been legislatively appropriated for the purpose of compensating health care providers for their services ; and (3) even if sovereign immunity
is otherwise applicable, Air Evac ’s demand falls within the prospective relief exception to immunity because it only requests payment for transports made after the filing of the
federal Cheatham litigation

. 20

20 Simultaneously, in No. 23

- ICA

- 135, Air Evac asserts a cross

- assignment of error, arguing that, instead of ordering the parties to negotiate a mutually agreed reimbursement rate and undergo further administrative proceedings, the circuit court should have determined that it was entitled to reimbursement of its “ full billed ” charges. While we recognize the other assignments of error raised in this consolidated appeal, because s overeign immunity prese nts a jurisdictional bar to the underlying claim, we decline to consider further issues

. See W. Va. Const. art. VI, § 35; Arnold Agency v. W. Virginia Lottery Comm'n , 206 W. Va. 583, 593, 526 S.E.2d 814, 824 (1999) ; Skaff v. Pridemore , 200 W. Va. 700, 704

– 05 , 490 S.E.2d 787, 791

– 92 (1997) (per curiam); Parkulo v. W. Virginia Bd. of Prob. & Parole , 199 W. Va. 161, 167, 483 S.E.2d 507, 513 (1996 ).

“ As the circuit court's lack of jurisdiction over this matter is dispositive, we need not address . . . [the] remaining assignments of error. ” Holley v. Feagley , 242 W. Va. 240, 245, 834 S.E.2d 536, 541 (2019)

.12 We must f

irst consider if this matter triggers Section 35 immunity. 21 Air Evac does not dispute that PEIA , as a state agency, constitute s “the S tate” for the purposes of sovereign immunity ; instead, it argues that PEIA is not a “defendant” within the meaning
of Section 35. 22 We find this argument unpersuasive

.

We begin by acknowledg ing that certain suits do not trigger the sovereign immunity of the Stat e :

[C] ourts will entertain actions against State officials through the common law writs of mandamus, prohibition, and habeas corpus or through the courts' equitable powers to issue injunctions. In such cases, the “State” is not a defendant; rather, a State official i s sued (usually in his or her official capacity) to require performance of a nondiscretionary duty of constitutional or statutory origin or to cease engaging in a course of conduct that violates some constitutional or statutory duty.
Gribben v. Kirk , 195 W. Va. 488, 493, 466 S.E.2d 147, 152 (1995)

. Ultimately, the core
consideration is whether the true party in interest is the State :

The Supreme Court of the United States has discussed that “when the action is in essence one for recovery of money from

21 See W. Va. Const. art. VI, § 35 ( “ The state of West Virginia shall never be made defendant in any court of law or equity . . . .” ).

22 I t appears that t his argument was not raised before the circuit court . Normally, we would decline to consider a new argument raised for the first time on appeal ; however, as this argument pertains to a n unwaivable jurisdictional issue, we will consider it. See Argus Energy, LLC v. Marenko , 248 W. Va. 98, 104, 887 S.E.2d 223, 229 (2023) (“ In cases dealing with . . . jurisdiction , the rule against raising a new issue or argument [on appeal]

— premised as it is on principles of waiver

— does not apply

. . . ”) ; Lewis v. Municipality of Mason town , 241 W. Va. 166, 170, 820 S.E.2d 612, 616 (2018).13 the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” In that same vein, the Supreme Court of the United States has determined th at when a claim seeks recovery of funds from the state treasury as retroactive relief, the state retains sovereign immunity unless some other exception applies

. W. Virginia Lottery v. A

- 1 Amusement, Inc. , 240 W. Va. 89, 103

– 04, 807 S.E.2d 760, 774

– 75 (2017) (footnotes omitted) (citations omitted). Here, we observe that the named defending parties are PEIA’s director and members of its Finance Board , sued in their official capacities. It follows then, that “when the action is in essence one for recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit .” Id. at 103, 807 S.E.2d at 774 (2017)

.

Air Evac seeks to di stinguish this matter from a typical claim for money damages

. It highlights that , under its severability theory, PEIA’s obligation to pay its “ full
billed ” charges arises from the simple operation of PEIA ’s r eimbursement statutes, less the language preempted by federal law. 23 We also recognize that Air Evac did not seek money damages alone

— it also sought recognition that the APA and CCR controlled its dispute
with PEIA. However, at bottom, Air Evac cannot esca pe nor deny what it seeks

— a directive requiring the State to pay Air Evac the money it contends it is owed . Air Evac concedes this point in it s prayer for relief before the circuit court :

Accordingly, Air Evac respectfully requests that this Court expeditiously affirm the validity the contested case hearing

23 See Cheatham III , 910 F.3d 751, 759; see also W. Va. Code §§ 5

- 16

- 8a(a)

– (b) (2016) (amended 2019), 5

- 16

- 5(c)(1) (2007) (amended 2023).14 procedures of W. Va. Code R. § 151

- 1

- 3, et seq., and . . . grant a final order: (1) ordering that, under West Virginia law, Air Evac is entitled to payment of its billed charges on the disputed t ransports; and (2) ordering that, under West Virginia law, Respondents must promptly issue full payment on these transports. 24
A ir Evac concedes the same in its briefing before this Court:

For the foregoing reasons, this Court should reverse the Circuit Court’s decision that Air Evac is not entitled to full payment for air ambulance transports from June 9, 2016, to June 4, 2019, and remand with instructions to order PEIA to fully reimburse Air Evac for these charges. 25 As the Supreme Court of Appeals of West Virginia has explained : “O ur cases reflect a desire to ensure the proper performance of official duties, and so long as compliance with a judicial decree does not require the expenditure of money , no potential for conflict with Section 35 is triggered

. ” W. Virginia Lottery v. A

- 1 Amusement, Inc. , 240 W. Va. 89, 102, 807 S.E.2d 760, 773 (2017) (emphasis added) (quoting Gribben v. Kirk , 195 W. Va. 488, 494, 466 S.E.2d 147, 153 (1995) )

. Accordingly , we conclude that Air Evac ’s claim seeks

mone y recovery from a State defendant . As result , Section 35 immunity is triggered. 26

24 No. 23

- ICA

- 127, A.R. 20 ( Petition for Appeal ).

25 No. 23

- ICA

- 135, Pet’r’s. Br. 23.

26 As to any distinction between PEIA’s posture as a “defendant” or “respondent” in this matter, we find it immaterial. We note, in passing, that as a component of this argument, Air Evac asserts that judicial review of administrative matters do es not implicate sovereign immunity at all. According to Air Evac, three cases stand for that proposition

. See Curry v. W. Virginia Consol. Pub. Ret. Bd. , 236 W. Va. 188, 778 S.E.2d 637 (2015) ; Charleston Area Me d. Ctr., Inc. v. State Tax Dep't of W

. Virginia , 224 W. Va. 591, 687 S.E.2d 374 (2009) (per curiam) ;15 We move on to consider whether any recognized exception to sovereign immunity is applicable. First, we address whether Air Evac seeks prospective or retroactive
relief. “The crucial date for drawing a line between prospective and retroactive relief
should be the initiation of the relevant

. . . action and not the date of judgment.” Syl. Pt. 1, Skaff v. Pridemore , 200 W. Va. 700, 490 S.E.2d 787 (1997) (citation omitted)

. F urther,

“ where the relief sought involves an attempt to obtain a retroactive monetary recovery against the official based on his prior acts and which recovery is payable from State funds, the constitutional immunity provision bars such relief.” Id. at Syl. Pt. 2 (citation omitted)

.

Maupin v. Sidiropolis , 215 W. Va. 492, 493, 600 S.E.2d 204, 205 (2004) (per curiam). Air Evac highlights that each case is an administrative matter involv ing a payment dispute with the State. Air Evac reasons that because the Supreme Court of Appeals of W est Virginia heard these matters, sovereign immunity is no obstacle here. However, none of these cases ever addressed the applicability of sovereign immunity , let alone proclaimed administrative matters categorically exempt from sovereign immunit y . Air Evac asks this Court for a profound h olding based upon little authority. Here, w e find Kanawha C ounty Pub lic Library Board v. B oard of Education of County of Kanawha , 231 W. Va. 386, 396, 745 S.E.2d 424, 434 (2013) instructive :

While this Court has noted its authority to sua sponte determine jurisdictional issues, including standing, it does not follow that an issue neither asserted by the parties nor addressed in this Court's opinions is binding upon it. This Court, like many others including the United States Supreme Court, adheres to the well

- settled premise that “the exercise of jurisdiction in a case is not precedent for the existence of jurisdicti on.” Acknowledging the constitutional gravity of sovereign immunity , we decline to hold what the Supreme Court of Appeals of West Virginia has not.16 The parties dispute whether October 24 , 2019

— the date Air Evac initiated
its request for a contested hearing regarding its payment demand

— draws the line for prospective relief. From our re view of the record, t his demand is the first time that Air Evac formally sought payment as relief. 27 In Skaff v. Pridemore , 200 W. Va. 700, 70 5

- 6, 490 S.E.2d 787, 79 2

- 3 (1997) (per curiam) , the Supreme Court of Appeals of West Virginia
addressed the line

- drawing challenges inherent to the prospective relief exception to sovereign immunity , which we find instructive:

Although this is not a mandamus action but rather an appeal from an order of the circuit court, the principles upon which Gribben was based are the same

. . . Applying the Gribben standard to these circumstances, we believe that the initiation of the appellees' Level IV grievance board complaint on August 16, 1991 is the crucial date, and conclude that pay awarded from that date is prospective and not barred by sovereign immunity.

. . . [Accordingly,] the circuit court erred in making the award retroactive to O ctober 16, 1989, inasmuch as the commencement date of the award should be August 16, 1991.
Id. 200 W. Va. at 703, 490 S.E.2d at 790 (discussing Gribben v. Kirk , 195 W. Va. 488, 490, 466 S.E.2d 147, 149 (1995) )

. In Skaff , rather tha n considering the original grievance
as the point of “initiation,” the Supreme Court of Appeals of West Virginia considered the filing that produced the original decision appealed from

— in that case a Level IV grievance board complaint

— to denote the “ initiation of the relevan t action.” Id. Turning to the case at hand, the matter on appeal before this Court originated from Air Evac’s October 24 , 2019, demand letter. The transports Air Evac seeks payment for occurred between June 9,

27 See No. 23

- ICA

- 127, A.R. 68 (Demand for Contested Hearing); 147

– 48 ( Cheatham Complaint).17

2016, and June 4, 2019

. B ecause all transports predate the initiation of this matter , we conclude the relief sought is retroactive, not prospective ; therefore, this exception to sovereign immunity does not apply.

Air Evac ’s final argume nt s upports the circuit court’s order, s eek ing to offer a separate exception to sovereign immunity. Relying on Mellon

- Stuart Co. v. Hall , 1 78 W. Va. 291, 296 , 359 S.E.2d 124, 129 (1987) , the circuit court found that the monetary relief sought by Air Evac stemmed from legislatively appropriated funds which, by virtue of being assigned to PEIA by the Legislature , were purposefully intended to be dis bursed to providers like Air Evac for their charges. R eferenc ing various cas es, 28 the circuit court
reasoned that : Sovereign immunity is inapplicable where the Legislature

itself creates a program, appoints an agency to administer it, and requires the agency to make payment out of funds appropriated for that purpose. Seeking payment under such a scheme, as Air Evac has done here, simply does not implicate "the policy which underlies sovereign immunity," which "is to prevent the diversion of State monies from legislatively appropriated purposes." Mellon

- Stuart Co. v. Hall , 178 W. Va. 291, 296 (1987). 29

28 In reaching this conclusion, the circuit court relied on three cases

. See Curry v. W. Virginia Consol. Pub. Ret. Bd. , 236 W. Va. 188, 778 S.E.2d 637 (2015) ; Charleston Area Med. Ctr., Inc. v. State Tax Dep't of W Virginia , 224 W. Va. 591, 687 S.E.2d 374 (2009) (per curiam) ; Maupin v. Sidiropolis , 215 W. Va. 492, 493, 600 S.E.2d 204, 205 (2004) (per curiam ). Similarly to Air Evac’s argument addressed above , we find the circuit court misapprehended the value of these cases in concluding that an exception to sovereign immunity w as applicable here . For a discussion of these cases, see supra note 26

.

29 No. 23

- ICA

- 127, A.R. 604 (Order).18

The core principl e from Mellon

- Stuart underpinning the circuit court’s reasoning is an
often cited one:

Broadly stated, the policy which underlies sovereign immunity is to prevent the diversion of State monies from legislatively appropriated purposes. Thus, where monetary relief is sought against the State treasury for which a proper legislative appropriation has not been made, sovereign immunity raises a bar to suit.
Id. at 296, 359 S.E.2d at 129. The circuit court misapplies Mellon

- Stuart

. There, plaintiffs sought compensation from a state agency for completed construction work and initiated a proceeding before the court of claims

. 30 See id

. at 295

– 96 , 359 S.E.2d at 128

– 29

. The court
of claims issued a decision recommend ing plaintiffs be awarded their requested payment ;
h owever, the Legislature declined to appropriate any money to compensate those claims

. Id

. Before the Supreme Court of Appeals of West Virginia , plaintiffs requested that the agency be forced to pay its recommended claims from the agency’s budget

. Id

. The Court rejected th is argument , declin ing to carve out a new exception in this context

. I nstead, the
Court returned to the Pittsburgh Elevator exception 31 as the only possible avenue for plaintiff’s recovery , reaffirm ing th e general prohibition barring any monetary recovery that
would directly draw from State funds.

Our central holding in Pittsburgh Elevator was that an action putatively against a State agency, which seeks recovery only from the agency's liability insurance, is not barred by sovereign

30 The Court of Claims has been renamed the West Virginia Legislative Claims Commission. See W. Va. Code § 14

- 2

- 4 (2017).

31 Pittsburgh Elevator Co. v. W

. Virginia Bd. of Regents , 17 2 W. Va. 743 , 310 S.E.2d 675 (1983) (claims within the State ’s insurance coverage and limits are not barred by sovereign immunity).19 immunity

. . . consistent with the policy underlying sovereign immunity, since the availability of insurance proceeds assures that any damages recovered would not be paid out of State coffers

. Mellon

- Stuart Co. v. Hall , 178 W. Va. 291, 296, 359 S.E.2d 124, 129 (1987) ( emphasis added)

.

The factual context of Mellon

- Stuart informs our understanding of

“ l egislative a ppropriat ion

. ” There, while plaintif fs received a favorable recommendation
from the court of claims , the Legislature declined to make a specific appropriation to
authorize compensat ion to the vendor ; had the Legisla ture acted to approve the vendor’s
claim , sovereign immunity would have fallen away. 32 In light of the Legislature’s rejection of a specific appropriation through the court of claims process , plaintiffs attempted an end

run around the need for legislative approval

. I nstead, relying on the court of claims’ recommendation, plaintiffs aimed to reach directly into the agency’s budget , requesting monetary relief

. As above, t his triggers the underlying rationale for sovereign immunity to
bar such claims

— the “ diversion of state money from legislatively appropriated purposes to the payment of court awards

. ” 33

32 See State ex rel. McLaughlin v. W. Va. Ct. of Claims , 209 W. Va. 412, 415, 549 S.E.2d 286, 289 (2001) (noting that only the Legislature can authorize the payment of Commission claims that are otherwise subject to our state's sove reign immunity).

33 Kerns v. Bucklew , 178 W. Va. 68, 72, 357 S.E.2d 750, 754 (1987) ; see also Mellon

- Stuart Co. v. Hall , 178 W. Va. 291, 296, 359 S.E.2d 124, 129 (1987)

.20 It follows then, that the “legislative appropriation” discussed in Mellon

Stuart is akin to a legislative award of a specific sum to a specific entity, directly enacted by the Legislature

. Therefore, returning to the case at hand, we conclude that the Legi slature’s general act of assigning basic budget appropriations to a state insurance

agency that has been delegated with discretionary powers in administering th ose fund s , does not amount to a “legislative appropriation” of the kind entertained in Mellon

- Stuart
which could pierce the State’s sovereign immunity against claims for monetary relief

.

Ultimately, w e fail to identify the foundation for the circuit court’s cited exception to PEIA’s sovereign immunity. I n Mellon

- Stuart , arguments to expan d the recognized exceptions to sovereign immunity were rejected ; and in doing so, t he Supreme Court of Appeals of W est Virginia respected the broad grant of immunity afforded to the
State by the West Virginia Constitution

. We do the same

.

IV. CON CLUSION For the above reasons, we conclude that the circuit court erred in refusing to recognize PEIA ’s sover eign immunit y. Accordingly, we reverse the circuit court’s December 16, 2022, Final Order Granting, in Part and Denying, in Part Air Evac EMS,
Inc.’s Petit ion for Appeal and remand this matter to be dismissed with prejudice.

Reversed and Remanded.