United States: Virginia Supreme Court Rules Sovereign Immunity Bars Private USERRA Claims Against State Employers in State Court

The Supreme Court of Virginia, in Clark v. Virginia Department of State Police, No. 151857 (Dec. 1. 2016), recently ruled that the doctrine of sovereign immunity barred a private plaintiff's claim under the Uniformed Services Employment and Reemployment Rights Act ("USERRA") against the Virginia Department of State Police ("VSP"), an arm of the Commonwealth. The Clark decision has made clear that service members working for the Commonwealth of Virginia as the employer cannot bring a lawsuit alleging a violation of USERRA. This decision, however, does not impact the ability of the federal government to bring suit against a state for USERRA violations on behalf of an individual or a private plaintiff's ability to sue a private employer under USERRA.

Background on USERRA

USERRA is a federal law that establishes rights and responsibilities for uniformed service members and their civilian employers when federal military service is involved. Specifically, USERRA ensures that persons who serve or have served in the uniformed services (as defined by USERRA): (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service. USERRA creates a private right of action on behalf of an individual enforceable against a state (as an employer) in its own courts. The statute, in a section titled "Enforcement of rights with respect to a State or private employer," expressly provides that actions against state employers may be brought in a state court of competent jurisdiction. 38 U.S.C. § 4323(b)(2).

The Case Before the Court

The plaintiff in this case filed a USERRA claim against his employer, the VSP, alleging he was denied a promotion because of his service in the United States Army Reserves. In response, the VSP asserted a plea of sovereign immunity. VSP argued that, as an agent of the Commonwealth, it could not be sued on a federal right of action in state court absent the state's waiver of sovereign immunity. Ultimately, the trial court granted the plea of sovereign immunity and dismissed the plaintiff's USERRA claim. He appealed, and the United States appeared as amicus urging the court to hold that the Commonwealth's sovereign immunity had been lawfully abrogated by 38 U.S.C. § 4323(b)(2).

On appeal, the Supreme Court of Virginia affirmed the trial court's holding. The court noted that the doctrine of state sovereign immunity is a "mainstay of federalism principles," and that federalism presupposes that states "yield their sovereign power only in those aspects of governance exclusively assigned to the federal government by the United States Constitution." The court cited Alden v. Maine, 527 U.S. 706, 715 (1999) for the proposition that "States retain a 'residuary and inviolable sovereignty' that precludes them from being 'relegated to the role of mere provinces or political corporations' of a consolidated national government." In Alden, a group of probation officers filed suit in Maine state court alleging that their employer, the State of Maine, violated overtime pay provisions of the Fair Labor Standards Act. The FLSA, like USERRA, authorizes private actions against states. The Court held that Congress could not subject a state to suit in state court without its consent, explaining that "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject non-consenting States to private suits for damages in state courts." Indeed, the Court noted that the Constitution may not have been adopted "if it had been understood to strip the States of immunity from suit in their own courts and cede to the Federal Government a power to subject non-consenting States to private suits in these fora."

Relying on an exception to the sovereign immunity rule discussed in another United States Supreme court case, Central Virginia Community College v. Katz, 546 U.S. 356 (2006), Clark argued that USERRA should be treated as an exception to the Alden sovereign immunity rule. The Supreme Court of Virginia disagreed, ruling that the Katz exception is applicable only to claims arising within a federal bankruptcy court's jurisdiction over a bankruptcy estate, and does not apply to plaintiff's state court claim for personal damages.

Implications for Virginia State Employers

As a result of the Clark decision, in Virginia, a person cannot bring a USERRA claim against the Commonwealth (as an employer), unless the Commonwealth waives its immunity. However, upon a complaint submitted to the Secretary of Labor, the United States can investigate a state employer's alleged violation of USERRA and file a lawsuit against the Commonwealth (as an employer) in federal court on the individual's behalf. Although Clark negates the application of USERRA to the Commonwealth of Virginia as an employer when suit is brought by a private individual, Article 10 of the Military Laws of Virginia provide certain rights for leaves of absence for employees of the Commonwealth and political subdivisions. See Va. Code §§ 44-93, et seq. And, as previously noted, the decision does not impact USERRA lawsuits against private sector employers.

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