David R. Smith v. Tennessee National Guard

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 27, 2012 Session

DAVID R. SMITH v. TENNESSEE NATIONAL GUARD

Appeal from the Circuit Court for Davidson County

No. 11C3080 Thomas W. Brothers, Judge

No. M2012-00160-COA-R3-CV - Filed August 8, 2012

Plaintiff was a full-time employee of the Tennessee National Guard until 2002 when he

commenced active duty service in the Active Guard and Reserve. Near the completion of his

active duty service in the Active Guard and Reserve, Plaintiff asked the Tennessee National

Guard to rehire him pursuant to the Uniformed Service Employment and Reemployment

Rights Act of 1994 (USERRA). When the Tennessee National Guard refused, Plaintiff filed

this action alleging it violated USERRA. The Tennessee National Guard responded to the

complaint by filing a Tenn. R. Civ. P. 12.02(6) motion to dismiss for lack of subject matter

jurisdiction based upon sovereign immunity from USERRA claims. The trial court granted

the motion to dismiss based on the doctrine of sovereign immunity. Because the Tennessee

General Assembly has not passed legislation to expressly waive its sovereign immunity from

claims based on USERRA, as other states have done, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which A NDY D. B ENNETT,

J., and J EFFREY S. B IVINS, S P. J., joined.

Phillip L. Davidson, Nashville, Tennessee, for the appellant, David R. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Kevin G. Steiling, Deputy Attorney General; and Michael K. Markham, Assistant Attorney

General, for the appellee, Tennessee National Guard.

OPINION

This appeal arises from the grant of a Tennessee Rule of Civil Procedure 12.02(6)

motion to dismiss for lack of subject matter jurisdiction. The standards by which Tennessee

courts are to assess a Rule 12.02(6) motion to dismiss are well established. As our Supreme

Court stated in Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426

(Tenn. Jul. 21, 2011), “[a] Rule 12.02(6) motion challenges only the legal sufficiency of the

complaint, not the strength of the plaintiff’s proof or evidence.” Id. “The resolution of a

12.02(6) motion to dismiss is determined by an examination of the pleadings alone.” Id. By

filing a motion to dismiss the defendant “‘admits the truth of all of the relevant and material

allegations contained in the complaint, but . . . asserts that the allegations fail to establish a

cause of action.’” Id. (citing Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn.

2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn.

2005))).

The only pleading filed in this action is the Complaint filed by Lieutenant Colonel

David R. Smith (“Plaintiff”), and we quote below the relevant portions of his Complaint:

C OMPLAINT

Comes the Plaintiff complaining of the Defendant [the Tennessee

National Guard] and would show unto the Court:

1. Jurisdiction. This Court has jurisdiction to hear this case pursuant to

Title 38 U.S.C. § 4323 (a)(3)(A)(b)(2) in that this is a case brought

under the authority of Title 38 U.S.C. § 4311 et seq., the Uniformed

Service employment and Reemployment Rights Act of 1994

(USERRA), a Federal Law.

2. Parties.

2.1 Plaintiff. The Plaintiff, David R. Smith (LTG Smith), is a resident and

citizen of the State of Tennessee. At all times mentioned in this

complaint he was a member of the Tennessee Air National Guard

(TNANG) with the rank of Lieutenant-Colonel.

2.2 Defendant. The Defendant, Tennessee National Guard (TNNG), is an

entity of the sovereign State of Tennessee.

3. Facts. LTC Smith has been a member of the TNNG since 1993. On

February 1, 2002, LTC Smith was hired as a member of the Active

Guard and Reserve (AGR). An AGR employee is a full-time employee

where employment is governed by Title 32 U.S.C. § 502 (f) et seq.

Guard members serving under the provisions of Title 10 are placed in

the State of Temporary Duty (TDY).

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3.2 In March of 2011 as his TDY was nearing an end, LTC Smith notified

the TNNG that he desired to resume his fulltime position in the AGR

Program. In April of 2011, TNNG informed LTC Smith that he no

longer had a position in the AGR despite the fact that positions had

been and were available. And, upon his return from TDY in June of

2011 he, in fact, was not rehired by the TNNG in an AGR position.

3.4 LTC Smith was well qualified for return to the AGR, had in the past

performed his job exceptionally, and had merited attendance at the

Naval War College, something only the top percent of National Guard

officers are selected to do.

4. USERRA Violation. TNNG violated Title 38 U.S.C.§4311 et seq. by

denying LTC Smith reemployment once he was released from TDY

based on his membership in the AGR and his obligation as such to

perform service in the uniformed service.

5. Damages. As a direct and proximate result of the illegal actions of

TNNG heretofore set forth in this Complaint, LTC Smith has lost

employment, wages and benefits.

....

The defendant, the Tennessee National Guard, responded to the Complaint by filing

a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for lack of subject matter

jurisdiction based upon sovereign immunity from USERRA claims. Plaintiff filed a timely

response to the motion.

Following a hearing, the trial court granted the motion and dismissed the Complaint

because the Tennessee National Guard is a division of the Tennessee Military Department,

which is an entity of the State of Tennessee, and the State of Tennessee has not waived its

immunity from suit under USERRA. This appeal followed.

A NALYSIS

Plaintiff contends the trial court erred in holding that the Tennessee National Guard

is protected from his 38 U.S.C. § 4301 et seq., USERRA claim by virtue of the doctrine of

sovereign immunity. More specifically, Plaintiff contends the Tennessee General Assembly

has waived its sovereign immunity for USERRA claims because it made it clear that

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protected activities, like protected classes, can be addressed by our courts. Plaintiff asserts

that USERRA is a civil rights statute by definition because it creates or defines a protected

class (those who serve in the military) and provides for one or more remedies. See, e.g.,

Rivers v. Roadway Express, Inc., 511 US 298, 308-309 (1990).

In support of his argument that the State has waived sovereign immunity under

USERRA, Plaintiff points to several other civil rights statutes enacted by the Tennessee

General Assembly. The Tennessee Human Rights Act, Tennessee Code Annotated § 4-21-

101 et seq., this state’s principal civil rights protection statute, was enacted to “[m]ake

available to the state their [meaning various classes of persons] full productive capacity in

employment.” Tenn. Code Ann. § 4-21-101(a)(5). The General Assembly also incorporated

the “policies embodied” in federal civil rights legislation. Tenn. Code Ann. § 4-21-101(a)(1).

Further, the sovereign itself, the State of Tennessee, is defined as an “employer” in

Tennessee Code Annotated § 4-21-102(5), thereby unequivocally waiving sovereign

immunity as it pertains to such claims. Similarly, the Tennessee Handicapped Act expressly

includes the sovereign, the State of Tennessee, in the definition of an employer. Tenn. Code

Ann. § 8-50-103(b).

The Tennessee National Guard insists that the State of Tennessee has not waived its

sovereign immunity from USERRA claims. Moreover, it contends that Plaintiff’s analogy

between USERRA and other employment and civil rights laws, such as the Tennessee

Human Rights Act (“THRA”) and the Tennessee Disability Act (“TDA”) is misplaced

because Plaintiff asserts the State of Tennessee impliedly waived its immunity from

USERRA claims by expressly waiving its immunity from claims under the THRA and TDA.

To resolve this conflict we must examine USERRA and the principles underlying

Tennessee’s sovereign immunity.

I. USERRA

Job security for armed services members dates back to the Selective Training and

Service Act of 1940. Petty v. Metropolitan Government of Nashville-Davidson County, 538

F.3d 431, 439 (6th Cir. 2008). The Uniformed Services Employment and Reemployment

Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301-4334, was enacted by Congress “to

clarify, simplify, and where necessary, strengthen the existing veterans’ employment and

reemployment rights provisions.” Id. (citing Francis v. Booz, Allen & Hamilton, Inc., 452

F.3d 299, 304 (4th Cir. 2006)). “Because USERRA was enacted to protect the rights of

veterans and members of the uniformed services, it must be broadly construed in favor of its

military beneficiaries.” Francis, 452 F.3d at 303.

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USERRA performs four key functions: (1) it guarantees returning veterans a right of

re-employment after military service, 38 U.S.C. § 4312; (2) it prescribes the position to

which such veterans are entitled upon their return, 38 U.S.C. § 4313; (3) it prevents

employers from discriminating against returning veterans on account of their military service,

38 U.S.C. § 4311; and (4) it prevents employers from firing without cause any returning

veterans within one year of re-employment, 38 U.S.C. § 4316.1 USERRA creates a private

cause of action in favor of a service-connected employee who the employer has refused to

rehire. See Petty, 538 F.3d 431.

Plaintiff relies on USERRA, specifically 38 U.S.C. § 4323, as the basis for subject

matter jurisdiction; however, USERRA’s jurisdiction is expressly limited in actions filed by

individuals against a state as an employer with the inclusion of the following: “in accordance

with the laws of the State.” 38 U.S.C. § 4323(b)(2); see Velasquez v. Frapwell, 165 F.3d 593

(7th Cir. 1999). Thus, for an individual to sustain an action against a state pursuant to

USERRA, the action must be permitted by state law. Id.

This legal principle was the subject of review in the Supreme Courts of Alabama and

Delaware and the Court of Appeals of Georgia, and each court concluded that the USERRA

claim must be dismissed because the respective state had not waived its immunity from suit

under USERRA. The Supreme Court of Alabama discussed the State of Alabama’s immunity

from suit under USERRA in Larkins v. Dep’t of Mental Health and Mental Retardation, 806

So.2d 358 (Ala. 2001). Noting “Congress’s deference to state laws includes a state’s law

dealing with its immunity from suit,” the court affirmed the dismissal of the USERRA action

because the state had not expressly waived its immunity. Larkins, 806 So.2d at 363. The

Delaware Supreme Court addressed the issue in Janowski v. Div. of State Police, Dep’t of

Safety and Homeland Sec., 981 A.2d 1166, 1170 (Del. 2009). Considering whether Delaware

had waived its immunity, the Janowski court noted that an individual may proceed with a suit

against a state under 38 U.S.C. § 4323(b)(2) “in accordance with the laws of the State” but

interpreted that language to include “determinations about whether, when, and under what

circumstances to waive sovereign immunity explicitly.” Id. Based upon this reasoning, the

Delaware Supreme Court determined that the Delaware legislature had not explicitly waived

its immunity from suits under USERRA and affirmed the trial court’s dismissal. Id. at 1170-

71. The Court of Appeals of Georgia, in Anstadt v. Bd. of Regents of Univ. Sys. of Georgia,

693 S.E.2d 868, 872 (Ga. Ct. App. 2010), used a similar analysis to conclude that a suit

against the State of Georgia under USERRA is only permissible to the extent the state has

explicitly waived its sovereign immunity.

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Sections 4312 and 4313 are known as the “reemployment provisions” of USERRA. See Petty, 538

F.3d at 439 n.3.

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Having considered the applicable USERRA principles, we turn our attention to

Tennessee’s Sovereign Immunity.

II. T ENNESSEE’S S OVEREIGN IMMUNITY

Tennessee’s sovereign immunity arises from its constitution. Article I, section 17, of

the Tennessee Constitution provides that “suits may be brought against the State in such

manner and in such courts as the Legislature may by law direct.” Based upon this

constitutional provision, no civil action against the State may be sustained absent express

authorization from the Tennessee General Assembly. Greenhill v. Carpenter, 718 S.W.2d

268, 270 (Tenn. Ct. App. 1986); see also Chumbley v. State, 192 S.W.2d 1007 (Tenn. 1946)

(holding that a suit against the State of Tennessee is barred by Tennessee Constitution article

I, section 17 when it is not brought in such manner as the legislature has directed). This

principle of law has also been recognized by the federal courts. Woolsey v. Hunt, 932 F.2d

555, 564 (6th Cir. 1991) (stating unless the state has expressly consented to be sued,

sovereign immunity bars a court from entertaining any suit against the state); see also

Memphis & C. R. Co. v. State of Tenn., 101 U.S. 337, 339 (1879) (“The principle is

elementary that a State cannot be sued in its own courts without its consent.”).

It is also critical to recognize that the courts of this state have no power to amend,

revise, or waive this state’s sovereign immunity. Brown v. State, 783 S.W.2d 567, 571 (Tenn.

Ct. App. 1989) (citing Austin v. City of Memphis, 684 S.W.2d 624, 637 (Tenn. Ct. App.

1984)). The unequivocal restraint upon the courts of this state is stated in Tennessee Code

Annotated § 20-13-102(a):

No court in the state shall have any power, jurisdiction or authority to entertain

any suit against the state, or against any officer of the state acting by authority

of the state, with a view to reach the state, its treasury, funds or property, and

all such suits shall be dismissed as to the state or such officers, on motion, plea

or demurrer of the law officer of the state, or counsel employed for the state.

Thus, only the Tennessee General Assembly may waive this state’s sovereign

immunity, and legislation authorizing suits against the state must provide for the state’s

consent in “plain, clear, and unmistakable” terms. Williams v. State, 139 S.W.3d 308, 311

(Tenn. Ct. App. 2004) (quoting State ex rel. Allen v. Cook, 106 S.W.2d 858, 861 (Tenn.

1937))(emphasis added). “The state cannot be subjected to suits by individuals unless the

words of the act are so plain, clear and unmistakable as to leave no doubt of the intention of

the Legislature that it should be done.” Daley v. State, 869 S.W.2d 338, 340 (Tenn. Ct. App.

1993) (citing Quinton v. Board of Claims, 54 S.W.2d 953, 857 (Tenn. 1932); Brewington v.

Brewington, 387 S.W.2d 777, 779 (Tenn. 1965)). Moreover, a statute permitting suit against

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the state must be strictly construed, and jurisdiction cannot be enlarged by implication.

Chumbley, 192 S.W.2d at 1008; Brown, 783 S.W.2d at 571.

The Tennessee General Assembly has not expressly waived the state’s sovereign

immunity from claims under USERRA, and Plaintiff’s reliance on an implied waiver is

contrary to the law of Tennessee. See Williams, 139 S.W.3d at 311 (stating the waiver of

immunity must be expressed using “plain, clear, and unmistakable” terms). The Tennessee

National Guard is a division of the Tennessee Military Department; thus, it is an entity of the

State of Tennessee. See Tenn. Code Ann. § 58-1-201, et seq. Accordingly, the Tennessee

National Guard has immunity from claims arising under USERRA, including the claim

asserted by Plaintiff in this civil action.

I N C ONCLUSION

For the reasons stated above, the judgment of the trial court is affirmed, and this

matter is remanded with costs of appeal assessed against the appellant.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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