Petition for Writ of Certiorari — David R. Smith, Petitioner v. Tennessee National Guard

NO.

In the Supreme Court of the United States

LIEUTENANT-COLONEL DAVID R. SMITH,

v.

Petitioner,

THE TENNESSEE NATIONAL GUARD,

Respondent.

On Petition for Writ of Certiorari

to the Tennessee Supreme Court

PETITION FOR WRIT OF CERTIORARI

PHILLIP L. DAVIDSON

Counsel of Record

320 Seven Springs Way

Suite 250

Brentwood, TN 37027

(615) 386-7115

phil@pldavidson.com

Counsel for the Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Does a state law that sets a time limit on when an

action may be filed under the Uniformed Services

Reserve Reemployment Act, Title 38 U.S.C. §§ 4301, et

seq., (USERRA Act), frustrate the full effectiveness of

the purpose of the Act, and thus violate the supremacy

clause of the United States Constitution?

ii

PARTIES TO THE PROCEEDING

Petitioner, is Lieutenant-Colonel David R. Smith.

Respondent, is the Tennessee National Guard, a

political entity of the State of Tennessee.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 5

A. Petitioner. . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Genesis of Tenn. Code Ann. §§ 29-20-208. 6

C. Procedural History . . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING THE WRIT . . . . . . . . 8

I.

THE TENNESSEE SUPREME COURT’S

DECISION FRUSTRATES THE FULL

EFFECT OF THE USERRA ACT. . . . . . . . . . 8

A. The Tennessee Supreme Court’s

Definition of Accrual Prior to Smith III. . 8

B. The Tennessee Legislature’s Action Was

Governed by Its Understanding of the

State of Tennessee Law Regarding

Accrual. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

C. The Tennessee Supreme Court’s Decision

Conflicts With the Supremacy Clause of

the United States Constitution. . . . . . . . . 9

II.

THE QUESTION PRESENTED IS OF

OVERRIDING PUBLIC IMPORTANCE . . . 11

III.

PETITIONER’S CASE PRESENTS AN

APPROPRIATE VEHICLE FOR REVIEW . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPENDIX

Appendix A Opinion in the Supreme Court of

Tennessee at Nashville

(June 22, 2018) . . . . . . . . . . . . . . . App. 1

Appendix B Opinion in the Court of Appeals of

Tennessee at Nashville

(March 31, 2017) . . . . . . . . . . . . App. 20

Appendix C Order on Defendant’s Motion to

Dismiss in the Circuit Court for the

Twentieth Judicial District at

Nashville, Smith v. The Tennessee

National Guard, No. 11C3080

(December 19, 2011) . . . . . . . . . App. 45

v

TABLE OF AUTHORITIES

Compozit Construction Corp. v. J. B. Gibbs & Sons

Construction Co.,

2006 WL 3071242 (Tenn. Ct. App., Oct. 27, 2006)

....................................... 9

Dewees v. State,

216 Tenn. 104, 390 S.W.3d 241 (1965) . . . . . . . . 5

Gibson v. Swanson Plating and Machine of

Kentucky, Inc.,

819 S.W.2d 796 (Tenn. 1991) . . . . . . . . . . . . 4, 5, 8

Hines v. Davidowitz,

312 U.S. 52, 61 S. Ct. 399,

85 L.Ed. 2d 581 (1941) . . . . . . . . . . . . . . . . . . . . 10

Lee Med., Inc. v. Beecher,

312 S.W.3d 515 (Tenn. 2010) . . . . . . . . . . . . . . . . 9

Lind v. Beaman Dodge, Inc.,

356 S.W.3d 889 (Tenn. 2011) . . . . . . . . . . . . . . 4, 8

McCrosky v. Bryant Air Conditioning Co.,

524 S.W.2d 487 (Tenn. 1975) . . . . . . . . . . . . . . . . 4

Moore-Pennoyer v. State,

515 S.W.3d 271 (Tenn. 2017) . . . . . . . . . . . . . . . . 5

Olmstead v. Zimring,

527 U.S. 581, 119 S. Ct. 2176,

144 L.Ed. 2d 540 (1999) . . . . . . . . . . . . . . . . . . . 11

Perez v. Campbell,

402 U.S. 637, 91 S. Ct. 1704,

25 L.Ed. 2d 233 (1971) . . . . . . . . . . . . . . . . . . . . 10

vi

Pharm. Research and Mfrs. of Am. v. Walsh,

538 U.S. 644, 123 S. Ct. 1855,

155 L.Ed. 2d 885 (2003) . . . . . . . . . . . . . . . . . . . 11

Shelby County Health Care Corp. v. Nationwide

Mut. Ins. Co.,

325 S.W.3d 88 (Tenn. 2010) . . . . . . . . . . . . . . . . . 4

Shell v. State,

893 S.W.2d 416 (Tenn. 1995) . . . . . . . . . . . . . . . . 8

Smith v. Tennessee National Guard,

387 S.W.3d 570 (Tenn. Ct. App. 2012) perm. app.

denied (Tenn. Nov. 21, 2012) (Smith I) . . . . . . 6, 7

Smith v. Tennessee National Guard,

2015 WL 3455448, perm. app. denied

(Tenn. Sept. 17, 2015) (Smith II) . . . . . . . . . . . . 7

Smith v. Tennessee National Guard,

2017 WL 1207881 perm. app. granted (Tenn.

Aug. 17, 2017) (Smith III) . . . . . . . . . . . . . . . . 4, 7

Smith v. Tennessee National Guard,

2018 WL 3083749 . . . . . . . . . . . . . . . . . . . . . . 4, 8

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Article VI, Clause 2 . . . . . . . . . . 1

STATUTES

38 U.S.C. §§ 4301 . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9

38 U.S.C. §§ 4302(b) . . . . . . . . . . . . . . . . . . . . . . . 2, 9

38 U.S.C. §§ 4323(b)(2) . . . . . . . . . . . . . . . . . . . . 2, 10

38 U.S.C. §§ 4327(b) . . . . . . . . . . . . . . . . . . . . . . 3, 10

vii

38 U.S.C. §§ 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tennessee Code Annotated §§ 29-20-208 . . . . passim

2014 Tenn. Pub. Acts, C.574, §§ 2 . . . . . . . . . . . . 4, 12

COURT RULES

S. Ct. Rule 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11

OTHER AUTHORITIES

Black’s Law Dictionary (10th Ed. 2014) . . . . . . . . . . 8

1

PETITION FOR WRIT OF CERTIORARI

Petitioner, LTC David R. Smith, respectfully

petitions this Court for a writ of certiorari to the

Tennessee Supreme Court in this case.

OPINIONS BELOW

The decision of the Tennessee Supreme Court is

reproduced in the appendix to the petition (Pet. App.

p. 1). It is not yet published in the Southwestern

Reporter, but is available at 2018 WL 3083749.

JURISDICTION

The Tennessee Supreme Court entered judgment on

June 22, 2018. This Court has jurisdiction to review

this case pursuant to 28 U.S.C. §§ 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article VI, Clause 2, of the United States

Constitution, provides in pertinent part that:

... this Constitution, and the Laws of the United

States, which shall be made in Pursuance

thereof... shall be the Supreme Law of the

Land...

38 U.S.C. §§ 4301, in pertinent part:

(a)

The purposes of this chapter are –

(1)

to encourage noncareer service in

the uniformed services by eliminating or

minimizing the disadvantages to civilian

careers and employment which can result

from such service;

2

(2)

to minimize the disruption to the

lives of the persons performing service in

the uniformed services as well as to their

employers, their fellow employees, and

their communities, by providing for the

prompt reemployment of such persons

upon their completion of such service;

(3)

to prohibit discrimination against

persons because of their service in the

uniformed services.

(b)

...

38 U.S.C. §§ 4302, in pertinent part:

(a)

...

(b)

This chapter supersedes any State law

(including any local law or ordinance),

contract, agreement, policy, plan,

practice, or other matter that reduces,

limits, or eliminates in any manner any

right or benefit provided by this chapter,

including the establishment of additional

prerequisites to the exercise of any such

right or the receipt of any such benefit.

38 U.S.C. §§ 4323, in pertinent part:

(a)

…

(b)

…

(1)

…

(2)

In the case of an action against a

State (as an employer) by a person,

the action may be brought in a

3

State court of competent

jurisdiction in accordance with the

laws of the State.

38 U.S.C. §§ 4327, in pertinent part:

(a)

…

(b)

Inapplicability of Statutes of Limitations

– If any person seeks to file a complaint

or claim with the Secretary, the Merit

Systems Protection Board, or a Federal or

State under this chapter alleging a

violation of this chapter, there shall be no

limit on the period for filing the compliant

or claim.

Tenn. Code Annotated Section 29-20-208

Immunity from suit of any governmental entity,

or any agency, authority, board, branch,

commission, division, entity, subdivision, or

department of state government, or any

autonomous state agency, authority, board,

commission, council, department, office, or

institution of higher education, is removed for

the purpose of claims against and relief from a

governmental entity under the Uniformed

Services Employment and Reemployment Rights

Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4334.

4

INTRODUCTION

This case presents the question of whether a state

may constitutionally place a time limit on filing a

lawsuit pursuant to the USERRA Act. The Tennessee

Legislature enacted a rehabilitative statute removing

the barrier of sovereign immunity, that before had

prohibited state employees from suing the state for

USERRA violations. In doing so, the Legislature

provided that the public act was to take effect on July

1, 2014 and “apply to all claims against a sovereign

entity under [USERRA] accruing on or after such date”

(quoting, 2014 Tenn. Pub. Acts, C.574, §§ 2).

Subsequently, the Tennessee Court of Appeals held,

that the Tennessee Legislature was aware of the case

law defining the word accrual, that existed at the time

of the passage of the Act, to mean that an employee’s

cause of action accrued when he first had a right to sue.

Smith v. Tennessee National Guard, 2017 WL 1207881,

*5, perm app. granted (Tenn. Aug. 17, 2017). The

Tennessee Supreme Court reversed the Court of

Appeals, holding that accrual occurs when a judicial

remedy is available, i.e., a plaintiff discovers, or

reasonably should have discovered, his injury and the

identity of the person who injured him. Smith v.

Tennessee National Guard, 2018 WL 3083749, *10. In

rendering this decision, Tennessee highest court

disregarded existing jurisprudence that a tort action

accrues when a plaintiff can maintain a suit.

McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d

487, 490 (Tenn. 1975); Lind v. Beaman Dodge, Inc., 356

S.W.3d 889, 891 (Tenn. 2011); Shelby County Health

Care Corp. v. Nationwide Mutual Ins. Co., 325 S.W.3d

88, 96 (Tenn. 2010); Gibson v. Swanson Plating and

Mach. of Kentucky, Inc., 819 S.W.2d 776, 756-90 (Tenn.

5

1991). Tenn. Code Ann. §§ 29-20-208 is a rehabilitative

statute and thus should be construed liberally to

accomplish its end. Dewees v. State, 216 Tenn. 104, 390

S.W.2d 241-42 (1965). The Tennessee Supreme Court’s

decision negated the rehabilitative effect of Tenn. Code

Ann. §§ 29-20-208, thus preventing the Petitioner

seeking relief pursuant to the USERRA Act. This

forced interpretation of the Tenn. Code Ann. §§ 29-20208, by the Tennessee Supreme Court, completely

frustrates the full effectiveness of the USERRA Act.

This Court should grant the petition and hold that

Tennessee’s highest Court’s interpretation of Tenn.

Code Ann. §§ 29-20-208 is unconstitutional.

STATEMENT OF THE CASE

A. Petitioner.1

David R. Smith, is a former Lieutenant-Colonel in

the Tennessee National Guard. LTC Smith jointed the

National Guard in 1993. In 2002 he was hired as a

full-time employee of the State of Tennessee, in the

Active Guard Reserve. In 2009, LTC Smith applied for

a position in the 2010 Class of the Naval War College

and was accepted. In order to attend the War College,

he was required to leave his full-time AGR position.

He began his War College class on July 6, 2010. On

April 24, 2011, LTC Smith wrote the Tennessee

National Guard requesting to know his next duty

assignment. On April 27, 2011, the Guard informed

LTC Smith that no position was available for him, but

1

There is no factual record present in this case. The facts placed

in the Complaint should be construed as true at this stage of the

case. Moore-Pennoyer v. State, 515 S.W.3d 271, 275-76 (Tenn.

2017).

6

that he could return to the Guard in a traditional

weekend position. LTC Smith was “separated” from

his full-time position on July 10, 2011.2

B. Genesis of Tenn. Code Ann. §§ 29-20-208.

Prior to July 1, 2014, employees of the State of

Tennessee were prohibited from bringing cases against

the State for violations of the USERRA Act by the

doctrine of sovereign immunity. Smith v. Tenn.

National Guard, 387 S.W.3d 570 (Tenn. Ct. App. 2012).

perm app. denied (Tenn., Nov. 21, 2012). (Smith I).

After the Smith I decision, the Tennessee

Legislature removed sovereign immunity as a bar to

state employees suing the state for violations of the

USERRA Act, when it passed Tenn. Code. Ann. §§ 2920-208. This Act was passed after the Legislature

learned of the facts surrounding the dismissal of LTC

Smith’s first case.

C. Procedural History

LTC Smith sued the Tennessee National Guard on

August 8, 2011, claiming that it had violated his rights

under the Uniformed Services Employment and

Reemployment Rights Act of 1994, Id. at pp. 572-73.

The State of Tennessee moved to dismiss LTC Smith’s

case due to lack of subject matter jurisdiction. The

2

The Petitioner expects evidence to show, that while he was

employed by the Tennessee National Guard, he was given perfect

Officer Efficiency Reports; that two, two-star Generals from the

Tennessee Guard told the Department of Defense that if it

accepted LTC Smith into the War College Class, a full-time

position would be waiting for him upon his return; and that upon

his return there were full-time positions available to him.

7

Sixth Circuit Court for Davidson County, Tennessee

agreed and dismissed the case. On July 27, 2012 the

Court of Appeals affirmed the Trial Court’s decision.

Id at pp. 572-76.

Subsequent to Smith I, The Tennessee Legislature

enacted Tenn. Code Ann. §§ 29-20-208.

Relying on this newly enacted statute, LTC Smith

filed a Tenn. R. Civ. Pro. Rule 60 Motion on July 2,

2014, seeking relief from the prior judgement

dismissing his case. The Trial Court denied LTC

Smith’s motion. On May 29, 2014, the Court of Appeals

affirmed the Trial Court, dismissing his appeal on the

grounds of lack of subject matter jurisdiction based on

sovereign immunity. Smith v. Tennessee National

Guard, 2015 WL 3455448 *5. perm. app. denied (Tenn.

Sept. 17, 2015) (Smith II).

On January 4, 2016, LTC Smith refiled his

complaint. The Trial Court granted the state’s motion

to dismiss on the grounds of lack of subject matter

jurisdiction based upon sovereign immunity because

LTC Smith’s claims accrued before July 1, 2014. LTC

Smith appealed the trial court’s decision. In a divided

decision, the Court of Appeals reversed the trial court,

holding that LTC Smith’s cause of action accrued only

when “he attained the right to sue pursuant to the

judicial remedy created by Tennessee Code Annotated

Section 29-20-208.” Smith v. Tennessee National

Guard, 2017 WL 1207881 * 6-7, (Smith III).

The Tennessee Guard filed an application for

permission to appeal which was granted by the

Tennessee Supreme Court on Aug. 17, 2017.

8

On June 22, 2018, the Tennessee Supreme Court

reversed the judgment of the Court of Appeals and

reinstated the judgment of the trial court holding the

LTC Smith’s case accrued before the enactment of

Tenn. Code Ann. §§ 29-20-208. Smith, 2018 WL

3083749 *9-11.

REASONS FOR GRANTING THE WRIT

I.

THE TENNESSEE SUPREME COURT’S

DECISION FRUSTRATES THE FULL

EFFECT OF THE USERRA ACT.

The Tennessee Supreme Court’s decision declaring

that Tenn. Code Ann. §§ 29-20-208’s accrual language

applies only to causes of action that occur on or after

July 1, 2014 frustrates the full effect of the USERRA

Act and warrants certiorari review under this Court’s

Rule 10(c).

A. The Tennessee Supreme Court’s

Definition of Accrual Prior to Smith III.

Prior to the Tennessee Supreme Court’s decision, a

cause accrued when a plaintiff suffered legally

cognizable injury, Shell v. State, 893 S.W.2d 416, 423

(Tenn. 1995). A legally cognizable injury is one that is,

“capable of being judicially tried or examined before a

designated tribunal; within the Court’s jurisdiction.”

Black’s Law Dictionary (10th Ed. 2014). A cause of

action does not accrue until a statute gives a plaintiff

the right to sue. Lind v. Beaman Dodge, Inc., 356

S.W.3d 889, 900-01 (Tenn. 2011). An action accrues

when a plaintiff can “bring a suit.” Gibson v. Swanson

Plating and Machine of Kentucky, Inc., 819 S.W.2d 796799 (Tenn. 1991). “A cause of action in tort is nonexistent until a judicial remedy is available to the

9

plaintiff.” Compozit Construction Corp. v. J. B. Gibbs

& Sons Construction Co., 2006 WL 3071242, *2 (Tenn.

Ct. App. Oct. 27, 2006).

B. The Tennessee Legislature’s Action Was

Governed by Its Understanding of the

State of Tennessee Law Regarding

Accrual.

The Tennessee Legislature is presumed to know

“the state of the law.” Lee Med., Inc. v. Beecher, 312

S.W.3d 515, 527 (Tenn. 2010). Accordingly, the

Legislature knew the Tennessee Supreme Court’s

definition of accrual when it enacted Tenn. Code Ann.

§§ 29-20-208. Being that LTC Smith’s predicament was

the catalyst for enacting the statute, and being that the

statute was remedial in nature, it is clear that the

Legislature intended that LTC Smith, and all other

possible plaintiffs, have a legal remedy, with an accrual

date of July 1, 2014. Had the Legislature intended any

other scheme for redress, it would have included

language such as “cases filed after July 1, 2014.”

Clearly, what the Tennessee Legislature was hoping

to accomplish, was righting a wrong.

C. The Tennessee Supreme Court’s

Decision Conflicts With the Supremacy

Clause of the United States

Constitution.

Congress expressed a clear intent to protect the

reemployment rights of reservists who serve in the

uniformed services, when it passed the USERRA Act,

38 U.S.C. §§ 4301. Pertinent passages of the Act,

limits a state’s power to limit the scope and effect of the

Act. 38 U.S.C. §§ 4302(b). While the Act does allow

10

states to adopt the USERRA statute in accordance with

its laws, 38 U.S.C. §§ 4323(b)(2), where those laws

conflict with the USERRA Act, the Act supercedes.

Congress specifically forbade any state or federal time

limit or enforcement of a violation of the Act, 38 U.S.C.

§§ 4327(b).

This Court in Perez v. Campbell, 402 U.S. 637, 91 S.

Ct. 1704, 29 L.Ed. 2d 233 (1974), held that determining

whether a state statute is in conflict with a federal

statute, thus invalid under the Supremacy Clause, a

two step process should be employed, Perez, at p. 640.

First, both statutes’ construction should be examined.

The USERRA statute was passed to protect the

employment rights of reserve members of the

uniformed services. Thus it was remedial in nature.

Similarly, Tenn. Code Ann. §§ 29-20-208 was

designed as a remedial statute passed to protect state

employees from violations of the USERRA Act by the

state. Therefore, the two statutes compliment and aid

each other in the enforcement of rights granted by

Congress. However, the Tennessee Supreme Court’s

decision changing the meaning of the Tennessee

statute in terms of accrual, denied LTC Smith and

possibly other state employees, from the relief afforded

them under the USERRA Act.

The second stage in the process is to determine if

the state statute, as interpreted by the Tennessee

Supreme Court, conflicts with the intent and purpose

of the USERRA Act, and thus, in effect, stands as an

obstacle to the accomplishment and execution of the

full purposes of Congress. Perez, at p. 641, quoting

Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399,

404, 85 L.Ed. 2d 581 (1941). Respectfully, it does. The

11

purpose of the USERRA Act is to protect the

employment rights of reservists in the uniformed

services. The purpose of Tenn. Code Ann. §§ 29-20-208,

is to do the same. If left to stand, the Tennessee

Supreme Court’s decision would frustrate the full

purpose of the USERRA Act.

II.

THE QUESTION PRESENTED IS OF

OVERRIDING PUBLIC IMPORTANCE

The case presents an overwhelmingly important

question of national significance “that has not been but

should be, settled by this Court” at this time. S. Ct.

Rule 10(c); Pharm. Research and Mfrs. of Am. v. Walsh,

538 U.S. 644, 650, 123 S. Ct. 1855, 155 L.Ed. 2d 889

(2003), (granting certiorari “because the questions are

of national importance”): Olmstead v. Zimring, 527

U.S. 581, 596, 119 S. Ct. 2176, 144 L.Ed. 2d 540 (1999).

The USERRA Act not only affects a certain class of

American citizens, reservists who are members of the

uniformed services, but by extension, their families,

and by significance, the United States as a whole. In

enacting USERRA, Congress understood the expanded

role that reservists play in national defense. The

Tennessee Legislature also understood this when it

passed Tenn. Code Ann. §§ 29-20-208. Any state

statute which affects the uniformed reserve (or

National Guard) adversely, eventually has an adverse

impact on the defense posture of the United States as

a whole.

Review by this Court is necessary at this time

because of the persistent harm that such limitation on

actions have on the reserve uniformed services. In

Tennessee alone, there may be many soldiers affected

by The Tennessee Supreme Court’s decision. And,

12

nationally, it may be used to limit the rights of

similarly situated reserve or guard soldiers.

The Court should grant certiorari because this issue

is highly unlikely to be resolved among the various

states without this Court’s intervention.

III.

PETITIONER’S CASE PRESENTS AN

APPROPRIATE VEHICLE FOR REVIEW

Because the Tennessee Supreme Court’s decision

may affect similarly situated members of the uniformed

services in other states, this Court’s review would

settle the question of any limitations of USERRA

actions against a state.

CONCLUSION

Tenn. Code Ann. §§ 29-20-208 was passed to remedy

a repugnant situation in Tennessee. See. Senate and

House deliberations on 2014 Tenn. Pub. Act, c. 574,

§§ 2. For the foregoing reasons, the petition should be

granted.

Respectfully submitted,

PHILLIP L. DAVIDSON

Counsel of Record

320 Seven Springs Way

Suite 250

Brentwood, TN 37027

(615) 386-7115

phil@pldavidson.com

Counsel for the Petitioner

Dated: September 7, 2018