Under Eleventh Amendment, Trooper Has No Right To Sue State For USERRA Violations

One of the features of Supreme Court jurisprudence in the last decade has been the Court’s application of the Eleventh Amendment to the United States Constitution to bar individual lawsuits by employees against state governments. The most important case in the area is Alden v. Maine, 527 U.S. 706 (1999), where the Court held that state employees could not bring Fair Labor Standards Act (FLSA) lawsuits against their employers without violating the FLSA.

The Delaware Supreme Court recently applied this theory to dismiss a state trooper’s lawsuit alleging that the State of Delaware had violated the Uniformed Service Employment And Reemployment Rights Act Of 1994, commonly known as USERRA, by terminating his employment when he returned from active military duty. The Court found that USERRA “could not abrogate state sovereign immunity, because Congress passed that law pursuant to its war powers.

“Although USERRA does not abrogate state sovereign immunity, that legislation does allow the United States Attorney General discretion to prosecute purported violations. Where, as here, the Attorney General declines to prosecute a case the individual plaintiff may proceed ‘in accordance with the laws of the state.’ The trooper must, therefore, demonstrate that the general assembly intended to waive sovereign immunity explicitly under the circumstances presented here.

“A brief examination of the statutes demonstrates the General Assembly’s ability to waive sovereign immunity explicitly, and why they did not do so here. Delaware’s Whistleblowing Protection Act waives sovereign immunity by defining employer as any department, agency of the state. The emergency vehicle statute provides that ‘the owner of such emergency vehicle may not assert the defense of governmental immunity in any action.’ These statutes waived sovereign immunity. Here, the trooper has not demonstrated that the General Assembly clearly intended to waive sovereign immunity. Although the statutes describe reservists’ reemployment rights, they do not include a right to sue the state.

“Once the United States Attorney General has declined to prosecute a case under USERRA, the statute allows the individual claimant to proceed, subject to compliance with the laws of the state. The laws of this state simply do not permit the trooper to proceed.”

Janowski v. Division of State Police, Department of Safety and Homeland Security, 2009 WL 3111421 (Del. 2009).

This article appears in the December 2009 issue