State Government Is Immune From Trooper’s USERRA Claims

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was passed by Congress to encourage non-career service in the armed forces through the reserves or National Guard by requiring, among other things, prompt reemployment after temporary military duty, and prohibiting discrimination by employers against employees for serving in the armed forces. In 1998, an amendment to USERRA created a private right of action enforceable against states in their own courts, allowing state employees to sue their employer for USERRA violations in a state court rather than a federal court.

Sergeant Jonathan R. Clark, a Virginia state trooper, filed a USERRA claim in Virginia state court against his employer, the Virginia State Police, alleging that he was passed over for promotion numerous times because of his service as a captain in the U.S. Army Reserves. The trial court dismissed Clark’s USERRA claim on the grounds that as an agency of the Commonwealth of Virginia, the Virginia State Police could not be sued on a federal right of action in state court without a waiver of its sovereign immunity.

Clark appealed the dismissal of his claim to the Supreme Court of Virginia, arguing that Virginia’s sovereign immunity in this area of the law was nullified by the private right of action provided by USERRA because it was enacted by Congress under the War Powers Clauses of the Constitution. The U.S. Department of Justice agreed with Clark’s position, and filed a friend-of-the-court brief on his behalf, arguing that USERRA’s jurisdictional provision subjects all states to private suit in their own courts, regardless of whether a state has consented to suit.

The Supreme Court of Virginia rejected Clark’s lawsuit. The Court emphasized the general proposition that under the U.S. Constitution, a state government cannot be subject to suit by a private citizen without its express consent. The Court leaned heavily on a U.S. Supreme Court case called Alden v. Maine, 527 U.S. 706 (1999), in which a group of probation officers filed suit against the state of Maine in state court for violating the overtime provisions of the Fair Labor Standards Act (FLSA). Like USERRA, the FLSA contained a provision allowing a private right of action against states in their own courts. The U.S. Supreme Court in Alden held that such a private right of action was invalid because the powers granted to Congress by the Constitution do not allow for States to be subject to private suits in their own courts.

While Clark argued that the U.S. Supreme Court’s Alden decision was not applicable to USERRA because the FLSA was enacted under the Commerce Clause, while USERRA was enacted under the War Powers Clauses, the Supreme Court of Virginia found this to be a “distinction without a difference.” The Supreme Court of Virginia affirmed the trial court’s dismissal of Clark’s USERRA claim because “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts.”

Clark v. Virginia Dep’t of State Police, 793 S.E.2d 1 (Va. 2016).