DAVID R. SMITH
THE TENNESSEE NATIONAL GUARD
Session February 22, 2017
Appeal from the Circuit Court for Davidson County No. 16C-12
Thomas W. Brothers, Judge
case involves a military service member's claim against
the Tennessee National Guard pursuant to the Uniformed
Services Employment and Reemployment Rights Act of 1994, 38
U.S.C. § 4301 et seq., and Tennessee Code
Annotated section 29-20-208. The trial court dismissed the
complaint for failure to state a claim. We reverse and remand
for further proceedings.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Remanded
Phillip Leon Davidson, Brentwood, Tennessee, for the
appellant, David R. Smith.
Herbert H. Slatery III, Attorney General and Reporter,
Andrée Blumstein, Solicitor General, and Taylor
William Jenkins, Assistant Attorney General, Nashville,
Tennessee, for the appellee, The Tennessee National Guard.
Brandon O. Gibson, J., delivered the opinion of the court, in
which Frank G. Clement, Jr., P.J., M.S., joined, and W. Neal
McBrayer, J., dissented.
BRANDON O. GIBSON, JUDGE
Facts & Procedural History
the third appeal before this Court involving these parties.
According to the complaint, Plaintiff David Smith is a former
lieutenant-colonel in the Tennessee National Guard. For a
period, Smith left the Tennessee National Guard to attend the
Naval War College on an active duty tour. In 2011, Smith
sought to return to the Tennessee National Guard but was
allegedly only offered a traditional guardsman's
position. Smith "separated from" the Tennessee
National Guard on July 10, 2011.
filed a lawsuit in the circuit court of Davidson County
pursuant to the Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et
seq. ("USERRA"), which forbids employment
discrimination on the basis of membership in the armed
forces. "USERRA creates a private cause of action in
favor of a service-connected employee who the employer has
refused to rehire." Smith v. Tenn. Nat. Guard,
387 S.W.3d 570, 574 (Tenn. Ct. App. 2012) ("Smith
I"). The trial court dismissed the lawsuit for lack
of subject matter jurisdiction on the basis of sovereign
immunity, and this Court affirmed. Id. at 572. We
explained that USERRA performs several 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 reemployment, 38 U.S.C.
Id. at 574 (footnote omitted). However, for actions
filed by individuals against a state as an employer,
USERRA provides that "the action may be brought in a
State court of competent jurisdiction in accordance with
the laws of the State." 38 U.S.C. § 4323(b)(2)
(emphasis added). In other words, "for an individual to
sustain an action against a state pursuant to USERRA, the
action must be permitted by state law." Smith
I, 387 S.W.3d at 574.
Tennessee National Guard is a division of the Tennessee
Military Department and "an entity of the State of
Tennessee." Id. at 576 (citing Tenn. Code Ann.
§ 58-1-201). Article I, section 17, of the Tennessee
Constitution provides that "[s]uits may be brought
against the State in such manner and in such courts as the
Legislature may by law direct." As a result, "no
civil action against the State may be sustained absent
express authorization from the Tennessee General
Assembly." Smith I, 387 S.W.3d at 575.
the Tennessee General Assembly had not expressly waived the
State's sovereign immunity for claims under USERRA, we
concluded that the Tennessee National Guard was immune from
USERRA claims and affirmed dismissal of Smith's claim.
Id. at 576.
after we issued that opinion, effective July 1, 2014, the
Tennessee General Assembly adopted Tennessee Code Annotated
section 29-20-208, entitled "Uniformed Services
Employment and Reemployment Rights Act of 1994, " which
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.
See 2014 Tenn. Pub. Acts, c. 574. Relying on the new
statute, Smith filed a Rule 60 motion seeking to have his
original lawsuit reinstated. The trial court denied the Rule
60 motion, finding that Smith's claim was still barred by
sovereign immunity because it accrued prior to July 1, 2014.
On appeal, this Court affirmed the trial court's
decision. Smith v. Tenn. Nat'l Guard, No.
M2014-02375-COA-R3-CV, 2015 WL 3455448, at *2 (Tenn. Ct. App.
May 29, 2015), perm. app. denied (Tenn. Sept. 17,
2015) ("Smith II"). We acknowledged the
passage of Tennessee Code Annotated section 29-20-208 but
also recognized that the public act provided that it was to
take effect on July 1, 2014, and "'apply to all
claims against a governmental entity under [USERRA]
accruing on or after such date.'"
Id. (quoting 2014 Tenn. Pub. Acts, c. 574, § 2)
(emphasis added). We rejected Smith's argument that his
cause of action did not accrue before July 1, 2014. Citing
the discovery rule, we explained that "a cause of action
accrues when the plaintiff knows or, in the exercise of
reasonable care and diligence, should have known that an
injury has been sustained as the result of wrongful conduct
by the defendant." Id. at *3. We concluded that
Smith was aware that he had suffered an injury as a result of
the Tennessee National Guard's conduct by the time he
filed his original complaint in 2011, and therefore, his
cause of action accrued in 2011, prior to July 1, 2014, and
was barred by the doctrine of sovereign immunity.
January 4, 2016, Smith initiated the case before us by filing
a new complaint in the circuit court for Davidson County. He
asserted, again, that the Tennessee National Guard's
failure to rehire him in 2011 violated USERRA and Tennessee
Code Annotated section 29-20-208. Smith also asserted that
Tennessee Code Annotated section 29-20-208 is
unconstitutional because it allegedly violates the Supremacy
Clause and conflicts with USERRA by applying "a statute
of limitations" to USERRA claims.
Tennessee National Guard filed a motion to dismiss. First, it
argued that the case should be dismissed based on res
judicata. Alternatively, it argued that the case should be
dismissed for lack of subject matter jurisdiction based on
sovereign immunity, claiming that Smith's USERRA cause of
action accrued in 2011. It also denied that Tennessee Code
Annotated section 29-20-208 contained a statute of
limitations or violated the Supremacy Clause.
filed a response, arguing that the present suit was not
barred by res judicata because his previous case was
dismissed for lack of subject matter jurisdiction rather than
resolved on the merits. Smith also argued that his cause of
action did not accrue in 2011 because he had no "right
to sue" at that time. He suggested that his "right
to sue" did not exist, and his USERRA claim did not
accrue, until July 1, 2014, when section 29-20-208 became
effective. He also maintained that section 29-20-208 is
unconstitutional because it contains what he described as a
time limit on filing a USERRA claim.
April 28, 2016, the circuit court entered an order granting
the Tennessee National Guard's motion to dismiss. The
trial court found that res judicata was inapplicable and did
not bar this lawsuit. However, the court again concluded that
Smith's cause of action accrued before July 1, 2014, and
therefore, his claim was subject to dismissal. The trial
court also found ...