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Smith v. Tennessee National Guard

Court of Appeals of Tennessee, Nashville

March 31, 2017

DAVID R. SMITH
v.
THE TENNESSEE NATIONAL GUARD

          Session February 22, 2017

         Direct Appeal from the Circuit Court for Davidson County No. 16C-12 Thomas W. Brothers, Judge

         This 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.

         Tenn. 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.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         This is 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.

         Smith 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. § 4316.

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.

         The 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.

         Because 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.

         Shortly 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 provides:

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. Id.

         On 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.

         The 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.

         Smith 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.

         On 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 ...


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