DAVID R. SMITH
THE TENNESSEE NATIONAL GUARD
Session: April 4, 2018 Heard at Jackson
by Permission from the Court of Appeals Circuit Court for
Davidson County No. 16C-12 Thomas W. Brothers, Judge
2014, the General Assembly enacted a statute waiving
Tennessee's sovereign immunity for claims brought against
the State pursuant to the Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301
to 4335 ("USERRA"). The waiver of sovereign
immunity became effective on July 1, 2014, and applied to
USERRA claims "accruing on or after" that date.
After passage of the statute, the plaintiff brought a USERRA
claim against the defendant, an entity of the State, but his
claim was based on facts that occurred prior to August 8,
2011. The trial court dismissed the claim, explaining that
the claim accrued prior to July 1, 2014, and remained barred
by sovereign immunity. The Court of Appeals reversed, holding
that the claim accrued on July 1, 2014, when the plaintiff
gained a judicial remedy by the enactment of the statute
waiving sovereign immunity. We conclude that the claim
accrued prior to July 1, 2014, and remains barred by
sovereign immunity. Accordingly, we reverse the judgment of
the Court of Appeals and reinstate the judgment of the trial
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Appeals Reversed; Judgment of the Trial Court
Herbert H. Slatery III, Attorney General and Reporter;
Andrée Blumstein, Solicitor General; and Jay C.
Ballard, Deputy Attorney General, for the appellant, The
Tennessee National Guard.
Phillip L. Davidson, Brentwood, Tennessee, for the appellee,
David R. Smith.
Cornelia A. Clark, J., delivered the opinion of the Court, in
which Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ.,
joined. Jeffrey S. Bivins, C.J., not participating.
CORNELIA A. CLARK, JUSTICE
Factual and Procedural Background
R. Smith is a former Lieutenant Colonel in the Tennessee
National Guard ("the Guard"). The Guard "is a
division of the Tennessee Military Department; thus, it is an
entity of the State of Tennessee." Smith v. Tenn.
Nat'l Guard, 387 S.W.3d 570, 576 (Tenn. Ct. App.
2012), perm. app. denied (Tenn. Nov. 21, 2012)
("Smith I") (citing Tenn. Code Ann. §
58-1-201 et seq.).
Smith joined the Guard in 1993 as "a traditional
guardsman." In February 2002, he was selected for a
full-time position in the Active Guard Reserve
("AGR"). Seven years later, in 2009, Mr. Smith
applied for senior developmental education at the Naval War
College in Washington, D.C., and he was accepted. The Guard
required Mr. Smith to leave his full-time AGR position when
he began attending the Naval War College on an active duty
tour on July 6, 2010.
April 24, 2011, Mr. Smith wrote the Guard advising that he
was ending his tour at the Naval War College and requesting
to know his next assignment. Three days later, on April 27,
2011, the Guard informed Mr. Smith that no position was
available but that he could obtain "a traditional
guardsman's position" on his return. Mr. Smith was
not rehired to the AGR and was "separated" from it
on July 10, 2011.
August 8, 2011, Mr. Smith sued the Guard, alleging that it
had violated his rights under the Uniformed Services
Employment and Reemployment Rights Act of 1994, 38 U.S.C.
§§ 4301 to 4335 ("USERRA"). Smith
I, 387 S.W.3d at 572-73. USERRA is a federal law
intended to provide job security for armed services
includes four key provisions: (1) "it guarantees
returning veterans a right of reemployment after military
service"; (2) "it prescribes the position to which
such veterans are entitled upon their return"; (3)
"it prevents employers from discriminating against
returning veterans on account of their military
service"; and (4) "it prevents employers from
firing without cause any returning veterans within one year
of reemployment." Petty v. Metro. Gov't of
Nashville-Davidson Cnty., 538 F.3d 431, 439 (6th Cir.
2008) (citations omitted). Mr. Smith alleged that the Guard
had violated USERRA by denying him reemployment in the AGR
after he returned from his active duty tour at the Naval War
College. Smith I, 387 S.W.3d at 573.
Guard moved to dismiss Mr. Smith's lawsuit for lack of
subject matter jurisdiction based on its sovereign immunity
as a State entity. Id. The trial court granted the
motion to dismiss, and the Court of Appeals affirmed.
Id. at 572.
affirming the dismissal, the Court of Appeals pointed out
that, while USERRA authorizes a private person to bring a
cause of action in state court "against a state as an
employer," USERRA also specifies that jurisdiction in
state court for such a cause of action must be "in
accordance with the laws of the State."
Id. at 574 (citing 38 U.S.C. § 4323(b)(2))
(emphasis added). Like courts in other jurisdictions, the
Court of Appeals interpreted this language as authorizing a
private cause of action against a state employer in state
court only if the state has waived sovereign immunity for
USERRA claims. Smith I, 387 S.W.3d at
574-75. The Court of Appeals concluded that
Tennessee had not waived sovereign ...