Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Tennessee National Guard

Supreme Court of Tennessee, Nashville

June 22, 2018

DAVID R. SMITH
v.
THE TENNESSEE NATIONAL GUARD

          Session: April 4, 2018 Heard at Jackson

          Appeal by Permission from the Court of Appeals Circuit Court for Davidson County No. 16C-12 Thomas W. Brothers, Judge

         In 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 court.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed; Judgment of the Trial Court Reinstated

          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.

          OPINION

          CORNELIA A. CLARK, JUSTICE

         I. Factual and Procedural Background[1]

         David 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.).

         Mr. 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.

         On 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.[2]

         On 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 members.[3]

         USERRA 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.

         The 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.

         In 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.[4] The Court of Appeals concluded that Tennessee had not waived sovereign ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.