David R. Smith v. Tennessee National Guard
2012 Tenn. App. LEXIS 552
| Tenn. Ct. App. | 2012Background
- Lt. Col. David R. Smith, a former full-time Tennessee National Guard employee, sought reemployment under USERRA after active duty.
- Guard refused rehire; Smith filed a federal USERRA claim alleging denied reemployment due to military service.
- Tennessee National Guard moved to dismiss under Rule 12.02(6) for lack of subject-matter jurisdiction based on sovereign immunity.
- Trial court granted dismissal, holding Tennessee sovereign immunity barred USERRA claims against the Guard as part of the State.
- Appellant argues Tennessee has expressly or impliedly waived immunity for USERRA, citing THRA and TDA definitions of 'employer'.
- Court analyzes USERRA, Tennessee sovereign immunity doctrine, and whether Tennessee has waived immunity for USERRA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USERRA waives Tennessee sovereign immunity | Smith contends the state has waived immunity for USERRA claims. | TNNG argues no express waiver for USERRA; immunity remains. | Immunity not waived; dismissal affirmed. |
| Whether USERRA jurisdiction against a state is permitted under 38 U.S.C. § 4323 | USERRA creates private rights against employers including states. | State immunities require waiver by statute; § 4323 permits action only per state law. | State immunity bars action absent explicit waiver; dismissal affirmed. |
| Is Tennessee's sovereign immunity limited by THRA/TDA waivers to USERRA | TN waivers for THRA/TDA show possible broader waiver for USERRA. | Waivers are statute-specific and not extendable by implication to USERRA. | No implied waiver; immunity remains; dismissal affirmed. |
| Does Tennessee law require plain, clear, and unmistakable waiver to permit suits against the state | Waiver can be inferred from enactments broadening civil rights protections. | Waivers must be express; no express waiver for USERRA here. | Waiver not express; immunity unchanged; dismissal affirmed. |
| Is the Tennessee National Guard a state entity immune from USERRA claims | Guard is part of state government; defense must be considered accordingly. | Guard is an arm of the state; immune from USERRA unless waived. | Guard immune; dismissal affirmed. |
Key Cases Cited
- Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011) (12.02(6) analyzes legal sufficiency, not proof)
- Petty v. Metropolitan Government of Nashville-Davidson County, 538 F.3d 431 (6th Cir. 2008) (USERRA private right and reemployment rights)
- Larkins v. Dep't of Mental Health and Mental Retardation, 806 So.2d 358 (Ala. 2001) (state immunity and waivers under USERRA analysis)
- Janowski v. Div. of State Police, Dep't of Safety and Homeland Sec., 981 A.2d 1166 (Del. 2009) (explicit state waiver considerations under USERRA)
- Anstadt v. Bd. of Regents of Univ. Sys. of Georgia, 693 S.E.2d 868 (Ga. Ct. App. 2010) (state immunity and USERRA considerations)
- Williams v. State, 139 S.W.3d 308 (Tenn. Ct. App. 2004) (plain, clear and unmistakable waiver standard)
- Chumbley v. State, 192 S.W.2d 1007 (Tenn. 1946) (strict construction of waivers against the state)
- Brown v. State, 783 S.W.2d 567 (Tenn. Ct. App. 1989) (jurisdiction cannot be enlarged by implication)
- Daley v. State, 869 S.W.2d 338 (Tenn. Ct. App. 1993) (statutory waivers must be plain and explicit)
- Velasquez v. Frapwell, 165 F.3d 593 (7th Cir. 1999) (USERRA action against state requires state law waiver)