David R. Smith v. The Tennessee National Guard, M2016-01109-COA-R3-CV

David R. Smith, a former Tennessee National Guard lieutenant-colonel, alleged the Guard refused to rehire him after an active-duty tour in 2011 in violation of USERRA.
Smith sued in 2011; the trial court dismissed for lack of subject-matter jurisdiction based on Tennessee sovereign immunity, and this Court affirmed (Smith I).
In 2014 the Tennessee Legislature enacted Tenn. Code Ann. § 29-20-208 waiving sovereign immunity for USERRA claims “accruing on or after July 1, 2014.”
Smith filed a new complaint in 2016 invoking § 29-20-208 and also challenged the statute as preempted by USERRA’s provision disallowing filing-period limits (38 U.S.C. § 4327(b)).
The trial court dismissed, finding the claim accrued in 2011 (pre-§ 29-20-208) and that the statute was constitutional; Smith appealed.
The Court of Appeals reversed, holding § 29-20-208 valid and that Smith’s cause of action did not accrue until July 1, 2014, because he had no judicial remedy against the State prior to the statutory waiver of sovereign immunity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 29-20-208 is unconstitutional / preempted by USERRA (Supremacy Clause)	§ 29-20-208 imposes an impermissible time limit on USERRA claims and conflicts with § 4327(b) (no filing-period limit).	§ 29-20-208 merely waives sovereign immunity for claims accruing on/after July 1, 2014, and does not limit filing periods; therefore no conflict.	The statute is constitutional and not preempted; it does not place an impermissible filing-period limit on USERRA claims.
When Smith’s USERRA cause of action accrued for purposes of § 29-20-208	Claim did not accrue in 2011 because there was no state-law right to sue the State under USERRA until the 2014 waiver; accrual occurred July 1, 2014.	Accrual occurred in 2011 when Smith knew he was injured (discovery rule); thus § 29-20-208 does not revive pre-2014 claims.	Accrual depends on availability of a judicial remedy; because sovereign immunity barred suit pre-2014, Smith’s claim accrued on July 1, 2014, and is actionable under § 29-20-208.

Smith v. Tennessee National Guard, 387 S.W.3d 570 (Tenn. Ct. App. 2012) (earlier appeal holding state immune from USERRA claims prior to legislative waiver)
Lind v. Beaman Dodge, Inc., 356 S.W.3d 889 (Tenn. 2011) (accrual tied to the moment a statutory right to sue exists)
Wyatt v. A–Best Co., 910 S.W.2d 851 (Tenn. 1995) (discovery rule and principle that a tort claim does not accrue until a judicial remedy is available)
Gibson v. Swanson Plating & Mach., 819 S.W.2d 796 (Tenn. 1991) (statute of limitations does not run before the right to sue against a particular fund or remedy accrues)
Berent v. CMH Homes, Inc., 466 S.W.3d 740 (Tenn. 2015) (discussion of federal preemption principles)
Staub v. Proctor Hosp., 562 U.S. 411 (2011) (characterizing USERRA claims as akin to federal torts and applying general tort principles)