JONATHAN R. CLARK v. VIRGINIA DEPARTMENT OF STATE POLICE
Record No. 151857
PRESENT: All the Justices
December 1, 2016
OPINION BY JUSTICE D. ARTHUR KELSEY
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, Lynn S. Brice, Judge
A 1998 amendment to the Uniformed Services Employment and Reemployment Rights Act (“USERRA“), see
I.
Clark filed a USERRA claim against the VSP, alleging that he was denied a promotion because of his service in the United States Army Reserves. The VSP responded with a plea of sovereign immunity. As an agency of the Commonwealth, the VSP argued that it could not be sued on a federal right of action in state court absent a waiver of sovereign immunity. Neither it nor the General Assembly, the VSP asserted, had waived sovereign immunity for USERRA claims filed in state court. The trial court agreed, granted the plea of sovereign immunity, and dismissed Clark‘s USERRA claim.
II.
On appeal, Clark contends that the trial court misapplied sovereign-immunity principles and thus erred in dismissing his USERRA claim. The United States, appearing as amicus, concurs with Clark and urges us to hold that the Commonwealth‘s sovereign immunity has been lawfully abrogated by
A.
“Dual sovereignty is a defining feature of our Nation‘s constitutional blueprint.” Sossamon v. Texas, 563 U.S. 277, 283 (2011) (citation omitted). “Upon ratification of the Constitution, the States entered the Union ‘with their sovereignty intact.‘” Id. (citation omitted). Federalism presupposes that the States retain exclusive sovereignty in some aspects of governance, share sovereign power with the federal government in other aspects, and yield their sovereign power only in those aspects of governance exclusively assigned to the federal government by the United States Constitution. See generally Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991) (collecting cases).
Under the Constitution‘s segmentation of governmental power, States retain “a residuary and inviolable sovereignty” that precludes them from being “relegated to the role of mere provinces or political corporations” of a consolidated national government. Alden v. Maine, 527 U.S. 706, 715 (1999) (first quote from The Federalist No. 39, at 245 (J. Madison) (C. Rossiter ed., 1961)). As James Madison explained, States possess “distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” Id. at 714 (quoting The Federalist No. 39, at 245).
Alexander Hamilton considered it “inherent in the nature of sovereignty” for a state “not to be amenable to the suit of an individual without its consent.” The Federalist No. 81, at 487 (A. Hamilton). “This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in Union.” Id. Speaking at the Virginia ratifying convention, James Madison agreed: “It is not in the power of individuals to call any state into court.” 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 533 (1827). John Marshall concurred, “It is not rational to suppose that the sovereign power [i.e., a State] should be dragged before a court.” Id. at 555.
In 1793, roughly five years after the ratification of the Constitution, a South Carolinian filed suit in the United States Supreme Court against the State of Georgia seeking payment of a debt incurred during the American Revolution. In that case, Chisholm v. Georgia, 2 U.S. 419 (1793), Georgia protested that the federal judicial power in Article III did not abrogate States’ sovereign immunity. “The suability of a State without its consent,” Georgia no doubt assumed, “was a thing unknown to the law.” Hans v. Louisiana, 134 U.S. 1, 16 (1890). A majority of Justices on the Supreme Court disagreed, holding that Article III implicitly abolished state sovereign immunity by affirmatively granting federal courts the power to decide disputes between private citizens and States. See Chisholm, 2 U.S. at 452, 466, 467.2
Georgia‘s representatives were none too pleased. The day after the opinion was issued, the Georgia congressional delegation introduced a resolution in Congress that, while initially unsuccessful, would later become the Eleventh Amendment. See Alden, 527 U.S. at 721. Clarifying its views with further emphasis, the Georgia House of Representatives passed a bill stating that anyone who attempted to enforce Chisholm would be “guilty of felony and shall suffer death, without benefit of clergy, by being hanged.” Id. at 720-21 (citation omitted). Within a year, the Eleventh Amendment passed Congress with near unanimity and was swiftly ratified by the States. Chisholm, an opinion that “fell upon the country with a profound shock,” id. at 720 (citation omitted), had one of the shortest tenures of any opinion ever issued by the Supreme Court.
Addressing only the Chisholm scenario, the literal text of the Eleventh Amendment limited only the “Judicial power of the United States” (the jurisdiction of Article III federal courts) and prohibited only suits against a State “by Citizens of another State” or citizens or subjects of a foreign state.
That background principle received full recognition in Alden v. Maine. In that case, a group of Maine probation officers filed suit in a Maine state court alleging that their employer, the State of Maine, had violated overtime pay provisions of the Fair Labor Standards Act (“FLSA“),
Alden clarified that this form of “sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself” and the “fundamental postulates implicit in the constitutional design.” Id. at 728-29. Judicial recognition of the “contours of sovereign immunity” necessarily must be “determined by the founders’ understanding” of the constitutional design. Id. at 734. To rule otherwise, the Supreme Court explained, would endorse “the type of ahistorical literalism” employed by the “discredited decision in Chisholm.” Id. at 730.
B.
The enduring role of sovereign immunity is not without its qualifications. It generally does not apply, for example, to suits filed in federal court seeking prospective relief against a continuing violation of federal law by state officers, Ex parte Young, 209 U.S. 123, 155-56 (1908),4 or cases that seek to enforce civil rights laws enacted pursuant to Section 5 of the Fourteenth Amendment, Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 132 S. Ct. 1327, 1333 (2012) (plurality opinion); Seminole Tribe, 517 U.S. at 59. Nor does sovereign immunity apply when the United States, rather than a private citizen, brings an action in federal court against a State. See Alden, 527 U.S. at 755 (citing Principality of Monaco v. Mississippi, 292 U.S. 313, 328-39 (1934)).
The Alden plaintiffs asserted their claims under the FLSA. The Congressional power to enact the FLSA arose from the Commerce Clause in Article I, Section 8. Seminole Tribe held that Congress‘s “Article I authority to
The only exception recognized to the general rule of sovereign immunity arises in the sui generis context of federal bankruptcy litigation. Because “[b]ankruptcy jurisdiction, at its core, is in rem,” the United States Supreme Court held that “it does not implicate States’ sovereignty to nearly the same degree as other kinds of jurisdiction. That was as true in the 18th century as it is today.” Central Va. Cmty. Coll. v. Katz, 546 U.S. 356, 362 (2006) (citation omitted). Unlike the constitutional history of other Article I, Section 8 powers, the “history of the Bankruptcy Clause, the reasons it was inserted in the Constitution, and the legislation both proposed and enacted under its auspices immediately following ratification of the Constitution” show that the Founders intended it “not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena.” Id. at 362-63. “In ratifying the Bankruptcy Clause,” Katz held, “the States acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts.” Id. at 378.
C.
Clark argues that USERRA should be exempt from the general sovereign-immunity rule of Alden and be treated, as the bankruptcy power was in Katz, as an exceptional, but nonetheless valid, congressional abrogation of the Commonwealth‘s sovereign immunity to suits in its own courts. In support, Clark points out that Congress enacted USERRA pursuant to its grant of war powers in Article I, Section 8, Clauses 11-16,5 not its power to “regulate Commerce . . . among the several States” under Article I, Section 8, Clause 3, which authorized the Act addressed in Alden. For several reasons, we find this to be a distinction without a difference.
To begin with, neither the reasoning nor the holding of Alden addressed — much less turned on — the fact that the offending federal statute, the FLSA, was enacted pursuant to the Commerce Clause. See
Relying exclusively on the “history, practice, precedent, and the structure of the Constitution,” not the literal text or unique context of the Commerce Clause, the Court “h[e]ld that the States retain immunity from private suit in their own courts, an immunity
In reply, Clark describes Katz as an exception to Alden‘s broad, unqualified holding. After all, Clark correctly asserts, the congressional abrogation of sovereign immunity in Katz was authorized by the Bankruptcy Clause — an Article I power found in Section 8, Clause 4. We appreciate the point (as did the four dissenting Justices in Katz) but are unpersuaded that it matters in Clark‘s case. Two aspects of Katz foreclose Clark‘s view that Alden either has been or should be picked apart by further exceptions.
First, Katz involved claims against States filed exclusively in federal bankruptcy court. In contrast, the broad, unqualified holding of Alden addressed claims against States “in their own courts.” See Alden, 527 U.S. at 730, 742-43. No portion of Katz took issue with Alden‘s recognition of a State‘s sovereign immunity in its own courts. Moreover, Katz involved a unique body of law governing “in rem” rights to bankrupt estates and the historic power of bankruptcy courts “to issue ancillary orders enforcing their in rem adjudications.” Katz, 546 U.S. at 370. In rem actions do “not implicate States’ sovereignty to nearly the same degree as other kinds of jurisdiction.” Id. at 362. Alden did not involve in rem proceedings, but rather in personam rights of action. The Alden holding, therefore, was not limited — much less implicitly overruled — by Katz. The former addressed federal claims against States in their own courts asserting in personam rights of action. The latter addressed federal claims against States in federal bankruptcy courts asserting in rem claims and ancillary remedies.
It could very well be, as Clark surmises, that Alden‘s trajectory may eventually be redrawn by the United States Supreme Court and that the future effort may characterize Katz as the first necessary course correction.6 We offer no views on the subject because that task, if it should be undertaken
Clark not so subtly implies that we should recognize Katz as the first in a series of retrenchments that he predicts the United States Supreme Court will make from the broad holding of Alden. See Appellant‘s Br. at 11-12. We neither affirm nor disaffirm Clark‘s prediction. To us, the question is what the law is now, not what it may be in the future. We are not in the speculative business of plotting the future course of federal precedents.7 And we take some comfort in knowing that the United States Supreme Court is no more interested in our doing so than we are. “[O]ther courts,” the Supreme Court has said, should not “conclude our more recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997). Instead, “if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Id. (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).
III.
In sum, the trial court correctly held that sovereign immunity barred Clark‘s USERRA claim against the VSP, an arm of the Commonwealth, because “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts.” Alden, 527 U.S. at 712; id. at 754 (repeating the opinion‘s “we hold” declaration). The Katz qualification, applicable only to claims arising within a federal bankruptcy court‘s in rem jurisdiction over a bankruptcy estate, does not apply to Clark‘s state-court claim for in personam damages. Therefore, the trial court did not err in dismissing Clark‘s suit on the basis of sovereign immunity.
Affirmed.