PHILLIP G. RAMIREZ, JR., Plaintiff-Petitioner, v. STATE OF NEW MEXICO CHILDREN, YOUTH AND FAMILIES DEPARTMENT, DORIAN DODSON, in her individual and official capacities, RON WEST, in his individual and official capacities, BARBARA AUTEN, in her individual and official capacities, ROGER GILLESPIE, in his individual and official capacities, TED LOVATO, in his individual and official capacities, TIM HOLESINGER, in his individual and official capacities, DANIEL BERG, in his individual and official capacities, Defendants-Respondents, and NEW MEXICO ATTORNEY GENERAL’S OFFICE, Intervenor.
NO. S-1-SC-34613
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
April 14, 2016
Camille Martinez-Olguin, District Judge
ORIGINAL PROCEEDING ON CERTIORARI
Alice Tomlinson Lorenz
Albuquerque, NM
for Petitioner
Hinkle Shanor, LLP
Ellen S. Casey
Jaclyn M. McLean
Loren S. Foy
for Respondent
Hector H. Balderas, Attorney General
Robert David Pederson, Assistant Attorney General
Phillip Patrick Baca, Assistant Attorney General
Albuquerque, NM
for Intervenor
Serra & Garrity, PC
Diane M. Garrity
Santa Fe, NM
Reserve Officers Association
Samuel F. Wright
Washington, DC
Law Office of Thomas G. Jarrard, PLLC
Thomas G. Jarrard
Spokane, WA
Robert Mitchell Attorney at Law, PLLC
Robert W. Mitchell
for Amicus Curiae Reserve Officers Association of America
Office of the U.S. Attorney
Damon P. Martinez, U.S. Attorney
Manuel Lucero, Assistant U.S. Attorney
Albuquerque, NM
Department of Justice Civil Rights Division
Nathaniel S. Pollock
Washington, DC
for Amicus Curiae United States
Garcia Ives Nowara, LLC
George L. Bach
Albuquerque, NM
for Amicus Curiae American Civil Liberties Union of New Mexico
NAKAMURA, Justice.
{1} We are called to decide whether a New Mexico National Guard member may assert a claim against the State as employer under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA),
I. BACKGROUND
A. USERRA
{2} Congress enacted USERRA to encourage noncareer military service, to minimize disruptions in the lives and communities of those who serve in the uniformed services, and “to prohibit discrimination against persons because of their service in the uniformed services.”
A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
{3} Congress originally conferred jurisdiction on the federal district courts to adjudicate USERRA actions brought by private individuals against state employers. Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. No. 103-353, 108 Stat. 3149, 3165 (1994) (providing that “[i]n the case of an action against a State as an employer, the appropriate district court is the court for any district in which the State exercises any authority“) (current version at
B. Ramirez’s USERRA claim
{5} Ramirez joined the New Mexico National Guard on August 22, 1991. On April 9, 1997, CYFD hired him as a surveillance officer. In November 2005, Ramirez was deployed to Iraq where he led a platoon charged with providing security escort to supply convoys. After his service in Iraq, Ramirez was transferred to Kuwait, where on May 13, 2006, he was promoted to Sergeant First Class. Ramirez returned to Gallup in November 2006.
{6} Ramirez resumed employment with CYFD on January 2, 2007 under the supervision of Daniel Berg and Tim Holesinger. Within a few months of his return,
{7} On May 19, 2008, Ramirez filed a lawsuit in the Eleventh Judicial District Court against CYFD, the former secretary of CYFD, Holesinger, Berg, and others at CYFD who supervised Ramirez, alleging a USERRA claim for monetary relief and other claims arising under federal and state law. CYFD moved to dismiss Ramirez’s USERRA claim on grounds that, as a state agency, it was immune to USERRA claims brought by private individuals. The record indicates that the district court did not specifically rule on that motion and commenced a jury trial on, inter alia, Ramirez’s USERRA claim. During trial, CYFD moved for a directed verdict with respect to the USERRA claim. The district court denied that motion. The jury found that Ramirez’s military service was a motivating factor for the adverse employment actions taken by CYFD and returned a verdict in his favor, awarding him $36,000 in damages for lost earnings. The district court entered the judgment and award in favor of Ramirez.
{8} CYFD appealed, and the Court of Appeals reversed. Ramirez, 2014-NMCA-057, ¶ 1. In a divided opinion, the Court of Appeals held that CYFD, as a state agency, was immune to Ramirez’s USERRA claim. See id. The Court of Appeals
{9} We granted Ramirez’s petition for a writ of certiorari to consider whether New Mexico is immune to private USERRA suits for damages, exercising our appellate jurisdiction provided by
II. DISCUSSION
A. State sovereign immunity should be determined at the outset of litigation
{10} The procedural history of Ramirez’s USERRA claim in the district court gives
{11} When the State moves to dismiss a plaintiff’s claim by raising the affirmative defense of sovereign immunity invoking the lack of subject matter jurisdiction, the district court must rule on that motion before allowing the claim to proceed. See Gonzales v. Surgidev Corp., 1995-NMSC-036, ¶ 12, 120 N.M. 133, 899 P.2d 576 (“Subject matter jurisdiction is [a court’s] power to adjudicate the general questions involved in the claim.“). This is a matter of both principle and practice. First, sovereign immunity protects the State not only from liability but also from suit. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 766 (2002). Courts may not allow a plaintiff to impose on the State the expense of litigating a claim to which it is immune. See id. at 765 (“[S]tate sovereign immunity serves the important function of shielding state treasuries and thus preserving the [state’s] ability to govern.” (internal quotation marks and citation omitted)). Second, if the State properly invokes
{12} In this case, we conclude that the Legislature consented to private USERRA actions for damages. Hence, the risks associated with not deciding a state sovereign immunity defense at the outset did not materialize. Nevertheless, we reiterate that the defense of state sovereign immunity should be adjudicated at the outset of litigation, instead of permitting the issue to be decided after the expense of trial.
B. USERRA and state sovereign immunity
1. Standard of review
{13} We review de novo whether New Mexico is immune in its own courts to a claim for damages arising under federal law. See Manning v. Mining & Minerals Div. of Energy, Minerals & Nat. Res. Dep’t, 2006-NMSC-027, ¶ 9, 140 N.M. 528,
2. State sovereign immunity and congressional legislation enacted under the War Powers Clause
{14} As framed by the parties, this case principally concerns whether the War Powers Clause grants Congress the power to abrogate a state’s sovereign immunity to suit in its own courts. To enforce the rights furnished to private individuals by USERRA against state employers, Congress subjects the states to private actions for money damages in their own courts. See
{15} This case concerns New Mexico’s sovereign immunity to federal causes of action for monetary damages in its own courts—an immunity that derives from the federal Constitution. See Alden v. Maine, 527 U.S. 706, 732-33 (1999) (“Although the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design.“); Cockrell v. Bd. of Regents of N.M. State Univ., 2002-NMSC-009, ¶¶ 4-8, 132 N.M. 156, 45 P.3d 876 (discussing Alden at length). New Mexico’s immunity to suit for damages is a fundamental aspect of its sovereignty and is held by virtue of its “admission into the Union upon an equal footing with the other States.” Alden, 527 U.S. at 713.
{16} Because New Mexico’s sovereign immunity is grounded in the federal Constitution, it exists only where the states’ sovereign immunity was not relinquished either “by the plan of the Convention or certain constitutional Amendments.” Id.; see also The Federalist No. 81 (Hamilton) (“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. . . . Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States . . . .“) (emphasis added). For example, “[i]n ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government.” Alden, 527 U.S. at 754 (citing Principality of Monaco v. State of Miss., 292 U.S. 313, 328-29 (1934) (collecting cases)).
{17} In Alden, the Supreme Court addressed the issue of state sovereignty at the Constitutional Convention and specifically examined whether any provision of Article I grants Congress the power to subject nonconsenting states to private suits for damages in their own courts. See 527 U.S. at 730-31. The Supreme Court
{18} In Central Virginia Community College v. Katz, 546 U.S. 356 (2006), the Supreme Court retreated from the broad holdings of Seminole Tribe and Alden that nothing in Article I empowers Congress to subject a state to suit by a private party for monetary relief without its consent. Katz concluded after looking to the history of the Bankruptcy Clause,
{19} Encouraged by the Supreme Court’s holding in Katz, Ramirez, the New Mexico Office of the Attorney General (as an intervenor), and the United States (as an amicus curiae) argue that Congress’s War Powers include the power to subject states to private suits for monetary relief without their consent. They maintain that this putative power sounds in the plan of the Convention.
{20} We decline to decide whether, pursuant to the constitutional structure outlined at the Convention and ratified thereafter, the states implicitly consented to Congress’s authority under its War Powers to override their sovereign immunity. The resolution of that constitutional question is unnecessary to the disposition of this case; therefore, we do not address it. See Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806 (“It is an enduring principle of constitutional jurisprudence that courts will avoid deciding constitutional questions unless required to do so.” (internal quotation marks and citation omitted)). Instead, we address whether the New Mexico Legislature waived
3. Determining waiver of state sovereign immunity
{21} New Mexico’s privilege to assert its sovereign immunity in its own courts “does not confer upon the State a concomitant right to disregard the Constitution or valid federal law.” Alden, 527 U.S. at 754-55. Sovereign immunity does not bar all judicial review of state compliance with federal law in New Mexico courts. For instance, a private individual may bring a federal cause of action seeking prospective, injunctive relief against a state officer. See Gill v. Pub. Emps. Ret. Bd. of Pub. Emps. Ret. Ass’n of N.M., 2004-NMSC-016, ¶¶ 1, 28, 135 N.M. 472, 90 P.3d 491 (applying the doctrine of Ex parte Young, 209 U.S. 123 (1908), to private suits against state officials).
{22} Furthermore, the Legislature may consent to suits against the State. See Cockrell, 2002-NMSC-009, ¶ 13 (“[I]t is within the sole province of the Legislature to waive the State’s constitutional sovereign immunity.“). “The rigors of sovereign immunity are thus ‘mitigated by a sense of justice which has continually expanded by consent the suability of the sovereign.‘” Alden, 527 U.S. at 755 (quoting Great N. Life Ins. Co. v. Read, 322 U.S. 47, 53 (1944)). The Legislature may waive New
{23} This case turns on whether the Legislature waived the State’s immunity to suit by enacting
{24} We first look to the text of a statute to determine whether the Legislature’s waiver of immunity is clear and unambiguous. For example, in Cockrell we first addressed whether the text of
{25} With respect to a textual indication of waiver, we clarify that the Legislature is not required to employ certain magic words or a specific formulaic recital to express its intention to consent to suit in state court. In Luboyeski v. Hill, for example, this Court concluded that the State waived its immunity to private suits brought to enforce the New Mexico Human Rights Act under its provision that “‘the state shall
{26} This Court may also discern a clear and unambiguous waiver by examining the purpose of a statute. The clear and unambiguous standard does not confine our statutory analysis to the text alone. For example, in Cockrell, after considering whether
{27} We clarify that the method that this Court employs to determine whether the Legislature waived New Mexico’s immunity to suit in its own courts is not the method employed by the federal courts to discern a waiver of state sovereign immunity to suit in federal court. While the federal courts may hesitate to look beyond the statutory text to discern a state’s consent to suit in the federal courts, see, e.g., Edelman v. Jordan, 415 U.S. 651, 673 (1973), in Cockrell, this Court appropriately examined both the text and the purpose of a statute to determine the Legislature’s intent to consent to suit in its own court. 2002-NMSC-009, ¶¶ 21-22 The federal courts’ determination of waivers of sovereign immunity to suit in federal court is guided by federalism concerns that do not bear upon this Court’s determination of the Legislature’s consent to suit in the courts of New Mexico. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984) (“A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued. . . . [B]ecause of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate. . . .” (internal quotation marks and citation omitted)). Unlike the federal courts, when this Court interprets a statute to determine the Legislature’s intent to waive sovereign immunity, we are concerned with the State’s amenability to suit in its own courts. Thus, as in Cockrell, this Court will examine both statutory text and purpose to determine whether the Legislature clearly intended to waive the State’s sovereign immunity to a federal cause of action in its own courts.
{28} We also make clear that any determination by this Court that the Legislature consented to suit in its own courts does not also mean that the Legislature consented to suit in the federal courts. See Pennhurst, 465 U.S. at 100 n.9 (noting that the United States Supreme Court “consistently has held that a State’s waiver of sovereign
4. New Mexico waived sovereign immunity to USERRA claims
{29} Ramirez contends that by enacting
{30} Under
{31}
{33} Other courts, when confronted with the same issue, have interpreted statutes similar to
{34} When the Legislature creates a right of action for damages against the State it thereby makes the State liable to suit. See Luboyeski, 1994-NMSC-032, ¶ 14 (holding that the Human Rights Act’s provisions permitting plaintiffs to obtain damages and attorney’s fees from the State waived the State’s sovereign immunity created by the Tort Claims Act). When enacting
{36} Unlike the Court of Appeals, we do not decide whether the War Powers Clause grants Congress the power to abrogate state sovereign immunity. Whether USERRA’s jurisdictional provision that enforcement actions “may be brought in a State court” is ultra vires, and, consequently, whether the Legislature could have validly extended that jurisdictional provision, are issues inapposite to the proper resolution of this case.
{37} In the light of the text and purpose of
III. CONCLUSION
{38} For the foregoing reasons, we reverse the decision of the Court of Appeals and reinstate the district court’s judgment and damage award.
{39} IT IS SO ORDERED.
JUDITH K. NAKAMURA, Justice
WE CONCUR:
CHARLES W. DANIELS, Chief Justice
EDWARD L. CHÁVEZ, Justice
BARBARA J. VIGIL, Justice