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LAW REVIEW 1014
11th Amendment Does Not Bar Suit against a State by the United States
By Captain Samuel F. Wright, JAGC, USN (Ret.)
United States v.
Alabama Department of Mental Health and Mental Retardation, 2010 WL 447399
and 2010 WL 454905 (M.D. Ala. Feb. 9, 2010 and Feb. 10, 2010).
1.1.1.7—Application
of USERRA to State and Local Governments
1.3.2.2—Continuous
Accumulation of Seniority-Escalator Principle
1.4—USERRA
Enforcement
Congress’ preferred solution to the 11th
Amendment problem, in enforcing the Uniformed Services Employment and
Reemployment Rights Act (USERRA) against a state (as employer), has not been
tested, until now. I am pleased to
report that this solution has passed with flying colors.
On Dec. 30, 2008,
the U.S. Department of Justice (DOJ) filed suit against the Alabama Department
of Mental Health and Mental Retardation[1]
(DMHMR) in the U.S. District Court for the Middle District of Alabama, alleging
that the DMHMR violated the Uniformed Services Employment and Reemployment
Rights Act (USERRA) when it failed or refused to reemploy Roy Hamilton upon his
release from active duty in April 2005.
After the DMHMR unlawfully denied Mr. Hamilton reemployment, he complained to
the U.S. Department of Labor, Veterans’ Employment and Training Service (DOL-VETS),
which investigated his complaint and found it to have merit, and so advised the
employer. After the employer refused to comply with USERRA, the agency referred
Mr. Hamilton’s claim to DOJ, recommending that DOJ sue the DMHMR
Mr. Hamilton is a
member of the Alabama Army National Guard. He was called to active duty and
deployed to Iraq in July 2004. He met the USERRA eligibility criteria for reemployment
in that he gave prior notice to his civilian employer, was released from active
duty without receiving a punitive or other-than-honorable discharge, and made a
timely application for reemployment, well within the 90-day deadline after he
left active duty in April 2005. Moreover,
he has not exceeded USERRA’s cumulative five-year limit on the duration of the
period or periods of uniformed service.
Mr. Hamilton made a timely application for reemployment, but the employer did
not reemploy him. More than two years later, in August 2007, he applied to the
DMHMR for a vacant position and was hired as a new employee.
If DOJ prevails in this lawsuit, and it appears that liability is clear, Mr.
Hamilton will be entitled to a court order requiring the DMHMR to treat him as
if he had been continuously employed, for seniority and pension purposes, from
his initial hire date through the present. Under the “escalator principle,” Mr.
Hamilton is entitled to be treated as if he had been continuously employed
during the nine months (July 2004 through April 2005) that he was on active
duty. “The returning veteran does not step back on the seniority escalator at
the point he stepped off. He steps back on at the precise point he would have
occupied had he kept his position continuously during the war.” Fishgold v. Sullivan Drydock & Repair
Corp., 328 U.S. 275, 284-85 (1946).
Mr. Hamilton is also entitled to be treated as if he had been continuously
employed during the 28 months (April 2005 through August 2007) when he should
have been back on the DMHMR payroll but was not, and he is entitled to back pay
(with interest) to compensate him for the pay and benefits that he lost during
that 28-month period. If his pay in his new DMHMR job, since August 2007, has
been less than what his pay would have been if he had been continuously
employed since his initial hire date, he is entitled to more back pay, for the
difference. If DOJ proves that the DMHMR violated USERRA willfully, the court
will order the employer to pay double damages. I invite the reader’s attention
to Law Review 206, for a detailed discussion of the remedies available in
USERRA cases.
Because the United
States is the plaintiff in this case, and not Mr. Hamilton, the plaintiff is
seeking broader relief, including an injunction requiring the DMHMR to comply
with USERRA in the future, not just with respect to Mr. Hamilton but with
respect to veterans and National Guard and Reserve personnel generally. The opportunity to seek broader prospective
relief is another advantage of a lawsuit brought by the United States.
The 11th Amendment of the United States Constitution provides, “The judicial
power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by
citizens or subjects of any foreign State.” The 11th Amendment was ratified in
1795.
Mr. Hamilton is a citizen of Alabama. The 11th Amendment, by its terms, bars a
suit in federal court against a state by a citizen of another state. Unfortunately,
the Supreme Court has held that the 11th Amendment also bars suits against
states by citizens of the same state. See Hans v. Louisiana, 134 U.S. 1 (1890).
As originally enacted in 1994, USERRA authorized an individual veteran or
Reserve Component member to sue a state in federal court, either with his or
her own attorney or with DOJ acting as the attorney. In 1998, the U.S. Court of
Appeals for the Seventh Circuit held USERRA to be unconstitutional insofar as
it authorized an individual to sue a state in federal court. See Velasquez v. Frapwell, 160
F.3d 389 (7th Cir. 1998), citing
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).
Later in 1998, Congress amended USERRA to solve the problem created by the Velasquez decision. Section
4323(a)(1) of USERRA [38 U.S.C. 4323(a)(1)] now provides that USERRA lawsuits
against state governments, as employers, shall be brought by the U.S. Attorney
General (DOJ) in the name of the United States, as plaintiff. This solves the
11th Amendment problem, because that amendment bars federal court lawsuits against
states initiated by individuals. The 11th Amendment does not bar a suit against
a state initiated by the Attorney General in the name of the United States.
USERRA also provides: “In the case of an action against a State (as an
employer) by a person, the action may be brought in a State court of competent
jurisdiction in accordance with
the laws of the State.” 38 U.S.C. 4323(b)(2) (emphasis supplied).
In Alabama, the state’s Supreme Court has held that
under the Alabama Constitution sovereign immunity is still the rule and that
individuals are precluded from suing the State of Alabama in state court to enforce their USERRA
rights. See Larkins v. Department
of Mental Health and Mental Retardation, 806 So.2d 358 (Ala. 2001).
I discuss Larkins and
its implications in detail in Law Review 89. Mr. Larkins, like Mr. Hamilton,
worked for the Alabama DMHMR. When he returned from military service, the DMHMR
refused to comply with USERRA. Mr. Larkins sued the DMHMR in federal court, and
his suit was dismissed based on the 11th Amendment sovereign immunity of the
state. He then sued in state court and lost because of the sovereign immunity
of the state under the Alabama Constitution. He was left without a remedy for a
serious USERRA violation.
I discuss the 11th
Amendment problem in suing a state in Law Reviews 89, 0848, 0912, 0918, 0930,
0931, 0936, and 1011. All previous Law
Review articles (more than 600) are available at www.roa.org/law_review.
Based on the 1998
USERRA amendment, the Attorney General of the United States brought this action in the name of the United States as named plaintiff. In briefs filed in this case, the DMHMR
attorneys repeatedly and mistakenly referred to Mr. Hamilton as the “Plaintiff.” Chief Judge Mark E. Fuller of the United
States District Court for the Middle District of Alabama rebuked the attorneys[2]
for that reference and pointed out that “The United States is the only
plaintiff in this action.” Footnote 1 in
the Feb. 10 decision. Judge Fuller
forcefully rejected the DMHMR’s argument that sovereign immunity or the 11th
Amendment bars this action:
“The plain text of this provision [the 11th
Amendment] does nothing to prohibit the United States from bringing suit against a state. It is well-settled
that states are subject to suit by the United States. See, e.g.,
United States v. Mississippi,380
U.S. 128 (1965); Monaco v.
Mississippi, 292 U.S. 313, 329 (1934); Equal
Employment Opportunity Commission v. Board of Supervisors of the University of
Louisiana System, 559 F.3d 270, 272 (5th Cir. 2009); Chao v. Virginia Department of
Transportation, 291 F.3d 276, 280 (4th Cir. 2002). States, in ratifying the Constitution, did
surrender a portion of their inherent immunity by consenting to suits brought
by sister states or by the Federal Government. See, e.g., Alden v. Maine, 527 U.S. 706, 755 (1999). Indeed, one of the
very cases on which the Department [DMHMR] relies for its contention that the
Eleventh Amendment bars this action, in fact, recognizes that the “Federal
Government can bring suit in federal court against a State” in order to ensure
its “compliance with federal law.” Seminole Tribe of Florida v. Florida,
517 U.S. 44, 71 n. 14 (1996) (holding that Congress lacked authority
under Article I of the Constitution to abrogate the states' Eleventh Amendment
immunity from suit by private parties without the states' consent). More specifically, USERRA itself contemplates
the filing of this very type of action. If the Attorney General is reasonably
satisfied that the person on whose behalf the complaint is referred is entitled
to the rights or benefits sought, the Attorney General may appear on behalf of
... the person on whose behalf the complaint is submitted and commence an
action for relief under this chapter for such person. In the case of such an
action against a State (as an employer), the action shall be brought in the
name of the United States as the plaintiff
in the action. 38 U.S.C. 4323(a) (emphasis supplied).
The Department [DMHMR] argues that the United States is not acting here to protect its interests and that the
real party in interest is Hamilton. The Court cannot agree. The United States has a clear interest in protecting the employment rights
of members of its armed services upon their return from deployment because
these rights are key in promoting enlistment. Additionally, the United States has a real and substantial interest in ensuring compliance
with its laws generally as well as with USERRA specifically.
Simply put, there is no merit to the Department's [DMHMR’s]
contention that sovereign immunity or the Eleventh Amendment shield it from
this suit. To the extent that the Department [DMHMR] seeks judgment on the
pleadings on this basis, its motion is due to be DENIED. To the extent that the
United States seeks judgment as a matter of law on the inapplicability
of this defense, its motion is due to be GRANTED.”
In Law Review 0918 (May 2009), I reported on the initiation
of this lawsuit, and I stated, “I
am pleased that DOJ has filed this lawsuit, but I am disappointed that it has
proved necessary for the Federal Government to sue the State of Alabama to make
that state reemploy the brave young men and women who temporarily leave state
employment for military service in the Global War on Terrorism. I have
communicated this concern to the president of ROA’s Department of Alabama, and
he has shared this concern with the Governor, Attorney General, and Legislature
of Alabama.”
I congratulate attorneys Antoinette Barksdale,
Esther G. Lander, John M. Gadzichowski, and Sarah C. Blutter of DOJ for
initiating and prosecuting this lawsuit and for their success so far. I again call upon the Governor, Attorney
General, and Legislature of Alabama to drop their frivolous defenses and
immediately come into full compliance with USERRA and other laws enacted to
protect the rights of the brave young men and women who are prepared to lay
down their lives in defense of our country.
[1] Sarah
Palin, Timothy Shriver, and others have recently criticized the use of the term
“mental retardation” as outmoded and unnecessarily demeaning, but this term is
utilized by the State of Alabama
as part of the name of this state agency.
[2] In a
footnote, Judge Fuller stated, “Counsel for the Department is reminded of their
obligations under Federal Rule of Civil Procedure 11 and cautioned against
practicing in this fashion in this Court.”
If you have questions, suggestions, or comments, please contact Captain Samuel F. Wright, JAGC, USN (Ret.) (Director of the Servicemembers’ Law Center) at swright@roa.org or 800-809-9448, ext. 730.
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