Clark v. Va. Dep't of State Police

Decision Date01 December 2016
Docket NumberRecord No. 151857
Citation793 S.E.2d 1,292 Va. 725
Parties Jonathan R. CLARK v. VIRGINIA DEPARTMENT OF STATE POLICE
CourtVirginia Supreme Court

Paul G. Beers (Glenn, Feldmann, Darby & Goodlatte, on brief), Roanoke, for appellant.

Stuart A. Raphael, Solicitor General (Mark R. Herring, Attorney General; Rhodes B. Ritenour, Deputy Attorney General; Trevor S. Cox, Deputy Solicitor General; Gregory C. Fleming, Assistant Attorney General; Ryan D. Doherty, Assistant Attorney General; Matthew R. McGuire, Assistant Attorney General, on brief), for appellee.

Amicus Curiae: United States; Elizabeth P. Hecker (Dana J. Boente, United States Attorney; Steven Gordon, Assistant U.S. Attorney, on brief), in support of appellant.

PRESENT: All the Justices

OPINION BY JUSTICE D. ARTHUR KELSEY

A 1998 amendment to the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), see38 U.S.C. §§ 4301 -4335, created a private right of action enforceable against States in their own courts, see 38 U.S.C. § 4323(b)(2). In this case, the trial court held that principles of sovereign immunity barred a USERRA suit filed by Jonathan R. Clark against the Virginia Department of State Police ("VSP"), an arm of the Commonwealth. We agree and affirm.

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 38 U.S.C. § 4323(b)(2). The VSP responds that the trial court correctly applied sovereign-immunity principles and had no choice but to dismiss the USERRA action. We hold that the trial court properly dismissed Clark's USERRA claim based upon the Commonwealth's sovereign immunity.1

A.

"Dual sovereignty is a defining feature of our Nation's constitutional blueprint." Sossamon v. Texas , 563 U.S. 277, 283, 131 S.Ct. 1651, 179 L.Ed.2d 700 (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, 111 S.Ct. 2578, 115 L.Ed.2d 686 (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, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (first quotation 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, 119 S.Ct. 2240 (quoting The Federalist No. 39, at 245).

From the beginning of the Republic, the doctrine of state sovereign immunity has been a mainstay of federalism principles. It was an axiom of English law that "the law ascribes to the king the attribute of sovereignty," and thus, "no court can have jurisdiction over him" because "jurisdiction implies superiority of power." 1 William Blackstone, Commentaries *241-42. "Immunity from private suits has long been considered ‘central to sovereign dignity.’ " Sossamon , 563 U.S. at 283, 131 S.Ct. 1651 (citation omitted). Based on that tradition, "[t]he generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity." Alden , 527 U.S. at 715, 119 S.Ct. 2240.

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. (2 Dall.) 419, 1 L.Ed. 440 (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, 10 S.Ct. 504, 33 L.Ed. 842 (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, 119 S.Ct. 2240. 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, 119 S.Ct. 2240 (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, 119 S.Ct. 2240 (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. U.S. Const. amend. XI. More than 200 years of precedent, however, has mined "history and experience" as well as "the established order of things," Hans , 134 U.S. at 14, 10 S.Ct. 504, to rediscover the "background principle" animating the Eleventh Amendment, that Congress may not authorize "suits by private parties against unconsenting States." Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 72, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

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"), 29 U.S.C. §§ 201 -219. The Act purported to authorize private actions against States in their own courts. Id. §§ 203(x), 216(b). The holding of Alden was emphatic: "We hold that 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." 527 U.S. at 712, 119 S.Ct. 2240. Put differently, but no less unequivocally: "In light of history, practice, precedent, and the structure of the Constitution, we hold that the States retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I legislation." Id. at 754, 119 S.Ct. 2240. Given "the historical record," the Supreme Court observed, "it is difficult to conceive that the Constitution would have been adopted if it had been understood to strip the States of immunity from suit in their own courts and to cede to the Federal Government a power to subject nonconsenting States to private suits in these fora." Id. at 743, 119 S.Ct. 2240.3

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, 119 S.Ct. 2240. Judicial recognition of the "contours of sovereign immunity" necessarily must be "determined by the founders' understanding" of the constitutional design. Id. at 734, 119 S.Ct. 2240. To rule otherwise, the Supreme Court explained, would endorse "the type of ahistorical literalism" employed by the "discredited decision in Chisholm ." Id. at 730, 119 S.Ct. 2240.

B.

The enduring role of sovereign immunity is not without its qualifications. It generally does not apply, for example,...

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