                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  July 27, 2012 Session

           DAVID R. SMITH v. TENNESSEE NATIONAL GUARD

                 Appeal from the Circuit Court for Davidson County
                   No. 11C3080      Thomas W. Brothers, Judge


                No. M2012-00160-COA-R3-CV - Filed August 8, 2012


Plaintiff was a full-time employee of the Tennessee National Guard until 2002 when he
commenced active duty service in the Active Guard and Reserve. Near the completion of his
active duty service in the Active Guard and Reserve, Plaintiff asked the Tennessee National
Guard to rehire him pursuant to the Uniformed Service Employment and Reemployment
Rights Act of 1994 (USERRA). When the Tennessee National Guard refused, Plaintiff filed
this action alleging it violated USERRA. The Tennessee National Guard responded to the
complaint by filing a Tenn. R. Civ. P. 12.02(6) motion to dismiss for lack of subject matter
jurisdiction based upon sovereign immunity from USERRA claims. The trial court granted
the motion to dismiss based on the doctrine of sovereign immunity. Because the Tennessee
General Assembly has not passed legislation to expressly waive its sovereign immunity from
claims based on USERRA, as other states have done, we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which A NDY D. B ENNETT,
J., and J EFFREY S. B IVINS, S P. J., joined.

Phillip L. Davidson, Nashville, Tennessee, for the appellant, David R. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Kevin G. Steiling, Deputy Attorney General; and Michael K. Markham, Assistant Attorney
General, for the appellee, Tennessee National Guard.

                                        OPINION

       This appeal arises from the grant of a Tennessee Rule of Civil Procedure 12.02(6)
motion to dismiss for lack of subject matter jurisdiction. The standards by which Tennessee
courts are to assess a Rule 12.02(6) motion to dismiss are well established. As our Supreme
Court stated in Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426
(Tenn. Jul. 21, 2011), “[a] Rule 12.02(6) motion challenges only the legal sufficiency of the
complaint, not the strength of the plaintiff’s proof or evidence.” Id. “The resolution of a
12.02(6) motion to dismiss is determined by an examination of the pleadings alone.” Id. By
filing a motion to dismiss the defendant “‘admits the truth of all of the relevant and material
allegations contained in the complaint, but . . . asserts that the allegations fail to establish a
cause of action.’” Id. (citing Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn.
2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn.
2005))).

      The only pleading filed in this action is the Complaint filed by Lieutenant Colonel
David R. Smith (“Plaintiff”), and we quote below the relevant portions of his Complaint:

                                          C OMPLAINT

             Comes the Plaintiff complaining of the Defendant [the Tennessee
       National Guard] and would show unto the Court:

       1.      Jurisdiction. This Court has jurisdiction to hear this case pursuant to
               Title 38 U.S.C. § 4323 (a)(3)(A)(b)(2) in that this is a case brought
               under the authority of Title 38 U.S.C. § 4311 et seq., the Uniformed
               Service employment and Reemployment Rights Act of 1994
               (USERRA), a Federal Law.

       2.      Parties.

       2.1     Plaintiff. The Plaintiff, David R. Smith (LTG Smith), is a resident and
               citizen of the State of Tennessee. At all times mentioned in this
               complaint he was a member of the Tennessee Air National Guard
               (TNANG) with the rank of Lieutenant-Colonel.

       2.2     Defendant. The Defendant, Tennessee National Guard (TNNG), is an
               entity of the sovereign State of Tennessee.

       3.      Facts. LTC Smith has been a member of the TNNG since 1993. On
               February 1, 2002, LTC Smith was hired as a member of the Active
               Guard and Reserve (AGR). An AGR employee is a full-time employee
               where employment is governed by Title 32 U.S.C. § 502 (f) et seq.
               Guard members serving under the provisions of Title 10 are placed in
               the State of Temporary Duty (TDY).

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       3.2    In March of 2011 as his TDY was nearing an end, LTC Smith notified
              the TNNG that he desired to resume his fulltime position in the AGR
              Program. In April of 2011, TNNG informed LTC Smith that he no
              longer had a position in the AGR despite the fact that positions had
              been and were available. And, upon his return from TDY in June of
              2011 he, in fact, was not rehired by the TNNG in an AGR position.

       3.4    LTC Smith was well qualified for return to the AGR, had in the past
              performed his job exceptionally, and had merited attendance at the
              Naval War College, something only the top percent of National Guard
              officers are selected to do.

       4.     USERRA Violation. TNNG violated Title 38 U.S.C.§4311 et seq. by
              denying LTC Smith reemployment once he was released from TDY
              based on his membership in the AGR and his obligation as such to
              perform service in the uniformed service.

       5.     Damages. As a direct and proximate result of the illegal actions of
              TNNG heretofore set forth in this Complaint, LTC Smith has lost
              employment, wages and benefits.

              ....

        The defendant, the Tennessee National Guard, responded to the Complaint by filing
a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for lack of subject matter
jurisdiction based upon sovereign immunity from USERRA claims. Plaintiff filed a timely
response to the motion.

      Following a hearing, the trial court granted the motion and dismissed the Complaint
because the Tennessee National Guard is a division of the Tennessee Military Department,
which is an entity of the State of Tennessee, and the State of Tennessee has not waived its
immunity from suit under USERRA. This appeal followed.

                                         A NALYSIS

        Plaintiff contends the trial court erred in holding that the Tennessee National Guard
is protected from his 38 U.S.C. § 4301 et seq., USERRA claim by virtue of the doctrine of
sovereign immunity. More specifically, Plaintiff contends the Tennessee General Assembly
has waived its sovereign immunity for USERRA claims because it made it clear that

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protected activities, like protected classes, can be addressed by our courts. Plaintiff asserts
that USERRA is a civil rights statute by definition because it creates or defines a protected
class (those who serve in the military) and provides for one or more remedies. See, e.g.,
Rivers v. Roadway Express, Inc., 511 US 298, 308-309 (1990).

       In support of his argument that the State has waived sovereign immunity under
USERRA, Plaintiff points to several other civil rights statutes enacted by the Tennessee
General Assembly. The Tennessee Human Rights Act, Tennessee Code Annotated § 4-21-
101 et seq., this state’s principal civil rights protection statute, was enacted to “[m]ake
available to the state their [meaning various classes of persons] full productive capacity in
employment.” Tenn. Code Ann. § 4-21-101(a)(5). The General Assembly also incorporated
the “policies embodied” in federal civil rights legislation. Tenn. Code Ann. § 4-21-101(a)(1).
Further, the sovereign itself, the State of Tennessee, is defined as an “employer” in
Tennessee Code Annotated § 4-21-102(5), thereby unequivocally waiving sovereign
immunity as it pertains to such claims. Similarly, the Tennessee Handicapped Act expressly
includes the sovereign, the State of Tennessee, in the definition of an employer. Tenn. Code
Ann. § 8-50-103(b).

      The Tennessee National Guard insists that the State of Tennessee has not waived its
sovereign immunity from USERRA claims. Moreover, it contends that Plaintiff’s analogy
between USERRA and other employment and civil rights laws, such as the Tennessee
Human Rights Act (“THRA”) and the Tennessee Disability Act (“TDA”) is misplaced
because Plaintiff asserts the State of Tennessee impliedly waived its immunity from
USERRA claims by expressly waiving its immunity from claims under the THRA and TDA.

      To resolve this conflict we must examine USERRA and the principles underlying
Tennessee’s sovereign immunity.

                                        I. USERRA

        Job security for armed services members dates back to the Selective Training and
Service Act of 1940. Petty v. Metropolitan Government of Nashville-Davidson County, 538
F.3d 431, 439 (6th Cir. 2008). The Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301-4334, was enacted by Congress “to
clarify, simplify, and where necessary, strengthen the existing veterans’ employment and
reemployment rights provisions.” Id. (citing Francis v. Booz, Allen & Hamilton, Inc., 452
F.3d 299, 304 (4th Cir. 2006)). “Because USERRA was enacted to protect the rights of
veterans and members of the uniformed services, it must be broadly construed in favor of its
military beneficiaries.” Francis, 452 F.3d at 303.



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        USERRA performs four key functions: (1) it guarantees returning veterans a right of
re-employment after military service, 38 U.S.C. § 4312; (2) it prescribes the position to
which such veterans are entitled upon their return, 38 U.S.C. § 4313; (3) it prevents
employers from discriminating against returning veterans on account of their military service,
38 U.S.C. § 4311; and (4) it prevents employers from firing without cause any returning
veterans within one year of re-employment, 38 U.S.C. § 4316.1 USERRA creates a private
cause of action in favor of a service-connected employee who the employer has refused to
rehire. See Petty, 538 F.3d 431.

       Plaintiff relies on USERRA, specifically 38 U.S.C. § 4323, as the basis for subject
matter jurisdiction; however, USERRA’s jurisdiction is expressly limited in actions filed by
individuals against a state as an employer with the inclusion of the following: “in accordance
with the laws of the State.” 38 U.S.C. § 4323(b)(2); see Velasquez v. Frapwell, 165 F.3d 593
(7th Cir. 1999). Thus, for an individual to sustain an action against a state pursuant to
USERRA, the action must be permitted by state law. Id.

       This legal principle was the subject of review in the Supreme Courts of Alabama and
Delaware and the Court of Appeals of Georgia, and each court concluded that the USERRA
claim must be dismissed because the respective state had not waived its immunity from suit
under USERRA. The Supreme Court of Alabama discussed the State of Alabama’s immunity
from suit under USERRA in Larkins v. Dep’t of Mental Health and Mental Retardation, 806
So.2d 358 (Ala. 2001). Noting “Congress’s deference to state laws includes a state’s law
dealing with its immunity from suit,” the court affirmed the dismissal of the USERRA action
because the state had not expressly waived its immunity. Larkins, 806 So.2d at 363. The
Delaware Supreme Court addressed the issue in Janowski v. Div. of State Police, Dep’t of
Safety and Homeland Sec., 981 A.2d 1166, 1170 (Del. 2009). Considering whether Delaware
had waived its immunity, the Janowski court noted that an individual may proceed with a suit
against a state under 38 U.S.C. § 4323(b)(2) “in accordance with the laws of the State” but
interpreted that language to include “determinations about whether, when, and under what
circumstances to waive sovereign immunity explicitly.” Id. Based upon this reasoning, the
Delaware Supreme Court determined that the Delaware legislature had not explicitly waived
its immunity from suits under USERRA and affirmed the trial court’s dismissal. Id. at 1170-
71. The Court of Appeals of Georgia, in Anstadt v. Bd. of Regents of Univ. Sys. of Georgia,
693 S.E.2d 868, 872 (Ga. Ct. App. 2010), used a similar analysis to conclude that a suit
against the State of Georgia under USERRA is only permissible to the extent the state has
explicitly waived its sovereign immunity.



       1
         Sections 4312 and 4313 are known as the “reemployment provisions” of USERRA. See Petty, 538
F.3d at 439 n.3.

                                                -5-
      Having considered the applicable USERRA principles, we turn our attention to
Tennessee’s Sovereign Immunity.

                          II. T ENNESSEE’S S OVEREIGN IMMUNITY

        Tennessee’s sovereign immunity arises from its constitution. Article I, section 17, of
the Tennessee Constitution provides that “suits may be brought against the State in such
manner and in such courts as the Legislature may by law direct.” Based upon this
constitutional provision, no civil action against the State may be sustained absent express
authorization from the Tennessee General Assembly. Greenhill v. Carpenter, 718 S.W.2d
268, 270 (Tenn. Ct. App. 1986); see also Chumbley v. State, 192 S.W.2d 1007 (Tenn. 1946)
(holding that a suit against the State of Tennessee is barred by Tennessee Constitution article
I, section 17 when it is not brought in such manner as the legislature has directed). This
principle of law has also been recognized by the federal courts. Woolsey v. Hunt, 932 F.2d
555, 564 (6th Cir. 1991) (stating unless the state has expressly consented to be sued,
sovereign immunity bars a court from entertaining any suit against the state); see also
Memphis & C. R. Co. v. State of Tenn., 101 U.S. 337, 339 (1879) (“The principle is
elementary that a State cannot be sued in its own courts without its consent.”).

        It is also critical to recognize that the courts of this state have no power to amend,
revise, or waive this state’s sovereign immunity. Brown v. State, 783 S.W.2d 567, 571 (Tenn.
Ct. App. 1989) (citing Austin v. City of Memphis, 684 S.W.2d 624, 637 (Tenn. Ct. App.
1984)). The unequivocal restraint upon the courts of this state is stated in Tennessee Code
Annotated § 20-13-102(a):

       No court in the state shall have any power, jurisdiction or authority to entertain
       any suit against the state, or against any officer of the state acting by authority
       of the state, with a view to reach the state, its treasury, funds or property, and
       all such suits shall be dismissed as to the state or such officers, on motion, plea
       or demurrer of the law officer of the state, or counsel employed for the state.

       Thus, only the Tennessee General Assembly may waive this state’s sovereign
immunity, and legislation authorizing suits against the state must provide for the state’s
consent in “plain, clear, and unmistakable” terms. Williams v. State, 139 S.W.3d 308, 311
(Tenn. Ct. App. 2004) (quoting State ex rel. Allen v. Cook, 106 S.W.2d 858, 861 (Tenn.
1937))(emphasis added). “The state cannot be subjected to suits by individuals unless the
words of the act are so plain, clear and unmistakable as to leave no doubt of the intention of
the Legislature that it should be done.” Daley v. State, 869 S.W.2d 338, 340 (Tenn. Ct. App.
1993) (citing Quinton v. Board of Claims, 54 S.W.2d 953, 857 (Tenn. 1932); Brewington v.
Brewington, 387 S.W.2d 777, 779 (Tenn. 1965)). Moreover, a statute permitting suit against

                                               -6-
the state must be strictly construed, and jurisdiction cannot be enlarged by implication.
Chumbley, 192 S.W.2d at 1008; Brown, 783 S.W.2d at 571.

       The Tennessee General Assembly has not expressly waived the state’s sovereign
immunity from claims under USERRA, and Plaintiff’s reliance on an implied waiver is
contrary to the law of Tennessee. See Williams, 139 S.W.3d at 311 (stating the waiver of
immunity must be expressed using “plain, clear, and unmistakable” terms). The Tennessee
National Guard is a division of the Tennessee Military Department; thus, it is an entity of the
State of Tennessee. See Tenn. Code Ann. § 58-1-201, et seq. Accordingly, the Tennessee
National Guard has immunity from claims arising under USERRA, including the claim
asserted by Plaintiff in this civil action.

                                      I N C ONCLUSION

       For the reasons stated above, the judgment of the trial court is affirmed, and this
matter is remanded with costs of appeal assessed against the appellant.




                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




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