       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: March 3, 2014

Docket No. 31,820

PHILLIP G. RAMIREZ, JR.,

       Plaintiff-Appellee/Cross-Appellant,

v.

STATE OF NEW MEXICO ex rel. 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, and
DANIEL BERG, in his individual and official capacities,

       Defendants-Appellants/Cross-Appellees.

APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
Camille Martinez-Olguin, District Judge

Vega Lynn Law Offices, LLC
Rosario D. Vega Lynn
Albuquerque, NM

Lorenz Law
Alice T. Lorenz
Albuquerque, NM

for Appellee/Cross-Appellant

Hinkle, Hensley, Shanor & Martin, L.L.P.
Ellen S. Casey
Jaclyn M. McLean
Santa Fe, NM


                                           1
for Appellants/Cross-Appellees

The Reserve Officers Association of America
Samuel F. Wright
Washington, D.C.

Law Office of Thomas G. Jarrard, PLLC
Thomas G. Jarrard
Spokane, WA

Struebel Kochersberger Mortimer LLC
David A. Streubel
Albuquerque, NM

for Amicus Curiae The Reserve Officers Association of America

Legal Panel Member, ACLU-NM
Matthew L. Garcia
Albuquerque, NM

for Amicus Curiae American Civil Liberties Union

Damon Martinez, United States Attorney
Manuel Lucero, Assistant U.S. Attorney
Albuquerque, NM

Office of the Solicitor
M. Patricia Smith, Solicitor of Labor
Washington, D.C.

Department of Justice/Appellate Section
Thomas E. Perez, Assistant Attorney General
Nathaniel S. Pollock
Jessica Dunsay Silver
Washington, D.C.

for Amicus Curiae United States

                                        OPINION

FRY, Judge.

{1}   Plaintiff, a member of the New Mexico National Guard, filed suit pursuant to the
Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§

                                           2
4301 to 4335 (1994, as amended through 2011), against his former employer, the New
Mexico Children, Youth, and Families Department (CYFD), following his termination. The
issue presented by this appeal is whether CYFD, as an arm of the State, is entitled to
constitutional state sovereign immunity in regard to Plaintiff’s claim. Because we determine
that Congress cannot override a state’s sovereign immunity when acting pursuant to its war
powers and because the New Mexico Legislature has not waived the State’s sovereign
immunity for USERRA suits, we conclude that CYFD is immune from Plaintiff’s claim and
accordingly reverse the district court’s contrary determination.

BACKGROUND

{2}     Plaintiff began working for CYFD as a community support officer in 1997. At that
time, Plaintiff had been a member of the New Mexico National Guard for approximately six
years. Plaintiff continued his military service throughout his term of employment with
CYFD and, in 2005, Plaintiff was deployed to Iraq.

{3}     By all accounts, Plaintiff served admirably while deployed. Upon his return from
active duty, Plaintiff was re-employed by CYFD in his previous position. Plaintiff testified
that soon after his return, his new supervisors began harassing him. His allegations of
harassment included claims that supervisors placed unrealistic goals on his employment
responsibilities, initiated unnecessary disciplinary action against him, and leveled unfounded
charges of insubordination. Plaintiff voiced his complaints of harassment with both his
supervisors and those higher in the CYFD chain of command. However, Plaintiff’s working
relationship with his supervisors continued to deteriorate, and he was placed on
administrative leave and subsequently terminated in the spring of 2008.

{4}    Plaintiff brought suit against CYFD alleging, in part, that he was discriminated
against and wrongfully terminated because of his military service, in contravention of
USERRA, 38 U.S.C. § 4311. CYFD argued on multiple occasions throughout the
proceedings that, as a state agency, it was immune to USERRA claims by private
individuals. The district court rejected CYFD’s argument, and the case proceeded to trial,
where Plaintiff succeeded in his USERRA claim and was awarded damages. CYFD now
appeals.

DISCUSSION

{5}     The primary issue in this appeal is whether constitutional state sovereign immunity,
as recognized by Seminole Tribe of Florida v. Florida and its progeny, precludes Plaintiff’s
USERRA claim against CYFD. 517 U.S. 44 (1996) (holding that Congress cannot subject
non-consenting states to suit in federal court when acting under its Article I powers); Alden
v. Maine, 527 U.S. 706 (1999) (holding that Congress cannot use its Article I powers to
subject non-consenting states to suit in state court). This determination rests on two
inquiries: (1) whether Congress has the authority to subject a state to a USERRA suit by a
private individual in the state’s own courts and, (2) if not, whether New Mexico has waived

                                              3
sovereign immunity for USERRA claims and therefore consented to suit. We address these
issues in turn.

Standard of Review

{6}    “We review de novo the validity of a claim of sovereign immunity.” State ex rel. San
Miguel Bd. of Cnty. Comm’rs v. Williams, 2007-NMCA-036, ¶ 20, 141 N.M. 356, 155 P.3d
761. Furthermore, to the extent that issues in this case require us to interpret statutory
language, interpretation of a statute is a question of law that we review de novo. Morgan
Keegan Mortg. Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066.

Congress Does Not Have the Authority to Subordinate State Sovereign Immunity
Under the War Powers Clause

{7}     Our Supreme Court has previously discussed the United States Supreme Court’s
controversial recognition of constitutional state sovereign immunity and the impact of the
Seminole Tribe line of cases on Congress’s authority to permit private suits for damages
against non-consenting states. See State ex rel. Hanosh v. State ex rel. King, 2009-NMSC-
047, ¶ 6, 147 N.M. 87, 217 P.3d 100 (“As a principle of federalism, constitutional sovereign
immunity circumscribes the power of the U.S. Congress to create statutory rights and enforce
them against the states absent their consent.” (emphasis omitted)); Gill v. Pub. Emps. Ret.
Bd. of Pub. Emps. Ret. Ass’n. of N.M., 2004-NMSC-016, ¶¶ 5-6, 135 N.M. 472, 90 P.3d 491
(discussing the principles of federalism underlying the United States Supreme Court’s
decision in Seminole Tribe); see also Cockrell v. Bd. of Regents, 2002-NMSC-009, ¶¶ 4-8,
132 N.M. 156, 45 P.3d 876. Rather than reiterate the development of the constitutional
sovereign immunity doctrine, we begin instead by discussing the history of USERRA in
relation to the evolution of this jurisprudence.

{8}     USERRA was enacted by Congress with the stated purpose of “encourag[ing]
noncareer service in the uniformed services by eliminating or minimizing the disadvantages
to civilian careers and employment which can result from such service.” 38 U.S.C. §
4301(a)(1). In addition to “providing for the prompt reemployment of [service members]
upon their completion of such service,” USERRA aims to fulfill its goal by “prohibit[ing]
discrimination against persons because of their service in the uniformed services.” Section
4301(a)(2), (3). Because the purpose of USERRA is to encourage military service, it is
generally accepted—and undisputed by the parties in this case—that it was enacted pursuant
to Article I, Section 8, Clause 11 of the United States Constitution, also known as the War
Powers Clause. See Bedrossian v. Nw. Mem’l Hosp., 409 F.3d 840, 843-44 (7th Cir. 2005).

{9}    USERRA originally provided for federal court jurisdiction over suits brought by
private individuals against state employers. See USERRA, Pub. L. No. 103-353,
§ 2(a)(c)(1)(A) 108 Stat. 3149, 3165 (1994) (current version at 38 U.S.C. § 4323(b)(1)
(2008)) (providing that “[t]he district courts of the United States shall have jurisdiction” over
all USERRA actions, including suits against a state employer). However, the United States

                                               4
Supreme Court’s decision in Seminole Tribe cast significant doubt on Congress’s authority
to subject states to USERRA suits by private individuals in federal court.1 Seminole Tribe,
517 U.S. at 45 (“The Eleventh Amendment restricts the judicial power under Article III, and
Article I cannot be used to circumvent the constitutional limitations placed upon federal
jurisdiction.”); see Palmatier v. Mich. Dep’t of State Police, 981 F. Supp. 529, 532 (W.D.
Mich. 1997) (“Applying the lesson of Seminole Tribe, it necessarily follows that Congress,
acting under Article I, could not effectively abrogate the states’ Eleventh Amendment
immunity in USERRA [as originally enacted].”). Congress, therefore, in an apparent attempt
to provide an alternative avenue of relief for private individuals seeking to enforce rights
under USERRA against state employers, amended USERRA in 1998 to provide that “[i]n
the case of an action against a [s]tate (as an employer) by a person, the action may be
brought in a [s]tate court of competent jurisdiction in accordance with the laws of the
[s]tate.” 38 U.S.C. § 4323(b)(2).

{10} Soon after USERRA was amended to purportedly vest jurisdiction in state courts for
private suits against state employers, the United States Supreme Court, in Alden, extended
its holding in Seminole Tribe when it addressed the corollary question of whether Congress
could subject non-consenting states to suit in state court. The Court held that it could not.
Alden, 527 U.S. at 712 (“We hold that the powers delegated to Congress under Article I of
the United States Constitution do not include the power to subject non[-]consenting [s]tates
to private suits for damages in state courts.”). In framing the issue, the Court examined
whether there was “compelling evidence” that “Congress may subject the [s]tates to private
suits in their own courts” pursuant to its Article I powers by virtue of “constitutional
design.” Id. at 730-31 (internal quotation marks omitted). The Court stated:

       [A]s the Constitution’s structure, its history, and the authoritative
       interpretations by this Court make clear, the [s]tates’ immunity from suit is
       a fundamental aspect of the sovereignty which the [s]tates enjoyed before the
       ratification of the Constitution, and which they retain today . . . except as
       altered by the plan of the Convention or certain constitutional Amendments.

Id. at 713. The Court ultimately concluded that “[i]n light of history, practice, precedent,
and the structure of the Constitution, we hold that the [s]tates retain immunity from private
suit in their own courts, an immunity beyond the congressional power to abrogate by Article
I legislation.” Id. at 754. Following Alden, it therefore appeared settled that Congress could
not override a state’s constitutional sovereign immunity when acting under its Article I
powers. See, e.g., Manning v. N.M. Energy, Minerals & Natural Res. Dep’t, 2006-NMSC-
027, ¶ 24, 140 N.M. 528, 144 P.3d 87 (“Alden and its progeny stand for the proposition that


       1
         The current version of USERRA does provide for federal court jurisdiction over
suits brought by the United States against a state on behalf of an individual. 38 U.S.C.
4323(a)(1). It appears from the record that the United States denied Plaintiff’s request to
undertake his case.

                                              5
state constitutional sovereign immunity bars individual claims for damages that are based
on legislation passed by Congress pursuant to its Article I powers.”). Thus, Alden
invalidated Congress’s attempt to sidestep Seminole Tribe by amending USERRA to provide
for state court jurisdiction over private suits against state employers.

{11} However, the apparent clarity of Seminole Tribe and Alden was soon shaken by the
Court’s opinion in Central Virginia Community College v. Katz, 546 U.S. 356 (2006). In
Katz, the Court held that sovereign immunity did not bar an adversary proceeding in
bankruptcy court to set aside the bankruptcy petitioner’s alleged preferential transfers to the
state. Id. at 359. In a seeming retreat from the more definitive language of Seminole Tribe
and Alden, the Court characterized as an “erroneous” assumption the notion that Seminole
Tribe’s holding would apply to the Article I Bankruptcy Clause. Katz, 546 U.S. at 363; see
U.S. Const. art. 1, § 8, cl. 4 (providing that Congress shall have the power to establish
“uniform Laws on the subject of Bankruptcies throughout the United States”). While the
Court was careful to note that in rem jurisdiction and proceedings ancillary to a bankruptcy
court’s exercise of its in rem jurisdiction do not generally interfere with a state’s sovereign
immunity, Katz, 546 U.S. at 369-73, it further stated that to the extent such jurisdiction does
interfere with a state’s sovereign immunity, the “States agreed in the plan of the Convention
not to assert that immunity.” Id. at 373; see id. at 362-63 (“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 demonstrate
that it was intended not just as a grant of legislative authority to Congress, but also to
authorize limited subordination of state sovereign immunity in the bankruptcy arena.”). In
ruling that at least one Article I power can provide a basis for subjecting states to suit despite
statements in Seminole Tribe and Alden to the contrary, the Supreme Court’s decision in
Katz has raised questions as to whether, in the “plan of the Convention,” the states may have
agreed to waive sovereign immunity in the context of other Article I powers. Katz, 546 U.S.
at 373; see Joseph M. Pellicciotti & Michael J. Pellicciotti, Sovereign Immunity &
Congressionally Authorized Private Party Actions Against the States for Violation of
Federal Law: A Consideration of the U.S. Supreme Court’s Decades Long Decisional Trek,
1996-2006, 59 Baylor L. Rev. 623, 642 (2007) (“The Court did not overrule Seminole Tribe
in the Katz decision. . . . [However,] it remains to be seen if the Court would undertake a
similar course of study and reflection and, as it did in Katz end up refusing to follow its
Seminole Tribe ‘dicta’ in future Article I case settings.”).

{12} It is within the ambiguity created by Katz that Plaintiff roots his argument that
Congress has authority pursuant to the War Powers Clause to subject states to suit under
USERRA.2 Plaintiff directs us to various sources establishing the unique and exclusive


        2
        Amicus briefs in support of Plaintiff were filed by both the Department of Justice
and the Reserve Officers Association of America in partnership with the American Civil
Liberties Union. For convenience, references to Plaintiff’s arguments may include those
arguments made by Amici on behalf of Plaintiff.

                                                6
nature of Congress’s war powers and, using this historical context, seeks to analogize to the
historical evidence of the exclusivity of Congress’s bankruptcy powers that the Court so
heavily relied on in Katz. See Katz, 546 U.S. at 364-370 (discussing the “difficulties posed
by [the] patchwork of insolvency and bankruptcy laws . . . peculiar to the American
experience” and the need to establish a uniform federal response embodied by the
Bankruptcy Clause). Important to an understanding of the historical context of Congress’s
war powers, Plaintiff posits, is the recognition by the Founders that, while sovereign
immunity is a key attribute of sovereignty, the Founders envisioned that state sovereignty
could be surrendered by an exclusive delegation of power to the federal government, taking
with it a state’s immunity to suit. See The Federalist No. 81, at 422 (Alexander Hamilton)
(Gideon ed. 2001) (“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
omitted)); The Federalist No. 32, at 155 (Alexander Hamilton) (Gideon ed. 2001) (“[A]s the
plan of the convention aims only at a partial union or consolidation, the state governments
would clearly retain all the rights of sovereignty which they before had, and which were not,
by that act, exclusively delegated to the United States.” (emphasis omitted)). Thus, Plaintiff
argues, because the Constitution delegated exclusive war powers authority to the national
government, the states never exercised, much less retained, sovereignty in this arena and,
therefore, they enjoy no corresponding immunity.3 See Lichter v. United States, 334 U.S.
742, 781 (1948) (“[T]he power has been expressly given to Congress to prosecute war, and
to pass all laws which shall be necessary and proper for carrying that power into
execution.”).

{13} We do not agree with Plaintiff’s argument. As explained below, there are key
differences between the War Powers Clause and both the subject matter of the Bankruptcy
Clause and the historical evidence underlying the Court’s decision in Katz. We therefore
conclude that the War Powers Clause does not authorize Congress to subject the State to
private USERRA suits for damages in our state courts, absent the State’s consent.

{14} Principal among these differences is the unique nature of bankruptcy jurisdiction in
relation to state sovereign immunity, as discussed in Katz. The Court explained that
“[b]ankruptcy jurisdiction, as understood today and at the time of the framing, is principally
in rem jurisdiction” and, “[a]s such, its exercise does not, in the usual case, interfere with
state sovereignty even when [s]tates’ interests are affected.” Katz, 546 U.S. at 369-70.
Thus, unlike other Article I powers, “the Bankruptcy Clause . . . simply [does] not
contravene the norms [the U.S. Supreme Court] has understood the Eleventh Amendment


       3
         Because Plaintiff primarily argues that the states never exercised or retained
sovereignty in regard to war powers, we do not address the parties’ arguments concerning
whether USERRA contains an explicit attempt by Congress to abrogate state sovereign
immunity. If the states never exercised or retained sovereignty in this arena, as Plaintiff
argues, then there would be no sovereign immunity to abrogate.

                                              7
to exemplify.” Id. at 375; see id. at 378 (“The scope of this consent was limited; the
jurisdiction exercised in bankruptcy proceedings was chiefly in rem—a narrow jurisdiction
that does not implicate state sovereignty to nearly the same degree as other kinds of
jurisdiction.”). This difference alone counsels against extending the Court’s rationale in
Katz to recognize congressional authority to override state sovereign immunity under other
Article I powers, such as the War Powers Clause. See Anstadt v. Bd. Regents of Univ. Sys.
of Ga., 693 S.E.2d 868, 871 (Ga. Ct. App. 2010) (refusing to extend the rationale of Katz to
recognize congressional authority to abrogate state sovereign immunity under the War
Powers Clause); Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of Univ. Sys. of Ga., 633
F.3d 1297, 1314 (11th Cir. 2011) (rejecting argument that Katz’s rationale should be
extended to the Copyright and Patent Clause in stating, “[t]he holding in Katz is carefully
circumscribed to the bankruptcy context; its analysis is based upon the history of bankruptcy
jurisdiction”).

{15} Furthermore, Plaintiff’s argument—that an exclusive delegation of war powers to the
national government is sufficient to recognize a waiver of state sovereign immunity by
constitutional design—is unpersuasive for two additional reasons. First, Plaintiff’s argument
essentially revives a prior understanding of the nature of congressional authority to abrogate
state sovereign immunity, which was overruled in Seminole Tribe. See Pa. v. Union Gas
Co., 491 U.S. 1, 19-20 (1989) (“Because the Commerce Clause withholds power from the
[s]tates at the same time as it confers it on Congress, and because the congressional power
thus conferred would be incomplete without the authority to render [the s]tates liable in
damages, it must be that, to the extent that the [s]tates gave Congress the authority to
regulate commerce, they also relinquished their immunity where Congress found it
necessary, in exercising this authority, to render them liable.”) overruled by Seminole Tribe,
517 U.S. 44. In Seminole Tribe, the Court explicitly rejected the idea that a delegation of
power, by itself, was sufficient to abrogate state sovereign immunity:

       In overruling Union Gas today, we reconfirm that the background principle
       of state sovereign immunity embodied in the Eleventh Amendment is not so
       ephemeral as to dissipate when the subject of the suit is an area, like the
       regulation of Indian commerce, that is under the exclusive control of the
       Federal Government. Even when the Constitution vests in Congress
       complete law-making authority over a particular area, the Eleventh
       Amendment prevents congressional authorization of suits by private parties
       against unconsenting [s]tates.

Seminole Tribe, 517 U.S. at 72. Katz did not purport to overrule Seminole Tribe, and the
Court’s holding in Seminole Tribe strongly undercuts Plaintiff’s argument.

{16} Second, while Katz’s analysis began with the recognition that the states agreed to an
exclusive delegation of power to Congress to legislate in the arena of bankruptcy, this was
not the definitive point of the Court’s analysis. Instead, the states’ recognition in the “plan
of the Convention” that this entailed a subordination of their sovereignty led the Court to the

                                              8
“ineluctable conclusion” that the states agreed not to assert the defense of sovereign
immunity in bankruptcy proceedings. See Katz, 546 U.S. at 377 (“[T]he power to enact
bankruptcy legislation was understood to carry with it the power to subordinate state
sovereignty, albeit within a limited sphere.”). It was therefore not the exclusive delegation
of power to Congress itself that justified a limited subordination of state sovereignty, but
rather an understanding among the states, as evidenced by the history of bankruptcy
jurisdiction, that an exclusive delegation of this power to Congress inherently included a
subordination of their sovereignty to accomplish its purposes. Id. at 377-78 (“[T]he Framers,
in adopting the Bankruptcy Clause, plainly intended to give Congress the power to redress
the rampant injustice resulting from [the s]tates’ refusal to respect one another’s discharge
orders. . . . In ratifying the Bankruptcy Clause, the [s]tates 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.”).

{17} In our view, this same justification does not exist in the context of Congress’s war
powers. While it is clear that the centralization of war powers in the national government
served important interests, it is unlikely that the states, in ratifying the Constitution, would
have considered that these powers would be effectuated by a subordination of their sovereign
immunity to the extent of permitting private suits for damages against the states. Cf.
Velasquez v. Frapwell, 160 F.3d 389, 393 (7th Cir. 1998) (“Even if it is true that the states
did not surrender their war powers to the federal government in the Constitution because
they didn’t have such powers . . . it doesn’t follow that they surrendered any part of their
sovereign immunity from a suit seeking money from the state treasury. That immunity is an
independent attribute of sovereignty rather than an incident of the war power[.]”). And,
without evidence that the states would have considered the delegation of war powers to the
national government to inherently include their amenability to private suits for damages, we
are reticent to conclude that the states acquiesced in the plan of the Convention to a
subordination of their sovereign immunity under this Article I power. See Katz, 546 U.S.
at 362-63 (stating that the Bankruptcy Clause was intended “not just as a grant of legislative
authority to Congress, but also to authorize limited subordination of state sovereign
immunity in the bankruptcy arena”).

{18} In sum, while the Supreme Court appeared to backtrack in Katz on earlier dicta that
no Article I power could provide a valid basis to override state sovereign immunity, it did
so on a narrow basis justified by the unique history of bankruptcy jurisdiction. See Risner
v. Ohio Dep’t of Rehab. & Corr., 577 F. Supp. 2d 953, 963 (N.D. Ohio 2008) (“Although
the Supreme Court determined in Katz that the states waived sovereign immunity in
bankruptcy proceedings by ratifying Congress’[s] Article I powers, the Court stressed that
the exception for bankruptcy cases is a narrow one.”). The Supreme Court has thus far not
recognized any Article I authority that permits the subordination of state sovereign immunity
for private suits for damages against states. See Coleman v. Court of Appeals of Md., 132
S. Ct. 1327, 1333 (2012) (“A foundational premise of the federal system is that [the s]tates,
as sovereigns, are immune from suits for damages[.] . . . As an exception to this principle,
Congress may abrogate the [s]tates’ immunity from suit pursuant to its powers under § 5 of

                                               9
the Fourteenth Amendment.” (citations omitted)). More importantly, in the context of a
purported subordination of state sovereign immunity in state court pursuant to a federal
cause of action, the Supreme Court’s decision in Alden forecloses such a possibility, Katz
notwithstanding. See Alden, 527 U.S. at 739-40 (“[T]he Constitution reserves to the [s]tates
a constitutional immunity from private suits in their own courts which cannot be abrogated
by Congress.”); Manning, 2006-NMSC-027, ¶ 24 (restating in the wake of Katz that
constitutional sovereign immunity bars private suits for damages based on legislation
pursuant to Congress’s Article I powers).

The State has Not Consented to Private USERRA Suits for Damages

{19} Because we have determined that Congress did not have the authority to subject the
State to a private USERRA suit for damages by virtue of constitutional design, we now
address Plaintiff’s argument that the New Mexico Legislature has consented to such suits
through the enactment of various statutes regarding the military and service member rights.
See Alden, 527 U.S. at 737 (noting the “general proposition that a [s]tate may waive its
sovereign immunity and consent to suit”); Cockrell, 2002-NMSC-009, ¶ 13 (“[I]t is within
the sole province of the Legislature to waive the [s]tate’s constitutional sovereign
immunity.”). Contrary to Plaintiff’s argument, we conclude that the statutes relied on by
Plaintiff do not meet the requisite specificity required to determine that the Legislature has
intended to waive the State’s constitutional sovereign immunity to private USERRA suits
for damages.

{20} A state’s waiver of its constitutional sovereign immunity must be “unequivocally
expressed.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984); see
Edelman v. Jordan, 415 U.S. 651, 673 (1974) (“[W]e will find waiver only where stated by
the most express language or by such overwhelming implications from the text as (will)
leave no room for any other reasonable construction.” (internal quotation marks and citation
omitted)). Our Supreme Court has previously expressed a reluctance to infer a waiver of
constitutional sovereign immunity due to the “vital role of the doctrine of sovereign
immunity in our federal system.” Cockrell, 2002-NMSC-009, ¶ 20 (internal quotation marks
and citation omitted). Therefore, “any waiver of the [s]tate’s constitutional sovereign
immunity must be clear and unambiguous.” Id. ¶ 24.

{21} Plaintiff implicitly recognizes that none of the statutes he relies upon explicitly waive
sovereign immunity for USERRA claims.4 Instead, he argues that the several statutes, when
read together, evidence the Legislature’s intent to incorporate the benefits and protections


       4
         Minnesota provides an example of an explicit waiver of sovereign immunity for
USERRA claims. See, e.g., Minn. Stat. Ann. § 1.05(5) (West 2012) (“An employee . . . of
the state who is aggrieved by the state’s violation of [USERRA], may bring a civil action
against the state in federal court or another court of competent jurisdiction for legal or
equitable relief that will effectuate the purposes of that act.”).

                                             10
of USERRA and provide a remedy for New Mexico service members when those rights are
violated, including when the State itself is guilty of the violation. Although Plaintiff
essentially argues for a constructive waiver of sovereign immunity, which is generally
insufficient, we nevertheless examine these statutes to determine whether the “overwhelming
implications from the text . . . leave no room for any other reasonable construction.” See
Edelman, 415 U.S. at 673 (citing Murray v. Wilson Distilling Co., 213 U.S. 151, 171
(1909)). We do this while bearing in mind the United States Supreme Court’s caveat that
“[c]onstructive consent is not a doctrine commonly associated with the surrender of
constitutional rights.” Edelman, 415 U.S. at 673.

{22} Plaintiff directs most of his attention to NMSA 1978, Section 20-4-7.1(B) (2004),
which provides that “[t]he rights, benefits[,] and protections of the federal [USERRA] of
1994 shall apply to a member of the national guard ordered to federal or state active duty for
a period of thirty or more consecutive days.” The purpose of this statute was to ensure that
the rights, benefits, and protections of USERRA—which seemingly only applies to service
members called to federal active duty—extended to national guard members ordered into
state active duty. See 38 U.S.C. § 4303(16); 38 U.S.C. § 4312(c)(4)(E). However, as we
determined above, subjecting unconsenting states to suit is not among the rights, benefits,
or protections of USERRA, regardless of whether the national guard member was on state
or federal active duty. Thus, there is no overwhelming implication from the text that by
extending USERRA to national guard members called into state active duty, the Legislature
intended to also waive the State’s sovereign immunity to these suits.

{23} We are also unpersuaded that NMSA 1978, Sections 28-15-1 to -3 (1941, as amended
through 1971) (reemployment of persons in armed forces) constitutes a waiver of state
sovereign immunity for Plaintiff’s USERRA claim. Plaintiff pursued a private suit for
damages under USERRA against the State for allegedly discriminatory treatment by the
State due to his military service. While Section 28-15-1 does grant service members a right
to reemployment enforceable against State employers, it does not recognize a private suit for
damages for alleged discrimination due to military service. We will not construe a state
statute to act as the implied basis for a new claim arising from an expansive federal scheme
when it would not have provided Plaintiff with a valid state claim for the original wrong
actually suffered.

{24} Furthermore, it is likely that a service member seeking to enforce his or her rights
under this statute against the State would be required to seek representation by a district
attorney, not private counsel. See § 28-15-3 (“Upon application to the district attorney for
the pertinent district by any person claiming to be entitled to the benefits of such provisions,
such district attorney. . . shall appear and act as attorney for such person in the amicable
adjustment of the claim or in the filing of any motion, petition or other appropriate pleading
and the prosecution thereof to specifically require the compliance with such provisions[.]”).
Thus, to the extent that this statute does recognize a waiver of sovereign immunity—for
rights to reemployment and lost wages—it does so in a very limited procedural context. See
Cockrell, 2002-NMSC-009, ¶ 28 (“Nothing in Alden suggests that a waiver of sovereign

                                              11
immunity must be absolute, unconditional and applicable in all situations.” (alteration in
original) (internal quotation marks and citation omitted)); see Raygor v. Regents of Univ. of
Minn., 534 U.S. 533, 543 (2002) (“[W]ith respect to suits against a state sovereign in its own
courts, we have explained that a [s]tate may prescribe the terms and conditions on which its
consents to be sued[.]” (internal quotation marks and citation omitted)).

{25} Finally, neither NMSA 1978, Section 20-1-2 (1987), nor NMSA 1978, Section 20-4-
6 (1987) provides any basis for finding a waiver of sovereign immunity. Section 20-1-2
provides that the intent of the New Mexico Military Code is to conform New Mexico law
on military matters to federal law on the same subject. However, as we have already
determined, USERRA cannot validly override state sovereign immunity and, therefore, the
Legislature’s intention to mirror federal law does not evidence a waiver of sovereign
immunity. Similarly, Section 20-4-6, which prohibits discrimination in employment of
service members, neither defines the State as an employer subject to the statute nor creates
a private civil cause of action. See § 20-4-6 (stating that “violation of this section shall be
a misdemeanor”). Thus, these statutes, when read either individually or collectively, do not
meet the exacting “clear and unambiguous” standards necessary for finding waiver of
sovereign immunity for Plaintiff’s USERRA claim.

Policy Considerations

{26} Although we conclude that Plaintiff’s claim is barred by state sovereign immunity,
we take a moment to emphasize the responsibility of the State to comply with federal law.
See Gill, 2004-NMSC-016, ¶ 10 (“[U]nder the federalist compact, the obligation of states
to respect federal law and rights created thereunder is an essential corollary of state
sovereignty.”). This case does not present the first time our courts have grappled with the
discord between rights afforded under a federal statute and a state agency’s actions in
contravention of that law. See Cockrell, 2002-NMSC-009, ¶ 27 (“We recognize the
incongruity of the [s]tate’s obligation to pay overtime wages in accordance with the FLSA
without a concomitant method of enforcement for [its] employees.”). As did the Court in
Cockrell, we stress that “[o]ur holding in this case is certainly not intended to legitimize
political defiance of valid federal law.” Id. (alteration, internal quotation marks, and citation
omitted). However, we also recognize that at a time when many of our veterans are
returning home to an often uncertain economic climate, such pronouncements by our courts
ring hollow to a veteran wronged by the very government he or she served to protect. We
recognize that our Legislature is the appropriate branch of government to consider
responding to the void created by Alden by unequivocally ensuring that our service members
have the opportunity to vindicate their rights against public and private employers alike. See
Hartford Ins. Co. v. Cline, 2006-NMSC-033, ¶ 8, 140 N.M. 16, 139 P.3d 176 (“The
predominant voice behind the declaration of public policy of the state must come from the
legislature[.]”).

CONCLUSION


                                               12
{27} For the foregoing reasons, we conclude that CYFD is immune from suit and
accordingly reverse the district court. Because of our decision in this case, we do not reach
the issues in Plaintiff’s cross-appeal regarding post-judgment interest.

{28}   IT IS SO ORDERED.


                                              _____________________________________
                                              CYNTHIA A. FRY, Judge

I CONCUR:

____________________________________
TIMOTHY L. GARCIA, Judge

MICHAEL D. BUSTAMANTE, Judge (dissenting).

Bustamante, Judge (dissenting).

{29} Respectfully, I disagree with the conclusion that the War Powers Clause does not
provide Congress a font of power sufficient to subject the states to suit under USERRA.
Before Katz, it seemed that the Supreme Court had foreclosed any argument that Article I
could be a source of power sufficient to overcome state sovereignty claims. But the majority
in Katz made clear that the Court’s broad “dicta” in Seminole Tribe and Alden was just that:
dicta. While Katz did not signal a full retreat from recent orthodoxy, it did make room for
debate—at least as to those provisions of Article I, such as the War Powers Clause, which
have not been addressed before.

{30} The first task is to frame the debate. What should the courts take into account in
deciding the potential reach of Congress under a given Article? The list of germane topics
will vary with the provisions under consideration. As such, it is not surprising that Katz is
not helpful here when it discusses the nature of bankruptcy jurisdiction and practice. But
there are general topics that cut across the Articles. Katz is relevant when it discusses the
need for national uniformity with regard to bankruptcy laws. In doing so, Katz revived
uniformity as a valid topic of consideration in Article I jurisprudence.

{31} Uniformity and concentration of authority loom large in the area of national
defense—the subject of the War Powers Clause. As the United States in its amicus brief
notes, the Clause both delegates war powers to the national government exclusively and
prohibits the states from making war, absent consent of the Congress. (U.S. Amicus Brief
16, 20). It seems obvious that national defense and foreign affairs are areas in which the
country must speak as one.

{32}   Intertwined with uniformity in this context are the nature and source of the power

                                             13
addressed by the War Powers Clause. By “nature” I mean to encompass the whole of the
subject—including sending our armed forces to battle and the interest of the nation in
protecting our service members in all ways possible when they return to civilian life. It
cannot be gainsaid that the two are part of a spectrum of interests encompassed by the War
Powers Clause. By “source” I refer to the oft-repeated observation that the individual states
did not possess war powers at the time of the Constitutional Convention. The states had no
sovereign interest to protect or cede when they approved the War Powers Clause. The lack
of state sovereignty in this area then must have some effect on measuring the strength of the
claim of immunity now.

{33} Comparing the interests and history at work in Katz with those at work here leads
me to conclude that the War Powers Clause presents the more compelling case. The
commercial interests addressed by the Bankruptcy Clause are important. But national
defense stands on higher ground and provides a stronger basis to disallow state interference
with Congress’ will than that found in Katz.

{34} Similarly, the state’s historical lack of sovereignty over the conduct of war argues
against its resurrection here. In asserting this, I am not ignoring the difference between the
power to conduct war and the power to refuse to allow suits seeking monetary compensation.
But the distance between the two is not so vast that it cannot be spanned. The Court in Katz
faced the same issue—as the dissent in Katz points out—yet found it necessary to resolve
it in favor of Congressional power. The points made by the dissent in Katz simply cannot
be made with equal force in connection with the War Powers Act.

{35} To a great degree, the Majority and I are simply prognosticating. A full debate with
regard to the War Powers Clause as a source of power for USERRA has not yet been held
before the United States Supreme Court. When it is, I believe the Court will hold that this
is another Article I provision which should not be controlled by the dicta in Seminole Tribe
and Alden. The matter is hardly without doubt. But I believe that Appellant’s arguments
and those of the United States in its amicus brief are closer to the mark.

                                              ______________________________________
                                              MICHAEL D. BUSTAMANTE, Judge




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