                                                                                                     03/31/2017




                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   February 22, 2017 Session

            DAVID R. SMITH v. THE TENNESSEE NATIONAL GUARD

                   Appeal from the Circuit Court for Davidson County
                       No. 16C-12 Thomas W. Brothers, Judge
                       ___________________________________

                              No. M2016-01109-COA-R3-CV
                          ___________________________________



W. NEAL MCBRAYER, J., dissenting.

       This appeal turns on whether the State of Tennessee waived sovereign immunity
with regard to a past event.1 Because in this instance I conclude that it did not, I
respectfully dissent.

       According to the complaint, the past event occurred on July 10, 2011, when David
R. Smith “separated from” the Tennessee National Guard. Prior to that, Smith left full-
time Tennessee National Guard duty to attend the Naval War College, which required a
tour of active military service. As his active duty tour was ending, Smith attempted to
rejoin the Tennessee National Guard in a full-time position but was told there was no
position available for him.

       In August of 2011, Smith filed suit claiming the Tennessee National Guard
violated the Uniformed Services Employment and Reemployment Rights Act of 1994
(“USERRA”). 38 U.S.C.A. §§ 4301–4335 (2014). USERRA “prohibit[s] discrimination
against persons because of their service in the uniformed services.” Id. § 4301(a)(3).
The trial court dismissed the case for lack of subject matter jurisdiction on the basis of
sovereign immunity, and we affirmed the trial court’s decision on appeal. Smith v. Tenn.
Nat’l Guard, 387 S.W.3d 570 (Tenn. Ct. App. 2012).

      On January 4, 2016, Smith filed a new suit against the Tennessee National Guard
based again on his July 2011 separation from the Guard. In the interim between the
dismissal of his first suit and the filing of the current suit, the Tennessee General

        1
          I fully concur in the majority’s conclusion that Tennessee Code Annotated § 29-20-208 does not
violate the Supremacy Clause of the United States Constitution.
Assembly enacted Tennessee Code Annotated § 29-20-208, waiving sovereign immunity
for “claims against and relief from a governmental entity” under USERRA. 2014 Tenn.
Pub. Acts 229 (ch. 574).

        Tennessee Code Annotated § 29-20-208 does not specifically indicate whether it
waives sovereign immunity for USERRA claims arising from events prior to its
enactment. For that, one must look to effective date of the enacting legislation, Public
Chapter 574, enacted by the 108th General Assembly. Public Chapter 574 provides in
section 2 as follows: “This act shall take effect July 1, 2014, the public welfare requiring
it, and shall apply to all claims against a governmental entity under [USERRA] accruing
on or after such date.” Id. § 2.

       “Every application of a text to particular circumstances entails interpretation.”
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 53
(2012) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). When called
upon to answer a question of statutory interpretation, the goal is to “carry out legislative
intent without broadening or restricting the statute beyond its intended scope.” Lind v.
Beamon Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011). One starts by looking to the
language of the statute and, if it is unambiguous, applying the plain meaning and looking
no further. Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433
S.W.3d 512, 517 (Tenn. 2014); State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). In
doing so, a “forced interpretation that would limit or expand the statute’s application”
must be avoided. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).

        In addition to these well-known principles of statutory interpretation, one must
also be mindful of the fact that the statute involved relates to the State’s sovereign
immunity. Waiver of sovereign immunity does not occur by happenstance or
inadvertently. “[T]he State cannot be subjected to litigation at the suit of an individual
unless there is a statute clearly and unmistakably disclosing an intent upon the part of the
Legislature to permit such litigation.” Scates v. Bd. of Comm’rs of Union City, 265
S.W.2d 563, 565 (Tenn. 1954); see also Northland Ins. Co. v. State, 33 S.W.3d 727, 731
(Tenn. 2000) (“[L]egislation authorizing suits against the state must provide for the
state’s consent in ‘plain, clear, and unmistakable’ terms.” (quoting State ex rel. Allen v.
Cook, 106 S.W.2d 858, 861 (1937))).

        The majority concludes that the Legislature expressed a clear and unmistakable
intent to waive sovereign immunity for past violations of USERRA by its use of the word
“accruing” in section 2 of Public Chapter 574. As the majority points out, a USERRA
claim is a federal tort claim, and “Tennessee courts have consistently held that a cause of
action in tort does not accrue or exist ‘until a judicial remedy is available’ to the
plaintiff.” Ante, at 7 (quoting Wyatt v. A-Best, Co., 910 S.W.2d 851, 855 (Tenn. 1995)).
Consequently, Smith’s USERRA claim against the Tennessee National Guard did not
accrue until July 1, 2014, because, until then, he had no right to sue the Guard.
                                              2
        I find this reasoning circular. And while I acknowledge that the most common
definition of the word “accrue” in the context of the law is “[t]o come into existence as an
enforceable claim or right,” Black’s Law Dictionary 25 (10th ed. 2014), the word can
also mean “to arise.”2 Id.

       The majority’s interpretation also seems to ignore the context in which the word
“accruing” appears. See In re Estate of Tanner, 295 S.W.3d 610, 625 n.13 (Tenn. 2009)
(“Any canon of statutory construction, if applied mechanically and without attention to
context, may lead to an incorrect result.”); see also Scalia & Garner, supra, at 56
(“[W]ords are given meaning by their context.”). Our Supreme Court instructs that “it is
improper to take a word or a few words from its context and, with them isolated, attempt
to determine their meaning.” Eastman Chem. Co., 151 S.W.3d at 507. In section 2 of
Public Chapter 574, the word “accruing” is followed by the words “on or after.” The use
of the phrase “on or after” suggests that the Legislature did intend to place some limit on
its waiver of sovereign immunity. However, the majority’s interpretation would place no
limits on the waiver, extending it to events occurring both prior to and after the enactment
of Tennessee Code Annotated § 29-20-208.

       Finally, the majority’s interpretation renders the words “on or after” meaningless.
If the Legislature intended to use the word “accruing” in the sense of a legally
enforceable claim, one must assume, contrary to Tennessee Supreme Court precedent,
that the Legislature did not use the words “on or after” purposely. See Eastman Chem.
Co., 151 S.W.3d at 507 (“[I]t should be assumed that the legislature used each word
purposely and that those words convey some intent and have a meaning and a purpose.”);
see also Scalia & Garner, supra, at 174 (“If possible, every word and every provision is
to be given effect . . . . None should be ignored.”). In the context of a waiver of
sovereign immunity, I am unwilling to render the phrase “on or after” surplusage.

       I interpret the State’s waiver of sovereign immunity to extend to claims accruing
under USERRA, without reference to State law, on or after July 1, 2014. Such an
interpretation defines the word “accruing” in context and has the further salutary effect of
giving all the words in the Public Chapter meaning. As alleged in Smith’s complaint,
“the incident for his cause of action took place in July 2011.” Therefore, I would affirm
the decision of the trial court dismissing Smith’s complaint for lack of subject matter
jurisdiction.


        2
         In fairness, although the words “accrue” and “arise” are sometimes used interchangeably, in the
context of a cause of action, they may distinguish two different principles. “Arise may refer to the onset
of the underlying wrong (e.g., exposure to asbestos), whereas accrue may refer to the ripeness of the
claim (e.g., contraction of asbestosis or discovery of the disease).” Bryan A. Garner, A Dictionary of
Modern Legal Usage 16 (2d ed. 1995).

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    _________________________________
    W. NEAL MCBRAYER, JUDGE




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