The Soldier and the State: Whether the Abrogation of State Sovereign Immunity in USERRA Enforcement Actions is a Valid Exercise of the Congressional War Powers

• Author: Major Timothy M. Harner
• Pages: 05

2008] USERRA: THE SOLDIER AND THE STATE 91

THE SOLDIER AND THE STATE: WHETHER THE ABROGATION OF STATE SOVEREIGN IMMUNITY IN USERRA ENFORCEMENT ACTIONS IS A VALID EXERCISE OF THE CONGRESSIONAL WAR POWERS

MAJOR TIMOTHY M. HARNER*

1. Introduction

   The Uniformed Services Employment and Reemployment Rights Act (USERRA)1 provides many rights for both Reserve and National Guard military members who leave their employment for a period of time due to federal military service.2 Some of the more commonly known features and rights under USERRA include the prohibition on discrimination against servicemembers;3 the right of servicemembers to continue to accrue seniority in their civilian positions during their period of federal service;4 the right of servicemembers to reenroll in employee

   sponsored health care plans upon termination of their federal service;5

   and the right of servicemembers to accrue benefits in employee pension plans during the period of federal service.6 Perhaps the best-known right provided under USERRA is the servicemember's right to be reemployed by his or her pre-service employer after the completion of military service.7 The term "employer" as used in USERRA is broadly defined, and specifically includes state governments.8 The inclusion of states as employers, however, becomes a problem of constitutional dimensions when it comes to the enforcement mechanisms Congress has placed in the statute. The USERRA permits an individual whose reemployment rights have been violated by a state government employer to file suit for damages against that state, in a state court.9 Such suits, on their surface, seem to violate the principle of state sovereign immunity as embodied in the Eleventh Amendment to the Constitution.10 Since the Supreme Court decided Seminole Tribe of Florida v. Florida in 1996,11 lower courts have routinely held that federal statutory provisions permitting private, individual suits against states violate principles of state sovereign immunity, and are prohibited by the Eleventh Amendment.12 No court, however, including the Supreme Court, has thoroughly examined the issue of whether USERRA's enforcement provision permitting private suits against state government employers is a valid exercise of the Congressional War Powers.13 This article examines the constitutionality

   of USERRA's enforcement provisions as a legitimate exercise of congressional War Powers, beginning with a brief historical survey of congressional legislation providing reemployment rights to servicemembers. This article then analyzes the most recent Supreme Court cases governing state sovereign immunity issues, including Seminole Tribe of Florida v. Florida, Alden v. Maine, and Central Virginia Community College v. Katz, and applies the methodology used in those cases to an analysis of USERRA and congressional War Powers. The article further analogizes USERRA enforcement actions to qui tam suits, ultimately concluding that the USERRA enforcement provision in relation to state actors is a valid exercise of the congressional War Powers for three primary reasons. First, USERRA is a valid abrogation of state sovereign immunity, as Congress passed USERRA pursuant to its War Powers. Second, a private suit under USERRA enforces a critical federal power, i.e., the power to raise and support armies (in making this assertion, this article analogizes a USERRA enforcement action to a qui tam suit). Third, as opposed to the situations in other state sovereign immunity cases, an individual bringing suit under USERRA gains the ability to sue solely due to his or her status as a member of the federal government. Last, this article recommends certain statutory changes to USERRA that could withstand potential scrutiny by the federal courts.14

2. A Brief History of Service-Related Reemployment Rights Legislation as Applicable to State Government Employers

   1. World War II to Seminole Tribe

      During the World War II era, reemployment rights for military members were governed on the federal level by the Selective Training

      and Service Act of 1940 (1940 Act).15 Unlike USERRA, which is concerned primarily with Guard and Reserve service,16 the 1940 Act pertained to draftees, and was passed to address the "need to train and induct a substantial number of civilians into the small standing military establishment."17 The 1940 Act provided reemployment rights to individuals employed either by private companies or by the federal government, so long as those individuals met the statute's requirements. The statutory requirements included "induct[ion] into the land or naval forces . . . for training and service," as well as "satisfactor[y] complete[tion of] such period of training and service."18 If a person had to leave his job because of induction, the 1940 Act provided a reemployment right, under which the employer had to restore an individual "to such position or to a position of like seniority, status, and pay"19 as the employee had previously. This right was subject to several limitations. For example, the person seeking reemployment had to still be "qualified to perform the duties of such position."20 Furthermore, the individual seeking reemployment had to apply "within forty days after [being relieved] from such training or service."21 The 1940 Act

      permitted a person whose private employer violated the provisions of the 1940 Act to file suit in federal court.22

      The 1940 Act recognized that some individuals who would otherwise have been protected by the statute may have been employed by state or local governmental bodies. Congress did not, however, directly apply the provisions of the statute to state employers. The 1940 Act specifically stated that if a person "was in the employ of any State or political subdivision thereof, it is hereby declared to be the sense of the Congress that such person should be restored to such position or to a position of like seniority, status, and pay."23 The statute did not require that states do anything regarding reemployment of their former employees. Additionally, the 1940 Act contained no enforcement mechanism against state actors.

      The next congressional action regarding reemployment rights for military members came after World War II with the Military Selective Service Act (1948 Act).24 Passed after the conclusion of World War II and towards the beginning of the tensions between the United States and the Soviet Union, the effect of the 1948 Act was to "support the conscription-based force management policies that existed for the first twenty-five years of the Cold War."25 The 1948 Act contained provisions similar to those in the 1940 Act, but expanded the scope of reemployment rights. Where the 1940 Act required reemployment so long as the servicemember was "still qualified to perform the duties of such position,"26 the 1948 Act required, in certain cases, that the employer provide the servicemember with a position of "like seniority, status, and pay, or the nearest approximation thereof."27 Like the 1940 Act, however, the 1948 Act did not apply to state employers, and contained references regarding state employers that were similar to those in the 1940 Act. For example, the 1948 Act stated that it was the sense of the Congress that an individual leaving state employment because of induction should be reemployed by a state employer.28 Additionally, the provisions of the 1948 Act allowing for private suits in federal district

      courts applied to "private employer[s] [who] fail[ed] or refuse[d] to comply"29 with the statute, but not to state employers.

      The next major piece of legislation regarding reemployment rights of servicemembers was the Vietnam Era Veteran's Readjustment Assistance Act of 1974 (hereinafter 1974 Act),30 which became the current USERRA's "immediate predecessor."31 The 1974 Act, like the 1940 and 1948 Acts before it, pertained primarily to inductees rather than to Reservists.32 Unlike the 1940 and 1948 Acts, however, the 1974 Act contained a provision regarding job protection for Reserve Component Soldiers absent from their employment because of a Reserve obligation.33 Probably the most notable aspect of the 1974 Act, however, was its expansion of federal authority over state governments: unlike the 1940 and 1948 Acts, the 1974 Act was binding upon state, as well as private, employers.34 Under provisions of the 1974 Act, federal courts had jurisdiction over suits brought by servicemembers against state employers who violated the statute's provisions.35

      Federal court decisions applying the 1974 Act to state employers reveal that the courts were largely unimpressed with the sovereign immunity defenses presented by the states. In fact, some courts dismissed state Eleventh Amendment concerns almost out of hand. For example, the U.S. District Court for the Eastern District of Michigan almost peremptorily dismissed the State of Michigan's concerns about the federal legislation, saying that "Congress has acted within its authority to secure reemployment rights to veterans . . . . In doing so, Congress has preempted all state law to the contrary."36 The

      constitutionality of the new provision was addressed by at least two circuit courts, both of which came down firmly on the side of federal power. In Jennings v. Illinois Office of Education, the Seventh Circuit directly addressed the issue of whether the reemployment provisions of the 1974 Act violated the Eleventh Amendment.37 In deciding the issue, the Seventh Circuit analyzed precedent regarding congressional War Powers, the Tenth Amendment,38 and the Eleventh Amendment, finally holding that "in this case the war powers serve as the vehicle for overriding the bar of the Eleventh Amendment."39 Although recognizing that the "proper interpretation of the Eleventh Amendment and the common law doctrine of sovereign immunity has been a fertile source of controversy for both courts and commentators,"40 the Seventh Circuit felt

      that, at least under the...