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Protecting Those Who Protect Us: Defending Servicemembers’ Employment under the Uniformed Services Employment and Reemployment Rights Act

When the Department of Justice launched the Servicemembers and Veterans Initiative, one of our primary objectives was to expand our efforts to ensure that more servicemembers receive the protections they are entitled to under federal law.

One example of this work is the ongoing litigation involving Jonathan R. Clark, a Sergeant in the Virginia State Police (VSP) and a Senior Captain in the U.S. Army Reserve.  From 2008 through 2011, Capt. Clark served in Operation Enduring Freedom.  In 2015, Cpt. Clark filed a complaint alleging that the VSP had violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by engaging in a pattern or practice of harassment and discrimination against him related to his military service.  Clark alleged that because of his service, VSP members made derogatory statements about his military commitments, filed baseless charges of misconduct against him and denied him several opportunities for promotion.  In response, VSP filed a special plea of sovereign immunity, arguing that because Clark was a state employee trying to sue the commonwealth of Virginia in a state court, his USERRA claims were barred by the 11th Amendment.  The state court sustained that plea and entered a final order dismissing the action without written opinion on Sept. 9, 2015.  Clark then appealed to the Supreme Court of Virginia.

To help protect Capt. Clark’s interests, last week the Department of Justice filed an amicus brief, drafted by Elizabeth Hecker in the Civil Rights Division’s Appellate Section, in the Supreme Court of Virginia.  The department’s brief, available here, argues that USERRA’s jurisdictional provision subjects all states to private suit in their own courts, regardless of whether a state has consented to suit.  The brief also argues that Congress has this authority under the War Powers clauses of the Constitution, which give Congress the power to declare war, raise and support an army and navy, and regulate the land and naval forces.  Consequently, the state court made a mistake when it sustained VSP’s amended special plea of sovereign immunity and dismissed Clark’s complaint.

The United States has filed similar briefs in the Fifth and Eleventh Circuit Courts of Appeal and the New Mexico Supreme Court arguing that Congress has authority under its War Powers to authorize private individuals to bring USERRA claims against state employers.

The department will continue to advocate for U.S. servicemembers in this context because providing servicemembers who are employed by states with a cause of action to enforce their USERRA rights is not only important to the country’s “ability to provide for a strong national defense,” but it falls into the core mission of the department’s Servicemembers and Veterans Initiative to build upon and expand our work to protect the men and women who volunteer to serve our country. 

Updated March 3, 2017

Servicemembers Initiative