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Virgin Islands Superior Court Holds That Sovereign Immunity Does Not Shield the V.I. Legislature from Suit Under USERRA

This week a decision was filed in the Superior Court of the Virgin Islands in the case of Joseph v. Virgin Islands, CV No. ST-11-CV-419, stating that the government of the United States Virgin Islands can be sued under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  In 2015, the United States filed a Statement of Interest in this matter on behalf of Shorn Joseph, who is the plaintiff in the lawsuit as well as a First Lieutenant and Judge Advocate in the United States Army Reserve.  He was also employed by the Virgin Islands Legislature as legal counsel.  In October 2010, Joseph was ordered by his command to attend military training from October 23, 2010 until February 3, 2011.  On January 19, 2011, he was ordered to continue training until March 22, 2011.  On January 31, 2011, Joseph informed his employer of the additional training, but received no response.  The Virgin Islands Legislature terminated his employment a week later, and Joseph sued the Legislature and its president under USERRA and local law. 

The defendants moved to dismiss Plaintiff’s USERAA claims, arguing that they are immune from suit under the Eleventh Amendment and the Revised Organic Act—the federal statute which provides territoriality for the Virgin Islands.  The United States’ Statement of Interest, drafted by AUSA Noah Sacks and SVI Asst. Dir. Andrew Braniff, argued that the Virgin Islands Legislature, like other territorial governments, was subject to suit under USERRA.  The Court denied the Virgin Island’s motion to dismiss the USERRA claims, finding that the Virgin Island does not benefit from Eleventh Amendment immunity which applies only to states.  The Court further noted that even if the Revised Organic Act could provide immunity to the Virgin Islands from suit in its own courts, any such immunity had been abrogated by USERRA and its amendments. 

The Department of Justice is tasked with enforcing certain laws that protect the rights of servicemembers.  In addition to protecting servicemembers’ civilian employment rights by enforcing USERRA, the Department protects servicemembers’ voting rights by enforcing the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (“UOCAVA”), and financial security through the Servicemembers Civil Relief Act (“SCRA”).  The Servicemembers and Veterans Initiative coordinates with Department components and federal agencies to build a comprehensive legal support and protection network focused on serving servicemembers, veterans and their families.   

Updated September 29, 2017

Servicemembers Initiative