Written by Peter Vieth | Feds back police officer in military job protection appeal | Virginia Lawyers Weekly
The U.S. Justice Department has come to the aid of a Virginia State Police officer who claims his career was stalled because of his service with the Army Reserves.
The Supreme Court of Virginia is expected to decide whether part-time military service members have protection for their civilian jobs, even if they work for the state. The Justice Department this month filed a friend-of-the-court brief in support of the police officer.
The Virginia high court agreed in April to consider whether the state has sovereign immunity from the reservist’s claim under the federal law that bars penalties at work arising from the demands of military service.
The law — the Uniformed Services Employment and Reemployment Rights Act of 1994 —prohibits job discrimination against members of the armed forces and ensures reemployment for service members who are called away for military duties.
The law protects jobs even for those who work for state agencies, the federal government contends.
Nonetheless, courts in four states have ruled that state governments are immune from actions under USERRA. New Mexico’s highest court recently broke with that trend, but its decision in favor of a state employee was based on a finding that the state legislature had waived the state’s immunity.
Jonathan Clark — a Virginia State Police sergeant — also served in the U.S. Army Reserve. He claimed he was passed over for three promotions at the VSP after he won a job action based on claims of harassment.
Clark’s USERRA suit in Henry County was transferred to Chesterfield County where circuit Judge Lynn S. Brice heard arguments and dismissed the action.
Clark’s lawyer, Paul G. Beers of Roanoke, contended USERRA was passed by Congress as an exercise of its war powers under the U.S. Constitution. If so, state governments would be subject to the law, despite the Constitution’s Eleventh Amendment that affirmed states’ sovereign immunity.
State lawyers said Brice was correct when she tossed Clark’s claim. Brice “had no evidence of abrogation or any express/ explicit waiver of sovereign immunity and was equally unpersuaded regarding the flawed war powers argument,” wrote senior assistant attorney general Gregory C. Fleming on behalf of the VSP.
The Justice Department brief argues Congress expressly intended to have USERRA apply to states when it amended the law in 1998 in response to a limiting court ruling.
“The legislative history shows that the purpose behind the 1998 amendment was to ensure that state-employed servicemembers could continue to enforce their USERRA rights…,” wrote DOJ lawyer Elizabeth P. Hecker in the amicus brief.
The government’s brief reached back to the writings of the founding fathers to argue that states should not be permitted to restrict Congress’ war powers.
“Indeed, allowing States to force servicemembers to choose between their civilian jobs and military service would, if effected on a large scale, give States an effective veto over Congress’s ability to wage war,” Hecker wrote.
The New Mexico case was resolved without a ruling on the war powers act. In the Virginia case, however, Clark does not contend the state voluntarily surrendered its sovereign immunity.
“Thus, the Eleventh Amendment issue is squarely before the Court,” the government said.
The case could be argued during the court’s September session.