Military Bias Claim Against Virginia Barred in State Court

(Last Updated On: November 30, 2017)

The U.S. Constitution’s 11th Amendment prohibits a military discrimination lawsuit against the state of Virginia in state court, the commonwealth’s high­est court ruled in a unanimous decision.

The U.S. Constitution’s 11th Amendment prohibits a military discrimination lawsuit against the state of Virginia in state court, the commonwealth’s high­est court ruled in a unanimous decision (Clark v. Va. Dep’t of State Police, 2016 BL 399186, Va., No. 151857, 12/1/16).

Jonathan Clark’s claim that he was denied a promo­tion with the Virginia State Police because of his service in the Army Reserves is barred by the amendment’s prohibition on suing a state in its own court system, Justice D. Arthur Kelsey wrote Dec. 1 for the Virginia Supreme Court. Congress didn’t abrogate this privilege when it enacted the Uniformed Services Employment and Reemployment Rights Act, under which Clark brought his claim, Kelsey said.

The ruling “will have an enormously adverse impact upon state employees in Virginia and perhaps else-where,”Paul Beers, an attorney for Clark, told Bloomberg BNA Dec. 2. “The courthouse doors are closed.”

Virginia, which is home to the Pentagon, has a higher percentage of adult residents who are veterans than the country overall, a Bloomberg BNA analysis of Census Bureau data show.

Nevertheless, the court’s conclusion was compelled by an “unqualified”legal principle, Kelsey said: “States retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate.”

Law Doesn’t Allow Claim in Federal Court. USERRA doesn’t allow a private party to sue a state employer in a federal court for alleged military discrimination, Beers said. The only way for Clark to sue under the law was to sue in state court, he said.

“The whole point of USERRA is to promote and en­courage recruitment and retention in the reserve forces,”he said. “As a result of this decision, he can’t enforce his USERRA rights against the state.”

Federal courts have jurisdiction in a USERRA action only when the Justice Department sues on behalf of someone who says he experienced military discrimina­tion, Beers said. But a claimant can’t always count on that happening because the department may not allo­cate its resources the way he wants, Beers said.

Despite the ruling, the Justice Department can still sue on someone’s behalf, Michael Kelly, director of communication for the Virginia attorney general, told Bloomberg BNA in an e-mail Dec. 2. “The case involved only the very narrow issue of whether a plaintiff, as op­posed to the DOJ, can sue a State under USERRA,” he said.

“Virginia law provides robust parallel protections to those found in federal law to protect servicemembers including state employees,”Kelly said. “In this case, the plaintiff did not seek to avail himself of those Virginia-law protections.”

Clark said the state law applied “only to Virginia guard forces”but not to the Army Reserves.

Beers and Clark plan to appeal to the U.S. Supreme Court.

Beers is with Glenn Feldmann Darby & Goodlatte. Emma Kozlowski, …formerly with the firm, also repre­sented Clark. Gregory Fleming, Ryan Doherty and Stu­art Raphael in the Virginia attorney general’s office rep­resented the state.

The Department of Justice’s Civil Rights Division filed a brief with the U.S. Attorney’s Office for the East­ern District of Virginia in support of Clark. A DOJ spokesman declined to comment Dec. 2.

Written by Jon Steingart

Test of the opinion is available at http://www.bloomberglaw.com/public/document/Clark_v_Va_Dept_of_State_Police_No_151857_2016_BL_399186_Va_Dec_0