Supreme Court Determines Waiver Of Sovereign Immunity Not Retroactive

Friday, June 22, 2018

The Tennessee Supreme Court concluded the state’s waiver of sovereign immunity for claims brought against it under the Uniformed Services Employment and Reemployment Rights Act of 1994, a federal law intended to provide job security for veterans, does not apply to cases that arose before July 1, 2014, when the waiver became effective. 

The appeal involved a USERRA claim brought by David R. Smith, a former lieutenant colonel in the Tennessee National Guard, an entity of the State of Tennessee.  Mr. Smith joined the National Guard in 1993 and was selected for a full-time position in the Active Guard Reserve in 2002. In 2010, he began senior development education at the Naval War College, which is an active duty tour and required him to leave his position with the Active Guard Reserve. A year later, he advised the National Guard that his tour was ending and requested his next assignment. The National Guard informed him that there were no positions available in the Active Guard Reserve, but he could return as a traditional guardsman. Mr. Smith separated from the National Guard several months later. 

Mr. Smith sued in 2011, alleging that the National Guard violated USERRA by denying him reemployment in the Active Guard Reserve when he returned from active duty.  The National Guard argued the claim was barred by sovereign immunity, a concept that dates back hundreds of years to common law and is currently included in the Tennessee Constitution and in state laws. Under sovereign immunity, the state is immune from lawsuits except when it consents to be sued.  The trial court dismissed Mr. Smith’s case as barred by sovereign immunity and the Court of Appeals affirmed.

In 2014, the General Assembly passed legislation waiving sovereign immunity for cases brought under USERRA.  The statute said the waiver became effective “to all claims…accruing on or after July 1, 2014.” Relying on the new statute, Mr. Smith brought suit again in 2014. The trial court found his claim accrued before July 1, 2014 and dismissed his case. The Court of Appeals affirmed.

Several months later, Mr. Smith brought suit a third time, alleging the same facts. The trial court again dismissed his lawsuit as barred by sovereign immunity. In a split decision, the Court of Appeals reversed, finding that Mr. Smith’s claim did not “accrue” until July 1, 2014, when the law waiving sovereign immunity became effective. The Supreme Court granted the state’s appeal and reversed the Court of Appeals.

In its decision, the Supreme Court ruled the General Assembly had unmistakably limited the waiver of sovereign immunity to claims accruing on or after July 1, 2014, although it could have made the law retroactive. The Court explained that under longstanding Tennessee decisions a claim accrues either when a plaintiff has actual knowledge of an injury or when a plaintiff has actual knowledge of facts sufficient to put a reasonable person on notice of an injury resulting from wrongful conduct.  The Court concluded that Mr. Smith had actual knowledge of his alleged injury in 2011 when he filed the first lawsuit alleging the USERRA claim. The Court therefore held that Mr. Smith’s claim remained barred by sovereign immunity because it accrued before July 1, 2014 when the statutory waiver became effective.

To read the unanimous opinion in David R. Smith v The Tennessee National Guard, authored by Justice Cornelia A. Clark, go to the opinions section of tncourts.gov. Chief Justice Jeffrey S. Bivins did not participate in the case.



Rembrandt Conservator Works To Restore Historic TVA Mural

An art conservator who can count a  Rembrandt painting  among his many restoration projects is now working to save a mural at Norris Dam. The severely damaged artwork was discovered behind a dated gold-colored shag rug bolted to the powerhouse lobby wall during preparations for the plant’s 80 th  anniversary celebration in 2016. The mural—painted by TVA artist ... (click for more)

Tennessee Supreme Court Affirms Mother's Convictions For 1st-Degreee Murder And Aggravated Child Abuse Of Newborn Twins

In a unanimous opinion, the Tennessee Supreme Court affirmed the convictions of Lindsey Lowe for first-degree murder and aggravated child abuse, stemming from the deaths of her newborn twins caused by her smothering the infants shortly after birth.  Prior to trial, Ms. Lowe moved to suppress evidence obtained under a search warrant, based on the fact that one of the three ... (click for more)

Kordarrius Murphy, 22, Shot On Bonny Oaks Drive Late Thursday Night

Kordarrius Murphy, 22, was shot late Thursday night on Bonny Oaks Drive.   The Chattanooga Police Department responded  at approximately  11:36 p.m.   to a report that a person had been shot. Officers were dispatched to a vehicle crash with injuries at 4200 Bonny Oaks Drive. At the same time, a shooting victim arrived at a local hospital in a private ... (click for more)

Chancellor Fleenor Sets Aug. 6 Hearing In Democratic Suit To Keep Robin Smith Off The Ballot; Ms. Smith Was Former Campaign Advisor To Judge

Hamilton County Chancellor Pam McNutt Fleenor has set a hearing for Aug. 6 at 1:30 p.m. on a lawsuit brought by the Tennessee Democratic Party seeking to keep former state GOP Chairman Robin Smith off the ballot. Ms. Smith was a campaign advisor for Ms. McNutt Fleenor when she ran for judge in 2014. Her Rivers Edge Alliance was paid $13,546.86 by the McNutt Fleenor campaign, ... (click for more)

Not My University: Why I’m Not Okay With Mike Pence Coming To Lee University - And Response (6)

As a student of Lee University, who is well-aware of the Lee administration’s more conservative stance in politics, I am upset about Mike Pence visiting the university and being welcomed on our campus. Although I respect that Pence is in a position of authority as our nation’s Vice President, and that he likewise deserves the right to hold his own opinions in regards to the issues ... (click for more)

Employee Who Stole From East Ridge Should Be Prosecuted

Why has the East Ridge employee who was fired for theft not been charged with theft?    City Manager Scott Miller made the statement that the employee had problems and that the stolen items were returned.  What does that have to do with the employee stealing ?   He has had a history of abuse of city resources. Why is he not being prosecuted? ... (click for more)