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No Sovereign Immunity for State USERRA Violations

By Robyn Hagan Cain on March 23, 2012 | Last updated on March 21, 2019

State governments can be sued for Uniformed Services Employment and Reemployment Rights Act (USERRA) violations, according to the Eleventh Circuit Court of Appeals.

The Atlanta-based appellate court ruled last week that sovereign immunity does not insulate a state from USERRA liability.

Roy Hamilton worked for the Alabama Department of Mental Health (ADMH) at the J.S. Tarwater Developmental Center in Montgomery, Alabama from 1987 until his departure for military service in December 2003. In addition to his job at Tarwater, Hamilton was also a member of the Alabama National Guard.

Before Hamilton deployed, ADMH had decided to close several of its mental health centers -- including Tarwater -- because of financial problems. Hamilton was willing to transfer to one of the other two centers in Montgomery, but declined a transfer to Tuscaloosa due to family obligations. ADMH assured Hamilton that it would continue to look for other jobs for him.

The state shuttered Tarwater while Hamilton was deployed. He returned from Iraq in 2005, but he was unable to get a job at ADMH until 2007, despite repeated contact with the agency. In 2008, he filed a USERRA complaint with the Department of Labor. After determining that his case had merit, the Department of Justice sued ADMH. The district court ordered ADMH to pay Hamilton more than $25,000 for lost wages and benefits for USERRA violations. Alabama appealed, claiming sovereign immunity.

USERRA protects active military members who have to be absent from their civilian jobs, and protects veterans from discrimination based on military service. Anyone who has served or is serving in the military is protected under USERRA, and all employers in the public and private sectors are subject to the Act.

The U.S. is the named plaintiff in a USERRA claim against a state government because, as the Eleventh Circuit Court of Appeals notes, sovereign immunity bars an individual from suing a state without the state's consent. The federal government, however, is not subject to the limitations of sovereign immunity.

Alabama argued sovereign immunity should apply because Hamilton was the real plaintiff, and the government was a plaintiff in name only.

The appellate court disagreed, noting that the government -- not Hamilton-- had control over the prosecution of the case, and the U.S. had an independent interest in enforcing USERRA. Furthermore, the Supreme Court has ruled that sovereign immunity does not preclude a federal government action to obtain victim-specific relief on behalf of a particular individual.

The lesson for states governments? Be kind to your veterans because sovereign immunity won't save you from USERRA violations.

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