By Joy P. Waltemath, J.D.
A New Mexico National Guard member may sue the state as his former employer under the Uniformed Services Employment and Reemployment Rights Act, the New Mexico Supreme Court ruled, reversing an appeals court decision that found the state was immune to the employee’s claims. By enacting NMSA 1978, Section 20-4-7.1(B), the legislature specifically extended the “rights, benefits and protections” of USERRA to members of the state National Guard who are ordered to federal or state active duty for a period of 30 or more consecutive days. In so doing, the Legislature consented to suits brought against state employers who violate the protections guaranteed by USERRA, the state high court reasoned, reinstating the trial court’s judgment and damages award (Ramirez v. State of New Mexico Children, Youth, and Families Department,
April 14, 2016, Nakamura, J.).
Congress originally conferred jurisdiction on federal district courts to adjudicate USERRA actions brought by private individuals against state employers. But in Seminole Tribe of Florida v. Florida
, the Supreme Court rejected Congress’s authority under the powers granted by Article I of the Constitution to abrogate a state’s sovereign immunity and subject nonconsenting states to suit in federal court. Because Congress enacted USERRA pursuant to its War Powers granted by Article I, Section 8, the Seminole Tribe
decision cast doubt on the federal courts’ jurisdiction to adjudicate USERRA actions for monetary damages against states as employers. In 1998, Congress amended USERRA’s jurisdictional provision concerning claims against state employers (38 U.S.C. Sec. 4323(b)(2)), in order to channel private USERRA claims against state employers to state courts. The employee here brought his USERRA claim in state court.
After eight years as a surveillance officer for the New Mexico Children, Youth, and Families Department (CYFD), the state National Guard member was deployed to Iraq, then transferred to Kuwait, and then returned to New Mexico about a year later. He returned to work, but his relationship with his supervisors deteriorated within months and he was fired. He sued in state court and although the state claimed immunity, a jury found his military service was a motivating factor for his discharge and awarded $36K in damages. The court of appeals reversed, holding that CYFD, a state agency, was immune from suit.
Won’t decide War Powers issue.
After stressing the importance of adjudicating the defense of state sovereign immunity at the outset of litigation (which the trial court had not done), the state supreme court dodged arguments advanced by the employee and intervenors, including the New Mexico Attorney General, and United States as amicus curiae, to decide whether the states had implicitly consented to Congress’s authority under its War Powers to override their sovereign immunity, finding it unnecessary to dispose of the case. Instead, it focused on whether the state legislature had waived the state’s immunity to suit by enacting Sec. 20-4-7.1(B), which applies the rights created by USERRA to qualifying members of the New Mexico National Guard.
Waiver of immunity.
The court first looked to the statutory text to determine whether the legislature’s waiver of immunity was clear and unambiguous, noting there are “no magic words” required. It also said that it was permitted to discern a clear and unambiguous waiver by examining the purpose of a statute—something that federal courts could not do because of federalism concerns. And it stressed that any determination it made that the legislature consented to suit “in its own courts” did not also mean that the legislature consented to suit in the federal courts.
Ultimately, the court agreed with the employee that by enacting Section 20-4-7.1(B), the legislature waived state sovereign immunity to his USERRA action. The statutory language was clear: “The rights, benefits and protections of the federal Uniformed Services Employment and Reemployment Rights Act of 1994 shall apply to a member of the national guard ordered to federal or state active duty for a period of thirty or more consecutive days.”
Specifically, Section 20-4-7.1(B) guarantees both the substantive antidiscrimination right and the right of action against a state employer to members of the national guard ordered to federal or state active duty for a period of 30 or more consecutive days. The state law “adopts the rights guaranteed by USERRA without limitation,” stressed the court, and contained no suggestion that it only extended some
of the rights created by USERRA—for example, just its substantive antidiscrimination right, while withholding USERRA’s right to a remedy for damages. After reviewing other relevant state statutory provisions, the court concluded it had no reason to construe the statute as not conferring USERRA’s right of action against state employers to national guard members.