(Posted December 1, 2016) Justice Kelsey gives us another tour of the hallways of legal history in Clark v. Virginia State Police. It’s a retaliation claim under the federal Uniformed Services Employment and Reemployment Rights Act. Because of my love of history, especially legal history, I might linger here a bit more than usual on the context before I get to the ruling.

Clark is a State Trooper who was denied a promotion. Claiming that this denial stemmed form his service in the Army Reserves, he sued the State Police under USERRA. As that statute provides, the suit was filed in state court. The State Police filed a plea of sovereign immunity, which the trial court sustained. The justices granted a writ to review the case.

The dispositive issue in the case is whether this federal statute’s express creation of a private right of action in state courts was sufficient to waive the states’ sovereign immunity from being sued in their own courts without their consent. In order to resolve it, Justice Kelsey starts in the early days of our Republic, with passages from The Federalist Papers and a 1793 SCOTUS decision.

Publius, the pseudonymous author of The Federalist Papers, had expressed the view that states retain “a residuary and inviolable sovereignty” that Congress could not touch. But in the 1793 case, Chisholm v. Georgia, SCOTUS ruled that since the Constitution gave federal courts the power to decide suits between private parties and states, those states were no longer immune.

That decision led directly to the Eleventh Amendment, which prohibited, among other things, suits against a state by a citizen of another state. More recent caselaw has effectively expanded that prohibition, so that you can’t even sue your own state in federal court. And since most states retained their sovereign immunity against being sued in their own state courts, that left claimants against states without much of a remedy.

But wait; there’s an exception to this premise. Bankruptcy courts can adjudicate claims involving states, so perhaps this immunity doctrine is on shaky ground. But in this century, SCOTUS has ruled that since bankruptcy proceedings are in rem, they don’t tread upon sovereign toes the same way a private right of action would.

Today’s opinion notes that while the foundation of the immunity may or may not be eroding, the building still stands and the Supreme Court of Virginia will respect it. Here is the dispositive holding in today’s unanimous affirmance:

Nonconsenting States cannot be forced to defend “private suits” seeking in personam remedies “in their own courts” based upon “the powers delegated to Congress under Article I of the United States Constitution.”

So does this mean that the Commonwealth and its agencies can just ignore the federal statute and discriminate against state employees with impunity? Not really; today’s opinion observes in a footnote that the Code of Virginia contains a parallel statute. Clark could have sued under that statute, which is an express waiver of immunity. Here’s why, from the same footnote:

Clark did not assert any claims against the VSP based upon Virginia law, arguing that relief under Virginia law is “specious” because “[w]hile [Code §] 44-93.4 is modeled on USERRA, this state statute applies only to Virginia guard forces [and] does not apply to [appellant],” a member of the U.S. Army Reserves. Reply Br. at 3-4. But see Code § 44-93(A) (referring to “members of the organized reserve forces of any of the armed services of the United States”).

I haven’t gone to dig up the statutes themselves, but I suspect it’s safe to take Justice Kelsey’s word for it: a valid cause of action existed under Virginia law, and Clark mistakenly disdained it. Because of the provisions of Rule 1:6, I also suspect that it’s too late for him to plead such a claim now. [Update: One of my readers has pointed out that Rule 1:6 only bars relitigation after a decision “on the merits.” The SCV has ruled that when the Commonwealth is immune, courts don’t have jurisdiction to adjudicate claims against it. Since a finding of no-jurisdiction is not on the merits, the Trooper may well be able to sue again under the Virginia statute, assuming the statute of limitations hasn’t expired.]

Here are a couple of closing points on this case. First, while the court doesn’t come right out and say it, the justices today almost – but not quite – hold that this provision of the USERRA is unconstitutional. The effect of this holding is to make the creation of that private right of action subject to the requirement that the state have waived its sovereign immunity. If there’s no waiver, then the grant of a private right of action is really of no effect.

Second, a number of lawyers and commentators in recent years have been critical of sovereign immunity. Here’s an example of a law-review article dating back almost 40 years on that point, invoking strains of “Tin soldiers and Nixon’s coming …”; there have been many similar calls since then.

If you’re hoping for judicial abolition of Virginia’s sovereign immunity, I have disheartening news. This opinion is a strong defense of the doctrine, and not a single justice backs away from it.