United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, District Judge.
Pamela Ennis Huff filed this action under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-4335, against the Office of the Sheriff, County of Roanoke, Virginia ("Sheriff's Office") and Michael G. Winston, Sheriff of Roanoke County ("Sheriff Winston"). The defendants previously moved to dismiss the claims against the Sheriff's Office and Sheriff Winston in his official capacity, on the basis that such claims are barred by the Eleventh Amendment. On November 13, 2013, following the submission of supplemental briefs by both sides, the court granted the defendants' motion for partial dismissal. The plaintiff has since filed a motion for reconsideration or, in the alternative, for leave to file an interlocutory appeal. The defendants oppose the plaintiff's motion. For the reasons set forth below, the motion will be denied.
Huff was hired by the Sheriff's Office in 2001. She worked as a Deputy Sheriff for approximately five years before being promoted to Deputy Sheriff Bailiff. Huff also served in the Army Reserves, and she was called to active duty on at least three occasions. In the instant action, Huff claims that she was subjected to discrimination and retaliation because of her military service, in violation of USERRA.
In its prior memorandum opinion granting the defendants' motion for partial dismissal, the court concluded that Huff's claims against the Sheriff's Office and Sheriff Winston in his official capacity are barred by the Eleventh Amendment to the United States Constitution, which "protects unwilling states from suit in federal court, " as well as "arm[s] of the [s]tate' and [s]tate officials." Bland v. Roberts , 730 F.3d 368, 389-90 (4th Cir. 2013) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 280 (1977)). In reaching this decision, the court rejected the plaintiff's argument that USERRA abrogates Eleventh Amendment immunity. The court explained as follows:
"Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." Atascadero State Hosp. v. Scanlon , 473 U.S. 234, 242 (1985); see also Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 55 (1996) ("Congress' intent to abrogate the States' immunity from suit must be obvious from a clear legislative statement.") (internal citation and quotation marks omitted). A review of USERRA's operative text reveals no such intention on the part of Congress. USERRA's jurisdictional statute, which was amended in 1998, states that federal district courts "shall have" jurisdiction "[i]n the case of an action against a private employer by a person." 38 U.S.C. § 4323(b)(3) (emphasis added). By contrast, the statute provides that "[i]n the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State." 38 U.S.C. § 4323(b)(2) (emphasis added). As other circuits have recognized, the statute's permissive language regarding private actions against state employers "does not evince an intent to grant federal jurisdiction over actions brought by individuals against states, [or] an intent to abrogate the states' sovereign immunity." Townsend v. Univ. of Alaska , 543 F.3d 478, 484 (9th Cir. 2008). Instead, "[t]hese provisions demonstrate that Congress knew how to provide for federal jurisdiction but specifically chose not to do so for USERRA claims brought by individuals against states as employers." McIntosh v. Partridge , 540 F.3d 315, 321 (5th Cir. 2008).
This conclusion is further supported by the legislative history of the 1998 amendments. Unlike the current statute, the pre-1998 version "provided that [t]he district courts of the United States shall have jurisdiction' over all USERRA actions, including those brought by a person against a state employer." Townsend , 543 F.3d at 484 n.3 (citing Pub. L. No. 103-353 § 2, 108 Stat. 3149, 3165 (1994)). By amending the statute to its current form, Congress eliminated the blanket grant of jurisdiction to federal courts over all USERRA claims, and replaced it with a provision that refers only to the ability of individuals to bring claims against states as employers in state court. As the United States Court of Appeals for the Ninth Circuit explained in Townsend, "[t]he underlying reason for these amendments was that Congress was concerned about the Supreme Court's then-recent decision in Seminole Tribe, " in which "the Court held that Congress may abrogate a state's sovereign immunity only when acting pursuant to its powers under § 5 of the Fourteenth Amendment, " and not when it is acting pursuant to the powers enumerated in Article I. Id . at 383 (citing Seminole Tribe , 517 U.S. at 59, 72-73). The legislative history "makes plain" that the purpose of the amendments "was to solve the Seminole Tribe problem, " and it "is devoid of any statement or suggestion that Congress intended to authorize individuals to bring actions against states in federal court." Id.
Huff v. Office of the Sheriff, No. 7:13-cv-00257, 2013 WL 6018988, 2013 U.S. Dist. LEXIS 161954, at *6 (W.D. Va. Nov. 13, 2013). For these reasons, the court held that it lacked jurisdiction over the plaintiff's claims for damages against the Sheriff's Office and Sheriff Winston in his official capacity and, thus, granted the defendants' motion to dismiss those claims.
Huff has now moved for reconsideration. Alternatively, she requests leave to file an interlocutory appeal.
I. Motion for Reconsideration
The court assumes that Huff's motion for reconsideration is filed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Under this rule, "a district court retains the power to reconsider and modify its interlocutory judgments, ... at any time prior to final judgment when such is warranted." Am. Canoe Ass'n v. Murphy Farms, Inc. , 326 F.3d 505, 514-15 (4th Cir. 2003). The resolution of a motion for reconsideration filed pursuant to this rule is "committed to the discretion of the district court." Id . at 515. In light of such discretion, "[m]otions for reconsideration of interlocutory orders are not subject to the strict standards applicable to motions for reconsideration of a final judgment." Id . at 514. Nonetheless, "doctrines such as law of the case... have evolved as a means of guiding" a district court's discretion to reconsider or revise interlocutory orders. Id . at 515 (citing Sejman v. Warner-Lambert Co., Inc. , 845 F.2d 66, 69 (4th Cir. 1988)). Under this doctrine, a prior decision must be followed unless "(1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice." Id . (quoting Sejman , 845 F.2d at 69).
In seeking reconsideration of the court's prior decision to dismiss the claims against the Sheriff's Office and Sheriff Winston in his official capacity, Huff makes two arguments: (1) that Sheriff Winston is not an arm of the state and, thus, that he is not entitled to Eleventh Amendment immunity in his official capacity as Sheriff; and (2) that even if he is an arm of the state, his immunity to suit in federal court is validly abrogated by USERRA. For the following reasons, the court concludes that both arguments are without merit.
Contrary to her first argument, Huff previously conceded, in her supplemental brief, that the Sheriff, in his official capacity, is considered an arm of the state for purposes of the Eleventh Amendment. See Docket No. 12, Pl.'s Supp. Br. at 4 ("This lawsuit seeks damages from actions and/or omissions committed by the Roanoke County Sheriff in his professional capacity. As counsel for the defendants have highlighted, a suit against a Virginia Sheriff in his professional capacity is ultimately considered a suit against the State itself.") (citing McCoy v. Chesapeake Corr. Ctr. , 788 F.Supp. 890, 893 (E.D. Va. 1992)). Her concession was understandable, given the long line of decisions to that effect. See, e.g., Vollette v. Watson , 937 F.Supp.2d 706, 714 (E.D. Va. 2013) (noting that "federal district courts applying Virginia law have repeatedly held that Virginia Sheriffs, and their deputies, are state officers' for the purpose of the Eleventh Amendment") (citing cases); Gemaehlich v. Johnson, No. 7:12cv263, 2013 WL 589234, 2013 U.S. Dist. LEXIS 20147, at *4 (W.D. Va. Feb. 14, 2013) (emphasizing that "[t]here is considerable authority holding that the Eleventh Amendment precludes... official-capacity suits against Virginia Sheriffs and their deputies because they are state, not local, officials, " and finding "no reason to depart from that authority") (citing cases). While Huff now seeks to reverse course, she cites no case law to support the argument that Sheriff Winston is a county official, for whom the Eleventh Amendment provides no protection. Indeed, this argument is contrary to existing precedent. See Jenkins v. Weatherholtz , 909 F.2d 105, 107 (4th Cir. 1990) (holding that Virginia Sheriffs are "independent constitutional officer[s], " and that deputies, ...