JONATHAN R. CLARK
VIRGINIA DEPARTMENT OF STATE POLICE
THE CIRCUIT COURT OF CHESTERFIELD COUNTY Lynn S. Brice, Judge
ARTHUR KELSEY, JUSTICE
amendment to the Uniformed Services Employment and
Reemployment Rights Act ("USERRA"), see 38
U.S.C. §§ 4301-4335, created a private right of
action enforceable against States in their own courts,
see 38 U.S.C. § 4323(b)(2). In this case, the
trial court held that principles of sovereign immunity barred
a USERRA suit filed by Jonathan R. Clark against the Virginia
Department of State Police ("VSP"), an arm of the
Commonwealth. We agree and affirm.
filed a USERRA claim against the VSP, alleging that he was
denied a promotion because of his service in the United
States Army Reserves. The VSP responded with a plea of
sovereign immunity. As an agency of the Commonwealth, the VSP
argued that it could not be sued on a federal right of action
in state court absent a waiver of sovereign immunity. Neither
it nor the General Assembly, the VSP asserted, had waived
sovereign immunity for USERRA claims filed in state court.
The trial court agreed, granted the plea of sovereign
immunity, and dismissed Clark's USERRA claim.
appeal, Clark contends that the trial court misapplied
sovereign-immunity principles and thus erred in dismissing
his USERRA claim. The United States, appearing as amicus,
concurs with Clark and urges us to hold that the
Commonwealth's sovereign immunity has been lawfully
abrogated by 38 U.S.C. § 4323(b)(2). The VSP responds
that the trial court correctly applied sovereign-immunity
principles and had no choice but to dismiss the USERRA
action. We hold that the trial court properly dismissed
Clark's USERRA claim based upon the Commonwealth's
sovereignty is a defining feature of our Nation's
constitutional blueprint." Sossamon v. Texas,
563 U.S. 277, 283 (2011) (citation omitted). "Upon
ratification of the Constitution, the States entered the
Union 'with their sovereignty intact.'"
Id. (citation omitted). Federalism presupposes that
the States retain exclusive sovereignty in some aspects of
governance, share sovereign power with the federal government
in other aspects, and yield their sovereign power only in
those aspects of governance exclusively assigned to the
federal government by the United States Constitution. See
generally Blatchford v. Native Vill. of Noatak, 501 U.S.
775, 779 (1991) (collecting cases).
the Constitution's segmentation of governmental power,
States retain "a residuary and inviolable
sovereignty" that precludes them from being
"relegated to the role of mere provinces or political
corporations" of a consolidated national government.
Alden v. Maine, 527 U.S. 706, 715 (1999) (first
quote from The Federalist No. 39, at 245 (J. Madison) (C.
Rossiter ed., 1961)). As James Madison explained, States
possess "distinct and independent portions of the
supremacy, no more subject, within their respective spheres,
to the general authority than the general authority is
subject to them, within its own sphere." Id. at
714 (quoting The Federalist No. 39, at 245).
the beginning of the Republic, the doctrine of state
sovereign immunity has been a mainstay of federalism
principles. It was an axiom of English law that "the law
ascribes to the king the attribute of sovereignty, " and
thus, "no court can have jurisdiction over him"
because "jurisdiction implies superiority of
power." 1 William Blackstone, Commentaries *241-42.
"Immunity from private suits has long been considered
'central to sovereign dignity.'"
Sossamon, 563 U.S. at 283 (citation omitted). Based
on that tradition, "[t]he generation that designed and
adopted our federal system considered immunity from private
suits central to sovereign dignity." Alden, 527
U.S. at 715.
Hamilton considered it "inherent in the nature of
sovereignty" for a state "not to be amenable to the
suit of an individual without its consent." The
Federalist No. 81, at 487 (A. Hamilton). "This is the
general sense and the general practice of mankind; and the
exemption, as one of the attributes of sovereignty, is now
enjoyed by the government of every State in Union."
Id. Speaking at the Virginia ratifying convention,
James Madison agreed: "It is not in the power of
individuals to call any state into court." 3 Jonathan
Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 533 (1827). John
Marshall concurred, "It is not rational to suppose that
the sovereign power [i.e., a State] should be dragged before
a court." Id. at 555.
1793, roughly five years after the ratification of the
Constitution, a South Carolinian filed suit in the United
States Supreme Court against the State of Georgia seeking
payment of a debt incurred during the American Revolution. In
that case, Chisholm v. Georgia, 2 U.S. 419 (1793),
Georgia protested that the federal judicial power in Article
III did not abrogate States' sovereign immunity.
"The suability of a State without its consent, "
Georgia no doubt assumed, "was a thing unknown to the
law." Hans v. Louisiana, 134 U.S. 1, 16 (1890).
A majority of Justices on the Supreme Court disagreed,
holding that Article III implicitly abolished state sovereign
immunity by affirmatively granting federal courts the power
to decide disputes between private citizens and States.
See Chisholm, 2 U.S. at 452, 466, 467.
representatives were none too pleased. The day after the
opinion was issued, the Georgia congressional delegation
introduced a resolution in Congress that, while initially
unsuccessful, would later become the Eleventh Amendment.
See Alden, 527 U.S. at 721. Clarifying its views
with further emphasis, the Georgia House of Representatives
passed a bill stating that anyone who attempted to enforce
Chisholm would be "guilty of felony and shall
suffer death, without benefit of clergy, by being
hanged." Id. at 720-21 (citation omitted).
Within a year, the Eleventh Amendment passed Congress with
near unanimity and was swiftly ratified by the States.
Chisholm, an opinion ...