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Posted by: Suzanne Craig Robertson on Aug 9, 2012

Court: TN Court of Appeals

Attorneys 1:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, David R. Smith.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Kevin G. Steiling, Deputy Attorney General; and Michael K. Markham, Assistant Attorney General, for the appellee, Tennessee National Guard.

Judge(s): CLEMENT

Plaintiff was a full-time employee of the Tennessee National Guard until 2002 when he commenced active duty service in the Active Guard and Reserve. Near the completion of his active duty service in the Active Guard and Reserve, Plaintiff asked the Tennessee National Guard to rehire him pursuant to the Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA). When the Tennessee National Guard refused, Plaintiff filed this action alleging it violated USERRA. The Tennessee National Guard responded to the complaint by filing a Tenn. R. Civ. P. 12.02(6) motion to dismiss for lack of subject matter jurisdiction based upon sovereign immunity from USERRA claims. The trial court granted the motion to dismiss based on the doctrine of sovereign immunity. Because the Tennessee General Assembly has not passed legislation to expressly waive its sovereign immunity from claims based on USERRA, as other states have done, we affirm.