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Florida First DCA rules that sovereign immunity barred claims against state entity arising under federal Uniformed Services Employment and Reemployment Rights Act of 1994 and Florida Uniformed Servicemembers Protection Act

On October 9, 2020, in State of Florida v. Hightower, No. 1D19-227, the Florida First DCA ruled that sovereign immunity barred a private individual’s claims against the Florida Department of Highway Safety and Motor Vehicles under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301–4335 (2014) and the Florida Uniformed Servicemembers Protection Act (FUSPA), §§ 250.80–250.84, 250.905, Fla. Stat. (2014). The plaintiff, a member of the United States Navy Reserve and Lieutenant with the Florida Highway Patrol (FHP), filed suit against the Department of Highway Safety and Motor Vehicles (the State), alleging retaliation and harassment by his FHP superiors for performance of reservist duties, and claiming that USERRA and FUSPA created causes of action against the State in state court. The trial court concluded that by enacting FUSPA the State of Florida had waived is right to sovereign immunity for claims brought under USERRA and FUSPA. The First DCA disagreed. Considering first whether the federal enactment of USERRA superseded the State’s sovereign immunity, the Court noted that in Alden v. Maine, 527 U.S. 706, 712 (1999), the U.S. Supreme Court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” The First DCA also rejected the plaintiff’s argument that USERRA should be exempt from this rule and instead be regarded similarly to the treatment of the federal bankruptcy power in Central Virginia Community College v. Katz, 546 U.S. 356 (2006).  The First DCA noted that unlike Katz, which involved claims against states exclusively in federal bankruptcy court, the plaintiff’s claims were against the State in its own courts. In addition, Alden did not involve in rem proceedings, but rather in personam rights of action. Finally, the Court considered it beyond its discretion to grant the plaintiff’s request to carve out additional exceptions.  Considering next whether Florida validly waived its claim of sovereign immunity, the First DCA found no statutory provision explicitly waiving sovereign immunity.  The Court cited its previous decision in State v. Caldwell, 199 So. 3d 1107, 1109-110 (Fla. 1st DCA 2016), in which the Court found that the State had not waived sovereign immunity after finding that the statute in issue did not include an express waiver of sovereign immunity, did not define persons subject to suit as including state agencies, and lacked language that clearly demonstrated that the Legislature intended for the State to be subject to suit under the statute.