Alabama agency has to pay damages to Iraqi war veteran under USERRA.

A veteran worked at the Tarwater Developmental Center in Montgomery from 1987 until his departure for military service in December 2003. The Tarwater facility was operated by the Alabama Department of Mental Health and Mental Retardation (ADMH), an agency of the State of Alabama. The veteran was also a member of the Alabama National Guard (ANG).

In September 2003, the ANG notified the veteran that he would be deployed to Iraq at the end of December. The veteran immediately informed his supervisor of his impending deployment. In fall 2003, ADMH decided to close some of its facilities because of financial problems, including the Tarwater facility. The veteran indicated that he was willing to relocate to two of the other ADMH centers in Montgomery, but declined a transfer to a different position in Tuscaloosa—for two reasons:

• The transfer to Tuscaloosa would require his family to relocate.
• Although the transfer involved a promotion, it required longer hours, which would prevent him from fulfilling his family responsibilities.

The veteran worked his last day at Tarwater on December 29, 2003. When the veteran declined the transfer to Tuscaloosa, ADMH indicated that the agency would continue to seek other jobs for him. ADMH closed the Tarwater facility on January 15, 2004.

In April 2005, the veteran was honorably discharged and returned to Alabama. Shortly thereafter, he sought reemployment at ADMH. For several months, the veteran attempted to get his job back by making repeated telephone calls and in-person visits. At some point, someone told him that ADMH had lost his records and that someone would call him when the records were found. However, no one from ADMH called. So in August 2005, the veteran took a job in the private sector. In 2007, he once again contacted ADMH and was finally reemployed at a Montgomery hospital in August 2007.

In February 2008, the veteran filed a complaint under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301. He filed his complaint with the U.S. Department of Labor, which found that his claim had merit and referred the case to the U.S. Department of Justice. In December 2008, the U.S. Department of Justice sued ADMH in the U.S. District Court for the Middle District of Alabama. The district court entered judgment in favor of the U.S. government, thereby finding that ADMH had violated USERRA. ADMH appealed this decision to the U.S. Eleventh Circuit Court of Appeals, which affirmed the district court's ruling. On appeal, ADMH asserted that—

• The Eleventh Amendment to the U.S. Constitution affords Alabama sovereign immunity from suit by the U.S. government.
• The district court erred in determining that ADMH violated the reemployment provisions of USERRA.
• The district court improperly awarded damages of $25,000 for the wages and benefits the veteran lost because of a failure to rehire him.

The appeals court found that—

• Although the Eleventh Amendment provides that a state is immune from suits by its own citizens or citizens of other states, it does not provide that a state is immune from suit by the United States. Although the state argued that the veteran was the real plaintiff, the appeals court pointed out that USERRA gives the federal government—not individuals—the right to sue states in federal court.
• The veteran's refusal to accept a transfer to a position in Tuscaloosa was not a resignation from service. The court found that an employee has a right to reemployment under USERRA if his absence from a position is caused by service in the uniformed services. The veteran had never expressed a desire to resign, only that he did not want to transfer to Tuscaloosa.
• To award damages, the U.S. government does not have to prove that the veteran would have taken a position if one had been offered, but only that the employer did not offer a position. The court found that it was undisputed that ADMH did not offer the veteran a position.

See United States v. Alabama Department of Mental Health and Mental Retardation, decided March 16, 2012.