Opinion
21-CV-5081(GRB)
2021-09-22
Jay VERONKO, Plaintiffs, v. SUFFOLK COUNTY, the Suffolk County Police Department, and Office of the New York State Comptroller, Defendants.
Raymond Negron, Mount Sinai, NY, for Plaintiffs.
Raymond Negron, Mount Sinai, NY, for Plaintiffs.
MEMORANDUM OF DECISION & ORDER
GARY R. BROWN, United States District Judge:
This case is brought pursuant to the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301, et seq. , a statute which performs the critical and commendable function of protecting Americans who have performed military service from employment discrimination. USERRA
is the latest in a series of laws protecting veterans’ employment and reemployment rights going back to the Selective Training and Service Act of 1940, the purpose of which is to encourage military service by eliminating or minimizing the disadvantages to civilian careers, to minimize the disruption to the lives of servicemembers and their employers by providing for the prompt reemployment of servicemembers and to prohibit discrimination against servicemembers.
Serricchio v. Wachovia Sec. LLC , 658 F.3d 169, 174 (2d Cir. 2011) (alterations omitted).
In this case, plaintiff alleges discrimination during his employment as a Suffolk County police officer as a result of his military service. See generally Docket Entry ("DE") 1. In this action, his second such case, plaintiff names Suffolk County, the Suffolk County Police Department and the New York State Comptroller's Office as defendants. Id. Noting that state agencies and departments generally lack the capacity to sue and be sued, see, e.g. , Panarello v. Suffolk Cty. Police , 2020 WL 4819496, at *2 (E.D.N.Y. 2020), the Court issued a Show Cause Order asking counsel to provide authority as to whether the action should be discontinued as against the SCPD and the Comptroller's Office. Electronic Order dated 9/15/21. Counsel's response, DE 10, did not provide any authority with respect to whether the SCPD represents an entity subject to suit, and the Court dismissed the action only as to that entity. Electronic Order dated 9/16/2021.
Plaintiff has since agreed to discontinue the suit as against the Office of the Comptroller. See DE 11.
Counsel appears to have misinterpreted that order as a substantive dismissal of the entire action. It was not.
During the exploration of that issue, counsel alerted the Court to authority that raises questions about the Court's subject matter jurisdiction to hear this case. In Cresci v. Mohawk Valley Cmty. Coll. , the Second Circuit held as follows:
A district court must dismiss a cause of action under Rule 12(b)(1) for lack of subject matter jurisdiction when it "lacks the statutory or constitutional power to adjudicate [the claim]." Id. (internal quotation marks omitted). Section 4323 of title 38 governs jurisdiction over claims brought under USERRA. Section 4323 states in relevant part:
(b) Jurisdiction.—(1) In the case of an action against a State (as an employer) or a private employer commenced by the United States , the district courts of the United States shall have jurisdiction over the action.
(2) In 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.
(3) In the case of an action against a private employer by a person, the district courts of the United States shall have jurisdiction of the action.
38 U.S.C. § 4323(b) (emphasis added). USERRA defines a "State" as "each of the several States of the United States ... (including the agencies and political subdivisions thereof)." Id. § 4303(14). Thus, lawsuits brought under USERRA by an individual against a state agency such as MVCC may not proceed in federal courts; they may be litigated only in state courts. The District Court therefore correctly determined that it lacked subject matter jurisdiction over Cresci's USERRA claims.
Cresci v. Mohawk Valley Cmty. Coll. , 693 F. App'x 21, 23 (2d Cir. 2017). Congress has directed that an employee of a State, or any agency or political subdivision of a State, may bring claims under USERRA to redress alleged grievances, but such cases "may be litigated only in state courts." Id. This Court, therefore, lacks jurisdiction to hear the claim.
Thus, the case is dismissed, without prejudice to refiling in state court.