PRESENT: All the Justices

JONATHAN R. CLARK

 OPINION BY

v. Record No. 151857 JUSTICE D. ARTHUR KELSEY

 December 1, 2016 

VIRGINIA DEPARTMENT OF STATE POLICE

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Lynn S. Brice, Judge 

A 1998 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.

I.

Clark 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.

II. 

 On 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 
2 

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 sovereign immunity.1

A. 

“Dual 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). 

 

1 Virginia law authorizes a statutory right of action in nearly identical circumstances as 

the federal USERRA. See Code § 44-93.5 (permitting military personnel suffering employer 

violations of Code §§ 44-93 to -93.4 to bring suit in circuit court and authorizing the Attorney 

General to represent such persons upon request); see also Code §§ 44-93(A) & -93.1(A) 

(entitling military personnel employed by the Commonwealth to leaves of absence for service 

without penalty, health insurance and benefits throughout service, and equivalent pay and 

seniority upon return from service). 

Clark did not assert any claims against the VSP based upon Virginia law, arguing that 

relief under Virginia law is “specious” because “[w]hile [Code §] 44-93.4 is modeled on 

USERRA, this state statute applies only to Virginia guard forces [and] does not apply to 

[appellant],” a member of the U.S. Army Reserves. Reply Br. at 3-4. But see Code § 44-93(A) 

(referring to “members of the organized reserve forces of any of the armed services of the United 

States”). In any event, because Clark did not assert any Virginia law claims, we do not address 

his entitlement to relief as an army reservist under Code § 44-93.5 or any other applicable 

provisions of Virginia law. See Commonwealth v. Harley, 256 Va. 216, 219-20, 504 S.E.2d 852, 

854 (1998) (“[C]ourts are not constituted to render advisory opinions, to decide moot questions, 

or to answer inquiries which are merely speculative.”) (alteration omitted) (quoting City of 

Fairfax v. Shanklin, 205 Va. 227, 229-30, 135 S.E.2d 773, 775-76 (1964)). 
3 

Under 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).

From 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. 

Alexander 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 
4 

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. 

In 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, 467.2

Georgia’s 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 that “fell upon the country with a profound shock,” 

 

2 Following the tradition of English jurists, see William H. Rehnquist, The Supreme 

Court 40 (2d ed. 2001), the Chisholm Justices issued individual opinions in seriatim in ascending 

order of seniority. Chief Justice Marshall is credited with ending this practice, see M. Todd 

Henderson, From Seriatim to Consensus and Back Again: A Theory of Dissent, 2007 Sup. Ct. 

Rev. 283, 313-15 (2007), much to the consternation of Thomas Jefferson, see Letter from 

Thomas Jefferson to Judge Johnson (March 4, 1823), in 7 The Writings of Thomas Jefferson 

276, 278 (H.A. Washington ed., 1854); see generally Letter from Thomas Jefferson to Judge 

Johnson (June 12, 1823), in id. at 290, 298. 
5 

id. at 720 (citation omitted), had one of the shortest tenures of any opinion ever issued by the 

Supreme Court. 

Addressing only the Chisholm scenario, the literal text of the Eleventh Amendment 

limited only the “Judicial power of the United States” (the jurisdiction of Article III federal 

courts) and prohibited only suits against a State “by Citizens of another State” or citizens or 

subjects of a foreign state. U.S. Const. amend. XI. More than 200 years of precedent, however, 

has mined “history and experience” as well as “the established order of things,” Hans, 134 U.S. 

at 14, to rediscover the “background principle” animating the Eleventh Amendment, that 

Congress may not authorize “suits by private parties against unconsenting States.” Seminole 

Tribe of Fla. v. Florida, 517 U.S. 44, 72 (1996). 

That background principle received full recognition in Alden v. Maine. In that case, a 

group of Maine probation officers filed suit in a Maine state court alleging that their employer, 

the State of Maine, had violated overtime pay provisions of the Fair Labor Standards Act 

(“FLSA”), 29 U.S.C. §§ 201-219. The Act purported to authorize private actions against States 

in their own courts. Id. §§ 203(x), 216(b). The holding of Alden was emphatic: “We hold 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.” 527 U.S. 

at 712. Put differently, but no less unequivocally: “In light of history, practice, precedent, and 

the structure of the Constitution, we hold that the States retain immunity from private suit in their 

own courts, an immunity beyond the congressional power to abrogate by Article I legislation.” 

Id. at 754. Given “the historical record,” the Supreme Court observed, “it is difficult to conceive 

that the Constitution would have been adopted if it had been understood to strip the States of 
6 

immunity from suit in their own courts and to cede to the Federal Government a power to subject 

nonconsenting States to private suits in these fora.” Id. at 743.3

Alden clarified that this form of “sovereign immunity derives not from the Eleventh 

Amendment but from the structure of the original Constitution itself” and the “fundamental 

postulates implicit in the constitutional design.” Id. at 728-29. Judicial recognition of the 

“contours of sovereign immunity” necessarily must be “determined by the founders’ 

understanding” of the constitutional design. Id. at 734. To rule otherwise, the Supreme Court 

explained, would endorse “the type of ahistorical literalism” employed by the “discredited 

decision in Chisholm.” Id. at 730. 

B.

 The enduring role of sovereign immunity is not without its qualifications. It generally 

does not apply, for example, to suits filed in federal court seeking prospective relief against a 

continuing violation of federal law by state officers, Ex parte Young, 209 U.S. 123, 155-56 

(1908),4 or cases that seek to enforce civil rights laws enacted pursuant to Section 5 of the 

Fourteenth Amendment, Coleman v. Court of Appeals of Maryland, 566 U.S. 30, ___, 132 S. Ct. 

 

3 Clark concedes that the Commonwealth is “nonconsenting,” Alden, 527 U.S. at 712, in 

the sense that it did not waive any sovereign immunity it might have in this case, see generally 

Sossamon, 563 U.S. at 284-85 (“Accordingly, ‘our test for determining whether a State has 

waived its immunity from federal-court jurisdiction is a stringent one.’ A State’s consent to suit 

must be ‘unequivocally expressed’ in the text of the relevant statute. Only by requiring this 

‘clear declaration’ by the State can we be ‘certain that the State in fact consents to suit.’ Waiver 

may not be implied. For these reasons, a waiver of sovereign immunity ‘will be strictly 

construed, in terms of its scope, in favor of the sovereign.’” (citations omitted)). 

4

 Even this qualification has its own caveats. “The power of federal courts of equity to 

enjoin unlawful executive action is subject to express and implied statutory limitations.” 

Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. ___, ___, 135 S. Ct. 1378, 1385 (2015). 

Because of these limitations, Ex parte Young is a “narrow exception” to sovereign immunity, 

Seminole Tribe, 517 U.S. at 76, and is “narrowly construed,” Pennhurst State Sch. & Hosp. v. 

Halderman, 465 U.S. 89, 114 n.25 (1984), superseded on other grounds by statute, 28 U.S.C. 

§ 1367. 
7 

1327, 1333 (2012) (plurality opinion); Seminole Tribe, 517 U.S. at 59. Nor does sovereign 

immunity apply when the United States, rather than a private citizen, brings an action in federal

court against a State. See Alden, 527 U.S. at 755 (citing Principality of Monaco v. Mississippi, 

292 U.S. 313, 328-39 (1934)). 

The Alden plaintiffs asserted their claims under the FLSA. The Congressional power to 

enact the FLSA arose from the Commerce Clause in Article I, Section 8. Seminole Tribe held 

that Congress’s “Article I authority to regulate commerce” does not include the power to 

“abrogate a State’s immunity” to suit in federal court. Virginia Office for Prot. & Advocacy v. 

Stewart, 563 U.S. 247, 254 n.2 (2011) (citing Seminole Tribe, 517 U.S. at 65-66); see also 

Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 636 

(1999) (holding that “Congress may not abrogate state sovereign immunity pursuant to its Article 

I powers,” including “either the Commerce Clause or the Patent Clause”). Alden applied this 

principle to suits in state court. The “logic” of sovereign immunity, Alden reasoned, “extends to 

state-court suits as well.” Alden, 527 U.S. at 733. 

The only exception recognized to the general rule of sovereign immunity arises in the sui 

generis context of federal bankruptcy litigation. Because “[b]ankruptcy jurisdiction, at its core, 

is in rem,” the United States Supreme Court held that “it does not implicate States’ sovereignty 

to nearly the same degree as other kinds of jurisdiction. That was as true in the 18th century as it 

is today.” Central Va. Cmty. Coll. v. Katz, 546 U.S. 356, 362 (2006) (citation omitted). Unlike 

the constitutional history of other Article I, Section 8 powers, the “history of the Bankruptcy 

Clause, the reasons it was inserted in the Constitution, and the legislation both proposed and 

enacted under its auspices immediately following ratification of the Constitution” show that the 

Founders intended it “not just as a grant of legislative authority to Congress, but also to authorize 
8 

limited subordination of state sovereign immunity in the bankruptcy arena.” Id. at 362-63. “In 

ratifying the Bankruptcy Clause,” Katz held, “the States acquiesced in a subordination of 

whatever sovereign immunity they might otherwise have asserted in proceedings necessary to 

effectuate the in rem jurisdiction of the bankruptcy courts.” Id. at 378. 

C.

Clark argues that USERRA should be exempt from the general sovereign-immunity rule 

of Alden and be treated, as the bankruptcy power was in Katz, as an exceptional, but nonetheless 

valid, congressional abrogation of the Commonwealth’s sovereign immunity to suits in its own 

courts. In support, Clark points out that Congress enacted USERRA pursuant to its grant of war 

powers in Article I, Section 8, Clauses 11-16,5 not its power to “regulate Commerce . . . among 

the several States” under Article I, Section 8, Clause 3, which authorized the Act addressed in 

Alden. For several reasons, we find this to be a distinction without a difference. 

 To begin with, neither the reasoning nor the holding of Alden addressed — much less 

turned on — the fact that the offending federal statute, the FLSA, was enacted pursuant to the 

Commerce Clause. See U.S. Const. art. I, § 8, cl. 3. As noted earlier, the Supreme Court made 

clear in Alden that its sovereign-immunity holding encompassed all congressional powers 

recognized in Article I not just the power over interstate commerce. “We hold that the powers 

delegated to Congress under Article I of the United States Constitution do not include the power 

 

5 See 144 Cong. Rec. H1396, H1398 (daily ed. March 24, 1998) (statement of Rep. 

Evans) (noting that “the authority for laws involving veterans[’] benefits is derived from the War 

Powers clause”). Compare 20 C.F.R. § 1002.2 (2016) (describing USERRA as “the latest in a 

series of laws protecting veterans’ employment and reemployment rights going back to the 

Selective Training and Service Act of 1940” with its “immediate predecessor” being the 

Veterans’ Reemployment Rights Act (VRRA), former 38 U.S.C. §§ 2021-2027 (1988)), with

United States v. Nugent, 346 U.S. 1, 9 (1953) (describing the Selective Service Act as “a valid 

exercise of the war power”); Reopell v. Massachusetts, 936 F.2d 12, 15-16 (1st Cir. 1991) 

(noting that Congress enacted the VRRA pursuant to its war powers); Peel v. Florida Dep’t of 

Transp., 600 F.2d 1070, 1072 (5th Cir. 1979) (same). 
9 

to subject nonconsenting States to private suits for damages in state courts.” Alden, 527 U.S. at 

712 (emphases added). 

Relying exclusively on the “history, practice, precedent, and the structure of the 

Constitution,” not the literal text or unique context of the Commerce Clause, the Court “h[e]ld 

that the States retain immunity from private suit in their own courts, an immunity beyond the 

congressional power to abrogate by Article I legislation.” Id. at 754 (emphases added); accord

Florida Prepaid, 527 U.S. at 636 (recognizing that “Congress may not abrogate state sovereign 

immunity pursuant to its Article I powers,” including the Patent and Copyright Clause).

In reply, Clark describes Katz as an exception to Alden’s broad, unqualified holding. 

After all, Clark correctly asserts, the congressional abrogation of sovereign immunity in Katz

was authorized by the Bankruptcy Clause — an Article I power found in Section 8, Clause 4. 

We appreciate the point (as did the four dissenting Justices in Katz) but are unpersuaded that it 

matters in Clark’s case. Two aspects of Katz foreclose Clark’s view that Alden either has been or 

should be picked apart by further exceptions.

First, Katz involved claims against States filed exclusively in federal bankruptcy court. 

In contrast, the broad, unqualified holding of Alden addressed claims against States “in their own 

courts.” See Alden, 527 U.S. at 730, 742-43. No portion of Katz took issue with Alden’s

recognition of a State’s sovereign immunity in its own courts. Moreover, Katz involved a unique 

body of law governing “in rem” rights to bankrupt estates and the historic power of bankruptcy 

courts “to issue ancillary orders enforcing their in rem adjudications.” Katz, 546 U.S. at 370. In 

rem actions do “not implicate States’ sovereignty to nearly the same degree as other kinds of 

jurisdiction.” Id. at 362. Alden did not involve in rem proceedings, but rather in personam rights 

of action. The Alden holding, therefore, was not limited — much less implicitly overruled — by 
10 

Katz. The former addressed federal claims against States in their own courts asserting in 

personam rights of action. The latter addressed federal claims against States in federal 

bankruptcy courts asserting in rem claims and ancillary remedies.

It could very well be, as Clark surmises, that Alden’s trajectory may eventually be 

redrawn by the United States Supreme Court and that the future effort may characterize Katz as 

the first necessary course correction.6 We offer no views on the subject because that task, if it 

 

6

 That said, since Katz, no court has affirmatively held that Congress’s war powers may 

abrogate the sovereign immunity of States without their express consent. See, e.g., United States 

v. Alabama Dep’t of Mental Health & Mental Retardation, 673 F.3d 1320, 1324 (11th Cir. 2012) 

(noting that if a private citizen had been the plaintiff, “it is undisputed that sovereign immunity 

would have barred his [USERRA] suit because a State cannot be sued [in federal court] by an 

individual without its consent”); Townsend v. University of Alaska, 543 F.3d 478, 484 n.2 (9th 

Cir. 2008) (“Congress did not use the terms ‘must’ or ‘shall’ with respect to state court 

jurisdiction over USERRA claims” because “the powers delegated to Congress under Article I of 

the United States Constitution [including the war powers] do not include the power to subject 

nonconsenting States to private suits for damages in state courts.” (quoting Alden, 527 U.S. at 

712)); Risner v. Ohio Dep’t of Rehab. & Corr., 577 F. Supp. 2d 953, 964 (N.D. Ohio 2008) 

(reasoning that the war powers are conferred by Article I, which Seminole Tribe made clear 

“cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction” 

(citation omitted)); Janowski v. Division of State Police, 981 A.2d 1166, 1170 (Del. 2009) 

(holding that “[USERRA] could not abrogate state sovereign immunity, because Congress 

passed that law pursuant to its Article I, Section 8 war powers”); Anstadt v. Board of Regents of 

the Univ. Sys. of Ga., 693 S.E.2d 868, 871 & n.14 (Ga. Ct. App. 2010) (finding appellant’s 

contention that “the enactment of USERRA abrogated the state’s sovereign immunity because it 

was enacted pursuant to Congress’s war powers [was] unavailing” on the authority of Alden, 527 

U.S. at 712, and Seminole Tribe, 517 U.S. at 59-60); Ramirez v. State Children, Youth & 

Families Dep’t, 372 P.3d 497, 499-500, 503 (N.M. 2016) (noting that “Congress created 

USERRA pursuant to its War Powers” and that in Seminole Tribe “the Supreme Court rejected 

Congress’s authority under the powers granted by Article I . . . to abrogate a state’s sovereign 

immunity,” but ultimately not deciding the constitutional question because the state had waived 

immunity); Smith v. Tennessee Nat’l Guard, 387 S.W.3d 570, 574 (Tenn. Ct. App. 2012) 

(holding that “for an individual to sustain an action against a state pursuant to USERRA, the 

action must be permitted by state law” because USERRA’s jurisdictional statute directs private 

claims against states to state courts “in accordance with the laws of the State” (quoting 38 U.S.C. 

§ 4323(b)(2))). 

Prior to Katz, most courts to consider the issue opined that Congress’s Article I war 

powers did not authorize the abrogation of state sovereign immunity. See, e.g., Ysleta del sur 

Pueblo v. Raney, 199 F.3d 281, 288 (5th Cir. 2000); Velasquez v. Frapwell, 160 F.3d 389, 395 

(7th Cir. 1998), vacated on other grounds, 165 F.3d 593 (7th Cir. 1999) (per curiam); Sacred 
11 

should be undertaken at all, is not ours to take. For us, it is enough that Alden’s holding was

unqualified: Nonconsenting States cannot be forced to defend “private suits” seeking in 

personam remedies “in their own courts” based upon “the powers delegated to Congress under 

Article I of the United States Constitution.” Alden, 527 U.S. at 712, 754 (emphasis added). We 

thus accept it at face value that sovereign immunity is simply “beyond the congressional power 

to abrogate by Article I legislation” under these circumstances. Id. at 754. 

Clark not so subtly implies that we should recognize Katz as the first in a series of 

retrenchments that he predicts the United States Supreme Court will make from the broad 

holding of Alden. See Appellant’s Br. at 11-12. We neither affirm nor disaffirm Clark’s 

prediction. To us, the question is what the law is now, not what it may be in the future. We are 

not in the speculative business of plotting the future course of federal precedents.7 And we take 

some comfort in knowing that the United States Supreme Court is no more interested in our 

doing so than we are. “[O]ther courts,” the Supreme Court has said, should not “conclude our 

more recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 

U.S. 203, 237 (1997). Instead, “if a precedent of this Court has direct application in a case, yet 

 

Heart Hosp. v. Pennsylvania Dep’t of Pub. Welfare, 133 F.3d 237, 245 (3d Cir. 1998); Rotman v. 

Board of Trs. of Mich. State Univ., 1997 U.S. Dist. LEXIS 10754, at *5-7 (W.D. Mich. June 19, 

1997) (unpublished); Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 

358, 363 (Ala. 2001). Other courts, however, held differing views. See, e.g., Diaz-Gandia v. 

Dapena-Thompson, 90 F.3d 609, 616 & n.9 (1st Cir. 1996); Reopell, 936 F.2d at 16; Peel, 600 

F.2d at 1081; Jennings v. Illinois Office of Educ., 589 F.2d 935, 937-38 (7th Cir. 1979); 

Camacho v. Public Serv. Comm’n of P.R., 450 F. Supp. 231, 234-35 (D.P.R. 1978). 

7

 Given the breadth of the holding in Alden and the narrowness of the exception 

recognized in Katz, we need not address in any detail Clark’s historical argument about the 

breadth of the Congressional war powers. Nor is it necessary, for that matter, to accept or refute 

the Solicitor General’s rejoinder that none of Clark’s historical sources specifically address 

waiver of sovereign immunity in the war powers context and that Congress first thought of doing 

so in 1974, see Vietnam Era Veterans’ Readjustment Assistance Act of 1974, Pub. L. No. 93-

508, 88 Stat. 1596, nearly two centuries after the ratification of the Constitution. See generally

Appellee’s Br. at 5.
12 

appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow 

the case which directly controls, leaving to this Court the prerogative of overruling its own 

decisions.” Id. (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 

(1989)). 

III.

 In sum, the trial court correctly held that sovereign immunity barred Clark’s USERRA 

claim against the VSP, an arm of the Commonwealth, because “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.” Alden, 527 U.S. at 712; id. at 

754 (repeating the opinion’s “we hold” declaration). The Katz qualification, applicable only to 

claims arising within a federal bankruptcy court’s in rem jurisdiction over a bankruptcy estate, 

does not apply to Clark’s state-court claim for in personam damages. Therefore, the trial court

did not err in dismissing Clark’s suit on the basis of sovereign immunity. 

Affirmed.