2019 New Mexico Statutes
Chapter 20 - Military Affairs
Article 4 - National Guard
Section 20-4-7.1 - Servicemembers Civil Relief Act benefits; Uniformed Services Employment and Reemployment Rights Act; federal or state active duty.
A. The rights, benefits and protections of the federal Servicemembers Civil Relief Act shall apply to a member of the national guard of this state or any other state or territory of the United States ordered to state active duty for a period of thirty or more consecutive state duty days or to any federally funded duty performed in an operational role for homeland security in accordance with 32 U.S.C. 502. The federally funded duty is in addition to and different from any federally funded unit training, assembly or drill pursuant to Section 20-4-7 NMSA 1978.
B. The rights, benefits and protections of the federal Uniformed Services Employment and Reemployment Rights Act of 1994 shall apply to a member of the national guard of this state or any other state or territory of the United States ordered to federal or state active duty.
History: Laws 2004, ch. 37, § 1; 2017, ch. 26, § 1.
ANNOTATIONSCross references. — For the federal Servicemembers Civil Relief Act, see 50 U.S.C. App. §571.
For the federal Uniformed Services Employment and Reemployment Rights Act, see 38 U.S.C.S. § 4301 et seq.
The 2017 amendment, effective July 1, 2017, extended the benefits of both the Servicemembers Civil Relief Act and the Uniformed Services Employment and Reemployment Rights Act to members of the national guard in this state or any other state or territory of the United States, and removed the requirement of thirty or more consecutive days of service to qualify for the Uniformed Services Employment and Reemployment Rights Act, and changed "Servicemember's" to "Servicemembers"; in Subsections A and B, added "of this state or any other state or territory of the United States"; and in Subsection B, after "state active duty", deleted "for a period of thirty or more consecutive days".
The New Mexico legislature has waived sovereign immunity with respect to federal USERRA claims against the state. — The legislature may waive New Mexico's immunity to federal causes of action that congress creates through the exercise of its Article I powers. By enacting 20-4-7.1 NMSA 1978, the legislature clearly and unambiguously indicated its intent to make state entities amenable to suits asserting claims under the federal Uniformed Services Employment and Reemployment Rights Act in state courts. Ramirez v. CYFD, 2016-NMSC-016, rev'g 2014-NMCA-057, 326 P.3d 474.
Where plaintiff was terminated from a state agency after resuming employment with the state agency following a deployment to Iraq with the New Mexico national guard, plaintiff was not barred by state sovereign immunity from bringing a suit against the state under the federal Uniformed Services Employment and Reemployment Rights Act, because in enacting 20-4-7.1(B) NMSA 1978, the legislature guaranteed both the substantive antidiscrimination right and the right of action against a state employer to members of the national guard ordered to federal or state active duty for a period of thirty or more consecutive days, and in so doing, waived New Mexico's immunity to suit. Ramirez v. CYFD, 2016-NMSC-016, rev'g 2014-NMCA-057, 326 P.3d 474.
Sovereign immunity barred USERRA claim against the state. — Article I, Section 8, Clause 11 of the United States Constitution, known as the War Powers Clause, does not authorize Congress to subject the state to private suits for damages in state courts pursuant to the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 to 4335, absent the state's consent and the legislature has not waived the state's constitutional immunity to private USERRA suits for damages. Ramirez v. State ex rel. CYFD, 2014-NMCA-057, cert. granted, 2014-NMCERT-005.
Where plaintiff, who was a member of the New Mexico national guard, was employed by the department; plaintiff was deployed to Iraq; upon plaintiff's return from active duty, plaintiff was reemployed by the department in plaintiff's previous position; plaintiff's working relations with plaintiff's supervisors deteriorated and plaintiff's employment was terminated; and filed a suit under Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 to 4335, alleging that the department discriminated against plaintiff and terminated plaintiff because of plaintiff's military service, plaintiff's claim was barred by state sovereign immunity. Ramirez v. State ex rel. CYFD, 2014-NMCA-057, cert. granted, 2014-NMCERT-005.
