Friday, July 1, 2022

SCOTUS: No state sovereign immunity for USERRA claims

Justice Breyer issued his final Supreme Court opinion in Torres v. Texas Dept. of Public Safety. Torres served in the United States Army Reserve in Iraq, where he was exposed to toxic burn pits. He returned with constrictive bronchitis, which prevented him from returning to his employment as a state trooper. So, he sought to enforce his rights under USERRA by asking his employer to accommodate him by reemploying him in a new role. His employer refused. He sued.

Justice Breyer
Now, his employer was the state of Texas. This matters because generally states have sovereign immunity and, as the dissent describes it, the Federal Government does not have the "power to subject nonconsenting States to private suits" in their own courts. In Torres, however, the Court held that the federal government did have that power in the context of its war powers - specifically, the powers to raise an army and a navy found in Art. I, §8, cls. 1, 12-13 of the Constitution. 

Congress enacted USERRA pursuant to those powers and therefore the states are not immune from lawsuits under USERRA. 

Sidenote: I made this same argument on a motion to dismiss in one of my cases about 10 years ago... and lost. The Court noted the lack of precedent supporting my position. Now, we have the ultimate precedent on the issue, a Supreme Court opinion. The case ultimately resolved without the need to revisit the issue on appeal, but I remember thinking it was a fascinating one. 

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