States can be sued for denying jobs to military vets, says U.S. Supreme Court

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A U.S. Supreme Court police officer patrols the plaza in front the court building in Washington. REUTERS/Jonathan Ernst

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  • Congress' "war powers" trump state immunity, 5-4 court rules
  • Texas agency must face lawsuit by former state trooper who served in Iraq

(Reuters) - The U.S. Supreme Court in a divided ruling on Wednesday said state agencies are not immune from claims brought under the federal law that protects military servicemembers' jobs while they are deployed.

The court in a 5-4 decision penned by Justice Stephen Breyer said that by ratifying the U.S. Constitution, states waived their immunity from federal laws that Congress adopts under its authority to raise and support a military, including the Uniformed Services Employment and Reemployment Rights Act (USERRA).

The court revived a lawsuit against the Texas Department of Public Safety (DPS) by Army reservist and former state trooper Le Roy Torres, who says the agency violated USERRA by refusing to transfer him to a different job when he returned from Iraq with a respiratory condition.

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"Text, history, and precedent show that the States, in coming together to form a Union, agreed to sacrifice their sovereign immunity for the good of the common defense," Breyer wrote.

The DPS and the Texas Attorney General's office did not immediately respond to requests for comment.

Brian Lawler, a lawyer for Torres, in an email said the ruling would ensure that all servicemembers are protected by USERRA, regardless of who employs them.

Torres joined the Army Reserve in 1989 and was deployed to Iraq in 2007, where his exposure to toxic fumes from garbage disposal burn pits rendered him unable to continue working as a Texas state trooper, according to filings in the case.

In a 2017 lawsuit, Torres claimed the DPS violated USERRA by refusing to give him a different job. The federal law requires employers to rehire workers when they return from military deployments and to accommodate service-related disabilities.

A Texas state judge rejected the agency's argument that it had sovereign immunity from USERRA claims, but a mid-level appeals court reversed in 2020 and Torres appealed.

On Wednesday, the Supreme Court majority said the adoption of USERRA was an extension of the federal government's war powers, and that authority trumped states' typical immunity from facing private lawsuits alleging violations of federal laws.

Justice Clarence Thomas in dissent wrote that states must explicitly waive their sovereign immunity from specific kinds of federal claims, and had not done so merely by ratifying the Constitution.

Thomas was joined by Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett.

The case is Torres v. Texas Department of Public Safety, United States Supreme Court, No. 20-603.

For Torres: Andrew Tutt of Arnold & Porter Kaye Scholer

For Texas Department of Public Safety: Solicitor General Judd Stone

(NOTE: This article has been updated to include a comment from Brian Lawler.)

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at