Supreme Court Clarifies that Private USERRA Suits May Be Brought Against State Entities

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Attorney Harrison Oldham



Recently, the United States Supreme Court decided that a veteran could sue his former employer, the Texas Department of Public Safety (“DPS”), under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  The case is Torres v. Texas Department of Public Safety, and the key takeaway is that state employers cannot invoke sovereign immunity as a defense to suits brought under USERRA, which is an important decision for the many state employers that employ veterans.


As a brief note, USERRA protects military service members and veterans from employment discrimination based on their service and allows them to regain their civilian employment following a period of uniformed service.




In 1998, Le Roy Torres worked as a State Trooper for the Texas DPS.  In 1989, Mr. Torres enlisted in the U.S. Army Reserve.  Mr. Torres worked for the Texas DPS until 2007, when he was mobilized and deployed to Iraq.


While in Iraq, Mr. Torres developed constructive bronchitis from exposure to toxic burn pits.  Upon his return, his medical condition prevented him from returning to his prior employment as a State Trooper with the Texas DPS.  Further, the Texas DPS denied Mr. Torres’s request to accommodate his condition by re-employing him in a different role.


In response, Mr. Torres sued the DPS in state court under USERRA.  He argued that the DPS violated USERRA by not accommodating his service-related disability or finding an “equivalent” position for re-employment.  The DPS moved to dismiss the suit by invoking sovereign immunity.  After the trial court denied the motion, a Texas appellate court reversed, holding that Congress could not authorize private suits against nonconsenting States under its Article I war powers.  After the Supreme Court of Texas denied discretionary review, the Supreme Court of the United States granted certiorari.


The Supreme Court’s Decision

The Supreme Court sided with Mr. Torres and revived his suit against the Texas DPS.  The Court’s decision first highlights that Congress enacted USERRA under its war powers to give returning veterans the right to reclaim their previous jobs with state employers.  Further, USERAA authorizes suit against those employers if they refuse to accommodate the returning veterans.


The Court then held that States cannot invoke sovereign immunity as a legal defense to a USERRA suit.  The Court reasoned that by entering the Union of the United States, each State implicitly agreed that its sovereignty would yield to federal policy to build and keep a national military. As a result, States gave up their immunity from congressionally authorized suits as part of “the structure of the original Constitution itself.”


Thus, the Court held that by ratifying the Constitution, the States agreed to waive their sovereign immunity for the good of the common defense.  Congress then used its federal power to authorize private causes of action under USERRA against nonconsenting States.  Consequently, the DPS did not have sovereign immunity from Mr. Torres’s USERRA claim – meaning his lawsuit could move forward.


Key Takeaways

Before the Torres decision, sovereign immunity (either by statute or case law, or both) generally limited  USERRA suits against multiple States (including Alabama, Arkansas, Florida, Georgia, Illinois, Kentucky, Michigan, Nevada, Oregon, Pennsylvania, South Dakota, Texas, Utah, Virginia, West Virginia, and Wyoming). Following the Torres v. Texas Department of Public Safety decision, sovereign immunity will no longer serve as a defense for a state employer against a USERRA claim.


Thus, state employers may now be liable for damages under USERRA. Accordingly, employers may want to carefully review USERRA’s requirements regarding re-employment and accommodations of veteran employees.


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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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