U.S. Supreme Court Rules State Employers Must Recognize Disabled Veterans’ Rights Guaranteed by USERRA

U.S. Supreme Court Rules State Employers Must Recognize Disabled Veterans’ Rights Guaranteed by USERRA.?

On June 29, 2022, the U.S. Supreme Court issued its opinion in the case of LeRoy Torres, a former Army Reserve captain and former Texas state trooper.[1] The Court held Torres could successfully sue the State of Texas under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”),[2] despite Texas’s refusal to consent to suit under the doctrine of sovereign immunity.[3]

?As we wrote on January 10, 2022:

"Torres was stationed near an open-air burn pit used for waste incineration at Joint Base Balad in Iraq. While serving, Torres inhaled airborne chemicals, including dioxin, that led to a condition called constrictive bronchiolitis, also known as “popcorn lung.”?This disease restricts small airways in the lungs and causes fatigue, dry coughs, wheezing, and shortness of breath, and results in serious health complications that impair daily life.

Following his honorable discharge, Torres returned home to resume his position as a state trooper with the Texas Department of Public Safety (“DPS”), but the state agency told him he could no longer serve on the road due to his lung disease. Torres claims that he requested an administrative assignment instead, but that DPS '"forced" him to resign' due to his disability. Torres sued Texas under [USERRA],?claiming that Texas had an obligation to accommodate his service-related disability.?Texas answered that sovereign immunity bars Torres from suing the state under federal law and that his remedy is found through the U.S. Department of Labor.?The Texas court of appeals held that sovereign immunity from USERRA was neither 'waived by the Texas Legislature or abrogated by the United States Congress' and therefore, Torres could not proceed.?In other words, unless Texas or the U.S. Congress?specifically?allow a veteran to sue a?state?under USERRA, such a lawsuit is not possible."

When the Texas Supreme Court denied review, Mr. Torres asked the U.S. Supreme Court to review his case through a writ of certiorari, which was granted.

The key question was whether the U.S. Congress may legislate away state sovereign immunity. The conflict the Court had to resolve lay at the collision of two bedrock principles of constitutional law: on the one hand, by legislating, Congress sets forth “the law of the land” and has complete authority to legislate within its proper powers.[4] On the other hand, the several States retain their sovereign immunity from lawsuits brought by their private citizens, subject to several narrow exceptions.[5]

The controversy turned on one such exception. Called a “structural waiver” because of a phrase used by an early proponent—Alexander Hamilton[6]—this abrogating principle most recently appeared before the Court in a case called PennEast Pipeline Co. v. New Jersey.[7] The Court held in PennEast that if sovereign immunity had been waived in the “plan of the [Constitutional] Convention,”[8] such a waiver was constitutional. To find this waiver, the Court set forth a test that requires a close analysis of text, history, and precedent, including a searching analysis of contemporary evidence of express or implied waiver in 1787.

In Torres, the Supreme Court found such a structural waiver existed vis-à-vis Congress’s war powers.[9] After noting that these clauses supplied Congress’s authority to enact USERRA and that Congress acted within the scope of that authority, the Court turned to “the Constitution’s text, its history, and th[e] Court’s precedents” as required by PennEast.[10] Through its analysis, which was most of the opinion, the majority concluded that the PennEast test was satisfied: by joining the Union, the States waived sovereign immunity as to legislation enacted pursuant to Congress’s Article I war powers (and the necessary and proper clause). Thus, Texas could be sued under USERRA.

But not all the justices agreed. Aside from disputing the majority’s reliance on PennEast—the dissenting justices found it distinguishable[11]—the dissent raised another concern: the majority gave “short shrift” to the rule of constitutional avoidance.[12] This rule is an interpretive principle used by courts to avoid deciding a constitutional question if another basis exists for disposing of a case. It springs from an interpretive preference for making a law effective: presumably, a legislature did not intentionally set out to make a law constitutionally doubtful.[13] Pointing to the language of USERRA, the dissenting justices asked whether Congress even meant to subject the States to suit in their own courts. If it did not, the dissent argued, regardless of whether waiver could have been applicable, then the Court should not decide what Congress itself had not decided and abrogate sovereign immunity.[14]

The dissent looked to language used by Congress that suggested a subordination of USERRA to State law, which, presumably, could include the law of sovereign immunity. USERRA provides that “In the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.”[15] A plain reading of this provision without extensional pruning suggests that Congress may not have intended to abrogate State law providing sovereign immunity, especially given the history of earlier amendments to the law, which the dissent recounted.[16]

But other language in the law suggested that Congress did intend to make USERRA preeminent over state law.[17] For example, the majority pointed to a statutory heading of the law that provided: “Enforcement of rights with respect to a State or private employer.”[18] Further, the majority noted that USERRA expressly provided that it “supersedes any State law . . . that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.”[19] The constitutional avoidance question, thus, was close. However, the majority found USERRA preeminence more persuasive and did not find the constitutional avoidance rule implicated.

In reaching the conclusion it did, the Court confirmed that USERRA functions like other employment laws, such as Title VII of the Civil Rights Act of 1964[20] and the Americans with Disabilities Act.[21] States are therefore not immune from employment discrimination suits brought against them in their courts, and state employees are protected by federal employment laws.

One final remark about the case. In the law, procedure is important because it protects important social goals such as stability and fairness. This much is obvious. But even more fundamentally, when a court follows “procedural” rules of interpretation in rendering a decision it protects the resulting principle of decision—the ratio decidendi—of the case. This case is a particularly good example because a key legal question at the heart of the controversy was a close question of both precedent and of statutory interpretation, both of which are subject robust procedural rulesets.

The majority and dissent took principled stands based on such rules. It is important to recognize as a tenet of civics that the true work—and true test of that work—of all courts is to interpret legal rules and precedents according to such procedures without regard to shifting political winds.[22] It is the principled application of these interpretive rules to untangle a proper rule of decision in a case that is the work of lawyers, not of politicians.

To be sure, sometimes courts get it wrong. But any perceived error of a court should be interrogated by first looking to the stated principles that control the decision, as the majority and the dissent did here. Attempts to do end-run around such an analysis beforehand is a desperate appeal to our candor against which we should instill a deep skepticism, thoughtful questions about the law and systemic complexity notwithstanding.

In better words than we can offer on this subject, H.L.A. Hart’s moderate response to the “rule sceptics” of his day (today’s legal realists) is helpful:

"The life of the law consists to a very large extent in the guidance both of officials and private individuals by determinate rules which, unlike the applications of variable standards, do not require from them a fresh judgment from case to case."[23]

The unsensational point he was making is the that under certain circumstances, what Hart called the “open texture” of the law does appear to give the judiciary some latitude. He had much to say on this point, but all we want to say here is that Hart was equally certain that the rules were rules, nonetheless, and they constrain and guide the law as judges administer it.

The Court’s ruling in Torres reflects the work of lawyers. By looking to the bases for the legal disagreement within the Court, it is not difficult to appreciate that the resolution to the questions here were made with due respect for the rule of law. And insofar as differences arose, the question was handled with integrity, impartiality, and independence; as it should be, and as we hope it shall remain.

What Employers Need to Know about USERRA

Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which gives returning servicemembers the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities. One of its key principles—known as "escalator" principle—requires that upon return from active duty, a servicemember be reinstated into their previous position with full potential to continue to ascend in their career.?If that does not happen, USERRA provides enforcement mechanisms for service members to submit a complaint to the U.S. Department of Labor (“DOL”),[24] or to initiate a lawsuit against the employer.[25]

Christian Smith-Bishop is a third-year law student at Campbell University Law School.?He serves as Editor in Chief of the Campbell Law Review and is the founding vice president of the Campbell Law Society of Law & Technology.?He is interested in technology and employment law. Anna Davis is an employment attorney and a master’s candidate in Human Resources Management at Georgetown University.?Christian and Anna collaborated on USERRA policy research during his 1L summer internship at the Durham City Attorney’s Office.

[1] Tex. Dep’t of Pub. Safety v. Torres, 583 S.W.3d, 221 (Tex. Ct. App 2018),?petition denied, 19-0107 2020 Tex. LEXIS 518,?cert. granted, No. 20-603 2021 U.S. LEXIS 6281.

[2] 38 U.S.C. §§ 4301–4335.

[3] Tex. Dep’t of Pub. Safety v. Torres, no. 20–603, slip op. at 1 (U.S. June 29, 2022).

[4] See U.S. Const. Art. VI, cl. 2.

[5] See Torres, slip op. at 4–5. The majority specifically pointed to the three such exceptions to where the general presumption of sovereign immunity is derogated: first, where a State consents to suit, Sossamon v. Texas, 563 U.S. 277, 284 (2011); second, where Congress legislates according to its authority under the fourteenth amendment to allow suits against the States, Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976), and third, when the structure of the original Constitution necessitates it. Central Va. Community College v. Katz, 546 U.S. 356 (2006). Id.

[6] Torres, slip op. at 4.

[7] 594 U. S. ___, ___ (2021). PennEast concerned the federal eminent domain power. See Torres, slip op. at 6.

[8] Id. at 6.

[9] See U.S. Const. Art. I § 8, cls. 1, 11–16; Art. II § 2, cl. 1, and Art. IV § 4.

[10] Torres, slip op. at 7.

[11] More specifically, the dissenting justices found PennEast materially distinct from another, earlier case called Alden v. Maine, 527 U.S. 706 (1999). Id. at 9–10 (Thomas, J., dissenting). The dissent thought Alden would have foreclosed waiver here because Mr. Torres sought to sue the State in Texas’s courts, as opposed to the federal courts permitted in PennEast. Id.

[12] Id. at 7 (Thomas, J., dissenting) (citation omitted).

[13] Clark v. Martinez, 543 U.S. 371, 381, 125 S. Ct. 716, 724, 160 L. Ed. 2d 734 (2005); see United States v. Mills, 850 F.3d 693, 699 (4th Cir. 2017) (“The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.”(citation omitted)).

[14] Torres, slip op. at 6–7 (Thomas, J., dissenting) (“Congress [must] decide whether, and on what terms, to render States amenable to suit, or to permit States to assert immunity.”(citation omitted)).

[15] Id. at 5 (Thomas, J., dissenting) (emphasis added) (citing §4323(b)(2)).

[16] Id.

[17] See Torres, slip op. at 12.

[18] Id. (citing 38 U. S. C. §4323).

[19] Id. (citing §4302(b)).

[20] See 42 U.S. § 2000e.

[21] See 42 U.S.C. § 12101.

[22] See, e.g., Mike Brest, Biden Signs Healthcare Bill for Veteran Toxic Burn Pit Victims, Washington Examiner (Aug. 10, 2022, 11:11 AM) https://www.washingtonexaminer.com/policy/defense-national-security/biden-healthcare-bill-toxic-burn-pit [https://perma.cc/2R95-TT4U] (last visited Aug. 11, 2022).

[23] H.L.A. Hart, The Concept of Law 132 (10th ed. 1979).

[24] 38 U.S.C. § 4322(a), (d).

[25] § 4323(a)(3).