In Torres v. Texas Dep’t of Pub. Safety, 142 S. Ct. 2455 (2022), the Supreme Court held that States do not have sovereign immunity against damages claims for servicemember employment discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Court determined that by ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the military. Therefore, Congress was free to exercise this power to authorize private damages suits against nonconsenting States, as provided in USERRA.
Constitutional Background – Sovereign Immunity
The Eleventh Amendment to the U.S. Constitution states:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
Courts have interpreted the Eleventh Amendment and common law as barring suits for damages against states or state agencies. Sovereign immunity generally encompasses suits for damages by an employee against his or her state government employer, unless the employee’s claim is one for which sovereign immunity has been validly abrogated by Congress or waived by the state.
Sovereign immunity is the privilege of the sovereign not to be sued without its consent. As the Supreme Court observed in Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253-56 (2011), the Court has long interpreted the Eleventh Amendment to confirm the framers’ structural understanding that States entered the Union with their sovereign immunity intact. Thus, the Court has held that States have retained their traditional immunity from suit, “except as altered by the plan of the Convention or certain constitutional amendments.” Alden v. Maine, 527 U.S. 706, 713 (1999).
This principle that States did not retain their immunity “as altered by the plan of the Convention” was particularly important to the decision in Torres.
Additionally, State may waive its sovereign immunity at its pleasure, College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675–676 (1999), and in some circumstances Congress may abrogate it by appropriate legislation. But in the absence of waiver or valid abrogation, federal courts may not entertain a private person’s suit for damages against a State. Stewart, 563 U.S. at 253-56.
Constitutional Background – Article I and the Power to Raise and Support Armies
Statutory Background – USERRA
Using that Article I authority, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USSERA gives returning servicemembers the right to reclaim their prior jobs with state employers and authorizes servicemembers to file suit if those employers refuse to accommodate veterans’ service-related disabilities. See 38 U.S.C. § 4301, et seq.; 38 U.S.C. § 4313(a)(3).
Torres enlisted in the Army Reserves in 1989. In 2007, he was called to active duty and deployed to Iraq. While serving in Iraq, Torres was exposed to toxic burn pits, a method of garbage disposal that sets open fire to all manner of trash, human waste, and military equipment. Torres received an honorable discharge. 142 S. Ct. 2455, 2461.
Torres returned home with constrictive bronchitis. This is a respiratory condition that narrowed his airways and made breathing difficult. Torres alleged that this condition left him unable to work his old job as a state trooper. Torres therefore asked his former employer, Texas Department of Public Safety, to accommodate his condition by reemploying him in a different role. Texas refused to provide this accommodation. 142 S. Ct. 2455, 2461.
Torres therefore sued Texas in state court to enforce his rights under USERRA, 38 U.S.C. § 4313(a)(3). Texas tried to dismiss the suit by asserting it had sovereign immunity. The trial court denied Texas’ motion. An appellate court reversed, reasoning that, under Supreme Court precedent, namely Central Va. Community College v. Katz, 546 U.S. 356, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006), Congress could not authorize private suits against nonconsenting States pursuant to its Article I powers except under the Bankruptcy Clause. The Supreme Court of Texas declined to review the case. 142 S. Ct. 2455, 2461.
After the Texas court decision, the Supreme Court issued an important ruling in PennEast Pipeline Co. v. New Jersey, 594 U. S. ––––, 141 S.Ct. 2244, 210 L.Ed.2d 624 (2021). PennEast held that the States waived their sovereign immunity as to the federal eminent domain power pursuant to the “plan of the Convention.” 142 S. Ct. 2455, 2461 (citing PennEast, 141 S.Ct. 2244, 2258).
The Court’s Decision
The Court then took Torres’ case to determine whether, in light of that intervening ruling in PennEast, USERRA’s damages remedy against state employers was constitutional.
Applying the reasoning in PennEast, the Court held that by ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the Armed Forces. Therefore, in enacting USERRA, Congress validly exercised this power to authorize private damages suits against nonconsenting States for violations of USERRA.
The Court observed that in PennEast, it considered whether Congress could, pursuant to its eminent domain power (another Constitutional power), authorize private suits against States to enforce federally approved condemnations necessary to build interstate pipelines. The PennEast Court had held that Congress could authorize such suits because, upon entering the federal system, the States implicitly agreed their “eminent domain power would yield to that of the Federal Government.” 142 S. Ct. 2455, 2463 (citing PennEast, 141 S.Ct. at 2259).
The Torres Court pointed out that PennEast defined the test for “structural waiver” of sovereign immunity as whether the federal power is “complete in itself, and the States consented to the exercise of that power—in its entirety—in the plan of the Convention.” 142 S. Ct. 2455, 2461-63 (quoting PennEast, 141 S.Ct. at 2263).
Reviewing the text of the Constitution, its history, and past cases, the Court determined that Congress’ power to build and maintain the Armed Forces fit the PennEast test. Under the PennEast test, the Court observed that Congress’ power to build and maintain a national military is “complete in itself.” 142 S. Ct. 2455, 2463, 2466 (citing PennEast, 141 S.Ct. at 2263). As the Court put it in PennEast, when they entered the Union, the States agreed that their sovereignty would “yield … so far as is necessary” to federal policy for the Armed Forces. 142 S. Ct. 2455, 2463, 2466 (quoting PennEast, 141 S.Ct. at 2259). The Court further emphasized that because the States committed not to “thwart” this federal power, “[t]he consent of a State,” including to suit, “can never be a condition precedent” to Congress’ chosen exercise of its authority. 142 S. Ct. 2455, 2459, 2463, 2466 (quoting PennEast, 141 S.Ct. at 2255, 2256–2257). In these circumstances, the States simply “have no immunity left to waive or abrogate.” 142 S. Ct. 2455, 2463 (citing PennEast, 141 S.Ct. at 2263).
Accordingly, when Congress enacted USERRA, it validly exercised its power to authorize private damages suits against nonconsenting States for violations of servicemembers’ rights under USERRA. Texas therefore did not have sovereign immunity against Torres’ damages claim for alleged violations of his rights under USERRA.
In sum, in Torres the Supreme Court held that States do not have sovereign immunity against damages claims for servicemember employment discrimination in violation of USERRA. The Court determined that by ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the military. Therefore, Congress was free to exercise this power to authorize private damages suits against nonconsenting States, as provided in USERRA.
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