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On June 29, 2022, the Supreme Court of the United States 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) after the DPS would not accommodate his medical conditions by employing him in a different role. In a 5-4 decision, the Court in Torres v. Texas Department of Public Safety ruled that state employers cannot invoke sovereign immunity as a defense to suits brought under USERRA. This is an important decision for the many state employers across the country that employ veterans.


USERRA protects military service members and veterans from employment discrimination on the basis of their service and allows them to regain their civilian employment following a period of uniformed service. To invoke USERRA’s protections, if the employer is the state rather than a private employer, the employee may sue in federal court only if, after filing a complaint with the Secretary of Labor, the Department of Justice (DOJ) decides to file suit against the state in the name of the United States.  If the DOJ declines to take on the case, USERRA permits the employee to bring action “in a State court of competent jurisdiction in accordance with the laws of the State.”


Le Roy Torres is an Army Reservist who mobilized and deployed to Iraq in 2007. While there, Torres developed constructive bronchitis due to exposure to toxic burn pits. Upon his return from Iraq, his medical condition prevented him from returning to his prior employment as a state trooper with the Texas Department of Public Safety. Furthermore, his employer denied his request to accommodate his condition by reemploying him in a different role.

Torres sued the DPS in state court under USERRA. He argued that Texas violated USERRA by not accommodating his service-related disability or finding an “equivalent” position. Texas 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 pursuant to its Article I war powers. After the Supreme Court of Texas denied discretionary review, the Supreme Court of the United States granted certiorari.

Prior Supreme Court Decisions

In 2021, the Supreme Court decided PennEast Pipeline Co. v. New Jersey, which clarified that states can be sued if they agreed that their sovereignty would yield to the exercise of a particular federal power as part of the “plan of the convention,” “that is, if ‘the structure of the original Constitution itself’ reflects a waiver of States’ immunity.” According to the Court, “PennEast defined the test for structural waiver 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.’”

The Supreme Court’s Decision

The Supreme Court sided with Torres and revived his suit against Texas. In a 5-4 decision, Justice Breyer first pointed out that, under its war powers enumerated in Article I § 8 of the Constitution, Congress enacted USERRA, giving returning veterans the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate them.

The Court then held that states cannot invoke sovereign immunity as a legal defense to a USERRA suit. The majority reasoned that, by entering the Union, the states implicitly agreed that their 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 pursuant to the “plan of the Convention,” 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 can use this federal power to authorize private damages suits against nonconsenting states, as it did with USERRA. Consequently, the DPS did not have sovereign immunity to Torres’s USERRA claim and his lawsuit could move forward.

Key Takeaways

Prior to the Torres decision, sovereign immunity—either by statute or case law, or both—blocked USERRA suits against 19 states (Alabama, Arkansas, Delaware, Florida, Georgia, Illinois, Kentucky, Maine, Massachusetts, 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 to a USERRA claim.

After Torres v. Texas Department of Public Safety, state employers are now liable for damages under USERRA. Accordingly, such employers may want to carefully review USERRA’s requirements regarding reemployment and accommodations of veteran employees.

Finally, while employers, both public and private, face an array of employment issues, many of them unique and novel as a result of the COVID-19 pandemic, they may want to be mindful of obligations imposed by USERRA, a statute that is applicable to all employers, regardless of size.


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