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Thursday, June 30, 2022

Burn Pit Claims: US Supreme Court Allows Veteran to Sue a State Agency for Employment Discrimination

In a 5-4 decision authored by Justice Breyer, the US Supreme Court reversed a lower court and remanded the case allowing a veteran to sue the state of Texas. It held under the US Constitution that the States agreed it would yield their sovereignty to the Federal Government to raise and support the Armed Forces.

"Petitioner Le Roy Torres enlisted in the Army Reserves in 1989. In 2007, he was called to active duty and deployed to Iraq. While serving, 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." He suffered from respiratory disability.


In the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Congress gave the over 19 million military service-members—including over 800,000 who work for state and local government employers—a cause of action to remedy adverse employment actions taken because of their military service. It enacted USERRA under its constitutional War Powers, U.S. Const. Art. I, § 8, cls. 11-16, recognizing that unremedied employment discrimination by state employers based on military service could interfere with the nation’s “ability to provide for a strong national defense.” H.R. Rep. No. 105-448, at 5 (1998). USERRA’s cause of action against state employers may be pursued only in state courts.

In a sharply divided decision that conflicts with the Constitution’s text, structure, and history, the court below, a Texas intermediate appellate court with jurisdiction over more than 2 million Texas citizens, held that USERRA’s cause of action is unconstitutional because Congress lacks the power to authorize lawsuits against non-consenting states under its War Powers.

The question presented is whether Congress has the power to authorize suits against non-consenting states under its War Powers.


Article I of the Constitution grants Congress the power “[t]o raise and support Armies” and “[t]o provide and maintain a Navy.” §8, cls. 1, 12–13. Pursuant to that authority, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which gives returning service members the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities. See 38 U. S. C. §4301 et seq. Petitioner Le Roy Torres enlisted in the Army Reserves in 1989. In 2007, he was called to active duty and deployed to Iraq. While serving, 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. But he returned home with constrictive bronchitis, a respiratory condition that narrowed his airways and made breathing difficult. These ailments, Torres says, left him unable to work his old job as a state trooper. Torres asked his former employer, respondent Texas Department of Public Safety (Texas), to accommodate his condition by reemploying him in a different role. Texas refused. So Torres sued Texas in state court to enforce his rights under USERRA. §4313(a)(3). Texas tried to dismiss the suit by invoking sovereign immunity. The trial court denied the State’s motion. An intermediate appellate court reversed, reasoning that, under this Court’s case law, Congress could not authorize private suits against non-consenting States pursuant to its Article I powers except under the Bankruptcy Clause, citing Central Va. Community College v. Katz, 546 U. S. 356. The Supreme Court of Texas denied discretionary review. After the decision below, this Court issued PennEast Pipeline Co. v. New Jersey, 594 U. S. ___. PennEast held that the States waived their sovereign immunity as to the federal eminent domain power pursuant to the “plan of the Convention.” The Court then granted Torres’ petition for certiorari to determine whether, in light of that intervening ruling, USERRA’s damages remedy against state employers is constitutional.

Held: By ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the Armed Forces. Congress may exercise this power to authorize private damages suits against non-consenting States, as in USERRA. Pp. 3–16.

(a) While courts generally may not hear private suits against non-consenting States, see Blatchford v. Native Village of Noatak, 501 U. S. 775, 779, the States remain subject to suit in certain circumstances. States may consent to suit, see Sossamon v. Texas, 563 U. S. 277, 284; Congress may abrogate States’ immunity under the Fourteenth Amendment, see Fitzpatrick v. Bitzer, 427 U. S. 445, 456; and, as relevant here, States may be sued if they agreed their sovereignty would yield to the exercise of a particular federal power as part of the “plan of the Convention,” PennEast, 594 U. S., at ___—that is, if “the structure of the original Constitution itself” reflects a waiver of States’ immunity, Alden v. Maine, 527 U. S. 706, 728.

Consistent with these principles, the Court long ago found structural waiver as to suits between States, see South Dakota v. North Carolina, 192 U. S. 286, and suits by the United States against a State, see United States v. Texas, 143 U. S. 621. A century later, in Central Va. Community College v. Katz, 546 U. S. 356, the Court recognized another structural waiver, holding that Congress may authorize private suits against States under the Bankruptcy Clause. For several years, both before and after Katz, the Court declined to acknowledge additional waivers of sovereign immunity under Congress’ Article I powers or to find Article I authority to abrogate immunity. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627. Last Term, in PennEast, the Court considered whether Congress could, pursuant to its eminent domain power, authorize private suits against States to enforce federally approved condemnations necessary to build interstate pipelines. PennEast held that Congress could authorize such suits because, upon entering the federal system, the States im- implicitly agreed their “eminent domain power would yield to that of the Federal Government.” 594 U. S., at ___. 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.” Id., at ___. Pp. 4–6.

(b) Congress’ power to build and maintain the Armed Forces fits PennEast’s test, as the Constitution’s text, its history, and this Court’s precedents show. To begin, the Constitution’s text strongly suggests a complete delegation of authority to the Federal Government to provide for the common defense. Article I spells out Congress’ many related powers across multiple provisions, §8, cls. 1, 11–16; Article II makes the President the “Commander in Chief,” §2, cl. 1; and Article IV charges the Federal Government with “protect[ing]” States “against Invasion,” §4. The Constitution also divests the States of like authority, see Art. I, §10, cls. 1, 3, assigning them only a limited role in “the Appointment of the Officers” to and the “training [of] the Militia,” “ac- cording to the discipline prescribed by Congress,” §8, cl. 16. History teaches the same lesson. “[T]he want of power in Congress to raise an army” under the Articles of Confederation had left the National Government “dependen[t] upon the States” to supply military forces via a system of quotas and requisition that had nearly cost the fledging Nation victory in the Revolutionary War. Selective Draft Law Cases, 245 U. S. 366, 381. The Constitution, by design, worked “an entire change in the first principles of the system,” giving Congress direct power over the “formation, direction or support of the NATIONAL FORCES.” The Federalist No. 23, p. 148 (A. Hamilton). By ratifying that document, the States well knew that their sovereignty would give way to national policy to build and maintain the Armed Forces. Consistent with this structural understanding, Congress has long legislated regarding military forces at the expense of state sovereignty. See, e.g., 1 Stat. 182. This Court’s precedents likewise show that ordinary background principles of state sovereignty are displaced in this uniquely federal area. See, e.g., Tarble’s Case, 13 Wall. 397, 398 (the “National government[’s] . . . power ‘to raise and support armies’ ” cannot be “question[ed by] any State authority”); United States v. Oregon, 366 U. S. 643, 648–649 (authority “normally left to the States” is displaced by Congress’ “constitutional powers to raise armies and navies”).

Under PennEast’s test, Congress’ power to build and maintain a national military is “complete in itself”: Upon entering the Union, the States agreed that their sovereignty would “yield . . . so far as is necessary” to federal policy for the Armed Forces. 594 U. S., at ___. 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. Id., at ___. Pp. 6–12.

(c) No contention to the contrary persuades the Court otherwise. The categorical claim that Congress may not exercise its Article I powers to abrogate state sovereign immunity ignores the fact that “congressional abrogation is not the only means of subjecting States to suit. . . . States can also be sued if they have consented to suit in the plan of the Convention.” PennEast, 594 U. S., at ___. Nor is USERRA’s text insufficiently clear to displace potential immunity under Texas law. USERRA expressly “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.” §4302(b). Neither Seminole Tribe nor Alden compels a different result. Congress’ commerce powers, at issue in Seminole Tribe, are distinguishable from its war powers under PennEast’s “complete in itself” inquiry. And in Alden, the Court expressly embraced “ ‘the postulate that States . . . shall be immune from suits, without their consent, save where there has been “a surrender of this immunity in the plan of the convention.” ’ ” 527 U. S., at 730 (emphasis added). That “save where” proviso recognizes exceptions for structural waivers, supplying the basis for the Court’s decisions in PennEast and Katz, as well as the decision today. Finally, the idea that PennEast and Katz involved in rem actions and the fact that USERRA suits lack a certain founding-era pedigree do not make a difference under PennEast’s basic reasoning.

The Court therefore holds that, in joining together to form a Union, the States agreed to sacrifice their sovereign immunity for the good of the common defense. Pp. 12–16.

583 S. W. 3d 221, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAGAN, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion, in which ALITO, GORSUCH, and BARRETT, JJ., joined.

20-603 TORRES V. TEXAS DEPARTMENT OF PUBLIC SAFETY (Decided June 29, 2022). 

Recommended Citation: Gelman, Jon L.,  US Supreme Court Allows Veteran to Sue a State Agency for Employment Discrimination, Workers' Compensation Blog, June 29, 2022), 

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Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900  have represented injured workers and their families who have suffered occupational accidents and illnesses.

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Author: "Workers' Compensation Law" Thomson-Reuters