In a rare move, the U.S. Supreme Court agreed this week to take a Texas sovereign-immunity case that originated from the 13th Court of Appeals in Corpus Christi-Edinburg, rather than from the Texas Supreme Court.
At issue is whether a state may be sued in state court for violating a federal law that gave military members a cause of action in disputes over discrimination on the basis of military service. Invoking sovereign immunity, Texas asserted that it was immune from that kind of lawsuit.
The case, titled Torres v. Texas Department of Public Safety, was brought by Leroy Torres, who was employed by the Texas Department of Public Safety. After he returned from a tour in Iraq with a lung condition, he tried to get a different position from the Texas department. He sued the department in state court after he was offered only his previous job, claiming that failing to give him a job that would accommodate his disability violated the federal Uniform Services Employment and Reemployment Act, known as USERRA.
The Texas appellate court ruled in 2018 that USERRA’s cause of action is unconstitutional because Congress lacks the power to authorize lawsuits against nonconsenting states pursuant to its War owers. The Texas Supreme Court declined to review the case, which left Torres to seek review at the U.S. Supreme Court.
“The decision thwarts the aims of a federal law duly enacted to protect veterans and servicemembers, leaves untold numbers of veterans and servicemembers without a remedy when states discriminate against them on the basis of their service, lawyers for Torres” argued in its petition. Arnold & Porter senior associate Andrew Tutt is counsel of record for Torres. Also on the brief is Stephen Chapman of the Chapman Law Firm in Corpus Christi.
For its part, Texas told the high court that the Texas intermediate appellate court held “correctly … that USERRA was unenforceable through a private right of action that is not otherwise authorized by state law.” Texas Solicitor General Judd Stone II is the counsel of record for the Texas Department of Public Safety.
No date has been set for arguments in the case.