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SCOTUS: States have
no sovereign immunity
in USERRA suits (5-4)

Torres v. Texas Dept of Public Safety (US Supreme Ct 06/29/2022)
Sent to Custom Alerts™ subscribers on 06/29/2022

The US Supreme Court has decided (5-4) that a military servicemember can bring a suit against a State in State court to enforce his rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA), in spite of the State's claim of sovereign immunity.

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. 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, so he asked the State to accommodate his condition by reemploying him in a different role. The State refused, asserting sovereign immunity.

The US Supreme Court held (5-4) that by ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the Armed Forces, so Congress may exercise this power to authorize private damages suits against nonconsenting States, as in USERRA.

While sovereign immunity generally bars private suits against nonconsenting States, the States remain subject to suit in certain circumstances. States may consent to suit; Congress may abrogate States’ immunity under the Fourteenth Amendment; and 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," – that is, if "the structure of the original Constitution itself" reflects a waiver of States’ immunity.

The majority pointed out that, generally, sovereign immunity waivers cannot be found when Congress exercises its powers under Article I of the constitution. However, there have been exceptions in which the Court has found "structural waiver" – cases involving bankruptcy and cases involving Congress' eminent domain power.

The case involving Congress' eminent domain power 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 majority concluded that 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. Therefore, there is no State immunity for suits under USERRA.

The four dissenting Justices pointed out that in 1999 the Court held that "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts."

The dissent also said, "[T]he Court brushes aside a 23-year-old, pathbreaking precedent, while elevating a single phrase, made in passing in a one-year-old, highly circumscribed precedent. It then uses that phrase to fashion a test for plan-of-the-Convention waiver that mimics earlier attempts by this Court to deny States the dignity owed to them in our system of dual federalism."

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