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The Supreme Court will decide if Guardsmen and reservists can sue states for employment violations
Army reservist LeRoy Torres came back from Iraq in 2008 with severe lung and brain injuries, which he attributes to the months he spent living near a massive, open-air burn pit.
Former Texas State Trooper LeRoy Torres reviews legal paperwork with his wife Rosie in their Robstown, Texas home in 2019. Torres resigned from his job after returning home from Iraq in 2008. He said the state refused to make job accommodations for a disability he developed while serving in the Army reserve. (Photo: Carson Frame/American Homefront)
WUNC | Carson Frame | May 12, 2022
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When National Guard members and reservists deploy, a federal law is supposed to preserve their civilian jobs and benefits. But in some states, government employees canāt access those protections.
When he tried to return to his civilian job as a state trooper in Texas, Torres couldnāt keep up. A chronic cough, extreme fatigue, headaches, and memory problems meant he often missed work. But he thought the Texas Highway Patrol would accommodate his disability.
āIām thinking in my head that Iām going to be taken care of,ā Torres said. āYou know, that there are laws that protect us. That with my experience and my education, Iāll be able to at least be able to finish my six years that I was hoping to finish with the department.ā
But Torres said the agency didnāt accommodate his requests that his job be modified. He eventually resigned and didnāt get all of the benefits heād earned.
So he sued in Texas state court in 2017, invoking his rights under a federal law called USERRA ā the Uniformed Services Employment and Reemployment Rights Act. The suit is now before the U.S. Supreme Court.
āI just never thought that it was going to be this difficult,ā Torres said.
Texas officials argue that they worked with Torres and didnāt violate his rights. But the state also is making a claim that could render Texas ā and other states ā immune from similar lawsuits from members of the National Guard and Reserves.
At issue is the balance of power between statesā rights and federal authority. Texas says individuals cannot sue their state government for violating a federal law like USERRA. Instead, Texas claims that only the federal government can file such a suit.
LeRoy Torres raises the Texas flag in an Honor Guard ceremony while he was employed as a Texas State Trooper. Torres resigned from his job after returning home from Iraq in 2008. He said the state refused to make job accommodations for a disability he developed while serving in the Army reserve. (Photo: Rosie Torres)
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āThe underlying issue is one that could potentially affect up to tens of thousands of Reserve and Guard personnel who are employed by state agencies, some of whom have the right to sue their state agencies, some of whom donāt,ā said Torresā attorney, Brian Lawler.
The 11th Amendment to the U.S. Constitution prohibits federal courts from hearing certain lawsuits against states. According to the National Constitution Center, the amendment has also ābeen interpreted to mean that state courts do not have to hear certain suits against the state, if those suits are based on federal law.ā
In recent years, there has been disagreement over whether Congress can abrogate the sovereign immunity of states ā or, more specifically, state government employers ā in private USERRA cases.
More than a quarter of all USERRA claims are filed against public sector employers, according to the U.S. Department of Labor.
Suzanna Sherry, professor emerita at Vanderbilt Law School, said the federal government wants to make sure service members can bring those cases.
āOtherwise we wonāt be able to raise an army,ā she said. āThatās the governmentās main argument for why this particular statute was passed: to ensure that people would feel comfortable joining the Reserves and being called up because they would know that they would come back to a job.ā
Officials from the Texas Attorney Generalās office wouldnāt comment on the Torres case. But in its brief, Texas agrees that former service members have rights under USERRA. The issue is who gets to sue the state for employment violations.
āTexas is not arguing that Congress canāt pass USERRA or that Congress canāt tell states that they have to abide by USERRA,ā Sherry said. āWhat they are arguing is you canāt enforce USERRA through a private individual suit. Youāve got to do it some other way.ā
Texas argues that individual service members should bring their USERRA complaints to the U.S. Department of Justice, and try to persuade the department to file suit on their behalf. But advocates say those suits rarely happen.
āThe DOJ is extremely shorthanded right now, and they donāt take most of the cases that come to them,ā said Kevin Hollinger, legislative director for the Enlisted Association of the National Guard of the United States. āSo it becomes a very large problem very rapidly and itās not easily resolved. Even if it does rise to that level, and the DOJ does take it, weāre still talking about years for people to get jobs back or to get any form of justice.ā
Hollinger co-authored an amicus brief on behalf of Torres along with Reserve Organization of America attorney Scott Felder. They argue that military readiness and retention will suffer if service members canāt reliably access a legal remedy through USERRA.
LeRoy Torres has long since shelved his dream of returning to work at the Texas Department of Public Safety. His duty right now, he said, is to protect other veterans who face employment violations.
āItās been burdensome,ā Torres said. āBut knowing that it not only affects me ā that it affects my fellow brothers and sisters who have served the dual role ā that gives me more momentum to stay in this effort.ā
The Supreme Court is due to rule on Torresā case this summer.
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This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans.Funding comes from the Corporation for Public Broadcasting.
