SCOTUS will decide: USERRA v. state sovereign immunity

On December 15 the US Supreme Court granted certiorari to decide whether Congress abrogated state sovereign immunity when it enacted the Uniform Services Employment and Re-employment Rights Act (USERRA). Torres v. Texas Dept of Public Safety (US Supreme Ct cert granted 12/15/2021) [Briefs].

States have sovereign immunity – not only due to the 11th amendment, but also because “immunity from suit 'is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today ... except as altered by the plan of the Convention or certain constitutional Amendments.'” Alden v. Maine, 527 U.S. 706 (1999).

Torres sued a state agency under USERRA, claiming that the agency's failure to offer him a job that would accommodate his disability violated USERRA.

The Texas Court of Appeals held that the suit was barred by sovereign immunity.

The Texas court relied heavily on Alden v. Maine. In that case state employees sued the state in state court alleging violations of the Fair Labor Standards Act (FLSA). The Supreme Court held that the case should be dismissed on the ground of sovereign immunity:

"We hold 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. We decide as well that the State of Maine has not consented to suits for overtime pay and liquidated damages under the FLSA."

The Texas court pointed out that USERRA was enacted pursuant to Article I of the constitution (not Section 5 of the 14th amendment), and said that Alden v. Maine makes it clear that nonconsenting state cannot be sued in their own courts for alleged USERRA violations.

Torres is arguing that USERRA was enacted under Congress's war powers, and that even though they are listed within Article I, they are both “plenary and exclusive,” and were never exercised individually by the states.

I look forward to seeing a decision before summer.