Written by: James Tulp
Following a deployment to Iraq and an honorable discharge, Captain Le Roy Torres sought to do something no one had ever successfully done before in the history of the United States: sue a nonconsenting State in its own court pursuant to Congress’ War Powers. Since the ratification of the United States Constitution in 1788, the doctrine of sovereign immunity has—with few exceptions—prohibited plaintiffs from suing nonconsenting States in their own courts. In recent years, however, the Supreme Court of the United States has indicated a willingness to permit such suits in an expanding category of cases. Illustrating this expansion is Torres v. Texas Department of Public Safety, where the Supreme Court held for the first time that Congress, acting under its War Powers, could authorize private damage suits against nonconsenting States.
Factual Background and Procedural History
In 1994, Congress passed the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). USERRA states, in relevant part, that “[a] person may commence an action for relief with respect to a complaint against a State (as an employer) or a private employer” if a “person who is a member of…a uniformed service” is denied reemployment “or any benefit of employment by an employer on the basis of that membership.” (38 U.S.C.A. §§ 4311(a); 4323(a)(3)). USERRA was passed pursuant to the constitutional authority granted to Congress in Article I, Section 8, Clause 11, commonly known as the War Powers Clause.
Le Roy Torres enlisted in the U.S. Army Reserve in 1989, but he maintained a job as a state trooper for the Texas Department of Public Safety (“DPS”) until his deployment to Iraq in 2007. While overseas, Torres developed a lung condition and ultimately received an honorable discharge from his military service. Even though his lung condition prevented him from returning to work as a state trooper, Torres reapplied to DPS seeking to be employed in a different capacity. DPS declined this request.
Torres then sued DPS in a Texas county court, citing rights established by USERRA. DPS appealed the grant of jurisdiction by the trial court to the Texas Court of Appeals on the grounds that the court lacked subject matter jurisdiction because state sovereign immunity applied.
The Texas Court of Appeals ruled in favor of DPS, holding that state sovereign immunity barred Torres’ claim. The court reasoned that “unless waived by the Texas Legislature or abrogated by the United States Congress, sovereign immunity deprives a Texas trial court of subject-matter jurisdiction over any lawsuit against a Texas governmental agency such as DPS.” (Texas Dep’t of Pub. Safety v. Torres, 583 S.W.3d 221, 224 (Tex. App. 2018) (citation omitted)).
In November 2020, Torres filed a petition for a writ of certiorari to the Supreme Court of the United States. In December 2021, certiorari was granted.
In recent years, the Supreme Court has permitted plaintiffs to sue States in their own courts in an increasing number of cases. The Court reasons that during the plan of the Constitutional Convention of 1787, States implicitly agreed to waive their sovereign immunity to suits arising under certain powers.
For example, in PennEast Pipeline v. New Jersey, the Supreme Court held that, during the plan of the Convention, States waived their right to assert sovereign immunity in eminent domain actions. In that case, the Court established a test for the plan of Convention waiver: whether the federal power at issue is “complete in itself, and the States consented to the exercise of that power—in its entirety—in the plan of the Convention.”
In Central Virginia Community College v. Katz, the Court held that state sovereign immunity did not bar bankruptcy actions because “the power to enact bankruptcy legislation was understood to carry with it the power to subordinate state sovereignty, albeit within a limited sphere.” Katz was particularly unique because it marked the Court’s first time to carve out an exception to the general rule that Article I actions cannot circumvent State sovereign immunity. Unlike Seminole Tribe of Florida v. Florida (holding that the Indian Commerce Clause does not abrogate State sovereign immunity) and Alden v. Maine (holding that the Necessary and Proper Clause does not abrogate State sovereign immunity), Katz, and now Torres, pertained specifically to Article I powers.
In Torres, writing for the Court in a 5-4 decision, Justice Breyer held that during the plan of the Convention, States implicitly waived their right to sovereign immunity in actions arising under Congress’ War Powers. The plan of the Convention and the structure of the Constitution itself gives Congress broad powers to raise and support Armed Forces. This power exists in times of peace as well as war. Most importantly, War Powers satisfies the PennEast test because such powers given to the federal government by the States during the Convention are complete: not only are the War Powers broad and sweeping, but “[t]he Constitution also divests the States of like power.”
In enacting USERRA pursuant to the War Powers Clause, Congress was aiding the recruitment efforts of the Armed Forces by providing its service members with legal protections. States may not assert sovereign immunity in such cases because doing so would limit Congress from carrying out its constitutional duty to “raise and support Armies.” By granting such broad powers to Congress—and by divesting themselves of like powers—during the plan of the Convention, the States effectively waived their right to assert sovereign immunity in such cases. In effect, plaintiffs like Torres may now proceed in state court actions arising under Article I War Powers.
Many have criticized the current Supreme Court for being too deferential to state sovereignty and for harboring animosity toward plaintiffs. Torres defies both accusations. Notably, Justice Kavanaugh and Chief Justice Roberts joined the Majority. In holding that states waived their sovereign immunity to private actions commenced under Congress’ War Powers, the Court opened the door for more veterans like Torres to seek relief in state court.