Supreme Court Upholds Federal Anti-Discrimination Law Protecting Veterans
Supreme Court Upholds Federal Anti-Discrimination Law Protecting Veterans

By Matthew Vadum

Texas violated a federal anti-discrimination law protecting veterans by refusing to rehire a former state trooper after he was injured in the Iraq War while serving as a U.S. Army reservist, the Supreme Court ruled 5-4 on June 29.

The Biden administration previously urged the court to reject the case, but switched sides during oral arguments on March 29, saying the Texas Court of Appeals erred when it struck down the Uniformed Services Employment and Reemployment Rights Act (USERRA) as unconstitutional.

The lower court held that Congress lacks the authority under its war powers to authorize veterans to sue states such as Texas that have not consented to be sued.

Passed in 1994, the act requires state and private employers to restore former employees returning from military service to the same position. A newly disabled employee must be given a position of “similar status and pay.”

The thinking behind it was that leaving former service members without a legal remedy for employment discrimination could interfere with the federal government’s ability to provide a strong national defense by making soldiers reluctant to serve knowing their job may not be waiting for them when they return.

Petitioner Le Roy Torres sued his former employer in Texas state court in 2017, seeking more than $5 million.

Torres served 18 years in the U.S. Army Reserve while employed as a state trooper for the Texas Department of Public Safety.

After he was deployed to Iraq in 2007, his lungs were damaged by toxic fumes from the now-infamous open-air “burn pits” that were used on military bases to burn everything from trash to ammunition, to medicine, to human waste.

He was diagnosed with constrictive bronchiolitis, according to his petition (pdf) to the Supreme Court.

Torres was honorably discharged a year after deployment and asked the department for a job in a different position because his injuries prevented him from performing all of his previous duties as a state trooper.

The department offered him a temporary position in his previous capacity, and said he would be fired if he didn’t report for duty.

Instead, Torres resigned and founded Burn Pits 360 with his wife, Rosie. The nonprofit advocates for service members and families of service members who suffered injury as a result of toxic burn pits while serving their country.

Justice Stephen Breyer wrote the majority opinion (pdf) in Torres v. Texas Department of Public Safety (court file 20-603), reversing “the judgment of the Texas Court of Appeals and remand[ing] the case for further proceedings not inconsistent with this opinion.”

Breyer’s opinion was joined by Chief Justice John Roberts, along with Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh. Kagan also filed a separate concurring opinion.

Justice Clarence Thomas filed a dissenting opinion, which was joined by Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.

Breyer wrote that the Constitution gives Congress the authority “to raise and support armies” and “to provide and maintain a navy.”

Relying on that authority, Congress enacted the Uniformed Services Employment and Reemployment Rights Act.

Texas claimed the act did not apply to it because as a sovereign state it never consented to be sued.

“This case asks whether states may invoke sovereign immunity as a legal defense to block such suits. In our view, they cannot,” Breyer wrote.

“Upon entering the union, the states implicitly agreed that their sovereignty would yield to federal policy to build and keep a national military.

“States thus gave up their immunity from congressionally authorized suits pursuant to the ‘plan of the convention,’ as part of “‘the structure of the original Constitution itself,’” the justice wrote citing the court’s 2021 opinion in PennEast Pipeline Co. v. New Jersey.

Breyer was referring to the Constitutional Convention of 1787 in Philadelphia that drafted the U.S. Constitution which replaced the problematic Articles of Confederation that governed the republic in its early days and which the framers thought provided a too decentralized structure for the government.


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