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Supreme Court USERRA Case Oral Arguments: Torres v. Texas Dept. of Public Safety, Case No. 20-603

I’m happy to announce we have an oral argument date at #scotus in Torres v. Texas Dept. of Public Safety, Case No. 20-603. We are the only case on the calendar on March 29, and will go at 10:00 a.m. EDT, for anyone who wants to tune in. We would certainly appreciate the support. Here is the link to the oral argument feed:


The issue is whether a State employer can be sued in State court under USERRA, which specifically provides for this process. Le Roy Torres, a former Texas State Trooper, became sick in Iraq due to his exposure to the now-infamous Burn Pits, and when he returned from his military duty, the TX DPS would not make the reasonable accommodations necessary for him to continue his employment, resulting in his departure from DPS. Texas (as well as several other states in other cases) is arguing it is immune from these suits unless it expressly waived its sovereign immunity. We won at the trial court, then a divided 2-1 appellate court reversed, and held TX was immune from our suit because Congress did not have the authority to abrogate a state’s sovereign immunity when it enacted USERRA. The TX Supreme Court declined to hear the case, after requesting full briefing on the merits.
The briefs are Con Law 101, and cite things including the Constitutional Convention and Federalist Papers. And they’re great bedtime reads if you’re having trouble falling asleep. But there were also 10 amici briefs filed, including by a couple of Con Law professors, a few veterans’ rights organizations, including the Reserve Organization of America (ROA), the largest lobby group in the country on behalf of Reserve/Guard servicemembers, and two separate amici briefs by current and former bipartisan Members of Congress. Perhaps the most impactful amicus brief came from the Solicitor General on behalf of the U.S., after the U.S. opposed our Petition for Cert.
Here’s a link to the docket and all the briefs, for those so inclined, or who might have a scorching case of insomnia:


We know few, if anyone, can predict with certainty what SCOTUS will do (although lots of people are paid handsomely to try) but we are guardedly optimistic. And if we are fortunate enough to prevail, we still have to try our case, so this journey is far from over, but the positive impact it will have on tens of thousands of servicemembers who could then bring suits like these of their own cannot be overstated.

We are, as always, indebted to Andrew Tutt and the whole Arnold & Porter Kaye Scholer LLP team for their invaluable assistance, to Jeffrey E. Phillips and Samuel Wright for keeping Reserve Organization of America (ROA) in the fight, and to Le Roy Torres and Rosie Lopez-Torres for their undying resolve.
I am happy to answer any questions and will keep you all updated, win or lose.

#supremecourt #law #veterans #military #employment #USERRA #employmentlaw