Officers in the reserve join a legal fight for re-employment rights
A case now being decided by the Supreme Court, known as Torres versus Texas, has a potential big impact on members of the reserves.
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A case now being decided by the Supreme Court, known as Torres v. Texas, has a potential big impact on members of the reserves. If states like Texas achieve sovereign immunity, it would jeopardize the re-employment rights reservists have, when returning from duty. The Federal Drive with Tom Temin got analysis now from Wiley Rein partner, attorney Scott Felder.
Interview transcript:
Tom Temin: Mr. Felder, good to have you on.
Scott Felder: Thanks, Tom. It’s great to be here.
Tom Temin: And tell us what this case is all about?
Scott Felder: The genesis of the case, Tom is a claim by Mr. Torres that his employer discriminated against him under Uniform Services Employment and Reemployment Rights Act or USERRA. It’s important, I think, to note at the outset, hear that there hasn’t been any substantive litigation about the merits of that claim. That is to say, whether or not Texas did in fact discriminate against Mr. Torres, because Texas sort of came out of the gate with a motion to dismiss for lack of jurisdiction, on the basis that you said of sovereign immunity, you can’t sue us you cannot sue the state of Texas for employment discrimination under USERRA.
Tom Temin: Got it. So the Supreme Court is deciding then not the merits of USERRA. But whether Texas is bound by it?
Scott Felder: They’re not deciding the merits of Mr. Torres’ discrimination claim, what they’re deciding is whether or not Congress has the power to take away Texas’ sovereign immunity as part of USERRA.
Tom Temin: Right. So if the Supreme Court decides that the United States does not have the right to take away that sovereign immunity, then what?
Scott Felder: Then Mr. Torres would be left without a private cause of action to vindicate the discrimination claim that he alleges he has. And I think that would be true in a number of states as well. There’s about eight states, the highest court in the state has said we have sovereign immunity, and Congress was without power to take that sovereign immunity way. If you sort of tried a scorecard by looking at the briefs that were filed at the Supreme Court as part of this issue, probably fair to say roughly half the states think the same, even though they haven’t made a decision from the highest state court.
Tom Temin: Right. So what’s going on here then is a guy named Torres was denied his job when he came back from reserve duty, and therefore sued his employer, and how did Texas itself get involved because now a different matter is at stake?
Scott Felder: So the way Texas got involved was because Mr. Torres’ employer is the state of Texas. He was a Texas State Trooper.
Tom Temin: Got it. All right. So Texas, instead of deciding on the merits of the case, decided to take the whole thing up a level and saying you don’t even have standing here, basically.
Scott Felder: That’s right. So the trial court actually decided in Mr. Torres’ favor and said no, you know, there is a effective waiver of sovereign immunity in USERRA. It was the Texas Appellate Court that disagreed with that. The Texas Supreme Court initially granted review, they get discretionary review like the United States Supreme Court does, initially granted review then changed their mind and said no, we’re not going to take review. That’s what led Mr. Torres to petition the Supreme Court for review. That’s what led to the case that was argued, I guess, not quite a month ago now.
Tom Temin: Right. And we don’t know when that decision will come out.
Scott Felder: I would expect it to come out sometime this summer, before the close of the term, late May or June.
Tom Temin: All right. And if they decide in favor of Texas, once again, just remind us what the effect would be there?
Scott Felder: So if they affirm which we again, decide in favor of Texas, Texas has claimed that they have sovereign immunity that they cannot be sued under USERRA for employment discrimination would stand. Mr. Torres would not have any private right of action against the state of Texas, other state employees in Texas that believe they’ve been discriminated against because of their military service, would have no ability to sue the state of Texas directly.
USERRA provides other remedies. One of the things that we highlighted in our brief for the reserve organization of America, was that those remedies tend to ring hollow, you know, you can petition the Department of Labor, for example, to vindicate your rights, you know, nine cases in the last year where they actually did that. And that’s something that Justice Alito actually picked up on. You know, if you go back and listen to the argument, Justice Alito is quoting the statistics that we had in our brief for ROA and asking the attorney arguing for the government saying, are these numbers real? Is that really what we’re talking about here? If we don’t have a remedy for the soldier himself.
Tom Temin: we’re speaking with Scott Felder. He’s a partner at the law firm, Wiley Rein. And if, again, the Supreme Court decides in favor of the state of Texas, would that affect private employers under USERRA? For say, someone leaves Dell, you know, in Austin, to go into the reserve duty for a while?
Scott Felder: No, Tom, it wouldn’t affect private employers. So and that’s sort of the interesting juxtaposition here is that if Mr. Torres worked across the street as a federal marshal, or if he worked for the county sheriff, or if he worked for a private employer, and that employer did the same thing that the state of Texas is alleged to have done here, there would be no question he would have a remedy in court for it.
Tom Temin: And would this affect other state governments? If the precedent is set here in Texas? Could you know Maryland or Virginia or Maine decide, well, you can’t sue us either. If we don’t give you your job back Mr. Reservist or Ms. Reservist.
Scott Felder: That’s precisely right, Tom. I mean, you would see if Congress can’t take away state sovereign immunity, they can’t take it away anywhere. As I said, there’s about eight states that have already reached decisions from the highest court in the state that says, we have sovereign immunity here and Congress cannot take it away as part of USERRA. It’s worth mentioning, there are some states that have USERRA-like remedies under state law. So it may not be, you know, oh my gosh, all 50 states now, you know, a reservist or National Guardsmen who, whose mobilized and comes back or somebody who chooses to leave their employment to serve on active duty for a period of time is without remedy, but it would have nationwide reach.
Tom Temin: And it’s interesting the Texas would take this tack, you would expect state governments to have some, I don’t know more simpatico feelings about their own employees with respect to service in another public sector domain, even if it is the military, especially in Texas. But they chose to sideswipe it sounds like that argument in favor of something larger, so that it would seem to maybe have effect on other actions other people could bring against the state for other employment situations.
Scott Felder: You know, I don’t want to speculate too much about Texas’ state of mind in what they chose to adopt as their litigation strategy here. You know, I think you raise a good point in there about what I refer to as the incentive structure. And if you find yourself in the state of Texas debating well, do I want to serve my country? Do I want to serve as a National Guardsmen? Do I want to serve as a reservist? Do I want to become a state employee? I mean, we’re talking about people that are by nature, I think civic minded, and Texas’ position I think, presents a very real risk of disincentivizing public service.
Tom Temin: Now your law firm filed an amicus on behalf of the Reserve Officers Association. Are there any other similar associations, allied organizations that have also filed here?
Scott Felder: There were I think it was a total of 10 briefs filed in support of Mr. Torres. So ROA, Reserve Organization of America or formerly known as Reserve Officers Association changed the name kept the acronym when they expanded sort of their charter to all ranks, but still with an exclusive focus on the Guard and reserve. Current and former members of Congress filed a brief in support of Mr. Taurus, several academics filed briefs in support of Mr. Taurus and a coalition of veterans organizations Iraq and Afghanistan, Veterans of America, etc. filed briefs in support of Mr. Torres.
Tom Temin: And I imagine all of his fellow state police officers probably feel the same way.
Scott Felder: I don’t know I haven’t spoken to any of them.
Tom Temin: Just a guess here. And what is his status now? Is he back at work or is he out of work?
Scott Felder: He is not working for the Texas State Police anymore.
Tom Temin: All right. So the summer is when we’ll know then you’re guessing.
Scott Felder: I would expect the decision on this before the end of the term and the term will end in the summer.
Tom Temin: Scott Felder is a partner at the law firm Wiley Rein, thanks so much for joining me.
Scott Felder: Thanks, Tom. I appreciate the invitation.
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Tom Temin
Tom Temin is host of the Federal Drive and has been providing insight on federal technology and management issues for more than 30 years.
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