The U.S. Congress passed the Uniform Services Employment and Reemployment Rights Act in 1994. Congress based the act on the “necessary and proper” clause of Article I, Section 8 of the U.S. Constitution. That means, said the Corpus Christi court of appeals, that the act did not waive sovereign immunity of the states. See Texas Dept. of Public Safety v. Torres, No. 17-000659 (Tex.App. Corpus Christi 11/20/2018). All governments, state and federal, start with sovereign immunity. Governments start from a default position that they cannot be sued. Over the couple hundred years of our existence, various state and federal laws have been passed which expressly waive sovereign immunity. That is, those statutes expressly provided the government could be sued in certain circumstances. See the decision by the Corpus Christi court of appeals here.

But, according to various courts, including the Corpus Christi court of appeals, the USERRA did not waive state law immunity. That means Leroy Torres’ lawsuit was dismissed before the merits of his lawsuit could even be addressed. See the San Antonio Express News report about his appeal here. Mr. Torres suffered discrimination by his employer, the Department of Public Safety, when he returned from a deployment to Iraq. He lived near the burn pits and his health suffered. Upon his return, he asked for an accommodation. DPS told him no. He was forced to resign early, before he could qualify for retirement. He filed suit in state court under the USERRA. That suit was dismissed.

The Attorney General’s Office defended the lawsuit. The AG filed a motion to dismiss. Ken Paxton’s office did not have to file that motion. On appeal, the AG has been arguing that there is a state law equivalent statute. Chap. 437 of the Texas Government Code allows members of the military to sue for discrimination based on membership in the military. But, the time frame for filing that suit is very brief, only 60 days. Too, the state law is simply not known, at all. I practice employment law and have served in the military for 28 years. I have never heard of this state law before. Some states, such as Tennessee, have passed laws which expressly state they are waiving state law immunity for the USERRA act. If Texas wants to support veterans, it should do the same.

Sixty days is remarkably short. Victims of discrimination often suffer from delibitating depression that prevents a quick response. It is not realistic to expect many victims of discrimination to file suit within 60 days of a termination.

Mr. Torres has appealed his case to the Texas Supreme Court. But, the Texas Supreme Court is notoriously anti-plaintiff. At least one plaintiff has already sought a writ of certiorari from the U.S. Supreme Court regarding this issue and was turned down. Some ten percent of state workers serve in the Reserve forces, and another ten percent serve in local governments. I know from my own experience in the Reserves and National Guard that a very large percentage of Reservists and Guardsmen are employees of state and local governments. These court rulings by the Corpus Christi court of appeals and others virtually guarantee that state and local government employees will have no recourse when they suffer discrimination. Texas should do what Tennessee did, pass a law that expressly waives state immunity for the USERRA act.

And, really, the AG does not need to file motions to dismiss based on sovereign immunity. Many persons say they support veterans. Some of those folks actually mean it.