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Arnold & Porter Achieves Supreme Court Victory in Military Discrimination Case

July 12, 2022

Arnold & Porter achieved a huge win in front of the US Supreme Court for our client, Le Roy Torres, a former employee of the Texas Department of Public Safety, who alleges he was wrongfully terminated because he requested a workplace accommodation because of lung damage he sustained from his exposure to hazardous waste being disposed of in the now infamous “burn pits” in Iraq.

On June 29, the US Supreme Court ruled that state employers don’t have sovereign immunity against suits brought under a military anti-discrimination law. The ruling revives Mr. Torres’s allegations that he was unlawfully forced out of his job and has major significance for tens of thousands of veterans and servicemembers that serve the public as both state employees and members of the armed forces.

The case concerned the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), a federal statute that protects servicemembers’ and veterans’ civilian employment rights. Among other things, USERRA requires employers to put individuals back to work in their civilian jobs after military service. USERRA also protects servicemembers from discrimination in the workplace based on their military service or affiliation. In a suit against a state (as an employer), USERRA mandates the action be brought in a state court of competent jurisdiction.

Arnold & Porter’s win represented the first time a court had been persuaded that Congress had the constitutional authority to abrogate state sovereign immunity. Before the decision, every state Supreme Court and appellate court that ruled on the question over the past 20 years had held that this provision of USERRA was unconstitutional to the extent it permits lawsuits against states that have not affirmatively consented to be sued under USERRA. Those Courts held that Congress lacked the power to authorize suits against states under USERRA without those states’ consent because the states have sovereign immunity against such suits. The Supreme Court concluded those courts had erred.

The Arnold & Porter pro bono team was led by senior associate Andrew Tutt, who argued the case, and partner Elisabeth Theodore. The team also included senior associates Stephen Wirth and Sam Callahan, and associates Kevin Cosgrove, Patrick Derocher, Kyle Lyons-Burke, Mike Mosher, Colleen O’Gorman, Eric Padilla, and appellate specialist Kathryne Lindsey*.

*Not admitted to the practice of law