The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
ROBERT FUENTES, §
§
Plaintiff, §
§
v. § Civil Action No. 7:22-cv-00038-O
§
TEXAS DEPARTMENT OF §
CRIMINAL JUSTICE (TDCJ), §
§
Defendant. §
ORDER AND OPINION
Before the Court are Defendant’s Motion to Dismiss Plaintiff’s USERRA Claims (ECF
No. 24), filed February 10, 2023; Plaintiff’s response (ECF No. 28), filed March 17, 2023; and
Defendant’s reply (ECF No. 29), filed March 31, 2023. For the reasons contained herein,
Defendant’s motion is hereby GRANTED. However, the Court further GRANTS Plaintiff leave
to file a motion to amend.
I. Factual and Procedural Background1
Plaintiff Robert Fuentes is a military veteran, serving on active duty from 2009 until 2015
and remaining on the IRR until 2019. Plaintiff has been diagnosed with PTSD related to his
honorable military service. Due to his PTSD, Plaintiff has been prescribed the medication Prozac,
which he takes daily. According to Plaintiff’s Amended Complaint, Prozac (or Fluoxetine) is
known to cause false positive drug test results for LSD, Amphetamine, and Methamphetamine.2
1 The Court’s recitation of the factual background is taken from Plaintiff’s Amended Complaint. See Am.
Compl., ECF No. 22. At the motion to dismiss stage, all well-pleaded facts are taken as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678–79 (2009).
2 Id. at ¶ 14.
Plaintiff was employed by Defendant Texas Department of Criminal Justice (“TDCJ”) as
a Correctional Officer IV at the James V. Allred Unit from September of 2019 until August of
2021.
In May 2021, Plaintiff submitted to a random drug screen urine test. Soon after, Plaintiff
was contacted by the TDCJ Medical Review Officer (MRO) regarding a positive test for
Amphetamines and/or Methamphetamines. Plaintiff informed the MRO that he takes Prozac,
known to give false positive test results for Amphetamines and Methamphetamines, as well as a
nasal inhaler for allergies and sinus congestion, also known to provide a positive test result for
Amphetamines. The MRO told Plaintiff that Prozac is not on Defendant’s list of medications that
will produce a false positive test. Plaintiff states that the MRO then denied Plaintiff the ability to
provide medical documentation and refused to engage in any dialog with Plaintiff’s physician or
consider any of the multiple medical reports that show Prozac produces a false positive test for
Amphetamines. The MRO informed Plaintiff that she would be reporting to Defendant that
Plaintiff had tested positive for Amphetamines and/or Methamphetamines.
Defendant’s Warden Hooper later called Plaintiff to inform him that Plaintiff needed to
report to his unit to give a statement for disciplinary action. At the subsequent meeting, Plaintiff
states he provided the warden with all medical documentation, including Plaintiff’s prescription
list, medical journals stating Prozac is known to cause positive tests for Amphetamines, a written
statement from Plaintiff’s doctor that he prescribed Prozac to Plaintiff and that Prozac causes false
positive tests for Amphetamines, and Plaintiff also provided his own written statement indicating
that he has never used recreational drugs and that the test result in question was a result of the
prescription medication he is taking for his PTSD.
In June 2021, a disciplinary hearing packet was delivered to Plaintiff via certified mail.
Included in the packet were notes written by the warden which Plaintiff states inaccurately reported
the timeline of events, as well as the medical journals and prescription list provided by Plaintiff.
The packet included notes indicating that Plaintiff had provided medical documentation to
Defendant regarding the fact that Plaintiff takes prescription Prozac for his PTSD, and that Prozac
can cause a false positive for Amphetamines. Despite this record, Defendant recommended that
Plaintiff be immediately removed from duty with a disciplinary hearing set for June 21, 2021.
Plaintiff was eventually terminated from his position.3
On April 14, 2022, Plaintiff filed this lawsuit against Defendant, alleging claims under the
Rehabilitation Act.4 As Plaintiff initially filed this lawsuit using the pseudonym “John Doe,” the
Court ordered the parties to brief whether Plaintiff should be able to proceed anonymously.5 On
January 12, 2023, the Court denied Plaintiff’s motion to proceed anonymously and ordered him
to file an amended complaint without pseudonyms.6 On January 27, 2023, Plaintiff filed an
amended complaint, adding claims under the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”) for compensatory and declarative relief.7 On February
10, 2023, Defendant filed its motion to dismiss for lack of subject matter jurisdiction under Federal
Rule 12(b)(1).8 Plaintiff filed his response on March 17, 2023.9 Defendant filed its reply on March
31, 2023.10 The motion is now ripe for the Court’s review.
3 The Amended Complaint does not clearly state the date Plaintiff was terminated.
4 See Compl., ECF No. 1.
5 See ECF No. 5.
6 Order, ECF No. 20.
7 Am. Compl., ECF No. 22.
8 Def. Mot., ECF No. 24.
9 Pl. Resp., ECF No. 28.
10 Def. Reply, ECF No. 29.
II. Legal Standard
Federal district courts are courts of limited jurisdiction; thus, unless proven otherwise, it is
presumed that the case is outside the scope of a district court's jurisdiction. See Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A motion to dismiss under Rule 12(b)(1)
of the Federal Rules of Civil Procedure challenges a federal court's subject matter jurisdiction.
FED. R. CIV. P. 12(b)(1). A court must dismiss a complaint if it lacks subject matter jurisdiction. In
re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012). A plaintiff
always has the burden to show jurisdiction exists. Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001) (citation omitted). A court may dismiss a claim for lack of subject matter
jurisdiction based on: “(1) the complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
III. Analysis
Defendant TDCJ moves to dismiss Plaintiff’s USERRA causes of action for lack of subject
matter jurisdiction under Rule 12(b)(1).11 Defendant contends that Plaintiff’s USERRA claims are
barred as USERRA does not contain an abrogation of sovereign immunity for a cause of action
brought by a private person against a state employer in federal court, and thus, the Court lacks
subject matter jurisdiction over Plaintiff’s USERRA claims.12
The Supreme Court has “made clear that the Constitution does not provide for federal
jurisdiction over suits against nonconsenting states.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73
(2000). Such suits are barred by sovereign immunity “absent waiver by the State or valid
congressional override.” Kentucky v. Graham, 473 U.S. 159, 169 (1985). For claims to be barred
11 Def. Mot. 1, ECF No. 24.
12 Id. at 2.
by sovereign immunity, “the state need not be the named party in a federal lawsuit, for a state's
Eleventh Amendment immunity extends to any state agency or entity deemed an ‘alter ego’ or
‘arm’ of the state.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (citing
Vogt v. Bd. of Commissioners of the Orleans Levee District, 294 F3d 684, 688–89 (5th Cir. 2002)).
USERRA is “a federal law that protects employees from being discriminated against by
their employers because of their military service.” McIntosh v. Partridge, 540 F.3d 315, 320 (5th
Cir. 2008) (citing 38 U.S.C. § 4311). The language of USERRA states clearly that “[i]n the case
of an action against a State (as an employer) by a person, the action may be brought in a State court
of competent jurisdiction in accordance with the laws of State.” 38 U.S.C. § 4323(b)(2). In this
case, Plaintiff brings his USERRA claims against Defendant TDCJ, which is “an arm of the state
of Texas and thus entitled to sovereign immunity.” Valentine v. Collier, 993 F.3d 270, 280 (5th
Cir. 2021). Accordingly, Defendant contends that Plaintiff’s USERRA claims must be brought in
state court.13
In Mcintosh v. Partridge, the Fifth Circuit held that the language of USERRA § 4323(b)(2)
provides no indication that Congress intended for these claims to be brought in federal court. See
McIntosh, 540 F.3d at 321. In its reasoning, the Fifth Circuit compared the language of 38 U.S.C.
§4323(b)(2) to the language of neighboring provisions §§ 4323(b)(1) and (b)(3), where Congress
explicitly provided for federal jurisdiction in cases where the federal government brings a
USERRA claim or when the defendant is a private employer. Id. The Fifth Circuit stated that these
neighboring provisions “demonstrate that Congress knew how to provide for federal jurisdiction
but specifically chose not to do so for USERRA claims brought by individuals against states as
employers.” Id. The Fifth Circuit further considered the effect of the 1998 amendments to
13 Def. Mot. 4, ECF No. 24.
USERRA, which added the current jurisdictional language of § 4323(b)(2). Id. The Fifth Circuit
reasoned that, after examining the text of the statute in its current and prior forms, there is “no
‘unmistakably clear’ intention by Congress to abrogate state sovereign immunity by allowing
individuals to bring USERRA claims against states as employers in federal court.” Id. Therefore,
the Fifth Circuit held that it did not have jurisdiction over the plaintiff’s USERRA claim. Id.
Plaintiff bases much of its argument for jurisdiction around the 2022 Supreme Court case
Torres v. Texas Department of Public Safety, wherein the Supreme Court held that State employers
waive sovereign immunity against USERRA claims. 142 S. Ct. 2455, 2466–69 (2022).14 However,
in that case, Texas invoked sovereign immunity against a USERRA claim brought in state court.
Id. at 2461. The plaintiff brought the suit in state court, litigating through the Texas court system
before appealing to the United States Supreme Court. Id. The Supreme Court in Torres does not
state that federal courts have jurisdiction over individuals’ USERRA claims. Rather, the Supreme
Court in Torres, when discussing USERRA’s jurisdictional clause, stated: “Congress’ clarification
that suits proceed ‘in a State court of competent jurisdiction in accordance with the laws of the
State’ merely addresses the fact that USERRA suits must be brought in state (rather than federal)
court.” Id. at 2466 (quoting 38 U.S.C. § 4323(b)(2)) (emphasis added). Therefore, the Court
declines to interpret Torres as conferring federal jurisdiction over individuals’ USERRA claims
against state employers.
Plaintiff further discusses the 1998 amendments to USERRA and the cases following the
amendments, arguing that, in light of the Supreme Court’s decision in Torres, the amendments and
these cases should be understood as exhibiting Congress’s intention of ensuring that USERRA
protections are as wide as possible for veterans employed by state employers.15 However, none of
14 Pl. Resp. 2–8, ECF No. 28.
15 Pl. Resp. 3–8, ECF No. 28.
the cases Plaintiff cites concluded that federal courts have jurisdiction over individuals’ USERRA
claims against State employers. See Townsend v. University of Alaska, 543 F.3d 478 (9th Cir.
2008); Risner v. Ohio Dep’t of Rehabilitation and Correction, 577 F. Supp. 2d 953 (N.D. Ohio
2008); Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012); Trimble v. Louisiana State
Univ. Sys., No. 22-351-SDD-RLB, 2023 WL 1808355 (M.D. La. Jan. 4, 2023), report and
recommendation adopted, No. 22-351-SDD-RLB, 2023 WL 1802405 (M.D. La. Feb. 7, 2023).
Rather, three of the cases cited concluded the opposite – that federal courts do not have
jurisdiction over an individual’s USERRA claims against a State employer. See Townsend, 543
F.3d at 484–85; Risner, 577 F. Supp. 2d at 961; Trimble, 2023 WL 1808355, at *5. And the
remaining case, Mims, did not involve USERRA, but rather, that case involved the Telephone
Consumer Protection Act, and therefore the case did not discuss or involve the jurisdictional clause
of 38 U.S.C. § 4323(b)(2). See Mims, 565 U.S. 368.
Accordingly, considering the existing caselaw, the Court finds that Plaintiff fails to
establish the Court has jurisdiction over his USERRA claims. Accordingly, Plaintiff’s USERRA
claims against Defendant must be DISMISSED without prejudice.
***
Plaintiff secondly requests leave to amend to bring his USERRA claims against the
individual state actors responsible for the alleged violations under the Ex Parte Young doctrine.16
The Ex Parte Young doctrine grants a federal court jurisdiction over a lawsuit against a “state
official in his official capacity if the suit seeks prospective relief to redress an ongoing violation
of federal law.” Planned Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442, 451 (5th Cir. 2022)
(quoting Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020)).
16 Pl. Resp. 8, ECF No. 28.
Federal Rule 15(a)(2) states that “[t]he court should freely grant leave when justice so
requires.” FED. R. CIV. P. 15(a)(2). Whether to grant leave to amend under Rule 15(a) is within the
discretion of the trial court. Garcia v. Zale Corp., No. 3:04-CV-1917-D, 2006 WL 298156, at *1
(N.D. Tex. Feb. 1, 2006). "In deciding whether to grant leave to file an amended pleading, the
district court may consider such factors as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party, and futility of amendment.” Wimm v. Jack Eckerd Corp., 3
F.3d 137, 139 (5th Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
At this point, the Court does not have enough information to decide whether such
amendment would be futile. The Court does not detect that Plaintiff is acting with undue delay,
bad faith, or dilatory motive. Further, the present Amended Complaint (ECF No. 22) is
Plaintiff’s first complaint to include the USERRA claims. Therefore, the Court GRANTS
Plaintiff leave to file a motion to amend. Any such motion SHALL be filed on or before August
18, 2023. At that time, the Court will assess Plaintiff’s proposed pleadings to determine
whether allowing such amendment would be futile.
IV. Conclusion
Accordingly, the Court finds it does not have subject matter jurisdiction over Plaintiff’s
USERRA claims. Therefore, Plaintiff’s USERRA claims against Defendant TDCJ is
DISMISSED without prejudice. However, the Court GRANTS Plaintiff leave to file a motion
to amend to bring his USERRA claims against the individual state actors involved. Any such
motion SHALL be filed on or before August 18, 2023.
SO ORDERED on this 4th day of August, 2023.