Amicus Curiae Brief — Le Roy Torres, Petitioner v. Texas Department of Public Safety

Supreme Court briefFeb 7, 2022

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No. 20-603

IN THE

Supreme Court of the United States

————

LE ROY TORRES,

Petitioner,

TEXAS DEPARTMENT OF PUBLIC SAFETY,

————

Respondent.

On Writ of Certiorari to the

Court of Appeals of Texas,

Thirteenth Judicial District

————

BRIEF OF NATIONAL VETERANS

LEGAL SERVICES PROGRAM, IRAQ AND

AFGHANISTAN VETERANS OF AMERICA,

PARALYZED VETERANS OF AMERICA,

VETERANS OF FOREIGN WARS, AND

VIETNAM VETERANS OF AMERICA AS

AMICI CURIAE IN SUPPORT OF PETITIONER

————

ALEC W. FARR

Counsel of Record

KERENSA GIMRE

MEGAN MCLEAN

PERKINS COIE LLP

700 Thirteenth Street, NW

Suite 800

Washington, D.C. 20005

(202) 654-6200

afarr@perkinscoie.com

Counsel for Amici Curiae

February 7, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................4

ARGUMENT ................................................................7

A. The Texas Intermediate Appellate Court

Erred in Concluding That Congress Did Not

Validly Authorize Private Damages Suits

Against State Employers Under USERRA. ..........7

1. The Sovereign Immunity Surrendered

by the States in the “Plan of the

Convention,” Includes Immunity to

Suits Authorized Pursuant to Congress’s

War Powers. ......................................................8

2. Like Suits by Other States, Suits by the

United States, and Suits Under the

Federal Bankruptcy and EminentDomain Powers, Petitioner’s Suit

Authorized by the Federal War Powers

“Falls Comfortably Within the Class of

Suits to Which States Consented Under

the Plan of the Convention.” ..........................11

B. Affirming the Constitutionality of the

USERRA Provision at Issue Is Consistent

with This Court’s Longstanding Deference

to Congress When it Legislates Under its

War Powers, and with the Court’s ProVeteran Canon of Statutory Construction. .........14

TABLE OF CONTENTS–Continued

Page

1. This Court Has Adopted the ProVeteran Canon in Favor of Veterans

Seeking Benefits Since at Least the

World War II Era. ...........................................14

2. Courts Have Consistently Used the ProVeteran Canon to Benefit Veterans. ..............16

C. USERRA Is an Important Part of the Full

Range of Benefits Congress Has Provided to

Service Members. .................................................18

1. Providing Generous Benefits to

Veterans Is This Country’s Moral

Obligation and Provides a Critical Social

Safety Net. ......................................................19

2. USERRA’s Reemployment Protections

Are an Important Element of Congress’s

Effort to Ease Veterans’ Transition to

Civilian Life. ...................................................21

D. USERRA’s Private Right of Action Against

State Employers Protects Hundreds of

Thousands of Veterans from

Discrimination. .....................................................23

1. An Increasing Number of Veterans

Return Home with Service-Connected

Disabilities, Exposing Them to

Employment Discrimination. .........................23

iii

TABLE OF CONTENTS–Continued

Page

2. The Issue Presented Is of Particular

Importance, as Hundreds of Thousands

of Veterans and Service Members Are

Employed by, and Face Discrimination

from, State and Local Agencies. .....................28

CONCLUSION ..........................................................31

TABLE OF AUTHORITIES

Page(s)

CASES

Accardi v. Pa. R. Co.,

383 U.S. 225 (1966) .............................................. 18

Ala. Power Co. v. Davis,

431 U.S. 581 (1977) .............................................. 18

Alden v. Maine,

527 U.S. 706 (1999) ............................................ 7, 8

Arver v. United States,

245 U.S. 366 (1918) ...................................... 8, 9, 11

Barrett v. Principi,

363 F.3d 1316 (Fed. Cir. 2004) ........................ 6, 19

Boone v. Lightner,

319 U.S. 561 (1943) .............................. 5, 14, 15, 17

Breaker v. Bemidji State Univ.,

899 N.W.2d 515 (Minn. Ct. App.

2017) ..................................................................... 30

Brown v. Gardner,

513 U.S. 115 (1994) ........................................ 15, 17

Case v. Bowles,

327 U.S. 92 (1946) ................................................ 10

Clark v. Va. Dep’t of State Police,

793 S.E.2d 1 (Va. 2016) ........................................ 30

Coffy v. Republic Steel Corp.,

447 U.S. 191 (1980) .............................................. 16

TABLE OF AUTHORITIES–Continued

Page(s)

Fishgold v. Sullivan Drydock & Repair

Corp.,

328 U.S. 275 (1946) .............................. 1, 14, 15, 18

Fla. Dep’t of Highway Safety & Motor

Vehicles v. Hightower,

No. 1D19-227, 2020 WL 5988204

(Fla. Dist. Ct. App. Oct. 9, 2020) ......................... 30

Franchise Tax Bd. of Cal. v. Hyatt,

139 S. Ct. 1485 (2019) ............................................ 9

Henderson v. Shinseki,

562 U.S. 428 (2011) ........................................ 16, 17

In re Tarble,

80 U.S. (13 Wall.) 397 (1871) ................... 5, 7, 9, 10

King v. St. Vincent’s Hosp.,

502 U.S. 215 (1991) ........................................ 14, 16

Peel v. Fla. Dep’t of Transp.,

600 F.2d 1070 (5th Cir. 1979) .............................. 13

PennEast Pipeline Co., LLC v. New

Jersey,

141 S. Ct. 2244 (2021) ...................................passim

Procopio v. Wilkie,

913 F.3d 1371 (Fed. Cir. 2019) ............................ 19

Reopell v. Massachusetts,

936 F.2d 12 (1st Cir. 1991) .................................. 13

Rumsfeld v. Forum for Academic &

Inst’l Rights, Inc.,

547 U.S. 47 (2006) .......................................... 11, 14

TABLE OF AUTHORITIES–Continued

Page(s)

Shinseki v. Sanders,

556 U.S. 396 (2009) .......................................... 15, 9

Smith v. Tenn. Nat’l Guard,

551 S.W.3d 702 (Tenn. 2018) ............................... 30

Tilton v. Mo. Pac. R. Co.,

376 U.S. 169 (1964) .............................................. 18

United States v. Macintosh,

283 U.S. 605 (1931), overruled in

part on other grounds by Girouard v.

United States, 328 U.S. 61 (1946) ...................... 7, 9

United States v. Nugent,

346 U.S. 1 (1953) .................................................. 13

United States v. Oregon,

366 U.S. 643 (1961) .............................................. 15

STATUTES

5 U.S.C. § 1302(b) ...................................................... 21

10 U.S.C. §§ 1143–44 ................................................. 21

15 U.S.C. § 636(d)(1).................................................. 21

38 U.S.C. § 1151 ........................................................ 17

38 U.S.C. §§ 2021–27 (1988) ..................................... 13

38 U.S.C. § 2021 et seq. (1980)

(Veterans’ Readjustment Assistance

Act of 1974) ........................................................... 16

38 U.S.C. § 2024(d) (Veterans’

Reemployment Rights Act) .................................. 16

vii

TABLE OF AUTHORITIES–Continued

Page(s)

38 U.S.C. § 2404(d) (1988), repealed by

USERRA, Pub. L. No. 103-353, 108

Stat. 3149 (1994) .................................................. 22

38 U.S.C. § 3100 et seq. (Veterans

Readiness and Employment

Program) ............................................................... 21

38 U.S.C. § 4102 ........................................................ 21

38 U.S.C. § 4301(a) .............................................. 12, 21

38 U.S.C. § 4301 et seq. (Uniformed

Services Employment and

Reemployment Rights Act of 1994) ..............passim

38 U.S.C. § 4313(a)(3) ................................................ 22

38 U.S.C. § 4323(a) .................................................... 29

38 U.S.C. § 4323(b) ........................................ 11, 22, 29

38 U.S.C. § 7266(a) .................................................... 17

39 U.S.C. §§ 4311–13 ................................................. 21

39 U.S.C. § 4316 ........................................................ 21

Pub. L. No. 76-861, 54 Stat. 1178

(Soldiers’ and Sailors’ Civil Relief Act

of 1940) ................................................................. 17

Service Extension Act of 1941, ch. 362,

Pub. L. No. 77-213, § 7, 55 Stat. 626,

627 (repealed 1956) .............................................. 22

54 Stat. 885 (Selective Training and

Service Act of 1940) .................................. 13, 18, 22

viii

TABLE OF AUTHORITIES–Continued

Page(s)

62 Stat. 604 (Military Selective Service

Act of 1948) ........................................................... 18

RULES

Rule 37.2(a) .................................................................. 1

Rule 37.6 ...................................................................... 1

REGULATIONS

20 C.F.R. § 1002.2 (2016) .......................................... 13

20 C.F.R. §§ 1002.225, 1002.226 ......................... 22, 28

OTHER AUTHORITIES

137 Cong. Rec. E1486-01, 137 Cong. Rec.

E1486-01, E1486, 1991 WL 65877....................... 19

144 Cong. Rec. 4458 (1998) (statement of

Rep. Evans)........................................................... 13

Daniel J. Bugbee, Employers Beware:

Violating USERRA Through

Improper Pre-Employment Inquiries,

12 CHAP. L. REV. 279, 281 (2008) ......................... 22

H.R. 2806, S. 1313 (117th Cong.)

(Honoring All Veterans Act) ................................ 20

H.R. REP. NO. 105-448 (1998) (USERRA

Amendments Act of 1998) .................................... 12

Lisa Limb, Shots Fired: Digging the

Uniformed Services Employment and

Reemployment Rights Act Out of the

Trenches of Arbitration, 117 MICH. L.

REV. 761, 765 (2019)............................................. 23

TABLE OF AUTHORITIES–Continued

Page(s)

RAND Corporation, Invisible Wounds of

War: Psychological and Cognitive

Injuries, Their Consequences, and

Services to Assist Recovery (Terri

Tanielian & Lisa H Jaycox, ed. 2008) ................. 25

Ronald Kessler, Steven Heeringa,

Murray Stein, et al., Thirty-Day

Prevalence of DSM-IV Mental

Disorders Among Nondeployed

Soldiers in the US Army, 71 JAMA

PSYCHIATRY 504 (2014)......................................... 26

U.S. Const. amend. X .................................................. 9

U.S. Const. Art. I, § 8 ........................ 7, 8, 9, 11, 12, 13

U.S. Const. Art. I, § 10 ................................................ 9

William P. Quigley, The Earliest Years

of Federal Social Welfare Legislation:

Federal Poor Relief Prior to the Civil

War, 79 U. Det. Mercy L. Rev. 157,

159 (2002) ............................................................. 11

INTEREST OF AMICI CURIAE 1

Amici are leading nonprofit organizations dedicated

to ensuring that our nation’s 25 million veterans are

provided with the benefits and support they have

earned “serv[ing] their country in its hour of great

need.” Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275, 285 (1946). Amici have been

instrumental in the passage of important veterans’

rights legislation, regularly advocate for veterans

before courts and agencies, and provide critical

support to veterans returning to civilian life.

National Veterans Legal Services Program

(“NVLSP”) is one of the nation’s leading

organizations advocating for veterans’ rights. Founded

in 1981, NVLSP is an independent, nonprofit veterans

service organization recognized by the Department of

Veterans Affairs (“VA”) and dedicated to ensuring that

the government honors its commitment to veterans.

NVLSP prepares, presents, and prosecutes service

members’ and veterans’ benefits claims before the VA

and the Department of Defense, pursues veterans’

rights legislation, and advocates before this and other

courts.

Iraq and Afghanistan Veterans of America

(“IAVA”) is committed to connecting, uniting, and

empowering post-9/11 veterans. IAVA has connected

more than 1.2 million veterans with resources and

community and provided thousands of veterans of all

1 Pursuant to Rule 37.2(a), counsel for all parties have consented

to the filing of this brief. Pursuant to Rule 37.6, no counsel for a

party authored this brief in whole or in part and no person or

entity other than Amici, its members, or counsel made a

monetary contribution to its preparation or submission.

generations with lifesaving and life-changing

personalized support. IAVA focuses its efforts on six

key priorities affecting post-9/11 veterans: (1)

combatting suicide; (2) raising awareness on burn pits

and other toxic exposures; (3) supporting women

veterans; (4) increasing access to medical cannabis; (5)

modernizing the VA; and (6) defending the benefits of

the GI Bill.

Paralyzed Veterans of America (“PVA”) is a

national, congressionally chartered veterans service

organization. PVA’s mission is to employ its expertise,

developed since its founding in 1946, on behalf of

veterans of the armed forces who have experienced

spinal cord injury or a disorder (SCI/D). PVA seeks to

improve the quality of life for veterans and all people

with SCI/D through its medical services, benefits,

legal, advocacy, sports and recreation, architecture,

and other programs. PVA advocates for quality health

care, research and education addressing SCI/D,

benefits based on its members’ military service, and

for civil rights, accessibility, and opportunities that

maximize independence for its members and all

veterans and citizens with disabilities. PVA has nearly

16,000 members, all of whom are military veterans

living with catastrophic disabilities, and provides

representation to its members, other veterans, and all

people with disabilities throughout the VA claims

process and in the federal courts, including the United

States Supreme Court.

Veterans of Foreign Wars (“VFW”) is a nonprofit

veterans’ service organization serving over 1.5 million

members, comprised of eligible veterans and military

service members of the active, guard, and reserve

forces. VFW was founded in 1899 when veterans of the

Spanish-American

War

and

the

Philippine

Insurrection founded local organizations to secure

rights and benefits for their service. VFW was

instrumental

establishing

the

Veterans

Administration, national cemetery system, and

compensation for Vietnam veterans exposed to Agent

Orange and for veterans diagnosed with Gulf War

Syndrome.

Vietnam Veterans of America (“VVA”) is a

national nonprofit organization and is the only

national veterans service organization congressionally

chartered and exclusively dedicated to Vietnam-era

veterans and their families. As the Vietnam war came

to an end and years passed, it became clear that

established veterans service organizations had failed

to make a priority of the issues of concern for Vietnam

veterans. In response, VVA works to put Vietnam

veteran issues at the forefront and works to support

the rights of veterans returning to their civilian

occupations after service.

The issues in this case lie at the core of these

organizations’ experience and expertise. Each Amicus

has a strong interest in protecting the rights of

veterans, and in promoting the values at the heart of

the

Uniformed

Services

Employment

and

Reemployment Rights Act of 1994 (“USERRA”), 38

U.S.C. § 4301 et seq. Amici are therefore well

positioned to describe how USERRA fits within the

full range of benefits Congress has provided to

veterans, and the significant harm that will result to

thousands of veterans if USERRA’s private right of

action against state employers is eliminated.

SUMMARY OF ARGUMENT

USERRA’s private right of action is critical to

veterans

Petitioner

Torres,

who

was

discriminated against by a state employer based on a

service-related disability. Torres’s case is not unique.

More than a quarter of all veterans have a serviceconnected disability, and roughly 40 percent of post9/11 veterans have a service-connected disability. 2

Veterans with service-related disabilities are more

likely to suffer from unemployment and employment

discrimination, and hundreds of thousands of veterans

like Torres work for state employers. 3

The undersigned Amici have long supported the

rights of veterans returning to their civilian

occupations after service. Petitioner and other

veterans who develop disabling conditions because of

their military service have earned the right to reintegrate into the workforce with the dignity and

respect they deserve. This includes being able to seek

redress in court when they face discrimination based

on their military service or service-connected

disabilities.

We submit this amicus brief because our experience

makes us uniquely well-positioned to describe how

USERRA fits within the full range of benefits

Congress has provided to veterans, and the significant

harm that will result to thousands of veterans if

USERRA’s private right of action against state

Bureau of Labor and Statistics, U.S. Dep’t of Labor, News

Release: Employment Situation of Veterans - 2020, at 1 (2021),

https://www.bls.gov/news.release/pdf/vet.pdf.

3 Id. at 4.

employers is eliminated. We offer four points to inform

the Court’s consideration in this case.

First, as a threshold matter, the Texas Intermediate

Appellate Court erred when it concluded that

Plaintiff’s USERRA claim was barred by sovereign

immunity. States waived sovereign immunity in the

plan of the Convention when they ratified the

Constitution, which granted Congress “plenary and

exclusive” Article I War Powers. In re Tarble, 80 U.S.

(13 Wall.) 397, 408 (1871). Inherent in that surrender

of sovereignty was a surrender of sovereign immunity

against suits authorized by Congress pursuant to its

own powers in that field. See PennEast Pipeline Co.,

LLC v. New Jersey, 141 S. Ct. 2244, 2259 (2021).

Second, while not dispositive of the constitutional

issue presented, this Court has long recognized the

vital importance of a unified national defense and the

debt of gratitude we owe our veterans. Boone v.

Lightner, 319 U.S. 561, 575 (1943). This case presents

an opportunity for the Court to affirm the salience of

the pro-veteran canon of statutory construction and

ensure that future courts interpret laws like USERRA

to fulfill their core purpose: to protect the men and

women who have risked their lives to protect us.

Third, the USERRA is an important part of the full

range of benefits Congress has provided to service

members. Indeed, it is difficult to imagine a more

important benefit than ensuring that “those who have

been obliged to drop their own affairs to take up the

burdens of the nation” Boone v. Lightner, 319 U.S. 561,

575 (1943), will not face discrimination because of

their service when they return to civilian employment.

This policy of protecting service members is reflected

in the entire veterans benefit system, which provides

an important social safety net and “is imbued with

special beneficence from a grateful sovereign.” Barrett

v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004).

Finally, and perhaps most importantly, the

invalidation of USERRA’s private cause of action

against state employers leaves hundreds of thousands

of public-minded veterans and reservists vulnerable to

discrimination based on their military service and

service-related disabilities. These Americans not only

served their country in the armed forces but also

dedicate their careers to public service in state and

municipal government jobs. This devotion to public

service among veterans is not insignificant: thirty-one

percent of employed veterans with a disability work in

federal, state, or local government. 4

As such, the private right of action granted by

USERRA protects our most vulnerable veterans: those

who became disabled because of their service in the

armed forces yet are still committed to continuing

their service through employment by state and local

governments. Finding this provision of USERRA

unconstitutional will leave veterans committed to

public service with no recourse in the courts to redress

discrimination by their employers. This would be an

unconscionable result.

4 Id.

ARGUMENT

The Texas Intermediate Appellate

Court Erred in Concluding That

Congress Did Not Validly Authorize

Private Damages Suits Against State

Employers Under USERRA.

The decision below was wrong as a matter of law and

should be reversed. Congress’s authorization of

private damage suits against state employers to

redress USERRA violations was a valid exercise of its

“tremendous,” “drastic,” “plenary and exclusive”

powers to “raise and support Armies” and “provide and

maintain a Navy,” U.S. Const. Art. I, § 8, cls. 12–13

(collectively, the “War Powers”). See United States v.

Macintosh, 283 U.S. 605, 622 (1931), overruled in part

on other grounds by Girouard v. United States, 328

U.S. 61 (1946) (War Powers “tremendous” and

“drastic”); In re Tarble, 80 U.S. at 408 (War Powers

both “plenary and exclusive”). The text and history of

Article I shows that the States agreed “in the plan of

the Convention” not to assert sovereign immunity to

suits authorized under the War Powers. PennEast 141

S. Ct. at 2258 (quoting Alden v. Maine, 527 U.S. 706,

729 (1999)). The court below failed even to consider

this dispositive issue.

The

Sovereign

Immunity

Surrendered by the States in

the “Plan of the Convention,”

Includes Immunity to Suits

Authorized

Pursuant

Congress’s War Powers.

As explained in detail in the Petitioner’s brief 5 and

the government’s amicus brief, 6 the basis for finding

an implicit waiver of sovereign immunity for suits

authorized pursuant to the War Powers is at least as

strong, if not stronger than other instances where this

Court has found waivers based on the “plan of the

Convention.”. See, e.g., PennEast 141 S. Ct. at 2258

(quoting Alden, 527 U.S. at 755–56 (“The ‘plan of the

Convention’ includes certain waivers of sovereign

immunity to which all States implicitly consented at

the founding.”)).

First, the lack of sovereign authority in the federal

Congress to raise an army and its dependence upon

the States to provide funding, equipment and

manpower during the Revolutionary War was a

central “failing[] of the Articles of Confederation.”

PennEast, 141 S. Ct. at 2263; Arver v. United States,

245 U.S. 366, 380–81 (1918). Article I of the

Constitution addressed this problem by giving

Congress sweeping authority to “declare War,” to

“raise and support Armies,” to “provide and maintain

a Navy,” and to “[r]egulat[e] . . . the land and naval

Forces.” U.S. Const. Art. I, § 8, cls. 11–16. Congress’s

War

Powers

are

“tremendous,”

“strictly

5 Pet. for Writ of Cert. 21; Reply of Pet. 5–9.

6 Brief for United States as Amici Curiae on Pet. for Writ of Cert.,

at 9–15.

constitutional,” and “brea[k] down every barrier so

anxiously erected for the protection of liberty, property

and of life.” Macintosh, 283 U.S. at 622.

Second, unlike other Article I powers, Congress’s

War Powers are both “plenary and exclusive.” In re

Tarble, 80 U.S. at 408. Ratified by the States, Article I

explicitly withholds war powers from the States. See

U.S. Const. Art. I, § 10, cl. 3 (“No State shall, without

the Consent of Congress, . . . keep Troops, or Ships of

War in time of Peace, . . . or engage in War”); see also

Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485,

1497 (2019) (“[T]he Constitution deprives [States] of

the independent power to . . . wage war.”).

Third, the Tenth Amendment explicitly deprives the

States of powers granted to the federal government in

the Constitution. U.S. Const. amend. X. (stating that

only those “powers not delegated to the United States

by the Constitution, nor prohibited by it to the States,

are reserved to the States . . .”). The Constitution

grants Congress a broad array of war powers,

including the powers to raise and support Armies and

provide and maintain a Navy, effectively stripping the

States of these powers. U.S. Const. Art. I, § 8, cls. 12–

16. In addition, the Constitution specifically

“reserv[ed] to the States” only one limited sphere of

control over the militia: “Appointment of the Officers,

and the Authority of training the Militia according to

the discipline prescribed by Congress.” Id. § 8, cl. 16.

Thus, as this Court has previously recognized,

“Article I [of the Constitution] divests the States of the

traditional diplomatic and military tools that foreign

sovereigns possess.” Franchise Tax Bd. of Cal., 139 S.

Ct. at 1497; see also Arver, 245 U.S. at 381 (“In

supplying the [war] power it was manifestly intended

to give it all and leave none to the states, since besides

the delegation to Congress of authority to raise armies

the Constitution prohibited the states, without the

consent of Congress, from keeping troops in time of

peace or engaging in war.”).

Pursuant to these authorities, this Court has

consistently rejected state efforts to limit or intrude

upon federal war powers. In Tarble, for example, the

Court denied a State’s attempt to retrieve, through a

writ of habeas corpus, an individual in military

custody for having deserted the Army. 80 U.S. at 408–

09. The Court explained that the federal government

“can determine, without question from any State

authority, how the armies shall be raised,” and that

“[n]o interference with the execution of this power of

the National government . . . could be permitted

without greatly impairing the efficiency” of the

military. Id. at 408. Similarly, in Case v. Bowles, the

Court rejected a Tenth Amendment challenge to an

exercise of Congress’s War Powers, 327 U.S. 92, 102

(1946). The Court explained that allowing an assertion

of state sovereignty to obstruct federal action in that

field would render “the Constitutional grant of the

power to make war . . . inadequate to accomplish its

full purpose.” Ibid.

Consequently, the States surrendered their

sovereignty over war powers, and more specifically

over the field of raising and supporting military forces

in the plan of the Convention when they ratified the

Constitution. Inherent in that surrender of

sovereignty was a surrender of sovereign immunity

against suits authorized by Congress pursuant to its

own powers in that field. See PennEast, 141 S. Ct. at

2259.

Like Suits by Other States,

Suits by the United States, and

Suits Under the Federal

Bankruptcy and EminentDomain Powers, Petitioner’s

Suit Authorized by the Federal

War

Powers

“Falls

Comfortably Within the Class

of Suits to Which States

Consented Under the Plan of

the Convention.”

USERRA allows a service member or veteran to sue

a state employer for monetary relief in state court to

redress a violation of the statute’s militaryemployment protections. 38 U.S.C. § 4323(b)(2). That

provision constitutes a valid exercise of Congress’s

powers to raise and support Armies and provide and

maintain a Navy. U.S. Const. Art. I, § 8, cls. 12–13.

Those “‘broad and sweeping’” powers permit measures

to promote military recruitment. Rumsfeld v. Forum

for Academic & Inst’l Rights, Inc. (FAIR), 547 U.S. 47,

58 (2006) (citation omitted). Indeed, recruitment is

central to raising and supporting military forces; “the

mind cannot conceive an army without the [personnel]

to compose it.” Arver, 245 U.S. at 377.

Federal benefits to encourage military participation

began as early as the Revolutionary War, when in

1780 Congress first offered service pensions to officers

to prevent mass desertion. See William P. Quigley, The

Earliest Years of Federal Social Welfare Legislation:

Federal Poor Relief Prior to the Civil War, 79 U. Det.

Mercy L. Rev. 157, 159 (2002) (citing 25 Journals of

the Continental Congress, 1774–1789, at 581–82

(Gaillard Hunt, ed., 1922) and 18 Journals of the

Continental Congress, 1774–1789, at 957–58 (Gaillard

Hunt, ed., 1910)). That tradition continues today.

Benefits for servicemembers and veterans are an

explicit and critical component of military recruiting.

See e.g., GoArmy.com/benefits.html (“You may be

surprised by the range of benefits you’ll receive in the

Army. We offer . . . money for education, family

services, and even career support after you serve.”);

http://myarmybenefits.us.army.mil/BenefitLibrary/Federal-Benefits/Uniformed-ServicesEmployment-and-Reemployment-Rights-Act(USERRA)?serv=125

(stating

that

USERRA

“prohibits employers from discriminating against past

and present members of the uniformed services”).

USERRA’s creation of employment protections for

service members and veterans—enforceable through

suits for monetary relief against state and other

employers—fits squarely within Congress’s authority

to raise and support Armies and provide and maintain

a Navy. U.S. Const. Art. I, § 8, cls. 12–13. Recruitment

and retention are among the explicit goals of

USERRA, which explains that it is intended “to

encourage noncareer service in the uniformed services

by eliminating or minimizing the disadvantages to

civilian careers and employment which can result

from such service.” 38 U.S.C. § 4301(a)(1). USERRA’s

reemployment rights in particular give assurance to

reservists and veterans that, no matter who their

employer is or what they choose as a civilian career,

their service cannot be held against them or adversely

affect their seniority, status and pay.

The particular provision at issue here was expressly

justified by the need to “maintain[] a strong national

defense.” H.R. REP. NO. 105-448 at 5 (1998). Courts

interpreting USERRA and its predecessors have

consistently recognized that such statutes embody an

exercise of Congress’s “war powers.” See 144 Cong.

Rec. 4458 (1998) (statement of Rep. Evans) (noting

that “the authority for laws involving veterans[’]

benefits is derived from the War Powers clause”).

Compare 20 C.F.R. § 1002.2 (2016) (describing

USERRA as “the latest in a series of laws protecting

veterans’ employment and reemployment rights going

back to the Selective Training and Service Act of 1940”

with its “immediate predecessor” being the Veterans’

Reemployment Rights Act (“VRRA”), former 38 U.S.C.

§§ 2021–27 (1988)), with United States v. Nugent, 346

U.S. 1, 9 (1953) (describing the Selective Service Act

as “a valid exercise of the war power”); Reopell v.

Massachusetts, 936 F.2d 12, 15–16 (1st Cir. 1991)

(noting that Congress enacted the VRRA pursuant to

its war powers); Peel v. Fla. Dep’t of Transp., 600 F.2d

1070, 1072 (5th Cir. 1979) (same).

Thus, USERRA is a valid exercise of Congress’s War

Powers, specifically Congress’s power to “raise and

support Armies” and “provide and maintain a Navy.”

U.S. Const. Art. I, § 8, cls. 12–13. As such, private

damages suits against state employers based on

violations of the USERRA falls comfortably within the

class of suits to which States consented under the plan

of the Convention.” PennEast, 141 S. Ct. at 2259.

Affirming the Constitutionality of

the USERRA Provision at Issue Is

Consistent

with

This

Court’s

Longstanding

Deference

Congress When it Legislates Under

its War Powers, and with the Court’s

Pro-Veteran Canon of Statutory

Construction.

This Court has long recognized that “‘judicial

deference . . . is at its apogee’ when Congress legislates

under its authority to raise and support armies.”

FAIR, 547 U.S. at 58 (citation omitted). See also King

v. St. Vincent’s Hosp., 502 U.S. 215, 220–21 n.9 (1991)

(“[Statues] for benefits to members of the Armed

Services are to be construed in the beneficiaries’

favor”); Boone, 319 U.S. at 575 (The Soldiers’ and

Sailors’ Civil Relief Act is always to be liberally

construed to protect those who have been obliged to

drop their own affairs to take up the burdens of the

nation.”); see also Fishgold v. Sullivan Drydock &

Repair Corp., 328 U.S. 275, 285 (1946) (same

regarding the Selective Service Act). Although not

dispositive of the constitutional issue presented, this

Court has also consistently construed statutes

Congress passed pursuant to that authority in favor of

veterans and the liberal provision of veteran benefits.

This Court Has Adopted the

Pro-Veteran Canon in Favor of

Veterans Seeking Benefits

Since at Least the World War II

Era.

The pro-veteran canon this Court formulated nearly

80 years ago reflects Congress’s longstanding and deep

“solicitude” for veterans. United States v. Oregon, 366

U.S. 643, 647 (1961). As the United States deployed

millions of people in the struggle against the Axis

Powers, this Court first articulated a canon that

statutory ambiguity in laws passed to provide

veterans with benefits should always be resolved in

favor of the veteran. In 1943, Justice Robert Jackson

remarked that a federal law granting courts discretion

to stay civil cases involving servicemembers must

“always . . . be liberally construed to protect those who

have been obliged to drop their own affairs to take up

the burdens of the nation.” Boone, 319 U.S. at 575.

Shortly after World War II’s conclusion, Justice

William Douglas opined that laws granting benefits to

veterans must “be liberally construed for the benefit of

those who left private life to serve their country in its

hour of great need.” Fishgold, 328 U.S. at 285.

The “pro-veteran canon” is thus described as an

overarching principle that “interpretive doubt is to be

resolved in the veteran’s favor.” Brown v. Gardner, 513

U.S. 115, 118 (1994). Justice Souter described this

canon as putting a “thumb on the scale” in favor of

veterans. Shinseki v. Sanders, 556 U.S. 396, 416

(2009) (Souter, J., dissenting). The late Justice

Antonin Scalia went further, describing the proveteran canon as “more like a fist than a thumb, as it

should be.” Justice Scalia Headlines the Twelfth

CAVC Judicial Conference, Veterans L.J. 1 (Summer

2013),

http://www.cavcbar.net/Summer%202013%20VLJ%2

0Web.pdf.

Courts

Have

Consistently

Used the Pro-Veteran Canon to

Benefit Veterans.

Courts have “long applied ‘the canon that provisions

for benefits to members of the Armed Services are to

be construed in the beneficiaries’ favor.’” Henderson v.

Shinseki, 562 U.S. 428, 441 (2011) (quoting King, 502

U.S. at 220–21 n.9). A review of courts’ application of

the pro-veteran canon reveals a longstanding

commitment to interpreting laws and regulations to

benefit veterans.

To cite but a few examples, this Court has:

•

Interpreted a provision of the USERRA’s

predecessor, the Veterans’ Reemployment

Rights Act, 38 U.S.C. § 2024(d), to impose no

time constraints on when a servicemember

retains a right to civilian employment after

having to leave and serve in the military.

This Court “ultimately read the provision in

[the veteran’s] favor under the canon that

provisions for benefits to members of the

Armed Services are to be construed in the

beneficiaries’ favor.” King, 502 U.S. at 220

n.9.

•

Held

the

Vietnam

Era

Veterans’

Readjustment Assistance Act of 1974, 38

U.S.C. § 2021 et seq. (1980), required

employers bound by a collective-bargaining

agreement to count military service in

calculating

seniority

awarding

supplemental unemployment benefits. Coffy

v. Republic Steel Corp., 447 U.S. 191, 205–06

(1980). The law “is to be liberally construed

for the benefit of the returning veteran.” Id.

at 196.

•

Held that the 120-day deadline to file an

appeal with the Court of Appeals for

Veterans Claims, 38 U.S.C. § 7266(a), is

procedural, rather than jurisdictional,

reasoning especially “in light of” the pro

veteran canon, the 120-day deadline did not

“carry the harsh consequences that

accompany the jurisdiction tag.” Henderson,

562 U.S. at 441.

•

Rejected the Secretary of Veterans Affairs’

argument that statutory silence should be

construed to find veterans at fault for

injuries they claim under 38 U.S.C. § 1151.

This Court questioned whether interpreting

the federal statute in the manner advocated

by the Secretary “would be possible after

applying the rule that interpretive doubt is

to be resolved in the veteran’s favor.”

Gardner, 513 U.S. at 117–18.

•

Acknowledged that the Soldiers’ and Sailors’

Civil Relief Act of 1940, Pub. L. No. 76-861,

54 Stat. 1178, is “always to be liberally

construed” to veterans’ benefit but granted

courts discretion to see that the Act’s

provisions “are not put to such unworthy

use” by servicemembers deliberately

shielding their obligations behind the law’s

protections. Boone, 319 U.S. at 575.

•

Acknowledged that the Selective Training

and Service Act of 1940, 54 Stat. 885, a

predecessor to USERRA, “is to be liberally

construed for the benefit of those who left

private life to serve their country in its hour

of great need.” Fishgold, 328 U.S. at 285.

•

Interpreted a provision of USERRA’s

predecessor, the Military Selective Service

Act of 1948, 62 Stat. 604, to require provision

of employment benefits to veterans that

would have accrued with reasonable

certainty had the veteran been employed by

the employer during their period of service.

Ala. Power Co. v. Davis, 431 U.S. 581, 589

(1977) (pension benefits); see also Tilton v.

Mo. Pac. R. Co., 376 U.S. 169 (1964)

(seniority); Accardi v. Pa. R. Co., 383 U.S.

225 (1966) (severance pay).

The text of the Article I War Powers and the history

of their framing provide a more than adequate basis to

find that the States surrendered their sovereign

immunity to suits brought under the USERRA in the

plan of the Convention. But if there is any doubt in

this case of first impression, Amici submit that the

Court should put “the thumb,” or indeed “a fist” on the

interpretive scale in favor of veterans and affirm

Congress’s authority to provide for their welfare.

USERRA Is an Important Part of the

Full Range of Benefits Congress Has

Provided to Service Members.

As discussed in Section A.2 supra, providing

benefits to veterans is a critical recruitment and

retention tool. But perhaps more importantly,

providing benefits to veterans is an overriding

national moral obligation. “A veteran, after all, has

performed an especially important service for the

Nation, often at the risk of his or her own life.”

Shinseki, 556 U.S. at 412. Indeed, this policy of

recognizing service is reflected in the entire veterans

benefit system, which provides an important social

safety net and “is imbued with special beneficence

from a grateful sovereign.” Barrett, 363 F.3d at 1320.

Providing Generous Benefits

to Veterans Is This Country’s

Moral Obligation and Provides

a Critical Social Safety Net.

What we owe to service members and veterans has

at least two theoretical underpinnings: (1) a special

obligation to provide for those who risk their lives for

our common defense; and (2) a social safety net based

on a kind of federal employment.

First, we provide benefits out of a shared belief “that

we owe a debt of gratitude to those who served our

country, . . . that those who served their country are

entitled to special benefits from a grateful nation.”

Procopio v. Wilkie, 913 F.3d 1371, 1387 (Fed. Cir.

2019) (citing 137 Cong. Rec. E1486-01, 137 Cong. Rec.

E1486-01, E1486, 1991 WL 65877, *1 (“We owe it to

our Vietnam veterans to enact badly needed

legislation such as this so that they are given a full and

proper ‘thank you.’”)). President Lincoln’s second

inaugural address summarized it so well that it

became the motto for the Department of Veterans

Affairs: the nation should “care for him who shall have

borne the battle and for his widow, and his orphan.”

See President Abraham Lincoln, Second Inaugural

Address (Mar. 4, 1865), in Abraham Lincoln, Selected

Speeches and Writings 449, 450 (First Vintage Books,

The Library of America ed. 1992); Dep’t of Veterans

Affairs,

The

Origin

the

Motto,

http://www.va.gov/opa/publications/celebrate/vamotto

.pdf. See also the Honoring All Veterans Act, H.R.

2806, S. 1313 (117th Cong.) (to amend the VA’s

mission statement to be gender neutral).

Second, military and veterans’ benefits reflect

important economic and social policies and serve as a

social safety net. The military provides health care

and retirement pensions, and the VA provides a wide

variety of health care and other benefits to poor

wartime veterans who are either completely disabled

or over 65 years old. Assistance with reintegration to

civilian society, of which USERRA is a part, is a

critical component of that economic and social policy.

For example, the original GI Bill, passed just two

weeks after the Allied invasion of Normandy in 1944,

offered federal aid to help veterans buy homes, obtain

jobs, and pursue an education, all with the goal of

helping returning veterans to re-adjust to civilian life.

Although the original GI bill expired in 1956, the

Vietnam War necessitated a revival of the program,

and the “Montgomery GI Bill” of 1984 established a

permanent benefits program for veterans returning

from active duty. As a hallmark of our nation’s

enduring obligation to veterans, the GI Bill was

unanimously amended in 2017, making it easier for

servicemembers and veterans to qualify for benefits,

and eliminating the timeline for a veteran to use their

benefits, ensuring they never expire.

The solicitude of Congress for veterans in their postservice careers includes a wide range of vocational

rehabilitation and training benefits. These include, for

example: federal hiring preferences, 5 U.S.C. §

1302(b); preferences for veteran-owned small

businesses in government contracting, 15 U.S.C.

§ 636(d)(1); and veterans’ employment and training

services, 38 U.S.C. § 4102 (Veterans Employment and

Training Service (VETS)); see also 38 U.S.C. § 3100 et

seq. (Veterans Readiness and Employment Program

(“VR&E” or “Chapter 31”)); and 10 U.S.C. §§ 1143–44

(Employment

Assistance),

and

employment

protections, 38 U.S.C. § 4301 et seq. (USERRA),

discussed in Section C.2 infra.

USERRA’s

Reemployment

Protections Are an Important

Element of Congress’s Effort to

Ease Veterans’ Transition to

Civilian Life.

Recognizing that veterans and reserve service

members often face disadvantages in their return to

civilian employment, Congress passed USERRA “to

minimize the disruption to the lives of persons

performing service in the uniformed services . . . by

providing for the prompt reemployment of such

persons upon their completion of such service; and . . .

to prohibit discrimination against persons because of

their service in the uniformed services.” See 38 U.S.C.

§ 4301(a)(2)–(3). The statute establishes a broad array

of protections for veterans and reserve service

members, including the right to take military leave,

the right to be reemployed upon return from service,

and the right to be free from discrimination based on

military service. 39 U.S.C. §§ 4311–13; 4316.

The statute also provides specific protections to

veterans who suffer disabilities in their military

service. Among these are a requirement that

employers make reasonable efforts to accommodate

veterans’ disabilities and rehire them in the position

they would have held absent their military service, or

in a position of equivalent “seniority, status, and pay.”

38 U.S.C. § 4313(a)(3); see 20 C.F.R. § 1002.225.

Veterans and reservists who believe they have been

discriminated against by a state employer may

commence a civil action for damages and equitable

relief in a state court of competent jurisdiction. 38

U.S.C. § 4323(b)(2).

USERRA arose out of the Selective Training and

Service Act of 1940 (“STSA”), which provided

servicemembers with reemployment rights upon their

return to civilian life. Originally, STSA applied only to

those who left their employment involuntarily as a

consequence of being drafted into military service. 7 In

1941, Congress passed the Service Extension Act

which expanded the reemployment rights to those who

voluntarily enlisted. 8 During the Vietnam War,

Congress amended and renamed the STSA the

Veterans’ Reemployment Rights Act (VRRA), allowing

servicemembers to request an unpaid leave of absence

from an employer and be guaranteed the same

position when they returned. 9 As the draft came to an

7 See Daniel J. Bugbee, Employers Beware: Violating USERRA

Through Improper Pre-Employment Inquiries, 12 CHAP. L. REV.

279, 281 (2008).

8 See Service Extension Act of 1941, ch. 362, Pub. L. No. 77-213,

§ 7, 55 Stat. 626, 627 (repealed 1956).

See Bugbee, supra at 281–82; 38 U.S.C. § 2404(d) (1988),

repealed by USERRA, Pub. L. No. 103-353, 108 Stat. 3149 (1994).

end in the post-Vietnam era, and the military relied

entirely on voluntary enlistment, Congress found it

necessary to expand employment protections through

USERRA. 10

USERRA’s Private Right of Action

Against State Employers Protects

Hundreds of Thousands of Veterans

from Discrimination.

The invalidation of USERRA’s private cause of

action against state employers leaves hundreds of

thousands of Americans, like petitioner Le Roy Torres,

vulnerable to discrimination based on their military

service and disabilities they incurred defending our

nation.

An Increasing Number of

Veterans Return Home with

Service-Connected

Disabilities, Exposing Them to

Employment Discrimination.

USERRA’s right to disability accommodations is a

critical part of its employment protections because a

large and increasing number of veterans experience

disabling conditions. More than a quarter of all

veterans have a service-connected disability, 11 and the

number of disabled veterans has more than doubled in

Lisa Limb, Shots Fired: Digging the Uniformed Services

Employment and Reemployment Rights Act Out of the Trenches

of Arbitration, 117 MICH. L. REV. 761, 765 (2019).

11 Employment Situation of Veterans, supra at 1.

the Gulf War era. 12 Roughly 40 percent of post-9/11

veterans have a service-connected disability,

compared to 26 percent of all veterans. 13 Post-9/11

veterans are also more likely to have more severe

forms of disability, with 40 percent of disabled post9/11 veterans receiving a disability rating of 70 or

higher from the VA. 14 Veterans with high disability

ratings are also more likely to suffer from

unemployment. 15 For post-9/11 veterans, those with a

disability rating of less than 30 percent faced a 5.8

percent unemployment rate in August 2020, while

those with a disability rating of 60 percent or higher,

faced a more than double unemployment rate of 11.8

percent. 16 By enacting USERRA, Congress expressly

saw a need to protect returning servicemembers from

discrimination based on the injuries we can and

cannot see.

According to the VA, between a quarter and a third

of veterans may experience Post-Traumatic Stress

Disorder (“PTSD”). A study examining Vietnam-era

veterans estimated that nearly one-third of men and

one-quarter of women who served in Vietnam would

12 Nat’l Ctr. for Veterans Analysis & Stat., U.S. Dep’t of Veterans

Affs., Statistical Trends: Veterans with a Service-Connected

Disability,

1990

2018,

4–7

(2019),

https://www.va.gov/vetdata/docs/QuickFacts/SCD_trends_FINA

L_2018.PDF.

13 Employment Situation of Veterans, supra at 1.

14 U.S. Census Bureau, Those Who Served: America’s Veterans

From World War II to the War on Terror, at 8–10 (2020),

https://www.census.gov/content/dam/Census/library/publications

/2020/demo/acs-43.pdf.

15 Employment Situation of Veterans, supra at 4.

16 Id.

experience PTSD in their lifetimes, even though only

about 15 percent had been diagnosed with PTSD at the

time of the study. 17 Early studies of veterans of

Operation Enduring Freedom and Operation Iraqi

Freedom reveal similar rates of PTSD diagnosis. 18

PTSD is a signature wound of modern warfare, but

it is far from the only risk factor for service members

and veterans of the post-9/11 era. Traumatic brain

injury (“TBI”) from improvised explosive devices

(“IED”) may affect hundreds of thousands of veterans

deployed to Afghanistan and Iraq. 19 Exacerbating risk

factors for current service members are that they are

more likely to be deployed multiple times and receive

longer deployments than service members in past

eras, which increases acute stress responses,

depression, and other behavioral health conditions. 20

Jaimie

Gradus,

Epidemiology

PTSD,

https://www.ptsd.va.gov/professional/treat/essentials/epidemiolo

gy.asp (citing The National Vietnam Veterans Readjustment

Study, conducted between November 1986 and February 1988).

Although the prevalence of currently diagnosed PTSD was lower

in women (26 percent), fewer than 8,000 female troops served in

Vietnam.

18 Gradus, supra, citing a RAND study conducted in 2008–2009

of post-9/11 veterans.

RAND Corporation, Invisible Wounds of War: Psychological

and Cognitive Injuries, Their Consequences, and Services to Assist

Recovery (Terri Tanielian & Lisa H Jaycox, ed. 2008), at 4

(“potentially hundreds of thousands more (at least 30 percent of

troops engaged in active combat in Afghanistan and Iraq for four

months or more) may have suffered a mild TBI as a result of IED

blast waves (Glasser, 2007; Hoge et al., 2007; Hoge et al., 2008).”).

20 RAND Corporation, supra at 58, 79–80 at tables 3.21 and 3.22.

Nearly 30 percent of reservists have a mental health

condition that requires treatment. 21 Depression is also

common; according to a 2020 survey by Iraq and

Afghanistan Veterans of America (“IAVA”) of its

members, 44 percent of their members report

experiencing suicidal ideation since joining the

military. 22 Every day, 17 veterans die by suicide,

representing nearly 14 percent of all suicides among

U.S. adults. 23

In addition to the high incidence of mental health

conditions among veterans, many also incur physical

disabilities from common military practices. For

example, during the Vietnam War, the U.S. military

regularly used Agent Orange and other commercial

and tactical exfoliants, including Agent White and

Agent Blue, to clear vegetation for military operations,

exposing millions of veterans to carcinogens. 24 In the

21 Ronald Kessler, Steven Heeringa, Murray Stein, et al., ThirtyDay Prevalence of DSM-IV Mental Disorders Among Nondeployed

Soldiers in the US Army, 71 JAMA PSYCHIATRY 504 (2014),

https://jamanetwork.com/journals/jamapsychiatry/fullarticle/183

5338.

IAVA,

IAVA

10th

Annual

Member

Survey,

https://iava.org/survey2020/ (last accessed Feb. 4, 2022).

23 Dep’t of Veterans Affairs, 2021 National Veteran Suicide

Prevention

Annual

Report

(Sept.

2021),

https://www.mentalhealth.va.gov/docs/data-sheets/2021/2021National-Veteran-Suicide-Prevention-Annual-Report-FINAL-98-21.pdf.

24 Dep’t of Veterans Affairs, Agent Orange exposure and VA

disability

compensation,

https://www.va.gov/disability/eligibility/hazardous-materialsexposure/agent-orange/ (last accessed Feb. 4, 2022). See also

Institute of Medicine (US) Committee on Blue Water Navy

Vietnam Veterans and Agent Orange Exposure, Blue Water Navy

more recent Gulf Wars, burn pits were common

military installations in Iraq and Afghanistan. Burn

pits are open-air combustions of trash, which on

military bases can include everything from medical

waste to ammunition, that are used when there is “no

feasible alternative” for waste disposal. 25 The smoke

and fumes from the burn pits contain toxic chemicals

and harmful particulate matter. An estimated 3.5

million servicemembers have been exposed to burn

pits, causing disabling lung damage in Petitioner

Torres and thousands of others. 26 According to IAVA,

86 percent of their members report exposure to burn

pits or other toxins. In 2020, 88 percent of respondents

to IAVA’s survey reported experiencing health

conditions that may be related to burn pits or other

toxic exposure. 27

To protect service members, USERRA contemplates

accommodations for veterans like Petitioner Torres,

who need accommodations due to disabilities incurred

during service that may not necessarily meet the

definition of “disability” in other contexts (e.g., under

the Americans with Disability Act (“ADA”)).

USERRA’s disability protections are broader than the

ADA and are triggered by any disability incurred

Vietnam Veterans and Agent Orange Exposure, Washington,

D.C.: National Academies Press, “3, Selected Chemicals Used

During

The

Vietnam

War”

(2011),

https://www.ncbi.nlm.nih.gov/books/NBK209597/.

DoD Instruction 4715.19, Use of Open Air Burn Pits in

Contingency Operations (Nov. 13, 2018).

IAVA, IAVA’s Big 6, https://iava.org/burn-pits-2/#burn-pits

(last visited Feb. 4, 2022).

IAVA,

IAVA

10th

Annual

Member

Survey,

https://iava.org/survey2020/ (last accessed Jan. 28, 2022).

during or aggravated by military service. 28 When

veterans leave service and return to civilian

employment, many face difficulties in performing their

previous job responsibilities due to injuries, whether

physical or mental. The ADA prohibits discrimination

against individuals based on disability, but USERRA’s

provisions

further

protect

veterans

seeking

reemployment. USERRA is critical to veterans like

Petitioner Torres who are unable to perform their

previous duties of employment, but are discriminated

against and fired, rather than accommodated. These

provisions are essential as increasing numbers of

veterans return home with service-related injuries,

the scope and severity of which are only now becoming

better understood through emerging medical studies.

The Issue Presented Is of

Particular

Importance,

Hundreds of Thousands of

Veterans and Service Members

Are Employed by, and Face

Discrimination from, State

and Local Agencies.

As servicemembers return to civilian life, many of

them choose to continue serving the country through

employment by federal, local, or state governments.

This devotion to service is particularly notable

amongst employed post-9/11 veterans, who are more

than twice as likely to work in the public sector as

employed nonveterans, at a rate of 28 percent versus

14 percent. 29 This commitment to service is even more

significant for veterans with a service-connected

28 20 C.F.R. §§ 1002.225, 1002.226.

29 Employment Situation of Veterans, supra at 3.

disability, as 31 percent of employed veterans with a

disability work in federal, state, or local government.

Without the protection offered by USERRA, many of

these veterans would be subject to discrimination at

work with no recourse. In total, more than 800,000

veterans work for their state or local government. 30 Of

these 800,000 veterans, more than 250,000 suffer from

The

federal

service-connected

disabilities. 31

government claims that a private suit under USERRA

is not the only option available to a prospective

plaintiff, as the United States can sue a state employer

on behalf of a plaintiff through USERRA’s

administrative mechanism. 32 As Petitioner notes,

however, this alternative enforcement mechanism is

effectively “useless.” 33 In fiscal year 2020, for example,

the U.S. Department of Labor reviewed 1,117

USERRA cases, and referred only 41 cases to the

Attorney General and 25 to the Office of Special

Counsel. 34 Of these referrals from the Department of

Labor, the U.S. Department of Justice filed only two

USERRA complaints, and the U.S. Office of Special

30 Employment Situation of Veterans, supra at Table 8.

31 Id.

32 Brief for United States as Amici Curiae on Pet. for Writ of Cert.,

at 21. See also 38 U.S.C. § 4323(a)(1) and (b)(1).

33 Pet. for Writ of Cert. 17–18; Reply of Pet. 4.

34 Office of the Assistant Secretary for Veterans’ Employment and

Training, Uniformed Services Employment and Reemployment

Rights Act of 1994 Annual Report to Congress FY 2020, at 10

(2021),

https://www.dol.gov/sites/dolgov/files/VETS/legacy/files/USERR

A_Annual_FY2020.pdf.

Counsel did not file any USERRA appeals with the

Merit Systems Protection Board. 35

Moreover, if the Texas decision is upheld, veterans

will be left vulnerable to discrimination based on the

state they work in and that state’s decision whether to

waive sovereign immunity. While some states have

passed legislation waiving sovereign immunity for

USERRA claims, the vast majority of states have not,

and all state appellate courts to consider the issue

have found that sovereign immunity barred USERRA

claims. 36 Veterans should be able to count on receiving

the benefits earned by their service regardless of

where they reside and work. It would be a disgrace if

states could arbitrarily limit veterans’ benefits or

discriminate against veterans on the basis of their

service or disability.

The private right of action granted by USERRA

protects our most vulnerable veterans: those who

became disabled because of their service in the armed

forces yet are still committed to continuing their

service to this country through employment by state

35 USERRA Annual Report to Congress FY 2020, supra at 10–12.

Compare Smith v. Tenn. Nat’l Guard, 551 S.W.3d 702, 706

(Tenn. 2018) (Tennessee legislature “enacted a statute waiving

Tennessee’s sovereign immunity for USERRA claims”) and

Breaker v. Bemidji State Univ., 899 N.W.2d 515, 518 (Minn. Ct.

App. 2017) (Minnesota legislature “passed a law waiving state

sovereign immunity from USERRA claims”) with Clark v. Va.

Dep’t of State Police, 793 S.E.2d 1, 7 (Va. 2016) (USERRA claims

barred by sovereign immunity) and Fla. Dep’t of Highway Safety

& Motor Vehicles v. Hightower, No. 1D19-227, 2020 WL 5988204

(Fla. Dist. Ct. App. Oct. 9, 2020) (Congress did not validly

abrogate state sovereign immunity through USERRA and the

Florida legislature did not clearly and explicitly waive sovereign

immunity in its adoption of USERRA).

and local governments. Finding this provision of

USERRA unconstitutional will leave hundreds of

thousands of veterans who choose to continue to serve

without recourse in the courts if they are

discriminated against based on their military service

or service-related disabilities. This would be an

unconscionable result.

CONCLUSION

The intermediate Texas appellate court failed to

consider whether the States surrendered their

sovereign immunity to suits authorized by Congress

pursuant to its War Powers. The text, history and

structure of Article I indicates that the answer to that

question is a resounding yes. Failing to affirm

Congress’s authority to provide these vital protections

under USERRA would harm hundreds of thousands of

veterans who work for state and local employers,

many of whom face discrimination in the workplace

based on service-related disabilities. The Constitution

and the debt this nation owes to its veterans requires

reversal.

Respectfully submitted,

ALEC W. FARR, ESQ.*

Counsel of Record

KERENSA GIMRE

MEGAN MCLEAN

PERKINS COIE LLP

700 Thirteenth Street,

NW, Suite 800

Washington, D.C. 20005

(202) 654-6200

afarr@perkinscoie.com

kgimre@perkinscoie.com

mmclean@perkinscoie.co

Counsel for Amici Curiae

NVLSP et al.

February 7, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.