Tex. Dep't of Pub. Safety v. Torres

583 S.W.3d 221

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,

v.Leroy TORRES, Appellee.

NUMBER 13-17-00659-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed November 20, 2018

Rehearing En Banc Denied December 19, 2018

Opinion by Justice Contreras

In this case of first impression, we are asked whether sovereign immunity bars claims by private individuals against units of state government under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). See 38 U.S.C.A. §§ 4301 – 4335 (West, Westlaw through P.L. 115-223 ). The trial court denied a plea to the jurisdiction on those grounds filed by appellant, the Texas Department of Public Safety (DPS), in a suit brought by appellee Leroy Torres.

By one issue on appeal, DPS contends that the trial court erred in denying its plea because sovereign immunity applies and has not been validly abrogated by Congress or waived by the legislature. A review of the relevant case law compels us to agree. Therefore, we will reverse and render judgment granting DPS’s plea.

I. BACKGROUND

Torres enlisted in the United States Army Reserve in 1989 and was deployed to Iraq in 2007. Prior to deployment, Torres had been employed as a DPS trooper since 1998. In 2008, Torres was honorably discharged and sought to be reemployed by DPS. However, because of a lung condition he acquired while serving in Iraq, Torres requested reemployment with DPS in a different position than the one he held earlier. DPS declined to offer him a different job but did provide a "temporary duty offer" of continued employment in his prior position. Instead of returning to his original position, Torres resigned.

Torres sued DPS in 2017, alleging that DPS’s failure to offer him a job that would accommodate his disability violated USERRA, a federal statute that prohibits adverse employment actions against an employee based on the employee’s military service. See id. § 4311. Torres alleged that DPS officials "forced" him to resign because of the injuries he suffered incident to his military service. His petition sought: (1) a declaration that DPS’s actions violated USERRA; (2) an order "[r]equir[ing] that [DPS] fully compl[y] with the provisions of USERRA by providing [Torres] with ... compensatory and/or liquidated damages in an amount equal to the amount of lost compensation and other benefits suffered by reason of [DPS]’s willful violations of USERRA"; and (3) attorney’s fees and costs. DPS filed a plea to the jurisdiction contending that sovereign immunity applies and deprives the trial court of subject-matter jurisdiction. After a hearing, the trial court denied the plea, and DPS perfected this appeal. See TEX. CIV. PRAC. & REM. CODE ANN . § 51.014(a)(8) (West, Westlaw through 2017 1st C.S.).

II. DISCUSSION

A. Standard of Review

A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject matter jurisdiction. Id. Whether a trial court has subject matter jurisdiction and whether the pleader has alleged facts that affirmatively demonstrate the trial court’s subject matter jurisdiction are questions of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004).

The plaintiff has the initial burden to plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of the pleader, look to the pleader’s intent, and accept as true the factual allegations in the pleadings. See Miranda , 133 S.W.3d at 226, 228.

Here, the issue of immunity turns on the trial court’s construction of constitutional and statutory provisions, which are decisions that we review de novo. See Harris Cty. Hosp. Dist. v. Tomball Reg'l Hosp. , 283 S.W.3d 838, 842 (Tex. 2009).

B. Applicable Law

The doctrine of sovereign immunity holds that "no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent." Tooke v. City of Mexia , 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung , 1 Tex. 764, 769 (1847) ); see Nevada v. Hall , 440 U.S. 410, 414, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979) ("The immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign’s own consent could qualify the absolute character of that immunity."). Thus, unless waived by the Texas Legislature or abrogated by the United States Congress, sovereign immunity deprives a Texas trial court of subject-matter jurisdiction over any lawsuit against a Texas governmental agency such as DPS. Tex. Parks & Wildlife Dep't v. Sawyer Tr. , 354 S.W.3d 384, 388 (Tex. 2011).

USERRA provides that "[a] person who is a member of ... a uniformed service shall not be denied ... reemployment ... or any benefit of employment by an employer on the basis of that membership...." 38 U.S.C.A. § 4311(a). Subchapter III of USERRA sets forth a procedure under which employees may seek assistance in investigating and enforcing their claims of USERRA violations. See id. § 4321–4327. Under that subchapter, a person who claims entitlement to employment or reemployment rights under USERRA may file a complaint with the Secretary of Labor, who must then investigate the claim. Id. § 4322(a), (d). If the Secretary of Labor cannot resolve the complaint, the claimant may request that the Secretary refer the claim to the Attorney General, who must then decide whether to appear on behalf of, or act as attorney for, the claimant. Id. §§ 4323(a)(1), (2). The statute then provides:

A person may commence an action for relief with respect to a complaint against a State (as an employer) or a private employer if the person

(A) has chosen not to apply to the Secretary for assistance under section 4322(a) of this title;

(B) has chosen not to request that the Secretary refer the complaint to the Attorney General under paragraph (1); or

(C) has been refused representation by the Attorney General with respect to the complaint under such paragraph.

Id. § 4323(a)(3). The following subsection, entitled "Jurisdiction," states:

(1) In the case of an action against a State (as an employer) or a private employer commenced by the United States, the district courts of the United States shall have jurisdiction over the action.

(2) In 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 the State.

(3) In the case of an action against a private employer by a person, the district courts of the United States shall have jurisdiction of the action.

Id. § 4323(b) (emphasis added).

C. Analysis

Torres alleged in his suit that the trial court had jurisdiction pursuant to USERRA section 4323(b)(2). See id. § 4323(b)(2). In its plea to the jurisdiction, DPS argued that its immunity to a private suit in state court for damages under USERRA has neither been validly abrogated by Congress nor validly waived by the legislature. See Sawyer Tr. , 354 S.W.3d at 388.

1. Abrogation of Immunity by Congress

We first address whether Congress has validly abrogated immunity with its enactment of USERRA. For Congress to validly abrogate a State’s sovereign immunity, it must (1) unequivocally express its intent to do so, and (2) act "pursuant to a constitutional provision granting Congress the power to abrogate." Univ. of Tex. at El Paso v. Herrera , 322 S.W.3d 192, 195 (Tex. 2010).¹

DPS argues that Congress has the constitutional power to abrogate a State’s sovereign immunity to suits in its own courts only when exercising its powers under section 5 of the Fourteenth Amendment, and never when exercising the powers granted to it by Article I of the Constitution. It relies on Alden v. Maine , in which the United States Supreme Court broadly held that "[t]he powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts." 527 U.S. 706, 712, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). USERRA was arguably enacted pursuant to Congress’s Article I War Powers, see U.S. CONST . art. I, § 8, cl. 11 – 16 ; therefore, according to DPS, USERRA cannot constitutionally abrogate its sovereign immunity to private suits for damages in Texas courts.

The United States Supreme Court held in Seminole Tribe of Florida v. Florida that Congress lacks power under Article I to abrogate States' sovereign immunity to suits commenced or prosecuted in federal courts. 517 U.S. 44, 66, 76, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (overruling Pennsylvania v. Union Gas Co. , 491 U.S. 1, 23, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) ); see also U.S. CONST . amend XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."). In Alden , the Court was asked whether the Seminole Tribe holding applies equally to suits brought in State courts; specifically, it considered whether the federal Fair Labor Standards Act of 1938 (FLSA) validly abrogated Maine’s sovereign immunity to private suits for damages in its own courts. 527 U.S. at 711–12, 119 S.Ct. 2240.

Justice Kennedy, writing for a 5–4 majority, held that even though the Eleventh Amendment does not address jurisdiction of State courts, see U.S. CONST . amend. XI, immunity from suit "is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today ... except as altered by the plan of the Convention or certain constitutional Amendments." Alden , 527 U.S....