The Supreme Court agreed on Dec. 15 to review an appeal by a former Texas state trooper who claims that his former employer discriminated against him after he suffered injuries during his deployment in the Iraq War as a member of the U.S. Army Reserves.
The man filed suit against his former employer in Texas state court in 2017, seeking more than $5 million.
The Supreme Court granted Torres’s petition for a writ of certiorari, or review, in the case known as is Torres v. Texas Department of Public Safety.
Petitioner Le Roy Torres enlisted in the U.S. Army Reserve in 1989 and served as an Army reservist for 18 years while employed as a state trooper for the Texas Department of Public Safety. He was called to active duty and deployed to Iraq in 2007.
While deployed, Torres suffered lung damage after being exposed to toxic fumes that were generated by huge open-air “burn pits” that “smoldered 24 hours a day on many military bases, spouting thick, black smoke as they burned everything from trash, to ammunition, to medicine, to human waste,” according to the petition.
When Torres returned to Texas, he was honorably discharged a year after his deployment. He advised the department that he wanted his job back, but said his lung damage prevented him from performing all of his previous duties as a Texas state trooper. He asked to be given a different position within the department.
He then received a diagnosis of constrictive bronchiolitis, a serious respiratory condition that causes a narrowing of the airways and difficulty breathing. But the department refused to accommodate his disability, instead offering him a temporary position in his previous capacity as a state trooper. He was told that he would be fired if he didn’t report for duty.
Instead, Torres resigned, rather than taking on duties he couldn’t carry out. He later founded Burn Pits 360 with his wife, Rosie. The nonprofit advocates for servicemembers and families of servicemembers injured by toxic burn pits while serving their country.
The legal team representing Torres was pleased with the high court’s decision.
“We are thrilled that the Supreme Court has taken up this important issue, which is vital to protecting those who serve this country in the military from discrimination upon their return to civilian employment,” San Diego-based attorney Brian J. Lawler, one of the attorneys representing Torres, said in an email to The Epoch Times.
“State employers cannot be immune from discriminatory conduct against our servicemen and women, and this is the next step to ensuring they are held to the same standard as other employers,” said Lawler, a retired U.S. Marines Corps lieutenant colonel who’s also a member of the advisory board of Burn Pits 360.
Citing its war powers under the U.S. Constitution, Congress approved the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), creating for more than 19 million military servicemembers—including more than 800,000 who work for state and local government employers—a cause of action to remedy adverse employment actions taken because of their military service.
The thought behind the act was that unaddressed employment discrimination by state employers based on military service could hinder the nation’s ability to provide for a strong national defense.
The cause of action provided in USERRA against state employers may only be pursued in state courts. But a divided Texas state appeals court found that the cause of action itself was unconstitutional because Congress can’t rely on its war powers to authorize lawsuits against nonconsenting states, as states enjoy sovereign immunity, according to the petition.
Congress approved USERRA “to provide a remedy for discrimination on the basis of military service by states acting as employers, expressly authorizing civil actions for money damages against ‘a State (as an employer),’” the petition states, quoting from the statute.
Congress acted “thereby deliberately precluding a defense of sovereign immunity in suits brought against states in state courts.”
“Thus, the only question in this case is whether Congress has the constitutional power to authorize lawsuits against nonconsenting states when necessary to carry out its War Powers. That is a question this Court has never considered, and it is imperative that the Court now answer it. The answer is yes,” the petition reads.
The Epoch Times reached out for comment to lawyers representing the other parties in the Supreme Court proceeding. Texas Solicitor General Judd Stone and U.S. Solicitor General Elizabeth Prelogar didn’t respond to requests for comment as of press time.
The Biden administration had urged the court not to take the case.