The U.S. Supreme Court will consider the case of a former Army Reserve officer and Texas state trooper who says he was forced to resign after returning from Iraq disabled by exposure to burn pits.
The high court announced Wednesday it will hear LeRoy Torres v. the Texas Department of Public Safety, which claims that the state violated a law designed to protect troops from discrimination over serving in the U.S. armed forces.
Torres, an Army Reserve captain, deployed in 2007 to Joint Base Balad, Iraq, where he lived and worked near a 10-acre open-air burn pit used for waste incineration.
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Torres suffered lung damage as a result of the exposure and eventually was diagnosed with constrictive bronchiolitis, a disease characterized by scarring of the smallest airways in the lungs.
When Torres returned home, he sought to return to his job as a state trooper. But according to court documents, the state of Texas decided that his respiratory condition prevented him from "serving on the road."
Torres alleges he asked for an administrative position but instead was encouraged to resign to facilitate his application for disability retirement from the force.
The state then rejected his disability retirement application.
Torres sued the state for violating the Uniformed Services Employment and Reemployment Act, or USERRA, which prohibits employers from firing or demoting National Guard and Reserve members who must leave their civilian jobs to train or deploy.
Texas has argued that it isn’t subject to USERRA in this case because states have sovereign immunity from private damage suits over a federal law, unless Congress specifically waives its immunity.
The state also says Torres was offered an administrative position but was placed on leave because he had missed too much work as a result of his illness, according to documents.
In a brief to the court filed in early November, U.S. Solicitor General Elizabeth Prelogar agreed with the state, adding there are other ways to seek redress from states under USERRA, to include seeking assistance through the Department of Labor.
But advocates, including the Reserve Organization of America, or ROA, which filed a brief to the Supreme Court earlier this year in support of Torres, say states are using the sovereign immunity defense to chip away at USERRA.
"These states flout Congress' clear intent to allow service members to bring suit against states.
And they erode the United States' warfighting capabilities," wrote attorneys for ROA in the brief.
How much of an impact the case will have remains to be seen: Roughly 800,000 current or former Reserve and National Guard members work for state and local governments, and ROA says that more than one-quarter of USERRA claims are filed against public-sector employees.
Torres and his wife, Rosie, founded Burn Pits 360 in 2011 to advocate for service members whose lives were affected by exposure to air pollution and other toxins in Iraq, Afghanistan and elsewhere.
The group played a significant role in the development of the Department of Veterans Affairs Airborne Hazards and Open Burn Pit Registry, a record of more than 220,000 veterans who served in the Middle East and elsewhere since 1990.
The U.S. Supreme Court receives 7,000 to 8,000 requests to hear cases each year and grants about 80.
Speaking about the news Wednesday with Military.com, Rosie Torres said she heard the court's decision just hours after learning that former Army Staff Sgt. William Thompson, a family friend and veterans advocate, had died.
Thompson, who lobbied Congress and the VA for recognition of burn-pit related illnesses, had twice received double lung transplants after his own were damaged during two tours in Iraq.
He testified most recently before Congress in March, asking the federal government for broader recognition and treatment of burn pit-related illnesses.
He was 50.
"We have been crying all day because Will was such a wonderful man and a man of God," Rosie Torres said. "He has been fighting with us since the beginning. This is him."
The court has not announced its schedule for hearing the case.
-- Patricia Kime can be reached at Patricia.Kime@Monster.com. Follow her on Twitter @patriciakime
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