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Supreme Court hints it may take case of state employees fired for military deployment

By TARA COPP | McClatchy Washington Bureau | Published: March 1, 2021

WASHINGTON (Tribune News Service) — The U.S. Supreme Court has asked the U.S. solicitor general to weigh in on the case of a Texas state trooper who was fired from his job after he came home from a military deployment in Iraq too ill to patrol, in a lawsuit that could determine whether federal protections for service members apply to state employees.

The orders to the solicitor general, which posted on the Supreme Court’s website on Monday morning, “means they [justices] believe the case has national importance that affects the interest of the United States,” said Andrew Tutt, an attorney with Arnold & Porter, which was one of the firms petitioning the U.S. Supreme Court to hear the case.

The case of LeRoy Torres v. The Texas Department of Public Safety involves a 14-year Texas state trooper who deployed to Balad, Iraq, in 2007 as an Army reservist. Torres says he spent a year there inhaling toxic air from the base’s massive open-air trash burning pits.

He was among more than 200,000 other service members who served near burn pits during war operations in the Middle East and have reported respiratory illnesses, cancers and other chronic illnesses. About 800,000 state employees across the United States are current or former members of the reserves or National Guard.

The court’s action means that it may be a few months before it is known whether the Supreme Court will hear the case, Tutt said. The solicitor general will now work with attorneys for Torres and the Texas attorney general’s office to gather information on the case, and then provide its review to the Supreme Court, which often relies on that counsel to decide whether the case should be heard, Tutt said.

When Torres returned home from Iraq, his respiratory condition had prevented him from serving on the road as a state trooper, the Texas attorney general’s office had said in its filing to the Supreme Court. Torres now requires supplemental oxygen and said he requested, but was not provided, an alternative desk job, and was forced to resign in 2012.

The Texas attorney general’s office had argued in its court filings that the state did provide Torres an alternate administrative position but that Torres was ultimately placed on leave because of missed work days.

“I am genuinely thankful to God for the [Supreme Court’s] decision in moving onward with the case,” LeRoy Torres emailed McClatchy in a statement.

Torres had sued the state under the 1994 Uniformed Services Employment and Reemployment Rights Act (USERRA) which prohibits federal and private sector employers from retaliating against or firing National Guard members and reservists who take leave from their jobs due to military duty.

His claim was quickly denied by a lower court, which said the state’s Department of Public Safety cannot be sued by Torres or any other state employee under Texas’ claim of sovereign immunity.

Sovereign immunity invokes a provision under the Constitution that empowers states to only face state or federal lawsuits in their courts if they consent to it.

A handful of states, such as South Carolina and Tennessee, extend USERRA protections to service members in state government jobs.

Many states do not have a set policy, but an increasing number of state governments are watching lawsuits in Texas, Florida and Virginia that claim they have sovereign immunity, said Brian Lawler, an attorney with the Pilot Law Corp., one of the firms petitioning the U.S. Supreme Court on behalf of Torres.

In a Florida lawsuit, U.S. Navy reservist James Hightower alleged he faced a hostile work environment and was denied a promotion because of multiple deployments.

A Florida court initially ruled sovereign immunity shielded Florida from the USERRA lawsuit that Hightower filed. Hightower’s attorneys are asking the Florida court to consider if the lawsuit raises the larger legal question of states rights versus federal powers on whether Florida can apply sovereign immunity to USERRA.

“I am hopeful this job accommodation case will assist hundreds of other Citizen-Warriors who have also faced job loss due to returning from war with a deployment-related injury or illness,” Torres said.

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