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Retired Army Reserve Capt. Le Roy Torres deployed to Balad, Iraq, in late 2007. During his year downrange, Torres lived and worked near a burn pit, where the U.S. military burned anything no longer needed, such as medical waste, vehicle parts, computers and office supplies. Breathing in the toxic fumes from the burn pit led to numerous medical problems for Torres.
Retired Army Reserve Capt. Le Roy Torres deployed to Balad, Iraq, in late 2007. During his year downrange, Torres lived and worked near a burn pit, where the U.S. military burned anything no longer needed, such as medical waste, vehicle parts, computers and office supplies. Breathing in the toxic fumes from the burn pit led to numerous medical problems for Torres. (Le Roy Torres)

WASHINGTON (Tribune News Service) — The Supreme Court will decide whether Congress can give military service members the right to file civil lawsuits against states for employment discrimination based on their military service, in a case about how much power lawmakers have regarding military forces.

The justices announced Wednesday they will hear a lawsuit filed by Le Roy Torres, a state trooper for the Texas Department of Public Safety who returned from active duty with the U.S. Army Reserve in Iraq with lung damage from toxic burn pits.

Torres says the department declined his request for reemployment in a different position because his constrictive bronchiolitis prevented him from performing his duties as a state trooper. He resigned, and then filed a lawsuit against Texas in 2017 under a federal law that clarified and strengthened veterans’ employment and reemployment rights after the Persian Gulf War.

But a Texas state appeals court ruled that Congress can’t give service members the right to file such a lawsuit when a state hasn’t given its permission for that to happen — the latest state to reach that same conclusion based on the longstanding doctrine of state sovereign immunity.

Virginia, Florida, Tennessee, Georgia, Delaware and Alabama also have state court decisions that prevent hundreds of thousands of veterans who are state employees from using the best remedy Congress created in a broader effort to help encourage military service, the petition from Torres states.

“State courts nationwide are systematically disregarding a federal law that Congress concluded was necessary for the national defense,” Torres states in his petition to the Supreme Court.

Torres argues those decisions step on Congress’ broad and sweeping powers to raise and support military forces, known as the War Powers. The United States has made that same argument in cases that led to those state court decisions, saying that recruitment is central to those powers.

“That conclusion not only interferes with Congress’ ability to provide for the national defense today, but it may interfere with Congress’s ability to exercise its War Powers in the future, in a time of dire national need,” Torres’s petition states.

The law, known as the Uniformed Services Employment and Reemployment Rights Act, or USERRA, establishes broad protections, including the right to take military leave from civilian jobs, to be promptly reemployed upon return from service, and to be free from discrimination based on military service, the Torres petition states.

It also requires employers to make reasonable efforts to accommodate those who incur disabilities during their military service and to rehire them in the position they would have held but for their military service or an equal position of seniority, status and pay.

When the Supreme Court ruled in 1996 that Congress does not have the power to subject state governments to lawsuits in federal court, Congress responded in 1998 with a law that expressly authorized these lawsuits against state employers in state courts.

The case asks the Supreme Court to delve into the text and history of the Constitution, and whether states consented to War Powers lawsuits at the time of the founding, as well as a history of Supreme Court decisions about under what circumstances Congress can allow lawsuits against states.

The issue has been percolating in lower courts for years. The Supreme Court declined to hear a similar case in 2017. And the United States had urged the justices to take the same path this time and not decide the case, in part because Congress has considered legislation that would require states to waive sovereign immunity in these lawsuits before being eligible for federal funding.

In Tennessee, when a state court held that sovereign immunity barred these lawsuits, the legislature enacted a statute that waived sovereign immunity in these cases, the United States wrote in its filing in the Torres case.

Texas, in its filing in the case, told the Supreme Court that cases of states discriminating against service members “are vanishingly rare,” and Torres has an administrative process and other ways to pursue a discrimination claim that he chose not to use.

Torres suffered lung damage after being exposed to toxic fumes emanating from the huge open-air burn pits that spouted thick, black smoke 24 hours a day on many military bases as they burned trash, ammunition, medicine and human waste, his petition states.

Texas offered him a temporary position as a state trooper and said he would be fired if he did not report to duty, according to the petition. Torres resigned, and along with his wife, Rosie, started a nonprofit organization called Burn Pits 360 to advocate for service members and families injured by the toxic burn pits.

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