OVERVIEW: Arnold & Porter will present oral arguments on behalf of Le Roy Torres before the U.S. Supreme Court, alongside Brian Lawler of Pilot Law, P.C., in Torres v. Texas Department of Public Safety on March 29, 2022. This is a case about whether a federal law prohibiting employment discrimination based on military service may be enforced against state employers in state court. Torres alleges he was wrongfully terminated because he requested a workplace accommodation due to lung damage he sustained from his exposure to hazardous waste being disposed of in the now infamous “burn pits” in Iraq.
WHAT: The case concerns the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), a federal statute that protects service members’ and veterans’ civilian employment rights. Among other things, USERRA requires employers to put individuals back to work in their civilian jobs after military service. USERRA also protects servicemembers from discrimination in the workplace based on their military service or affiliation. In a suit against a state (as an employer), USERRA mandates the action be brought in a state court of competent jurisdiction.
But every state Supreme Court and appellate court that has ruled on the question in the last 20 years has held that this provision of USERRA is unconstitutional to the extent it attempts to permit lawsuits against states that have not affirmatively consented to be sued under USERRA. Those Courts have held that Congress lacks the power to authorize suits against states under USERRA without those states’ consent because the states have sovereign immunity against such suits.
The question in the case is whether those courts were wrong because Congress, in exercising its War Powers to raise and support Armies and provide and maintain a Navy, does have the Constitutional authority to authorize private damages suits against state employers in state courts based on violations of USERRA.
WHY: The case is important to tens of thousands of veterans and servicemembers that serve the public as both state employees and members of the armed forces. The case also highlights burn pits as a significant impediment to the lives of service members; Mr. Torres sacrificed his health to deploy as an Army reservist and came home sick due to exposure to a toxic and preventable hazard. And notwithstanding that he sustained those injuries defending this country, Texas refused to comply with its obligations under USERRA then asserted that it could not be sued in a Texas court for doing so.
• Petitioner Le Roy Torres; Le Roy and his wife, Rosie Torres, co-founded non profit Burn Pits 360.
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• Arnold & Porter senior associate Andrew Tutt will represent Le Roy Torres with partner Elisabeth Theodore.
• Brian J. Lawler, Esq., Pilot Law, P.C., lead trial counsel, will second chair the argument.
• Attorney Steve Chapman, local and co-trial counsel.
WHEN: March 29, 2022, at 10am Eastern via C-SPAN or livestream on the Supreme Court website (https://www.supremecourt.gov/oral_arguments/oral_arguments.aspx)
WHERE: U.S. Supreme Court
INQUIRIES: Please direct all media inquiries to Brian Lawler, Pilot Law, P.C., (619) 255-2398, email: firstname.lastname@example.org
Supreme Court to hear “burn pits” case on veterans’ employment discrimination
A major case which will have significant ramifications for the application of federal law on employment discrimination based on military service is due to be heard by the Supreme Court
Andrew Tutt of Arnold & Porter, serving pro bono, will argue before the Supreme Court of the United States, alongside co-counsel and lead trial counsel Brian Lawler of Pilot Law, P.C., who specializes in USERRA cases nationwide and who will be second chairing the case, on behalf of veteran, CPT Le Roy Torres, USAR (Ret.).
The court will hear oral arguments on the case, Torres v. Texas Department of Public Safety, on March 29, 2022, at 10am Eastern Time.
Le Roy Torres, a former employee of the Texas Department of Public Safety, sued the department in 2017 under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for forcing him to resign by refusing to provide an accommodation for lung damage he sustained from his exposure to hazardous waste from the now-infamous “burn pits” while serving in Balad, Iraq.
The U.S. Supreme Court will review if USERRA is applicable to state employers in state courts, even if they seek to invoke sovereign immunity against the suit.
Ahead of the hearing, Torres said: “I’m not the only veteran in the United States who has suffered the effects of burn pits. The damage done from exposure to hazardous waste in carrying out our military duties should not impact on our employment as veterans. Like other citizens, we should have protection in law against discrimination, which is why this case is so important for our veterans.”
Ahead of the Supreme Court hearing, Arnold & Porter’s Andrew Tutt, said: “There is a lot at stake in this case which could have significant consequences for veterans employed by states.
“Our client, Le Roy Torres, in pursuing this matter in the courts is standing up for veterans across the nation, employed by states, who currently have no recourse to bring a suit, thus denying them justice and protection against employment discrimination simply because their employer is a state. Arnold & Porter’s pro bono team are proud to represent him on this matter.”
Brian Lawler of Pilot Law, P.C., a retired Marine himself, said: “Mr. Torres is valiantly leading the charge for potentially thousands of other Reserve and Guard personnel. If we are successful at the Supreme Court, it is simply a hurdle for him, not a finish line, as we still have to try, and hopefully win, his case in Texas. We hope we get that opportunity.”