Supreme Court weighs if federal job protections for military apply to states

Tara Copp
·3 min read

The U.S. Supreme Court will hold a private conference Thursday to consider whether the case of a fired Texas state trooper merits adding to its docket due to the larger question it raises: Does a state’s sovereignty outweigh federal powers to build armies?

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 with the Army National Guard. 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.

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

The Texas attorney general’s office has 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.

Torres then sued the state under the 1994 Uniformed Services Employment and Reemployment Rights Act (USERRA) which prohibits 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.

There are an estimated 800,000 current or former National Guard members and reservists who hold full-time state or local government jobs across the country, attorneys for both the state of Texas and for Torres have said.

That could spur the Supreme Court to take up the case, said Torres’ attorney Andrew Tutt.

At the Thursday closed conference, the justices could decide to not hear the case, determine they need more time to further consider it, or agree to hear it next session.

They could also ask for the Department of Justice’s acting solicitor general to become party to the lawsuit, because it could impact the whole country and U.S. military, not just Texas, said Tutt, an attorney at the law firm Arnold & Porter.

“They [justices] will ask the United States to weigh in if they deem this a national issue requiring a federal response,” Tutt said.

In an email to McClatchy, Torres said he is not just suing for himself, but “for the many dual role first responders who served in the reserve or National Guard forces who are in similar situations like I am following a job loss with an agency due to war related illness or injury.”

The number of states claiming sovereign immunity in cases involving National Guard or reserve members across the country is rising, said Brian Lawler, another attorney representing Torres.

Lawler, an attorney with Pilot Law, P.C., has a similar case in California, Charles Park v. Maj. Gen. David Baldwin, who is the adjutant general of the California National Guard.

In that case, Park has alleged that while working as a civilian for Baldwin, he was called to active duty for more than 20 months as a member of the Army Reserve. When he returned, he was denied the salary and retirement contributions he would have maintained had he not deployed, according to Park’s court filing.

Park’s case was recently dismissed by a California court, citing sovereign immunity. Lawler said his firm plans to appeal.