Texas Supreme Court Won't Hear Veteran's Case over Firing Related to Burn Pit Injuries

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A soldier burns trash in a dumpster in Iraq.
FILE -- Soldiers burn trash in an old dumpster at Joint Security Station Adl in western Baghdad in 2008. (U.S. Army/Brock Jones)

AUSTIN, Texas – The Texas Supreme Court has declined to hear the case of retired Army Capt. Le Roy Torres, who sued the state of Texas three years ago because he said he was forced out of his job with the state highway patrol after returning from a deployment to Iraq with injuries caused by burn pit exposure.

"I was very hopeful that Texas would come through," Torres said from his home near Corpus Christi. "As supportive as they say they are for the first-responder community, I'll keep the faith and keep pressing on."

The days since he learned of the decision June 5 have difficult and draining. "Delay and denial just continues," he said.

Torres returned from Iraq in 2008 and attempted to return to his job as a state trooper with the Texas Department of Public Safety. He increasingly found himself short of breath and unwell. In 2010 he was diagnosed with constrictive bronchiolitis from exposure to toxic fumes from a massive 10-acre burn pit at Camp Anaconda in Balad.

Torres offered a memo to his law enforcement supervisors outlining the work he was still capable of performing, but said he was pressured to resign, which he did in 2012. He said he was told that in order to apply for disability retirement, he first had to resign. The state rejected his application.

In his lawsuit against the state, first filed in Nueces County in 2017, Torres states his firing was a violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA, which protects civilian employment of service members.

USERRA states that if Torres wanted to continue to work, the state was required to make accommodations for his service-connected disability. He asked for more than $1 million in lost wages and retirement pay.

The state argued that the suit should be thrown out because Texas has sovereign immunity against private damage suits unless Congress has waived its immunity. Without that waiver, only the U.S. government can sue the state for a federal law, not a citizen.

The Texas Supreme Court picked up the case in September and gave no reason why it announced June 5 that it has chosen not to hear arguments or issue an opinion, said Brian Lawler, the attorney for Torres.

Torres now intends to file with the U.S. Supreme Court.

"We've come too far," he said. "It's an uphill battle that we've also had with advocacy and there's no way we're turning back. We're keeping the faith for sure."

The couple founded the nonprofit Burn Pits 360 in 2011 and have spent the last decade advocating on behalf of the 3.5 million veterans and service member the Department of Veterans Affairs estimates have been exposed to burn pits in the post-9/11 wars in Iraq and Afghanistan.

He also knows winning such a lawsuit would have implications far beyond himself. Since filing his lawsuit, Torres and his wife, Rosie Lopez Torres, said they've been contacted by other veterans who work for the state of Texas and faced recourse for their military service. 

"I've been told by people in Washington, I'm sorry this happened to your husband. That's the misconception that these policy makers have. It's not just about my husband. It's about hundreds of thousands of veterans or reservists facing this injustice," Rosie Torres said. "We'll go to the U.S. Supreme Court so there are more people protected at the end of the day."

D.C. law firm Arnold & Porter contacted Le Roy Torres and has taken the lead on filing his case with nation's highest court pro bono.

"When we heard about Mr. Torres's case, we wanted to get involved because the stakes of Mr. Torres's appeal are high," said Andrew Tutt, an associate at the firm working the case. "We will take his appeal to the Supreme Court because only the Supreme Court can put an end to this unlawful discrimination by states, by holding that the Constitution gives Congress the power to grant soldiers the right to sue states that discriminate against them for serving in the armed forces."

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