Supreme Court Sides with Army Reservist Who Lost State Job over Burn Pit-Related Illness

Visitors walk outside the Supreme Court building on Capitol Hill.
Visitors walk outside the Supreme Court building on Capitol Hill in Washington, Monday, Feb. 21, 2022. (AP Photo/Patrick Semansky)

The U.S. Supreme Court ruled 5-4 Wednesday in favor of a former Texas trooper and Army Reserve captain who lost his job over a military-related illness and sued the state for violating the law that protects the jobs of part-time service members.

Justice Stephen Breyer, writing for the majority, said that states do not have immunity from private lawsuits by veterans under the Uniformed Services Employment and Reemployment Rights Act, or USERRA.

As part of the case, Texas had argued that states, just like the federal government, are protected by "sovereign immunity" and can't be privately sued without their consent.

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But Breyer said that allowing states to have such immunity would permit them "to thwart national military readiness."

"Upon entering the Union, the States implicitly agreed that their sovereignty would yield to federal policy to build and keep a national military," Breyer wrote. "States thus gave up their immunity from congressionally authorized suits pursuant to the 'plan of the Convention,' as part of 'the structure of the original Constitution itself.'"

Army Reserve Capt. Le Roy Torres deployed in 2007 to Joint Base Balad, an installation with a 10-acre, open-air burn pit that belched smoke day and night over nearby work sites and quarters. Torres developed constrictive bronchiolitis, a debilitating lung condition, and other symptoms as a result of exposure to the smoke.

When Torres returned home to Texas, he sought to continue working as a state trooper. But his respiratory condition prevented him from performing operational duties, and while he requested an administrative position, he was instead encouraged to resign and told he must do so in order to apply for disability retirement.

Then the state rejected his disability retirement application.

Torres sued for more than $1 million in lost wages and retirement pay, arguing that the state was required to make accommodations for his service-connected disability. Texas moved to dismiss the case, claiming sovereign immunity. The lower court denied the claim but an appellate court reversed, and the case made its way up to the Supreme Court.

The case could have legal implications for any veteran who has been fired or pressured to resign from their state jobs as a result of their military service. Roughly 800,000 current or former Reserve and National Guard members work in state or local government jobs across the country, and advocates say Congress created USERRA precisely to protect service members' employment and accommodation rights.

In a brief to the court written earlier this year in support of Torres, the National Veterans Legal Services Program, joined by Iraq and Afghanistan Veterans of America, Paralyzed Veterans of America, Veterans of Foreign Wars and Vietnam Veterans of America noted that the protections are particularly important to the post 9/11 combat veterans, many of whom have exposure-related illnesses, traumatic brain injury or post traumatic stress disorder.

"The Court's decision today is a resounding affirmation of the pledge our nation makes to servicemembers and veterans that they will not be discriminated [against] as a result of their service," said NVLSP director of litigation Renee Burbank in a statement Wednesday.

"We are gratified that LeRoy Torres and his family have been vindicated today and that all the other service members who experience disabling illnesses as a result of their military service have one less obstacle to overcome upon their return," Burbank said.

Breyer wrote that shielding states from such lawsuits is not in the national interest.

"The Court therefore holds that, in joining together to form a Union, the States agreed to sacrifice their sovereign immunity for the good of the common defense," Breyer wrote.

Justices John Roberts, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh ruled with the majority. Justice Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett opposed, with Thomas writing the dissenting opinion.

In opposition, Thomas said the majority's decision rested on "contrived interpretations" of prior Supreme Court decisions.

"Constitutional text, history, and precedent all show that when the States rati­fied the Constitution, they did not implicitly consent to pri­vate damages actions filed in their own courts -- whether authorized by Congress' war powers or any other Article I power. Because the Court today holds otherwise, I respect­fully dissent," Thomas wrote.

Brian Lawler, a former Marine officer and attorney with Pilot Law who served as lead counsel, said the decision sends the case back to Texas, where it will be tried on its merits.

"We thank the Justices for their thoughtful and well-reasoned opinion that will ensure all servicemembers have the same rights under USERRA; a statute designed to protect them all, not just some, from acts of discrimination by their employers, including state agencies," Lawler wrote in an email to "[But] this journey is not over for LeRoy Torres and Rosie Lopez-Torres, it is just beginning."

The ruling marks a second substantial victory this year for Torres and his wife, Rosie, who founded the advocacy group Burn Pits 360 in 2011 to push for recognition and benefits for service members sickened by exposure to air pollution and other toxins in Iraq, Afghanistan and elsewhere.

In March, the House approved sweeping legislation to expand Veterans Affairs health care and benefits to personnel harmed by burn pits and other military environmental exposures -- a bill for which the Torreses spent years lobbying and which gained momentum after Rosie Torres contacted New York 9/11 response activist John Feal and comedian Jon Stewart for help and support.

A version of that legislation, the Sergeant First Class Heath Robinson Honoring Our PACT Act, passed the Senate and is expected to pass the House again before being signed by President Joe Biden.

Rosie Torres said Wednesday that the events of the past several months were "surreal," noting that a conversation over fairness between Le Roy and her children led to the initial filing. The ruling, she said, has given them "a piece of our lives back,"

"We pray that every veteran facing an injustice from job loss will look at this case as a reminder to never give up," Rosie Torres said in a text to

-- Patricia Kime can be reached at Follow her on Twitter @patriciakime

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