Couple hopeful after decision on suit tied to burn pits
Retired Army Capt. Le Roy Torres was forced to quit his job as a Texas state trooper when the Department of Public Safety would not provide accommodations for a respiratory condition resulting from repeated exposure to burn pits during his time as a reservist in Iraq.
Torres sued.
After wondering if the case would go anywhere, Torres and his wife, Rosie, recently learned the U.S. Supreme Court had asked the acting solicitor general to outline the government’s views in the case.
“We have a 1 percent chance out of 8,000 cases,” said Rosie Torres, whose husband deployed to Iraq in 2007. They live in Robstown. “Just knowing that our case will be heard before the United States Supreme Court, that’s a victory in itself for us.”
Le Roy Torres resigned over DPS’ refusal to grant accommodations for a respiratory condition resulting from his exposure to burn pits in the war zone and sued under the Uniformed Services Employment and Reemployment Rights Act of 1994.
Congress passed the law, called USERRA, to protect troops from being fired or losing benefits — such as vacation time — when they miss work for training exercises and deployments.
Torres said he was pressured to resign after developing a debilitating lung disease from working near a 10-acre burn pit at Balad Air Base, north of Baghdad. The pit, he said, burned everything from plastic bottles and batteries to body parts.
USERRA requires employers to make reasonable efforts to accommodate the disabilities of veterans. Under the law, veterans and service members can return to their old civilian jobs, retaining the seniority and salary they would have had if they had been continuously employed.
Civilian and local government employers can be sued if they discriminate against someone based on their military service.
A Texas appellate court held the law unconstitutional because Congress lacks the power to authorize lawsuits against nonconsenting states. It said Texas has sovereign immunity against such suits. The Texas Supreme Court refused to take the case, but the U.S. Supreme Court asked acting Solicitor General Elizabeth Prelogar to explain the government’s views on the matter.
Rosie Torres credits U.S. Rep. Joaquin Castro with getting Prelogar to weigh in. Castro said five states give veterans no recourse when a government employer discriminates them on the basis of their service.
“Rosie and Burn Pits 360 has become the main organization advocating for service members exposed to burn pits,” said Castro, Dsan Antonio. “I listened to their story, Le Roy’s story, and also to the stories they were telling me of other veterans and I thought, my God, this was just like Agent Orange from the Vietnam era.”
A July 2 letter to Prelogar drafted by Castro and signed by other members of Congress expressed concern over the effect the appellate court’s “novel and incorrect constitutional holding” would have on veterans and service members. “We are also concerned that it will hinder Congress’ ability to ensure the national defense,” the letter stated.
Le Roy and Rosie Torres have become well-known among veterans for creating Burn Pits 360, which lobbies for those who suffer ailments linked to burn pit exposure. Their Burn Pit 360 registry now has a little more than 10,000 veterans. It includes entries for people whose deaths are believed to have been caused by burn pit exposure.
A National Academies of Sciences, Engineering and Medicine report, released Sept. 11, 2020, found three symptoms associated with burn pits — coughing, wheezing and shortness of breath. It uncovered no medical conditions associated with exposure to them.
The Veterans Affairs Department has since launched a review of particulate matter pollution and added three conditions as presumptions: asthma, rhinitis and sinusitis, while continuing to review health outcomes for veterans.
It has been at loggerheads with some researchers on the question of whether burn pits were a true health hazard. As the agency has continued its research, it’s also claimed that there is no proof of long-term health problems from the pits.
Still, nearly 286,301 veterans and service members have signed up with the VA’S Airborne Hazards and Open Pit Registry, with more than 31,600 from the Lone Star State.
The Veterans Benefits Administration processed 17,088 disability claims with at least one condition related to burn pit exposure from 15,413 veterans from June 2007 through Nov. 30
As the federal government has grudgingly acknowledged the problem, Congress has taken action. U.S. Rep. Raul Ruiz, D-calif., and a physician, spearheaded a pair of bills last year that became part of the new National Defense Authorization Act.
One bill requires the Pentagon to implement mandatory training for all medical providers with the Defense Department on the potential health effects of burn pits. The other requires the department and the VA to include Egypt and Syria in the burn pit registry.
Despite that movement in Washington, state government workers across the nation have faced hurdles when filing lawsuits seeking monetary damages even though USERRA applies to private employers and government agencies.
Texas and other states have contended they have sovereign immunity from being sued under the federal law. In making that claim, Attorney General Ken Paxton has also argued that the Legislature passed laws allowing veterans to pursue wrongful termination claims.
A brief filed by Paxton with the Texas Supreme Court stated that the Legislature “has provided remedies that Torres could have used, but he is instead attempting to take advantage of federal remedies” state lawmakers did not intend to allow in court.
State law caps damages at $300,000. Torres had sought more than $1 million for lost wages and retirement benefits.
Now 49, Torres began showing signs of falling ill after coming home from Iraq. He began having bad headaches and a dry cough that doctors diagnosed as constrictive bronchiolitis. He was reassigned to answer phones at a driver license office, working in a small room and wearing a mask to cover his coughing.
He asked DPS to give him an accommodation to become an investigator but was refused, and he said he was pressured to resign in 2012.
Now, he can’t collect retirement.
A judge in Nueces County found in Torres’ favor, but the appeals court reversed the decision. The Texas Supreme Court denied the petition for review in early June, with the U.S. Supreme Court deciding to take the case only a few weeks ago.
Castro said he’ll be part of an amicus brief to be filed with the high court in the case and hopes to be there for oral arguments that could come as early as this spring.
“This is an issue of the federal government’s war powers,” said Castro, a former chair of the Congressional Hispanic Caucus and senior member on the House Foreign Affairs Committee. “Of course, the state of Texas sees it as an issue of sovereign immunity for the state, and so it’s unlike other issues like vouchers or abortion or other things where it’s easier to tell right away where some of the justices might come down.”
Torres sent a message from his hospital bed Thursday night after being rushed there for internal bleeding. He said the case would not only validate USERRA but “save the lives of hundreds of warriors who have lost their jobs due to war injuries.”
“It has been detrimental and exhausting to me and my family following the moral injury suffered from my employer forcing me to resign,” Torres said. “We press onward and remain hopeful that justice will prevail for the citizen-soldier.”