U.S. Supreme Court Agrees to Hear Injured Veteran’s Employment Claim

By Christian Smith-Bishop and Anna Davis

Lawyers, veterans, public sector employers and HR departments all should be aware of an upcoming Supreme Court case that involves a challenge to a state’s sovereign immunity under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). If sovereign immunity is upheld as a basis to deflect private enforcement actions against public entity employers, veterans’ rights groups argue that a substantial blow will be struck to veterans in contravention of both USERRA and Congress’ intent in enacting that law. Whatever the outcome, with the U.S. involved in several overseas conflicts and a projected increase in the Department of Labor’s (“DOL”) enforcement budget, enforcement actions and private claims under USERRA are likely to remain consistent for the foreseeable future; as such, this case will be one to watch.

In December, the U.S. Supreme Court said it will hear the case of LeRoy Torres, a former Army Reserve captain and former Texas state trooper.[1] Torres was stationed near an open-air burn pit used for waste incineration at Joint Base Balad in Iraq. While serving, Torres inhaled airborne chemicals, including dioxin, that led to a condition called constrictive bronchiolitis, also known as “popcorn lung.”[2]  This disease restricts small airways in the lungs and causes fatigue, dry coughs, wheezing, and shortness of breath, and results in serious health complications that impair daily life.[3]

Following his honorable discharge, Torres returned home to resume his position as a state trooper with the Texas Department of Public Safety (“DPS”), but the state agency told him he could no longer serve on the road due to his lung disease. Torres claims that he requested an administrative assignment instead, but that DPS “‘forced’ him to resign” due to his disability.[4] Torres sued Texas under USERRA,[5] claiming that Texas had an obligation to accommodate his service-related disability. Texas answered that sovereign immunity bars Torres from suing the state under federal law and that his remedy is found through the DOL.[6] The Texas court of appeals held that sovereign immunity from USERRA was neither “waived by the Texas Legislature or abrogated by the United States Congress” and, therefore, Torres could not proceed.[7] In other words, unless Texas or the U.S. Congress specifically allow a veteran to sue a state under USERRA, such a lawsuit is not possible.[8]

After his unsuccessful appeal to the Texas Supreme Court, the U.S. Supreme Court granted certiorari of Mr. Torres’ case. His case raises pressing issues of servicemember rights, according to veteran advocacy groups such as the Reserve Organization of America (“ROA”), which filed an amicus brief in support of Torres. The ROA argued that states like Texas are using sovereign immunity to de-fang USERRA[9]: “[t]hese states flout Congress’ clear intent to allow servicemembers to bring suit against states,” the ROA attorneys wrote, “[a]nd they erode the United States’ warfighting capabilities.”[10] The amici further argued that the existing protections of USERRA against states are “unlikely to protect the vast majority of servicemembers[’]” re-employment rights.[11]

What Employers Need to Know about USERRA

USERRA was enacted to protect the civilian employment rights of military members who serve part-time or in long-term deployments. One of its key principles – known as the “escalator” principle – requires that upon return from active duty, a servicemember be reinstated into their previous position with full potential to continue to ascend in their career. If that does not happen, USERRA provides enforcement mechanisms for servicemembers to submit a complaint to the DOL,[12] or to initiate a lawsuit against the employer.[13] Torres and the amici argue that the stakes in this case are high: if sovereign immunity applies, no private cause of action can proceed against state employers who flaunt the protections given to veterans by Congress.

Will the Withdrawal from Afghanistan Reduce USERRA Claims?

We project that the number of private or public employment USERRA claims filed will not decrease in the foreseeable future. First, according to Military.com, more than 208,000 servicemembers and veterans are enrolled in the Department of Veterans Affairs Airborne Hazards and Open Burn Pit Registry, a database of those who have served in the Middle East since 1990 with concerns about deployment-related injuries.[14] The Torres case could open the door to new USERRA claims for veterans of Operation Desert Shield and Operation Iraqi Freedom. While the 2021 U.S. withdrawal may decrease the number of claims related to Afghanistan, U.S. troops are still involved in conflicts in Syria, Somalia, and Yemen.[15] Veterans returning from those theaters could have claims against their employers who do not comply with USERRA, whether in the public or private sector. Second, the number of USERRA claims fielded by the DOL over the past five years has been steady, [16] but this year, there could be increased enforcement activity as a direct result of increased federal funding. To bolster the DOL’s mission, the Biden administration increased discretionary funds by 13% this year.[17] We project that some of this money could be spent on USERRA enforcement litigation. The bottom line is that the number of USERRA claims cited DOL’s FY 2021 Report to Congress will likely remain constant.

No matter who you are – employer, veteran, lawyer, or HR specialist – the Torres case will be one to watch.

Christian Smith-Bishop is a second-year law student at Campbell University Law School. He serves as a member of the Campbell Law Review and is the founding vice president of the Campbell Law Society of Law & Technology. He is interested in technology and employment law. At present, he is interning in the Consumer Protection Division of the North Carolina Department of Justice.

Anna Davis is an employment attorney and a master’s candidate in Human Resources Management at Georgetown University. Christian and Anna collaborated on USERRA policy research during his 1L summer internship at the Durham City Attorney’s Office.

[1] Tex. Dep’t of Pub. Safety v. Torres, 583 S.W.3d, 221 (Tex. Ct. App 2018), petition denied, 19-0107 2020 Tex. LEXIS 518, cert. granted, No. 20-603 2021 U.S. LEXIS 6281.

[2] Patricia Kime, This Veteran Was Forced to Resign from a State Job Over a Sickness Caused by Burn Pits. Now the Supreme Court May Take Up His Case, Military.com (Mar. 1, 2021) https://www.military.com/daily-news/2021/03/01/veteran-was-forced-resign-state-job-over-sickness-caused-burn-pits-now-supreme-court-may-take-his.html  [https://perma.cc/FKM6-A7Q7] (hereafter, “Supreme Court May Take Up Burn-Pits USERRA Case”).

[3] See Bronchiolitis Obliterans (Popcorn Lung), American Lung Association, https://www.lung.org/lung-health-diseases/lung-disease-lookup/popcorn-lung/learn-about-popcorn-lung[https://perma.cc/YC78-ZA4U] (last visited Jan. 6, 2022).

[4] Torres, 583 S.W.3d at 221.

[5] 38 U.S.C. §§ 4301–4335.

[6] The court’s majority notes that an additional statutory basis to sue Texas exists under Tex. Gov’t Code Ann. § 613.021. Torres, 583 S.W.3d at n.10 p. 232–33. For this section of the Texas Code to be a vehicle for Torres’ action, however, he would have to “exhaust[] his administrative remedies” under § 311.034. Id. at 233. However, “neither party raised this section [§ 613] in their briefs” and as such, it was not decided, Id., though the dissent thought this section was sufficient to indicate Texas’s intent to abrogate sovereign immunity. Id. at 235.

[7] Id. at 224.

[8] Id. at 233.

[9] Patricia Kime, Supreme Court to Hear Case of Reservist Pushed Out of Police Job over Burn Pit-Related Illness, Yahoo.com (Dec. 15, 2021) https://www.yahoo.com/now/supreme-court-hear-case-reservist-195227337.html [https://perma.cc/NM32-TQYX].

[10] Brief of Reserve Organization of America as Amicus Curiae In Support of The Petitioner at 4, Torres v. Tex. Dep’t of Pub. Safety (No. 20-603), 2021 U.S. LEXIS 6281.

[11] Id.

[12] 38 U.S.C. § 4322(a), (d).

[13] § 4323(a)(3).

[14] Supreme Court May Take Up Burn-Pits USERRA Case, supra note 2.

[15] List of Wars Involving the United States, Wikipedia.org, https://en.wikipedia.org/wiki/List_of_wars_involving_the_United_States [https://perma.cc/PC5L-5YAV] (last visited Jan. 6, 2022).

[16] USERRA Annual Report to Congress, FY 2020, Off. Assistant Sec’y for Veterans’ Emp. & Training, U.S. Dep’t of Labor 10 (Aug. 2021) (noting that new cases for FY 2015, 2016, 2017, 2018, 2019 and 2020 were 1,123, 930, 944, 917, 950 and 944, respectively.) https://www.dol.gov/sites/dolgov/files/VETS/legacy/files/USERRA_Annual_FY2020.pdf [https://perma.cc/KC8B-HG6A].

[17] Budget of the U.S. Government Fiscal Year 2022, White House Off. Mgmt. & Budget, Table S-8, 57 https://www.whitehouse.gov/wp-content/uploads/2021/05/budget_fy22.pdf [https://perma.cc/3RHH-ATK2] (last visited Jan. 6, 2022).