A court case backed by the ROA overcame Texas’ refusal to back its own.
—Jeffrey Phillips, ROA
WASHINGTON, DC, UNITED STATES, June 29, 2022 /EINPresswire.com/ — The Reserve Organization of America (ROA) commends the United States Supreme Court in its June 29 ruling that upholds retired Reserve Captain Le Roy Torres in his fight to assert federal re-employment rights for Reserve and National Guard members whose civilian jobs are threatened by military deployments.
In its decision Torres v. Texas Department of Public Safety, Court overruled the Texas Intermediate Court of Appeals and effectively defeated the Texas Supreme Court, which had refused to even hear the case, citing “sovereign immunity” from such actions .
“Today’s Supreme Court decision regarding Captain Le Roy Torres, who was disabled by fumes from a burning fireplace while deployed to Iraq, upholds federal law and protects the rights of service members who fight for their country,” said ROA’s chief executive, retired U.S. Army Maj. Gen. Jeffrey. E. Phillips. “A state government cannot simply and blatantly flout the law for its own convenience and in doing so harm those who bravely defend us.”
By a 5-4 vote, the Supreme Court overturned the decision of the Texas Intermediate Court of Appeals and returned the case to the Texas court system. Captain Torres will have his day in court. The Supreme Court ruled that “text, history and case law show that the States, in uniting to form a Union, agreed to sacrifice their sovereign immunity for the sake of common defense”.
Clearly, “what is new” is that the lawsuit filed by Captain Torres has already been dismissed by the Texas Court of Appeals, saying that Texas was immune from prosecution. The Supreme Court’s decision today means that no state can make that sovereign immunity argument. Service members now have the right to bring these lawsuits, like this USERRA lawsuit challenging a state employer’s violation of law, in all 50 states.
Captain Torres was a state trooper with the Texas Department of Public Safety when he was called up for active duty and deployed to Iraq in 2007. There he was exposed to toxic fumes. He suffered from constrictive bronchiolitis and toxic encephalopathy. He is now retired.
Captain Torres met all five conditions for re-employment under the Uniformed Services Employment and Re-employment Rights Act. He quit his civilian job to answer the nation’s call, and he gave oral and written notice to his civilian employer, the State of Texas. His period of service in uniform was within USERRA’s five-year limit, and since he was called to active duty involuntarily, his period of service does not count towards the five-year limit. He served honorably. After being released from active duty, he applied for re-employment in a timely manner.
Under USERRA 4313(a)(3), 38 USC § 4313(a)(3), the State of Texas, as Captain Torres’ pre-service employer, was obligated to re-employ Captain Torres in the position he would have achieved had he remained continuously employed and to make reasonable accommodations for his service-related disability. If the disability could not reasonably be accommodated for that position, the State of Texas was required to re-employ Captain Torres in another position, for which he was qualified or could become qualified with reasonable efforts by the employer.
For USERRA purposes, Captain Torres’ civilian employer was the State of Texas, not just the Department of Public Safety. Certainly, there was a position in the government of Texas for which Captain Torres could qualify with reasonable effort from the employer. After returning from Iraq, Captain Torres returned to work as a state police officer, but only briefly. Texas refused to make accommodations for Captain Torres’ service-related disability and he was forced to resign from his civilian job.
ROA’s Phillips wrote twice to Texas Governor Greg Abbott urging him to comply with USERRA in the Captain Torres case, but the governor did not. ROA then drafted and filed an amicus curiae (“friend of the court”) brief urging the Supreme Court to grant certiorari (discretionary review) in the case. After the Supreme Court agreed to hear this case, ROA filed a new favorable amicus brief on the merits.
“We thank the judges for their thoughtful and well-reasoned opinion which will ensure that all service members have the same rights under USERRA; a law designed to protect all of them, not just some, from acts of discrimination by their employers, including state agencies,” said attorney Brian J. Lawler of Pilot Law, lead counsel for the Captain Torres. “This journey is not over for Le Roy Torres and Rosie Lopez-Torres; it’s only just begun as we now travel to Texas to try his case on the merits.
For a century, the ROA has advocated for the readiness of the Reserve and National Guard, which together make up about 40 percent of the U.S. military. ROA’s advocacy includes promoting the enforcement of laws like USERRA. Without such laws, the military would be unable to recruit a sufficient quality and quantity of young men and women to defend our country. ROA is also a leader in the fight to enact the “PACT Act,” which extends presumptions of VA service and health care eligibility to 23 conditions related to exposure to fireplaces and toxic substances.
ROA’s law review resource www.roa.org/lawcenter has over 2,000 critiques on USERRA, the Service Member Civil Assistance Act (SCRA), the Uniformed Citizens Abroad (UOCAVA), the Uniformed Services Former Spouses Protection Act (USFSPA). Available for free, new reviews are constantly being added.
For legal comments, contact Brian Lawler, Pilot Law: firstname.lastname@example.org // 619-255-2398.
For ROA feedback, contact Jeffrey Phillips: email@example.com // 202-230-9463
Major General Jeffrey Phillips, United States Army (retired)
Reserve Organization of America (ROA)
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