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Supreme Court to hear battle over War Powers and veterans’ lawsuits

The U.S. Supreme Court on Oct. 22, 2020 in Washington, D.C. (Samuel Corum/Getty Images/TNS)
March 29, 2022

The Supreme Court hears argument Tuesday over a federal law that gives employment protections for military service members who return from duty, and lawmakers have warned the justices that they are critical for recruiting and retaining armed forces.

Congress enacted the Uniformed Services Employment and Reemployment Rights Act, or USERRA, to have uniform rights for all service members when they return to the civilian workforce, the bipartisan group of six lawmakers wrote in a brief in the case.

But state courts in Texas, Virginia, Florida, Tennessee, Georgia, Delaware and Alabama have ruled that USERRA doesn’t provide service members the right to file civil lawsuits against a state when it hasn’t given its permission to be sued.

That means service members must rely on a patchwork of state laws that aren’t as strong as the federal law, the lawmakers wrote. Signing the brief were Michigan Republican Rep. Peter Meijer and Democratic Reps. André Carson of Indiana, Joaquin Castro of Texas, Raul Ruiz of California, Tim Ryan of Ohio and David Trone of Maryland.

“Without USERRA, soldiers who served alongside each other overseas might find themselves with vastly different rights and remedies depending upon where they happen to call home in the United States,” the lawmakers wrote.

“To effectively recruit and retain the soldiers necessary to the success of its military operations, the United States must be able to guarantee service members a fair and uniform deal,” the group wrote.

Meijer was in the U.S. Army Reserve from 2008 to 2016. Ruiz and Castro are members of the Congressional Burn Pits Caucus, which seeks to raise awareness about burn pits that were used to dispose of waste during the conflicts in Iraq and Afghanistan and ended up releasing pollutants and known carcinogens into the air.

The House passed a bill in March that would overhaul benefits for veterans exposed to toxic substances during their service, and it included provisions on burn pits that Ruiz and Ryan introduced as amendments. But the many differences with a Senate version of the measure raise questions about its chances to become law.

Burn pits and War Powers

The Supreme Court case focuses on Le Roy Torres, a state trooper for the Texas Department of Public Safety who returned from active duty with the U.S. Army Reserve in Iraq with lung damage from toxic burn pits.

Torres says his constrictive bronchiolitis prevented him from performing his duties as a state trooper, so he asked to be reassigned to a different position — but the department declined his request. He resigned and then filed a lawsuit against Texas.

A Texas state appeals court ruled against him, making it the latest state to rule against the federal law based on the long-standing doctrine of state sovereign immunity. Torres and his wife, Rosie, later started a nonprofit organization called Burn Pits 360 to advocate for service members and families affected by the toxic burn pits.

The case asks the Supreme Court to delve into the text and history of the Constitution and whether states consented to War Powers lawsuits at the time of the founding, as well as a history of Supreme Court decisions about circumstances under which Congress can allow lawsuits against states.

War Powers are a reference to broad and sweeping powers by Congress to raise and support military forces.

In a separate brief, a bipartisan group of former members of Congress told the justices that the War Powers are fundamental to the existence of a country. The signers include Leon Panetta, who also served as secretary of Defense during the Obama administration.

“The power to wage war and to defend a nation from military threats is, in many respects, part and parcel with the ability of a country to exist,” the former lawmakers wrote. “The Founders of our Nation, who understood this axiomatic point, created our great Nation through the Revolutionary War.”

USERRA, passed in 1994, establishes broad protections, including the right to take military leave from civilian jobs, to be promptly reemployed upon return from service and to be free from discrimination based on military service, the Torres petition states.

It also requires employers to make reasonable efforts to accommodate those who incur disabilities during their military service and to rehire them in the position they would have held but for their military service, or in an equal position of seniority, status and pay.

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