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Le Roy Torres of Robstown suffered illnesses from exposure to burn pits while serving in Iraq. Now, the Supreme Court will decide he if has the right to sue Texas DPS to regain his civilian job.

Rosie Torres advocates for GIs suffering from burn pit exposure

Advocacy is therapy for Rosie Torres. The executive director of the non-profit Burn Pits 360, she and her husband, Le Roy Torres, are fighting for legislation in Texas that would allow for a registry for soldiers suffering from burn pit illnesses.

Rachel Denny Clow

AUSTIN When Le Roy Torres returned home from his yearlong deployment to Iraq as a captain in the Army Reserve, the South Texas nativewanted to return to the job he had set aside to fulfill his military commitment.

It wasn't an unusual desire given that federal law since World War II has givenreturning GIs the right to resume their civilian jobs. The law also has been modified over the years to accommodate veterans who've comeback from the front with the scars of battle, allowing them to return to work in a capacity suitable to their post-service condition.

But for Torres, it was more complicated. Before his deployment, he had been a trooper with the Texas Department of Public Safety. And the injuries he suffered were not from bombs or bullets. More likely, he would argue, they were from around-the-clock exposure to what have become known as "toxic burn pits."

Burn pits arewhere spent munitions, discarded vehicle parts, everyday trash, medical waste and even amputated body parts were bathed in jet fuel, set ablaze and seldom if ever extinguished.

Torres returned home with chronic headaches and debilitating breathing disorders that would later be diagnosed asconstrictive bronchiolitis andtoxic encephalopathy, which in laymen's terms isa toxicbrain injury. In short, he wanted a desk job since he was no longer up to the physical demands of uniformed police work. Since the effects of burn pit exposure was not recognized as a service-related disability, reinstatement would have meant sending a weakened Torres back intothe field as a trooper.

That decision would become part of a protracted multifront civilian-world battle that Torres and his wifeRosiebegan waging from their kitchen table in the Coastal Bend community of Robstown. The fight has since been instrumental in forcingaction in the Legislature, in Congress and evenan indirect mention in Tuesday's State of the Union Address by President Joe Biden.

This month, the clash between Torres and the Texas Department of Public Safety will be heard by the U.S. Supreme Court, and the decisionthe justices render will have far-reaching effects forveteransnationwide who had worked in state government before their military service and seek to regain their former jobs.

Torres' court battle weaves a thread between labor rights, the federal War Powers Act and Texas' right under the doctrine of sovereign immunity not to be sued by one of its citizens. In their brief filed with the high court, which is scheduled to hear the case March 29, Torres' lawyers argue that the law protecting veterans' re-employment rights is derived from theWar Powers Act. Therefore, if a state entity, such as DPS, rejects a veteran's efforts to gain re-employment, the federal law should trump the state's sovereign immunity from lawsuits.

The Texas Attorney General's Office, which defends state agencies in court actions, said in a brief of its own that Torres' lawyers are misinterpreting federal law. The brief cites several examples where courts have denied individuals' rights to take their state governments to court and it citesa 1778 speech by James Madison, the president sometimes called "the father of the Constitution."

"It is not in the power of individuals to call any state into court," the brief states, quoting Madison's speech.

More: Veteran: Afghanistan's toxic burn pits left me staring down the barrel of a death sentence

Brian Lawler, a former Marine Corps officer who is part of Torres' legal team, disagreed. The ability of the federal government to build a military is dependent on the willingness of citizens to serve. Protecting their rights after such service has ended is an essential component, he said.

If the Supreme Court "ultimately rules in favor of the state of Texas," Lawler said, "thousands of service members will find themselves in danger of discrimination by their state employers without recourse. And the nation will have failed in its duty to protect the heroes who protect us."

Torres was assigned to Joint Base Balad, one of the largest U.S. installations in Iraq,for a one-year deployment beginning in 2007 and ending in 2008. During that time, the base generated nearly 250 tons of waste each day that was incinerated in a black smoke-belching 10-acre fire pit.

Torres said his headaches and breathing problems began during his deployment. In a conference call Monday with U.S. Rep. Joaquin Castro, D-San Antonio, he recalled going on sick call and explaining his symptoms.

"They said, 'You have the Iraqi crud. It's going to take a couple of months to adjust,'" Torres recalled. adding that the medical personnel had seen other cases like his in Iraq.

The symptoms continued throughout his deployment and did not go away once he returned home. Doctors with the Department of Veterans Affairs misdiagnosed his condition, he said. Finally he found civilian doctors, who traced the symptoms to the burn pits.

Meanwhile, he and Rosie sought answers and found few. They petitioned Congress to develop a national registry that would track service members with symptoms similar to those of Torres. Congress took a pass.

After Torres was denied benefits by the VA, he and Rose started their own informal registry, called Burn Pits 360. By 2017, the organization had more than 7,000 sign-ups. The Legislatures, after extensive lobbying by the couple, established a Texas-only registry in 2019.

Last year, they told their story to Jon Stewart, the former host of Comedy Central's"The Daily Show," who now does a streaming show on Apple TV called "The Problem." Stewart, who championed the fight for Sept. 11 first responders to receive adequate benefits, has become a vocal advocate for veterans made illby burn pit exposure.

More: Jon Stewart pushes bill to aid vets ill from burn pits

Over the years, the couple has met and become friends with numerous other veteranswho were exposed to burn pits and have have developed breathing disorders, cancer and other illnesses. Many have died, Torres said.

"It's astruggle that I deal with every day," Torres said on the call with Castro, where plastic tubes in his nostrils delivered supplemental oxygen. "But I remember those that have gone before me and the commitments that I've made to them that we're going to keep pushingthis issue."

Even before he was elected president, Biden has been an advocate for veterans who have been exposed to burn pits. In his address to the nation, Biden invoked the memory of his son,Beau, a National Guard officer who served in Iraq around the same time as Torres. Beau Biden died of brain cancer in 2015.

"We dont know for sure if a burn pit was the cause of his braincancer,orthe diseases of so many of our troops," Biden said in his speech.

"Ive always believed that we have a sacred obligation to equip all those we send to war and care for them and their families when they come home," Biden said as he urged Congress to "pass a law to make sure veterans devastated by toxic exposures in Iraq and Afghanistan finally get the benefits and comprehensive health care they deserve."

The U.S. House passed the measure Thursday. Castro was among the cosponsors. It now goes to the Senate.

More: State of the Union recap: Biden aims to reset presidency, addresses Russian invasion of Ukraine

The justices will hear arguments on whether Torres has the right to sue DPS to regain his job and to seek any damages as a result of being denied reinstatement.

The issue before them does not include the merits of his assertion that he has the legal right to be put back to work. Also, high court rulings are typically issued weeks, or even months after arguments are heard.

"If we lose, it's a finish line because then we're done," said Lawler. "It's a hurdle if we win because we still have to go to (the lower court to argue the merits of the case)."

John C. Moritz covers Texas government and politics for the USA Today Network in Austin. Contact him at jmoritz@gannett.comand follow him on Twitter@JohnnieMo.

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How a Texas war veteran carried the fight over burn pit exposure to the U.S. Supreme Court - Caller Times