Arnold & Porter Associate Takes Lead as High Court Grants Case

Arnold & Porter convinced the Supreme Court to review an appeal with a firm associate leading the litigation instead of a partner.

That senior associate, Andrew Tutt, and the partner on the petition, Elisabeth Theodore, spoke to Bloomberg Law after the grant Dec. 15 about their years-long legal journey on behalf of a military veteran.

It’s “very rare” for an associate to be counsel of record on a granted petition, said legal-data expert and founder of The Juris Lab, Adam Feldman.

Tutt, who graduated from Yale Law School in 2013, discovered Le Roy Torres’ case a few years ago when it was pending at the state-court level in Texas.

Torres served as an Army reservist while employed as a Texas state trooper. In 2007 he deployed to Iraq, where he, “like thousands of fellow soldiers serving in Iraq, suffered lung damage after being exposed to toxic fumes emanating from the now-infamous ‘burn pits,’” his high-court petition said. Torres and his wife, Rosie, founded the nonprofit Burn Pits 360.

When Torres returned to Texas, he wanted a different position in the department of public safety due to his lung damage. The department said no.

He sued under the federal Uniformed Services Employment and Reemployment Rights Act. A Texas state appeals court ruled against him, saying that Congress can’t authorize such suits. That’s when Tutt noticed the case.

A partner needs to sponsor a case for the firm to get involved and Theodore, a former clerk to the late Justice Ruth Bader Ginsburg, agreed.

Tutt “did an amazing job identifying this case at a stage when many people who are focused on Supreme Court litigation wouldn’t be paying attention,” said Theodore, who also clerked for Merrick Garland when he was a D.C. Circuit judge.

They asked the Texas Supreme Court to review the state appeals court ruling and, when that court said no, they asked the U.S. Supreme Court to step in last year.

“The Texas court’s erasure of a remedy against states for discrimination on the basis of military service threatens to harm hundreds of thousands of veterans working as state employees,” said the petition from Tutt, Theodore, senior associate Stephen Wirth, and associates Samuel Callahan and Kyle Lyons-Burke.

In addition to the Arnold & Porter lawyers on the petition are Brian Lawler of Pilot Law in San Diego and Stephen Chapman of Corpus Christi, Texas.

In March the Supreme Court asked the Solicitor General, the Justice Department’s high-court lawyer whose opinion historically carries great weight with the court, whether to grant review. That gave the Arnold & Porter team the chance to convince the SG to back them while providing Tutt’s next leadership opportunity in the litigation.

“When the United States is asked to weigh in on a case, they want to talk to counsel for the two parties,” said Tutt, who clerked for D.C. Circuit Judge Cornelia Pillard. Theodore “let me take the lead in explaining our position to the United States about why they should support us. So that was a very unique and extremely cool opportunity,” he said.

The United States told the justices not to take the case last month, a potential blow given the high court’s general deference to the “Tenth Justice,” as the solicitor general has been called.

But the court nonetheless agreed Wednesday to grant review after the Arnold & Porter team filed a supplemental brief last month, with Tutt again taking the lead. The justices took the case, Torres v. Texas Department of Public Safety, to decide whether Congress can authorize suits against nonconsenting states pursuant to its War Powers.

“As soon as we saw the order list just after 9:30 this morning, I texted our client Le Roy and his wife Rosie and they were ecstatic,” Tutt said. “They had been praying about this for a long time,” he said.

“I was very happy to be able to tell them the good news.”