Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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Law Review 1171

Law Review 1171

What Is an Application for Reemployment?

By Captain Samuel F. Wright, JAGC, USN (Ret.)

Martin v. Roosevelt Hospital, 426 F.2d 155 (2d Cir. 1970).

Serricchio v. Wachovia Securities LLC, No. 10-1590-cv (2d Cir. Sept. 13, 2011).

1.3.1.3—Timely Application for Reemployment

Donald C. Martin, Jr. was a first-year medical resident at Roosevelt Hospital when he was called to active duty (Navy) in 1963, after just three months at the hospital.  While on active duty, in Japan and later in Maryland, he made several inquiries about returning to the residency program at Roosevelt and was rebuffed.  After he left active duty in 1965, he took a position at another hospital but was immediately dissatisfied with it.  Well within the 90-day period to apply for reemployment, after leaving active duty, he renewed his request for reinstatement and demanded to be returned as a second-year resident.  Roosevelt Hospital again rebuffed his demands, on the grounds that no vacancy existed.

Dr. Martin met the eligibility criteria for reemployment under the Veterans’ Reemployment Rights Act (VRRA), the reemployment statute in effect before Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) in 1994.  He left a position of civilian employment for the purpose of performing military service, he served honorably, and he was released from active service without having exceeded the VRRA’s four-year limit on the duration of the period of service.

Roosevelt Hospital asserted that Dr. Martin was not entitled to reinstatement because he had not (the hospital claimed) made a proper application for reemployment within 90 days after leaving active duty.  His communication within that 90-day period had demanded reinstatement as a second-year resident, and he was not entitled to second-year status.  The District Court agreed that Dr. Martin was not entitled to second-year status, but held that Martin’s demand for more than he was entitled to did not amount to a waiver of that to which he was entitled—reinstatement as a first-year resident. 

The 2nd Circuit decision states:  “[W]e agree with the trial judge that Dr. Martin’s communications satisfied the requirement of timely application for reemployment.  The requests made while he was still in the Navy put the hospital on ample notice of his claim.  It is true that the communication during the ninety-day period immediately following his discharge … apparently requested only that he be hired for the second year of residency, a position to which he was not entitled under the statute. … But these letters do not suggest that he was no longer interested in the first-year residency position if that was the best he could get.  Indeed, the letter of November 30 expressed his regret that he had not been reinstated.  It would be out of keeping with the broadly protective purpose of the statute to deny its benefits because Dr. Martin did not, during the 90 days following discharge, repeat the request that the hospital had already twice rejected.”

Congress enacted USERRA in 1994, as a long-overdue rewrite of the 1940 VRRA.  USERRA’s legislative history makes clear the congressional intent that the VRRA case law remains in full force and effect, except insofar as it is inconsistent with the revised language of USERRA.  Accordingly, in deciding Serricchio, the 2nd Circuit relied on its own 41-year-old precedent, Martin.

After leaving active duty in October 2003, Michael Serricchio sought legal advice.  His attorney made the application for reemployment by letter dated December 1, 2003, well within the 90-day deadline to apply for reemployment, after release from active duty.  The attorney’s letter began with an unambiguous statement that Serricchio had left active duty and was requesting reinstatement with the employer.  The letter went on to make other statements and demands about Serricchio’s rights under USERRA.  The District Court held and the 2nd Circuit affirmed that the letter was a sufficient application for reemployment under USERRA. 

The 2nd Circuit decision also cited with approval the Department of Labor USERRA regulations, and particularly the statement that the returning veteran “is permitted but not required to identify a particular reemployment position in which he or she is interested.”  20 C.F.R. 1002.118.

The application for reemployment need not be in writing, although a written application, by certified mail, is advisable.  No specific words must be included.  The application must convey the simple message that the applicant was employed by that employer, left the position of employment for service in the uniformed services, and has now been released from service and seeks to return to that employer.  Both Martin and Serricchio made sufficient applications for reemployment.