Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
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Law Review 1181


October 2011

Does DOL Delay Count Against Me in Timeliness of My Lawsuit?

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

1.4—USERRA Enforcement

1.6—USERRA Statutes of Limitations

1.8—Relationship Between USERRA and other Laws/Policies

4.7—SCRA Extension of Statutes of Limitations and Redemption Periods

Q:  I am a Lieutenant Colonel in the Army Reserve and a life member of ROA.  I read with great interest your “Law Review” articles about the Uniformed Services Employment and Reemployment Rights Act (USERRA).  I worked for a major company in Illinois.[1] 

I was called to active duty in 2004 and deployed to Iraq.  I was released from active duty in 2005 and promptly applied for reemployment in my civilian job.  I returned to work, but just three months later I was fired. 

I believe that the firing violated sections 4311 and 4316(c) of USERRA.  I believe that the firing was motivated by my Army Reserve service and the possibility that I would be called to the colors again.  Moreover, I was still within the one year of special protection against discharge, except for cause, and I was fired without cause.

I promptly complained to Employer Support of the Guard and Reserve (ESGR), and an ESGR volunteer ombudsman contacted the employer on my behalf.  The employer denied violating USERRA but otherwise refused to discuss the matter with the ombudsman.

After two months, ESGR referred me to the Veterans’ Employment and Training Service of the United States Department of Labor (DOL-VETS), and I filed a formal written USERRA complaint against my employer with that agency.  The DOL-VETS investigator waited months before starting the investigation, and then he took the employer’s word for it that they had not violated USERRA, and closed my case.  I sought the assistance of my Congressman, and the case was reopened.  Finally, DOL found my case to have merit and referred it to the Department of Justice (DOJ).  More months passed, and finally DOJ sent me a letter stating that DOJ will not represent me, but without explaining the reason for the declination.  Despite inquiries from me and my Congressman, DOJ has declined to explain why it won’t take my case.

The DOJ letter explained that I could retain private counsel and proceed with my case, but it did not suggest a specific attorney.  For months, I searched for a lawyer who knows how to spell “USERRA.”  Finally, I found a lawyer, and he filed the case promptly after I retained him.

The defendant moved the court to dismiss, claiming that a four-year statute of limitations applies and that my lawsuit was filed two days after the statute of limitations expired.  The judge agreed and dismissed my case as untimely.  I got screwed!

I thought that there was no statute of limitations under USERRA.  And in any case, the time that DOL and DOJ spent on my case (more than three years) should be excluded from the four-year time limit.  What do you think?

A:  Congress enacted USERRA in 1994, as a long-overdue replacement for the Veterans’ Reemployment Rights Act (VRRA), which dates back to 1940.  The VRRA and USERRA have never had a statute of limitations, and in 1974 Congress amended the VRRA to make clear that no state statute of limitations is to be applied to VRRA cases.  In 1994, Congress carried over that “no state statute of limitations” language into USERRA, without change.

In 1990, Congress enacted a four-year “default” statute of limitations for civil actions in federal court that are based on congressional enactments after December 1990, if that particular congressional enactment does not have a statute of limitations.  28 U.S.C. 1658(a).  There has been a division of authority in the courts as to whether section 1658(a) applies.  USERRA was enacted after 1990, but it is a rewrite of a law that goes back to 1940.  But the majority rule seems to be that section 1658(a) does apply.

On October 8, 2008, Congress amended USERRA, adding a new section 4327.  That section provides, in pertinent part, as follows:  “If any person seeks to file a complaint or claim with the Secretary [of Labor], the Merit Systems Protection Board, or a Federal or State court under this chapter alleging a violation of this chapter, there shall be no limit on the period for filing the complaint or claim.”  38 U.S.C. 4327(b) (emphasis supplied).

It is now clear that there is no statute of limitations on filing a USERRA claim that accrued on or after October 8, 2008.  But what about a claim (like your claim) that accrued prior to that date?

In Law Review 1125 I argued that the 2008 “no statute of limitations” rule should be applied retroactively to USERRA causes of action that accrued prior to the October 8, 2008 enactment of that provision.  Unfortunately, the United States Court of Appeals for the Seventh Circuit[2] disagreed with my analysis and held that the 2008 amendment is not to be applied retroactively.  See Middleton v. City of Chicago, 2009 U.S. App. 18979 (7th Cir. Aug. 24, 2009).  I discuss the implications of Middleton in Law Review 1148.

Your USERRA case will have to be filed in Illinois, based on the employer’s location in that state.[3]  Thus, the district court judge will likely consider himself or herself bound by this 7th Circuit precedent.

As to your assertion that you should not be charged (for timeliness purposes) with the DOL and DOJ delay, there is some 1994 legislative history, some 1974 legislative history, and some VRRA case law in support of your argument.  I invite your attention to House Report No. 103-65, 1994 United States Code Congressional & Administrative News 2449, 2472:

“Section 4322(d)(7) [now 4327(b)] would reaffirm the 1974 amendment to chapter 43 that no State statute of limitations shall apply to any action under this chapter.  It is also intended that state statutes of limitations not be used even by analogy.  See Stevens v. Tennessee Valley Authority, 712 F.2d 1047, 1056-57 (6th Cir. 1983).  Moreover, the Committee [House Committee on Veterans' Affairs] reaffirms, as was made clear in the 1974 legislative history, ‘that the time spent by government agencies charged with the administration and enforcement of this act in investigation, negotiation and preparation for suit shall not be charged against the veteran in the consideration of any time-barred defense,’ i.e. laches.  Senate Report No. 93-907, 93rd Cong. 2d Sess. at 111-112 (June 10, 1974).  See Lemmon v. Santa Cruz County, Cal., 686 F. Supp. 797, 805 (N.D. Cal. 1988).”

Emphasis supplied.

There is another argument you can make, under another law, the SCRA. "The period of a servicemember's military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or a political subdivision of a State) or the United States by or against the servicemember or the servicemember's heirs, executors, administrators, or assigns." 50 U.S.C. App. 526(a).

Were you on active duty for any period of time during the four-year period that started on the day you were fired? If so, the four-year statute of limitations was tolled (i.e. stopped running) during that active duty period.

[1] This situation is not really in Illinois.  I changed the location to protect the individual’s privacy.

[2] The 7th Circuit is the federal appellate court that sits in Chicago and hears appeals from district courts in Illinois, Indiana, and Wisconsin.

[3] 38 U.S.C. 4323(c)(2).