LAW REVIEW 1244
Senator Introduces Bill to Improve SCRA
By Captain Samuel F. Wright, JAGC, USN (Ret.)
4.3—Right to continuance and protection against default judgment
On April 18, 2012, Senator Patty Murray (D-WA) introduced S. 2299, the proposed Servicemembers Rights Enforcement Improvement Act of 2012 (SREIA), on behalf of herself, Senator Mark Begich (D-AK), Senator Sheldon Whitehouse (D-RI), Senator John Rockefeller (D-WV), and Senator Daniel Akaka (D-HI). The bill was referred to the Senate Committee on Veterans’ Affairs, which Senator Murray chairs.
If enacted, this bill would make several important improvements (discussed below) to the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Servicemembers Civil Relief Act (SCRA). Congress enacted the SCRA in 2003, as a long-overdue rewrite of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), which dates back to 1917. The SCRA is codified in the Appendix to title 50 of the United States Code, at sections 501-597b (50 U.S.C. App. 501-597b).
Strengthen the affidavit requirement before a default judgment.
Section 2 of the SREIA would amend section 201(b) of the SCRA [50 U.S.C. App. 521(b)] by strengthening the requirement for an affidavit showing that the defendant is, or is not, a member of the armed forces on active duty, before a default judgment can be entered against the defendant. This amendment would address a serious problem that has shown up in many of these cases. Let me offer a hypothetical but realistic example.
Let us say that Bob Jones has filed a civil suit (state or federal court) against Mary Smith. The time for Smith to file her answer has passed, and no answer has been filed. Jones can file a motion for default judgment and ordinarily he will receive a judgment for the full amount that he sought as Smith lost her right to contest the lawsuit because she failed to file an answer. But maybe Smith is on active duty in Afghanistan and is not even aware that she has been sued.
Before he can obtain a default judgment against Smith in these circumstances, Jones must file an affidavit averring under oath that Smith is not a member of the armed forces on active duty. If Smith is on active duty, a default judgment cannot lawfully be awarded, and several steps must be taken by the court to ensure that Smith is aware of the lawsuit and that her military service is not preventing her from offering a defense.
DOD operates a free service to assist attorneys, creditors, etc. to determine whether a specific person is or is not currently on active duty. If Jones inputs Smith’s name, Social Security Number, and date of birth, this system will tell him (usually in a matter of seconds) that Smith is on active duty, or is not. It is essential that Jones or his attorney use this free service before he or she “robo-signs” an affidavit to the effect that Mary Smith is not on active duty in the armed forces.
There have been documented cases where lawyers and paralegals in “foreclosure mill” law firms have filed affidavits averring that a named defendant was not on active duty when in fact the defendant was on active duty. To address this problem, section 2 of the SREIA would add a new subsection (B) to 50 U.S.C. App. 521(b)(1), as follows:
(B) DUE DILIGENCE. Before filing the affidavit [to the effect that the defendant is not on active duty in the armed forces], the plaintiff shall conduct a diligent and reasonable investigation to determine whether or not the defendant is in military service, including a search of available records of the Department of Defense and any other information available to the plaintiff. The affidavit shall set forth in the affidavit all steps taken to determine the defendant’s military status.
This provision would be most useful.
Retroactive application of private right of action under SCRA.
A private right of action is the right to file suit in one’s own name to enforce the requirements of a statute. Some statutes explicitly create a private right of action, and some statutes explicitly preclude a private right of action (choosing to rely on some other enforcement mechanism). When a statute neither explicitly creates nor explicitly precludes a private right of action, a court must determine whether there is an implied private right of action. Under the SCRA and the SSCRA, there was neither an explicit creation of a private right of action nor an explicit preclusion of a private right of action. There was a division of authority in the courts as to whether there was an implied private right of action.
On October 13, 2010, Congress enacted and President Obama signed Public Law 111-275, which made several changes to the SCRA. One of the changes was to add section 802, 50 U.S.C. 597a, which creates an explicit private right of action under the SCRA. The effective date of this change is the date of enactment—October 13, 2010.
Section 3 of the SREIA would backdate the effective date of section 802 to December 19, 2003, which was the date of enactment of the SCRA itself. This change would also be beneficial.
Issuance and service of civil investigative demands by Attorney General.
Section 6 of the SREIA would amend section 801 of the SCRA, 50 U.S.C. App. 597, by adding a new subsection (d). That new subsection would give the Attorney General, through the Department of Justice (DOJ), the power to obtain information, documents, and testimony in SCRA investigations. This power would be most useful to DOJ in enforcing the SCRA.