An Overview of the Service members Civil Relief Act & the Uniformed Services Employment & Reemployment Rights Act, 0720 ALBJ, Vol. 81 No. 4 Pg. 276 (July, 2020)
| Author | By Capt. James R. Houts and Maj. O. Scott Hewitt |
| Position | Vol. 81 4 Pg. 276 |
By Capt. James R. Houts and Maj. O. Scott Hewitt
Alabama, home to three active-duty military installations, an Army depot, and a robust structure of National Guard and Reserve units, has approximately 27,000 uniformed servicemembers residing within its borders at any time. Additionally, each year between 2,000 and 3,000 Alabamians join the Armed Forces. These factors mean that many Alabama lawyers will encounter legal issues that are implicated by an individual’s military service at some point in their practice of law, whether the lawyer represents the servicemember (or veteran) or another party.
Two federal laws enacted to protect members of the Armed Forces are the most likely to be encountered at least once during a lawyer’s career. They are the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) and the Service-members Civil Relief Act (“SCRA”). The intricacies of these laws cannot be conveyed in a single article, but this should be a good starting point.
Servicemembers Civil Relief Act
The SCRA provides certain legal protections to servicemembers “to enable such persons to devote their entire energy to the defense needs of the Nation” and “to provide for the temporary suspension of judicial and administrative proceedings and transactions that [might] adversely affect the civil rights of servicemembers during their military service.”1 Due to the scope of the protections provided by the SCRA–impacting debt-collection practices, contracts, and civil procedure–civil practitioners should have some familiarity with this law.
SCRA’s Rights, Protections, And Applicability
The SCRA allows servicemembers to cap interest rates,2 to avoid default judgments,3 to avoid non-judicial foreclosure,4 to cancel installment contracts,5 to stay judicial proceedings,6 to avoid re-possessions,[7] to terminate leases,8 and to prevent enforcement of storage liens9 under certain circumstances. For members of the National Guard and Reserve components, the servicemember must be on Title 10 orders, orders for full-time training duty, annual training duty, or attendance at a school designated as a service school activated under 32 U.S.C. § 502(f) (2018), for a period of 30 consecutive days or more.10 Any person who enlists or accepts a commission for service in the Army, Navy, Air Force, Marine Corps, Coast Guard, or for “active service” in the Public Health Service or the National Oceanic and Atmospheric Administration is protected upon entry into such service.11
As to default judgments, plaintiffs are required to file an affidavit stating that the defendant is either not in the military service, is in the military service, or the plaintiff, after making a good faith effort, does not know the defendant’s status.12 This requirement is reflected in item 7 of the Unified Judicial System’s Form C-25, Application and Affidavit for Entry of Default. Plaintiff’s counsel can satisfy this requirement, as to military servicemembers, by using a Department of Defense website established for this purpose.13 Where the servicemember has notice of the action and is serving on active duty, or is within 90 days of release from active duty, they are entitled to a stay.14 Upon application by the servicemember, or on a court’s own motion, a court must stay a legal action for not less than 90 days when the servicemember submits a letter explaining why military duty requirements materially affect their ability to appear and state when he may appear along with a letter from their commanding officer stating that the servicemember’s duty prevents their appearance and that they are not authorized leave.15
Installment contracts and leases are another area where the SCRA can have significant application. Cell phone contracts, apartment leases, automobile leases, gym memberships, and similar contractual relationships can be terminated by a servicemember upon entry into qualified service.16 In addition to residential leases, the SCRA also applies to a lease of premises “occupied, or intended to be occupied” by a servicemember for “professional, business, agricultural, or similar purpose[s].”17 A service-member’s dependents may also enjoy the SCRA’s rights and protections as to installment contracts and leases, although this typically requires an application to a court for relief.[18]
In order for a contract or lease to be unilaterally terminated under the SCRA, the contractual relationship must have been entered prior to the servicemember’s entry into qualified service. Of importance, the average National Guardsman or Reservist does not enter into a period of qualified service simply by virtue of their military membership. It is only upon receipt of orders for qualifying service–such as an active duty deployment to Kuwait or Afghanistan–that the servicemember is considered to have attained “entry” into military service. Businesses and individuals who engage in “self-help” against a service-member, contrary to the terms of the SCRA, are subject to criminal prosecution.19
Although a servicemember may waive any of the SCRA’s rights and protections, any such waiver is effective only if it is (1) in writing, (2) is executed as an instrument separate from the obligation or liability to which it applies, and (3) is in at least 12-point font.20 Additionally, in the case of waivers of rights involving (1) the modification, termination, or cancellation of a contract, lease, or bailment; (2) an obligation secured by a mortgage, trust, deed, lien, or other security in the nature of a mortgage; or (3) the repossession, retention, foreclosure, sale, forfeiture, or taking possession of property that is security for any obligation, or was purchased or received under a contract, lease, or bailment, the waiver will only be effective if the written agreement is executed during or after the qualifying period of military service.21
Finally, the SCRA provides some protections in child-custody cases. A thorough discussion of the practical application of those provisions, however, would exceed the limited purpose of this article. Family law practitioners are encouraged to become familiar with the SCRA’s child-custody protections when faced with “best interest of the child” determinations predicated on a parent’s military service.22
Enforcement of SCRA’s Provisions
The United States Department of Justice’s Civil Rights Division is tasked with enforcing the SCRA. The United States Attorney General is authorized to file a federal lawsuit against any person or entity who engages in a pattern or practice of violating the SCRA, or where the facts in a case raise “an issue of significant public importance.”23 These lawsuits may seek monetary damages for a service-member, civil penalties, equitable relief, and/or declaratory relief.24 Examples of federal enforcement against those who have violated the SCRA’s provisions can be found on the Department of Justice’s SCRA website.25
State-Law SCRA Protections
Alabama law provides SCRA-like protections to members of the National Guard who are ordered into active military service by the state governor, who perform homeland security operations under 32 U.S.C. § 502(f), or who perform state active duty for 30 days or more.26 In such cases, stat law incorporates the provisions of the SCRA and USERRA (discussed below).27
Uniformed Services Employment and Reemployment Rights Act
The Uniformed Services Employment and Reemployment Rights provides certain employment and reemployment rights to those who have served satisfactorily in the Armed Forces or who are currently serving in the National Guard or Reserve components of the military.28 USERRA arose out of the Selective Training and Service Act of 1940 and the Universal Military Training and Service Act of 1951.29 The United States Supreme Court, describing the purpose of the original 1940 legislation, wrote that the law protected “[h]e who was called to the colors” such that the servicemember would not “be penalized on his return by reason of his absence from his civilian job.”30 The veteran was “to gain by his service for his county an advantage to which the law withheld from those who stayed behind.”31 According to the Court, such protections were “to be liberally construed for the benefit of those who left private life to serve their county in its hour of great need.”32
In 1994, Congress codified these protections for veterans and service-members by enacting USERRA. The specific purposes for the law are set forth in the act itself; namely, “to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service,” “to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemploy-ment of such persons upon their completion of such service,” and “to prohibit discrimination against persons because of their service in the uniformed services.”33 As federal law has evolved from the Selective Training and Service Act of 1940 to USERRA, the Supreme Court has consistently required liberal construction of federal employment and reemployment rights in favor of veterans and servicemembers.34
USERRA’s Rights, Protections, And Applicability
USERRA prohibits discriminatory hiring practices against persons who serve in the uniformed services. Servicemembers or veterans cannot be denied initial employment, reemployment, retention, promotion, or other benefits...
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