The Servicemember as Civilian Litigant, 0118 SCBJ, SC Lawyer, January 2018, #30

AuthorBarry Bernstein, J.
PositionVol. 29 Issue 4 Pg. 30

The Servicemember as Civilian Litigant

Vol. 29 Issue 4 Pg. 30

South Carolina Bar Journal

January, 2018

Barry Bernstein, J.

Special laws apply when a member of the military is a litigant in civilian courts. Historically, civil protections were established only during periods of war to protect draftees. In the Cold War the United States retained a large standing military and many of the war-time protections became permanent laws. Society has changed dramatically since these laws were enacted. The failure to update them made them ineffective in many aspects. Operation Desert Storm highlighted the need to revise these antiquated acts, but the Global War on Terrorism provided Congress the urgency to overhaul civil relief protections. Attorneys that rely upon dated experience relating to servicemembers do so at their own risk. All lawyers should refresh their knowledge about these special protections before undertaking any potential representation concerning military litigants.

The terms “SCRA,” “USERRA” and “Lautenberg” should be familiar to anyone involved with servicemember cases. The Service-member Civil Relief Act (SCRA) and the Uniformed Employment and Reemployment Rights Act (USERRA) provide the two primary civil protections. The Lautenberg Amendment creates unique issues for family law and criminal cases. Other unique issues apply, but these three federal statutes have the most profound impact in servicemember cases.

Servicemember civil protection create harsh burdens on adverse parties, even to the point of raising equal protection issues. However, these protections have consistently survived constitutional scrutiny. The Court has given legislative deference to implement such laws under congressional authority to raise and support armies.1 During World War II the Court established a burden of proof in favor of the servicemember by finding protections should be “liberally construed to protect those who have been obligated to drop their own affairs to take up the burden of the nation.”2 This was reaffirmed in the postwar period with an equally strong opinion that “… the Act must be read with an eye friendly to those who have dropped their affairs to answer their country’s call.”3 As recently as 1993, the Court unanimously reversed a state’s legal process, deciding that allowing it to stand on technical grounds would require “closing our eyes to its [the SCRA’s] beneficent purpose.”4


Civil relief laws are the most common protection for those in uniform. John Henry Wigmore,5 better known for his treatise on evidence, was a reservist mobilized for World War I. Major Wigmore drafted the civil relief laws that remained into the 21st century. The Soldiers and Sailors Civil Relief Act (SSCRA) of 1918 was introduced for the duration of World War I, reintroduced for World War II and later made permanent federal law until 2003. The failure of Congress to update the Act to align with societal evolution eroded the Act’s protections and many provisions became toothless. A law written for a war that relied on homing pigeons for communication did not anticipate the needs of servicemembers in complicated cell phone contracts with international plans. Shortly after 9/11, Congress aggressively addressed the issues that had made the old act insufficient. The new SCRA was a total revision using Wigmore’s original principles, but closed loopholes that had developed and expanded protections to ft modern society.

Interest rate reduction. The most commonly invoked provision is a fixed interest rate cap of six percent on debt. This can be a significant benefit in high risk loans such as lot financed used cars, entry level credit cards and payday loans. The prior statute did not specify what occurred with the interest above the cap, so some creative creditors added fees to recover the lost interest. Other creditors declared it as only a forbearance by adding the loss to the back end of the loan. The SCRA clarifies that any interest the creditor loses from the cap is absolutely forgiven. Congress has already updated the SCRA to specifically eliminate charges, fees, penalties and similar terms that attempted to circumvent the forgiveness. A criminal penalty is provided for a knowing violation.

Effective period. Under the old act, a creditor could use delaying tactics to avoid technical notice for implementing the protections. The SCRA corrected this omission by specifying that the date on the military orders triggers the effective period. Instead of delaying the savings, creditors may be required to backdate protection to the period of the orders and refund interest even when they are afforded late notice.

Leases. During Desert Storm (1990-91), servicemembers were only protected in residential leases up to $150 per month since the Act had no inflation adjustment. In 2003 the SCRA protection was raised to $2,400 monthly rent, with annual adjustments. The 2017 cap for tenant coverage is $3,585 monthly. “Lease” protections were also expanded to cover non-residential leases, such as automobiles, mobile phones and other matters not anticipated in 1918.

Continuances. Continuances were previously discretionary by the court. Judges commonly cleared their dockets by denying...

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