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Servicemember Cases

  • DeLee v. City of Plymouth, Indiana (7th Cir.) - On Behalf of Appellant
    • The district court failed to apply the Supreme Court's analysis for determining whether an employment benefit is based on seniority for purposes of federal laws protecting veterans' civilian employment rights
    • Under the correct test, the City's longevity pay was a seniority-based benefit that could not be reduced based on Mr. DeLee's absence for military service

     
    Document Date 
    Reply Brief 08/11/14
    Brief for Appellant Robert D. DeLee 06/23/14
  • Brewster v. Nationstar Mortgage, LLC, et al. (9th Cir.) - Amicus
    • The SCRA now contains an express private right of action
    • The statutory authorization of "appropriate relief, including monetary damages" should be interpreted to allow punitive damages claims in certain cases

     
    Document Date 
    Court of Appeals Decision, 742 F.3d 876 02/07/14
    Letter Brief as Amicus 12/11/13
  • United States v. State of Georgia (11th Cir.) - Appellee
    • The district court correctly determined that Section 102(a)(8)(A) applies to runoff elections, the State's use of a SWAB does not comply with that provision, and, alternatively, even if the "sufficient time" standard in Section 102(a)(9) applies instead, Georgia's federal runoff election scheme does not comply with that standard
    • Georgia has not established either a sufficient likelihood of prevailing on the merits or the irreparable harm necessary to warrant a stay, and that the public interest lies in ensuring UOCAVA voters are not disenfranchised in federal runoff elections

     
    Document Date 
    Brief as Appellee 12/09/13
    Court of Appeals Order 01/06/14
    Opposition to Motion to Stay 11/21/13
  • Ramirez v. New Mexico Children Youth and Families Department (N.M. Ct. App. and N.M.) - Amicus
    • USERRA validly subjects state employers to suit in state court pursuant to Congress's War Powers

     
    Document Date 
    Brief as Amicus 08/06/14
    State Court Opinion, 2014 WL 953425 03/03/14
    Brief as Amicus 01/10/13
  • Rivera-Melendez v. Pfizer Pharmaceuticals, LLC (1st Cir.) - Amicus
    • The district court applied the wrong legal standard to Rivera-Melendez's USERRA reinstatement claim by misconstruing USERRA's escalator principle, reasonable certainty test, and like-status requirement
    • Because a servicemember is not required to identify the reemployment position sought, and because a 2008 amendment explicitly provides that USERRA contains no statute of limitations, Rivera-Melendez could not be deemed to have waived his rights under USERRA
    • Doctrines such as the doctrine of laches might still apply if a servicemember delayed seeking reemployment in an escalator position

     
    Document Date 
    Court of Appeals Decision, 730 F.3d 49 09/20/13
    Letter Brief as Amicus 03/19/13
    Brief as Amicus 03/27/12
  • Serricchio v. Prudential Securities, Inc (2d Cir.) - Amicus
    • USERRA requires that an employer when reemploying a servicemember returning to a 100% commissioned position, offer both the commission rate and commission earning opportunities that he would have had but for his military service or take appropriate steps to restore him to a position of similar pay

     
    Document Date 
    Court of Appeals Decision, reported at 658 F.3d 169 09/13/11
    Letter Brief in Response to Court's Invitation 07/21/11
  • United States v. Alabama Department of Mental Health and Mental Retardation (11th Cir.) - Appellee
    • The district court correctly held that the Eleventh Amendment does not bar a suit against a State to enforce USERRA when the United States is a plaintiff
    • The court correctly held that ADMH violated USERRA when it failed to rehire the employee upon his return from active duty service, and the employee was entitled to the court's award of back pay
    • ADMH failed to show a likelihood of success on the merits because its version of the evidence conflicts with the factual findings of the district court
    • ADMH will suffer no irreparable injury by complying with USERRA
    • ADMH personnel and current and future servicemembers will suffer injury with a grant of the stay, and the public interest weighs against the grant of a stay of injunctive relief

    Document Date 
    Court of Appeals Decision, reported at 673 F.3d 1320 03/16/12
    Supplemental Letter Brief 12/05/11
    Brief as Appellee 05/09/11
    Opposition to Motion to Stay Injunctive Relief Pending Appeal 02/16/11
  • Andre Gordon v. Pete's Auto Service of Denbigh, Inc. (4th Cir.) - Amicus
    • The Division supported the servicemember's argument that the provision of the Servicemembers' Civil Relief Act (SCRA) that requires lienholders to get a court order before enforcing a lien on a servicemember's property creates an implied private right of action for damages
    • Section 802 of the SCRA does not have an impermissible retroactive effect on the parties and therefore may be applied in this case

     
    Document Date 
    Court of Appeals Decision [PDF], reported at 637 F.3d 454 02/14/11
    Supplemental Brief as Amicus 11/29/10
    Brief as Amicus [PDF] 04/06/10
  • United States v. B.C. Enterprises, Inc., et al. (4th Cir.) - Appellee
    • United States filed suit alleging that the defendant tow truck company towed and sold the cars of at least 20 servicemembers without court orders in violation of Servicemembers' Civil Relief Act
    • The defendant moved for judgment on the pleadings, claiming that the United States lacks authority to seek damages on behalf of the servicemembers
    • The district court denied the motion, but certified its order for interlocutory appeal pursuant to 28 U.S.C. 1292(b)
    • The Division did not oppose the petition
    • The United States has authority to file suit to enforce the SCRA and may seek appropriate relief, including damages for aggrieved servicemembers
    • After briefing, Congress amended the SCRA by, inter alia, giving the United States explicit enforcement authority
    • Supplemental brief addressed the impact of this change in law

     
    Document Date 
    Court of Appeals Decision [PDF] (unpublished), 447 F. App'x 468 08/29/11
    Supplemental Brief as Appellee 04/07/11
    Brief as Appellee 06/25/10
    Petition For Interlocutory Appeal Granted 05/05/10
    Response to Petition for Interlocuatory Appeal [PDF] 03/29/10
  • Staub v. Proctor Hospital (S. Ct. ) – Amicus
    • Employer liability under the Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA), 38 U.S.C. 4301 et seq.
    • The Seventh Circuit disregarded the text of USERRA, which provides for liability where a person's military status is a motivating factor in the employer's action, by requiring a subordinate employee's discriminatory animus to exert "singular influence" over the ultimate decisionmaker (making the decisionmaker the dupe or cat's paw of the employee with the discriminatory animus) in order to warrant liability
    • The decision of the court of appeals conflicts with the decisions of all but one of the eleven other courts of appeals to have addressed this issue

    Document Date 
    Supreme Court Decision, reported at 131 S. Ct. 1186 03/01/11
    Brief as Amicus 07/09/10
    Certiorari granted, 130 S. Ct. 2089 04/19/10
    Brief as amicus in response to Court's invitation 03/16/10

 

 


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