by Mark E. Sullivan

INTRODUCTION

Congress amended the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) in December 2003 to apply to any local, state or federal agency proceeding in addition to civil courts, which had been the sole concern of the Act since its passage in 1940. With this new focus by the new statute, the Servicemembers Civil Relief Act (SCRA), a short training session may be needed for administrative law judges, hearing officers and the attorneys who guide and advise agencies, boards, commissions, councils and administrative entities.

The Act’s purposes are to enable servicemembers (SMs) 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 may adversely affect the civil rights of SMs during their military service. 50 U.S.C. § 3902. The SCRA not only protects those on active duty; it also affords protection for Reservists and members of the National Guard (when activated under Title 10, United States Code). The current law is found at Chapter 50, Title 50, U.S. Code, specifically at 50 U.S.C. §3901 et seq.

Courts have generally construed the SSCRA liberally to protect those in uniform, and the same should be true with the SCRA. The U.S. Supreme Court has said that the statute should be read “with an eye friendly to those who dropped their affairs to answer their country's call.” Le Maistre v. Leffers, 333 U.S. 1, 6 (1948). This Guide highlights some of the issues related to the impact of military service on administrative hearings, financial obligations and other matters.

QUESTIONS & ANSWERS

1. Q. Who is covered under the SCRA?

A. Pursuant to 50 U.S.C. §3911, covered servicemembers include

>Those members of the Army, Navy, Air Force, Marine Corps and Coast Guard on active duty under 10 U.S.C. 101(d)(1);

>Members of the National Guard who are called to active duty as authorized by the President or the Secretary of Defense for over 30 consecutive days under 32 U.S.C. 502(f) to respond to a national emergency declared by the President and supported by federal funds; and

>Commissioned members of the Public Health Service and the National Oceanographic and Atmospheric Administration.

A SM is also covered for any period of time when he or she is absent from duty because of sickness, wounds, leave or other lawful cause [i.e., he is still a SM even if absent from active duty for one of the above reasons]. Under 50 U.S.C. §3916, the protections of the Act are extended to members of the Reserve Components (RC) – the National Guard and Reserve – from receipt of orders to report for duty to the date that they report. Covered individuals under certain sections of the SCRA include dependents of a SM (a spouse, a child, or anyone for whom the SM provided over half of the person’s support for the 180 days immediately preceding an application for relief under the Act).

2. Q. What tribunals are covered?

A. In addition to civil courts, under 50 U.S.C. § 3911(5) any administrative agency of the United States, a state or a political subdivision thereof is covered. Does this mean the Pottstown, Nevada Safety Commission? The North Carolina Department of Economic and Community Development? The federal Environmental Protection Agency? The answer is YES to all the above! For the sake of simplicity, any administrative agency, board, admin law judge, hearing officer or other entity will be referenced below as “agency.”

3. Q. What does the SCRA say about delay of administrative proceedings when the servicemember has not entered an appearance in the court proceeding?

A. 50 U.S.C. §3931 governs when the SM has made no appearance. When an adverse ruling, order or decision is sought against an individual who has not made an appearance, the agency needs to determine whether that party is in the military. To make this determination, the agency should apply for information to the Department of Defense (DOD), which must issue a statement as to military service. 50 U.S.C. §4012. The office in DOD to contact is:

Defense Manpower Data Center [Attn: Military Verification]
1600 Wilson Blvd., Suite 400
Arlington, VA 22209-2593
[Telephone 703-696-6762 or -5790/ fax 703-696-4156]

Alternatively, visit the Defense Manpower Data Center (DMDC) website for SCRA inquiries, https://scra.dmdc.osd.mil and enter the individual’s last name and Social Security number. These are mandatory entries; the form on the main page also asks for a first name, middle initial, and date of birth (DOB), which will help with the search. Further information is available in the “Help” section of the website.

To execute a report, fill in requested data and then click on the “LookUp” button, which will open up a second window containing the report generated by DMDC. If the individual is on active duty, the report will show his or her branch of service and beginning date of active duty status.

The website allows one to check the active duty status of a servicemember (SM) based on a specific date, called the “Date of Interest.” This may be any date later than September 30, 1985. The default Date of Interest is the current date. This is helpful if one needs to determine whether John Doe was on active duty on June 1 of last year, even though he might not be on active duty today, to see whether the SCRA applies to his failure to answer the complaint at that time and the subsequent default judgment which was entered by the court. DMDC will check:

(1) The individual's active duty status on the Date of Interest;

(2) Whether the individual left active duty within 367 days preceding the Date of Interest;

(3) Whether the individual or his/her unit received notification to report for active duty on the Date of Interest.

If DMDC does not have information as to whether the individual is on active duty, the generated report will list only the supplied last name, first name, and middle initial (if supplied), with the text:

Based on the information you have furnished, the DMDC does not possess any information indicating that the individual is currently on active duty.

The report is signed by the DMDC Director. If the individual’s Social Security number is unavailable, the requester may request by mail a manual search, using the birthdate of the individual instead of the SSN. You must send a stamped, self-addressed envelope with your mail request to the DMDC at the address above in this case.

A flow chart illustrating what happens when there is no appearance by the SM is found in “A Judge’s Guide to the Servicemember’s Civil Relief Act” at ATCH 1. That Guide may be found on the LAMP website.

If the agency determines that a person is in the military, then a default decision may not be entered against the SM without appointing an attorney for him or her. A default decision, called a “default judgment” in the Act, is any decision or ruling which is adverse to the SM’s interest. This might be a ruling against John Doe in an employment security commission hearing, an order to remove and replace a hazardous porch railing by a county housing agency, a decision on how much child support John Doe must pay by a state child support hearing officer, or a decision to terminate a teaching license by the Department of Education.

Next the agency, board, commission or other entity (hereafter “agency”) must decide on a stay of proceedings. When the defendant is in military service, the agency must stay the proceedings for at least 90 days (upon application of counsel or on the agency’s own motion) if the agency determines that:

>there may be a defense to the action and a defense cannot be presented without the presence of defendant, or

>after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.

If a decision is entered against the SM during his period of military service (or within 60 days after the end of service), the agency must reopen the matter to let the SM defend if:

>he was materially affected due to military service in asserting a defense, and

>he has a meritorious or legal defense to the action or some part of it, so long as

>the application is filed within 90 days after the end of military service. 50 U.S.C. §3931(g).

4. Q. What happens if the SM has entered an appearance?

A. When the SM has entered an appearance and has filed an application for stay (including an application filed within 90 days after the end of military service), 50 U.S.C. §3932 states that the agency may (upon its own motion) and shall (upon the application of a SM) enter a stay of proceedings for at least 90 days if the motion includes information required by the statute for the agency to determine whether a stay is needed. Here is a checklist showing the information required for the initial 90-day stay of proceedings.

SCRA Stay Request – a Checklist for the Initial 90-Day Stay

	Elements of a Valid 90-Day Stay Request. Does the request contain…
	A statement as to how the SM’s current military duties materially affect his ability to appear…
	and stating a date when the SM will be available to appear?
	A statement from the SM=s commanding officer stating that the SM=s current military duty prevents his appearance…
	and stating that military leave is not authorized for the SM at the time of the statement?

There is no indication that either of these must be in the form of an affidavit or, for that matter, in any particular format whatsoever. Apparently a letter, a formal memo or even an e-mail message would suffice.

The SM may request an additional stay based on the continuing effect of his military duty on his ability to appear. He may make this request at the time of his initial request or later on, when it appears that he is unavailable to defend or prosecute. 50 U.S.C. §3932(d)(1).

If the agency refuses an additional stay, then the statute requires the appointment of an attorney to represent the SM in the action or proceeding. 50 U.S.C. §3932(d)(2). Unfortunately, the Act is silent on where the agency gets the power to appoint an attorney, what the attorney’s duties are and how the attorney will be paid. Almost certainly the initial duty of the appointed attorney is to renew the request for a stay of proceedings. It will be virtually impossible for him or her to prepare and present the case without the assistance of the unavailable SM. Further information on stays of proceedings may be found at the internet address shown in Question 3 above.

5. Q. Is the additional stay, after the first 90 days, also mandatory, or is there some discretion involved?

A. The additional stay is discretionary; to allow the additional stay, the agency must find that the member's ability to prosecute or defend is "materially affected" by reason of his or her active duty service. Once this finding of material effect is made, the member is entitled to a stay for such period as is necessary until the material effect is removed. While this is not explicitly stated in the SCRA, it was the rule with the SSCRA and most likely will be the rule under the current Act as well. Finally, since agencies are reluctant to grant long-term stays of proceedings, they can and should require members to act in good faith and be diligent in their efforts to appear before the agency.

Here are some questions, ideas and comments which may be helpful in evaluating a stay request:

>How much leave has the member accrued? Ask for a copy of the SM’s LES (Leave and Earnings Statement) to find out. Note that members from all branches of military service, whether buck private or rear admiral, get thirty days' leave annually, accruing at the rate of 2.5 days per month (although military necessity may limit when the leave may be taken).

>Also keep in mind that members who are going through basic or advanced training may be unable to appear in court due to the training schedule; there are no extra days built into the schedule to accommodate court dates, depositions or family emergencies, and being gone from training frequently means that the trainee will have to repeat the same training program from the beginning.

>What is the nature of the “military necessity” that prevents a hearing? Is the SM serving in Iraq, where he cannot be given leave and is facing hostile fire on a daily or weekly basis? Or is he serving as “backfill” at Ft. Bragg or Ft. Lewis so that others may deploy overseas, working a comfortable day shift of 7:30 – 4:30 with weekends off?

>Is the member’s presence necessary?

1. What about video depositions? Use of the Internet? Is anyone truly “unavailable” any more?

(i) In Massey v. Kim, 455 S.E.2d 306 (Ga. Ct. App. 1995), the SM asked for a stay of proceedings to delay pending discovery until the completion of his overseas tour of duty. The court denied his request, pointing out improvements in modern communications since the passage of the SSCRA.

(ii) In Keefe v. Spangenberg, 533 F. Supp. 49 (W.D. Okla. 1981) and In re Diaz, 82 B.R. 162, 165 (Bankr. Ga. 1988) (concerning depositions in place of a personal appearance).

6. Q. What is "material effect"?

A. There is no one definition of "material effect." The court should make a finding of "material effect" when a military member's ability to prosecute or defend a civil suit is impaired by military duties which prevent the member from appearing in court at the designated time and place, or from assisting in the preparation or presentation of the case. An adverse material effect might also be found when military service impairs substantially the member's ability to pay financial obligations.

7. Q. Can a default decision be entered against a servicemember in his absence?

A. See answers given after Question 3 above. Before entry of an adverse decision, there must be an affidavit filed with the agency stating “whether or not the defendant is in military service and showing necessary facts in support of the affidavit.” Criminal penalties are provided for filing a knowingly false affidavit.

8. Q. What if the affidavit shows that the party to be defaulted is in the armed forces?

A. When this happens, the Act says that no default can be taken until an attorney has been appointed to represent the member. The Act is silent on how the agency would obtain this power of appointment of counsel for the SM. If there is no attorney appointed, then the adverse decision is voidable.

9. Q. What are the provisions for reopening a default decision?

A. Servicemembers are further protected from default decisions (called “judgments” in the Act). The purpose of this is to protect those in the military from having default decisions entered against them without their knowledge and without a chance to defend themselves.[1] The SCRA allows a member who has not received notice of the proceeding to seek the reopening of a default decision. The requirements are as follows:

>The member must apply to the agency that rendered the original decision.[2]

>The decision must have been entered when the member was on active duty in the military service or within 60 days thereafter.

>The member must apply for reopening the decision while on active duty or within 90 days thereafter.

>The member must prove that, at the time the decision was rendered, he was prejudiced in his ability to defend himself due to military service.[3]

>The member must show that there is a meritorious or legal defense to the initial claim.

An important requirement of the reopening of a judgment is “meritorious or legal defense” requirement. Default decisions will not be set aside when a litigant’s position lacks merit. This requirement avoids a waste of effort and resources in opening default decision in cases where servicemembers have no defense to assert. As part of a well-drafted motion or petition to reopen a default, the SM should clearly delineate his claim or defense so that the court will have sufficient facts upon which to base a ruling.

10. Q. Does the SCRA require that a breach have occurred before protections become available?

A. No. The Act doesn’t require breach before offering protections to covered individuals. The anticipatory relief provision is set out in 50 U.S.C. § 4021:

ANTICIPATORY RELIEF.

(a) APPLICATION FOR RELIEF.—A servicemember may, during military service or within 180 days of termination of or release from military service, apply to a court for relief— (1) from any obligation or liability incurred by the servicemember before the servicemember’s military service; or (2) from a tax or assessment falling due before or during the servicemember’s military service.

These anticipatory relief provisions can be used to request relief from pre-service obligations when a prospective breach is likely. For example, assume that an administrative hearing officer is considering a case where John Doe is being mobilized by the East Virginia National Guard. When a SM is earning more in his civilian job before mobilization than he will be earning on active duty, there was a civilian wage garnishment before the active-duty service, and his garnishment will terminate upon his call to active duty, the SM may use this section to request a reduction in child support or and to request a new garnishment from DFAS (Defense Finance and Accounting Service) to pay the other party on a timely basis.

11. Q. Can the SM waive his rights?

A. This is covered in 50 U.S.C. §3918. A waiver of SCRA rights is only effective if it is made during the period of military service. In addition, certain waivers must be made in writing. If the agency wants to have the SM execute a written waiver in connection with a stay of proceedings so that the case may go forward and there is a clear record that the SM has knowingly and voluntarily waived his or her rights under the SCRA, this form should suffice:

WAIVER OF RIGHT TO REQUEST STAY OF PROCEEDINGS

I acknowledge that I have the right to request a stay of proceedings in this case under the Servicemembers Civil Relief Act. The stay of proceedings, or continuance, would postpone a hearing in this case if it were granted.

I hereby waive and give up the right to a stay of proceedings. I want to proceed with this case.

_________________________________                  Date:_____________________

(Signature)

_________________________________

Printed Name

[Here print acknowledgment and notarization if required.]

12. Q. Are there SCRA resources on the Internet?

A. Visit http://www.jagcnet.army.mil/legal, the Army Judge Advocate General's Corps public preventive legal information site (Servicemember’s Civil Relief Act information center). You will also find valuable information (including checklists and flow charts) in “A Judge’s Guide to the Servicemembers Civil Relief Act” at the internet address under Question 3 above.

(rev. 9/27/16)

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This GUIDE is a joint project of the Military Committee of the American Bar Association’s Family Law Section, and the North Carolina State Bar’s Standing Committee on Legal Assistance for Military Personnel. It was written by Mark E. Sullivan, a board-certified specialist in family law and Fellow of the American Academy of Matrimonial Lawyers. Sullivan is a retired Army Reserve JAG colonel who specializes in military pension and military divorce cases. For comments, criticisms or corrections, contact him at mark.sullivan@ncfamilylaw.com or 919-832-8507.