Appellate Section - Servicemember Cases

Briefs and Opinions

• United States v. Kansas Department of Health and Environment (10th Cir.) - Appellant

  • The district court erred when it determined as a matter of law that Kansas could not be Gonzales’s “employer” under USERRA
  • The district court misapplied USERRA’s definition of “employer” to effectively preclude a finding that more than one entity may be a servicemember’s “employer” under USERRA

   

  Document	Date
  Reply Brief	10/25/24
  Brief as Appellant	07/05/24

• Espin v. Citibank (4th Cir.) - Amicus

  • Section 4042(a)(3) permits plaintiffs to pursue their class SCRA claims in federal court despite their arbitration agreements with Citibank
  • Section 4042(a)(3) applies to plaintiffs’ action even though the parties entered the relevant arbitration agreements before Section 4042(a)(3)’s enactment

   

  Document	Date
  Court of Appeals Decision, reported at 126 F.4th 1010	01/27/25
  Brief as Amicus	04/10/24

• Torres v. Texas Department of Public Safety (S. Ct.) - Amicus

  • Congress validly authorized private damages suits against state employers under USERRA
  • The USERRA provision at issue is constitutional
  • This Court’s review would be premature

   

  Document	Date
  Supreme Court Decision, reported at 142 S. Ct. 2455	06/29/22
  Brief as Amicus	02/07/22
  Certiorari Granted	12/15/21
  Brief as Amicus in Response to Court's Invitation	11/09/21

• Mueller v. City of Joliet (7th Cir.) - Amicus

  • USERRA’s protections applied to plaintiff's service in the Illinois National Guard Counter-Drug Task Force

   

  Document	Date
  Court of Appeals Decision, reported at 943 F.3d 834	12/04/19
  Brief as Amicus	06/27/19

• Clark v. Virginia Department of State Police (S. Ct.) - Amicus

  • The Supreme Court of Virginia’s decision in this case does not warrant further review
  • The court reasonably rejected the particular arguments raised by petitioner; no conflict exists on the question presented; and state-law rights and procedures may provide an alternative avenue for claims like the one here

   

  Document	Date
  Certiorari Denied, reported at 138 S. Ct. 500	12/04/17
  Brief as Amicus in Response to Court's Invitation	10/12/17

• McGreevey v. PHH Mortgage Corp., et al. (9th Cir.) - Amicus

  • Private SCRA claims are governed by the uniform, four-year federal statute of limitations set forth in 28 U.S.C. 1658(a)

   

  Document	Date
  Court of Appeals Decision, reported at 897 F.3d 1037	07/26/18
  Brief as Amicus	03/29/17

• Clark v. Virginia Department of State Police (Va.) - Amicus

  • USERRA validly subjects state employers to suit in state court pursuant to Congress’s War Powers

   

  Document	Date
  State Court Decision, reported at 793 S.E.2d 1	12/01/16
  Brief as Amicus	05/17/16

• United States v. Alabama (11th Cir.) - Appellee

  • The district court correctly determined that Section 102(a)(8)(A) applies to runoff elections
  • The requirement for a State to create a written plan to provide for transmission of runoff ballots to UOCAVA voters in "sufficient time" does not establish an alternate standard to the 45-day rule absent a federally approved hardship waiver under Section 102(g)

   

  Document	Date
  Court of Appeals Decision, reported at 778 F.3d 926	02/12/15
  Brief as Appellee	08/27/14

• DeLee v. City of Plymouth, Indiana (7th Cir.) - On Behalf of Appellant

  • Federal Rule of Appellate Procedure 39(a)(3) presumptively awards costs to an appellant who achieves reversal of a district court judgment
  • 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
  Court of Appeals Order	03/12/15
  Response to Defendant-Appellee's Objection to Bill of Costs	01/22/15
  Court of Appeals Decision, reported at 773 F.3d 172	12/09/14
  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, reported at 742 F.3d 876	02/07/14
  Letter Brief as Amicus	12/11/13

• United States v. State of Georgia (11th Cir.) - Appellee

  • The case is not moot under the voluntary cessation exception to mootness
  • 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
  Court of Appeals Order	02/24/15
  Supplemental Letter Brief	01/26/15
  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
  State Court Opinion, reported at 372 P.3d 497	04/14/16
  Brief as Amicus	08/06/14
  State Court Opinion, reported at 326 P.3d 474	03/03/14
  Brief as Amicus	01/10/13

• Weaver v. Madison City Board of Education, et al. (N.D. Ala. and 11th Cir.) - Intervenor-Appellee

  • The Board is not an arm of the state under the relevant constitutional standard
  • In the alternative, USERRA provides only for state court jurisdiction over private USERRA suits against States and accordingly, if the Board is an arm of the state, the case should be dismissed on statutory grounds
  • If the court reaches the issue, it should hold that Congress has the authority under its War Powers to authorize private USERRA suits against state employers

   

  Document	Date
  Court of Appeals Decision, reported at 771 F.3d 748	11/04/14
  Brief as Intervenor-Appellee	03/14/14
  District Court Decision and Order, available at 2013 WL 4433799	08/14/13
  Response to Objections to Magistrates's Report and Recommendation	07/12/13
  District Court Decision, reported at 947 F. Supp. 2d 1308	05/29/13
  Brief as Intervenor	10/04/12

• 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, reported at 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, reported at 637 F.3d 454	02/14/11
  Supplemental Brief as Amicus	11/29/10
  Brief as Amicus	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, available at 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	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, reported at 130 S. Ct. 2089	04/19/10
  Brief as Amicus in Response to Court's Invitation	03/16/10

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