By Cliff Montgomery – Apr, 13th, 2009
The Servicemembers Civil Relief Act (SCRA) is meant to protect servicemembers from “judicial andadministrative proceedings and transactions that may adversely affect their legal rights during militaryservice.”
For instance, SCRA limits “the interest rate that may be charged on debts incurred prior to a person’s entryinto active duty military service,” and protects “military families from being evicted from rental or mortgagedproperty, [as well as protection] from cancellation of life insurance, from taxation in multiple jurisdictions, from foreclosure of propertyto pay taxes that are due, and from losing certain rights to public land.”
Thus the law enables servicemembers to “devote their entire energy to the defense needs of the Nation.”
But a recent court decision questions “whether a servicemember has the right to bring a private cause ofaction for violations” of the law, points out a Congressional Research Service (CRS) report released on March23rd. Thus much of the law’s apparent purpose has been weakened.
As you read the following quotes from the CRS study, ask yourself a simple question: How can the U.S.government so easily provide every protection and financial aid to the idiots who broke Wall Street, but find itso difficult to provide a basic legal protection to the soldiers who fight and die for us?
“Congress has long recognized the need for protective legislation for servicemembers whose service to thenation may compromise their ability to meet obligations and protect their legal interests.
“During the Civil War, Congress enacted an absolute moratorium on civil actions brought against soldiers andsailors.
“During World War I, Congress passed the Soldiers’ and Sailors’ Civil Relief Act of 1918 (SSCRA), which didnot create a moratorium on legal actions against servicemembers, but instead directed trial courts to applyprinciples of equity to determine the appropriate action to take whenever a servicemember’s rights wereinvolved in a controversy.
“During World War II, Congress essentially re-enacted the expired 1918 statute as the Soldiers’ and Sailors’Civil Relief Act of 1940, and then amended it substantially in 1942 to take into account the new economic andlegal landscape that had developed between the wars. During consideration of the amendments in the 87thCongress, Congressman Overton Brooks (D-LA) stated:
This bill springs from the desire of the people of the United States to make sure as far as possible that men in service are not placed at a civil disadvantage during their absence. It springs from the inability of men who are in service to properly manage their normal business affairs while away. It likewise arises from the differences in pay which a soldier received and what the same man normally earns in civil life.
“Congress enacted amendments on several occasions during subsequent conflicts, including 2002 when thebenefits of the SSCRA were extended to certain members of the National Guard. In 2003, Congress enactedthe Servicemembers Civil Relief Act (SCRA) as a modernization and restatement of the SSCRA and itsprotections.
“The SCRA is an exercise of Congress’s power to raise and support armies (U.S. Const. Art. I, sec. 8, cl. 12)and to declare war (Art. I, sec. 8, cl. 11). The purpose of the act is to provide for, strengthen, and expedite thenational defense by protecting servicemembers, enabling them to ‘devote their entire energy to the defenseneeds of the Nation’ by providing for the temporary suspension of judicial and administrative proceedings andtransactions that may adversely affect their legal rights during military service.
“Forgiving of all debts or the extinguishment of contractual obligations on behalf of servicemembers who havebeen called up for active duty is not required, nor is absolute immunity from civil lawsuits provided. Instead, theact provides for the suspension of claims and protection from default judgments. In this way, it seeks tobalance the interests of servicemembers and their creditors, spreading the burden of national military serviceto a broader portion of the citizenry. […]
“One of the [SCRA] measures that affects many who are called to active duty is the limit on the interest ratethat may be charged on debts incurred prior to a person’s entry into active duty military service. Othermeasures protect military families from being evicted from rental or mortgaged property, from cancellation oflife insurance, from taxation in multiple jurisdictions, from foreclosure of property to pay taxes that are due, andfrom losing certain rights to public land.
“In order to receive protections afforded under the SCRA, servicemembers are generally required to providenotice of their desire to invoke the protection. […] [But] the act does not specifically state who may bring anapplication for relief, nor does it specifically exclude private individuals from filing a cause of action.
“Most courts considering the issue have found that a private cause of action exists under the SCRA.
“However, a recent opinion from the United States District Court for the Western District of Michigan, Hurley v.Deutsche Bank Trust Company, disagreed with decisions from U.S. district courts in Illinois, Louisiana,Oregon, and Texas, and found that a private cause of action does not exist under the act.
“While the U.S. Supreme Court has not ruled on whether a private cause of action exists under the SCRA, theCourt has dealt with the issue of an implied cause of action under other statutes. In Cort v. Ash, the Courtestablished a four-part test for determining if a private cause of action exists under a particular statute.However, in Alexander v. Sandoval, it appears that the Court has adopted a single-factor test rather than thefour-part test.
“The split in the U.S. district courts creates uncertainty in how the act may be enforced in the future. […]
“The current ambiguity provides options for Congress. Congress may provide guidance to the courts byclarifying the purpose and intent of the act. […]
“Or Congress may want to amend individual sections of the act or the act in its entirety with language thatexplicitly states whether a private cause of action exists. However, Congress also has the option to not act andallow the courts to interpret the SCRA.”
