Tully v. County of Nassau
Filing
6
MEMORANDUM OF DECISION AND ORDER - It is hereby: ORDERED, that the Plaintiffs 4 motion to strike the Defendants Rule 12(b)(6) motion to dismiss is denied, and it is further ORDERED, that the Defendants 3 Rule 12(b)(6) motion to dismiss the complaint in its entirety is granted, and it is further ORDERED, that the Clerk of the Court is directed to close this case. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------)(
MATHEW B. TULLY,
Plaintiff,
MEMORANDUM OF
DECISION AND ORDER
11-CV-2633 (ADS)(ARL)
-againstCOUNTY OF NASSAU,
Fl LED
IN CU:ORi<''; Ci""'CE
US DISTRICT COUR.I E.D.NY
Defendant.
---------------------------------------------------------)(
APPEARANCES:
*
Tully Rinckey PLLC
Attorneys for the plaintiff
441 New Karner Road
Albany, New York 12205
By: Steven L. Herrick, Esq., Of Counsel
FEB 1 1 2012
*
LONG ISLAND OFFICE
John Ciampoli, Nassau County Attorney
Attorneys for the defendant
One West Street
Mineola, New York 11501
By: Assistant Nassau County Attorney Barbara E. Van Riper
SPATT, District Judge.
The plaintiff, Mathew B. Tully ("Tully" or "the Plaintiff'), commenced this action
against the defendant, County of Nassau ("Nassau County" or "the Defendant"), alleging that the
Defendant discriminated against him and engaged in prohibited employment actions based on his
military service in violation the Uniformed Services Employment and Reemployment Rights Act
of 1994 ("USERRA"), 38 U.S.C. § 4301 et seq., and New York Military Law§§ 242 and 243.
Presently before the Court is the Defendant's motion to dismiss the Plaintiff's claims pursuant to
Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") for failure to state a claim upon
which relief can be granted. In addition, the Plaintiff has filed a cross-motion to strike the
I
Defendant's motion to dismiss as untimely and improper. For the reasons set forth below, the
Court denies the Plaintiffs cross-motion to strike and grants the Defendant's motion to dismiss.
I. BACKGROUND
Unless otherwise stated, the following facts are drawn from the Plaintiffs complaint and
are construed in the light most favorable to the Plaintiff.
On or about June I, 1993, the Nassau County Department of Parks, Recreation and
Museums ("the Parks Department") hired Tully as a park ranger on a seasonal basis. Soon
thereafter, on or about September 17, 1993, Tully was promoted to a part-time park ranger
position on a year-round basis. Throughout the course of his employment with the Parks
Department, Tully was enlisted in the United States Army National Guard, and remains in that
service to this day. In October of 1995, Tully was called into active service while in the employ
of the Parks Department. Before he entered active duty, Tully informed Nassau County of his
military commitment. After Tully left to fulfill his military obligations, Nassau County informed
the New York State and Local Retirement System that Tully was no longer a county employee.
Subsequently, on or about November 9, 1995, Nassau County terminated Tully's employment.
Tully fulfilled his military commitment by serving on active duty beginning in October of
1995 and concluding in April of 1998, whereupon he was honorably discharged. Upon his return
to civilian life, Tully informed Nassau County that he intended to return to his position with the
Parks Department. On or about March 13, 1998, Tully spoke with the Director of Safety and
Security for the Parks Department, Russell Furchak ("Furchak"), about returning to work at the
Parks Department. According to Tully, following his conversation with Furchak, Nassau County
agreed to reinstate Tully in his former position and provided that his reinstatement was to be
effective retroactively to the date of his termination, which was either October or November of
2
1995. However, Tully alleges that Nassau County never recalculated the pension credits or
accumulated leave time, and failed to determine whether Tully would have been in line for
promotional opportunities.
On March 26, 1998, Tully received a work schedule from the Parks Department that was
effective April3, 1998. He was also issued park ranger uniforms. In addition, on March 31,
1998, Tully was issued a gas card. However, before he could commence working at the Parks
Department, on April I, 1998, Furchak informed Tully that he was not qualified to return to
work as a park ranger for Nassau County without first qualifYing as a New York State Security
Officer. Tully contends that he attempted to contact Furchak on several occasions from April
through July of 1998 regarding this qualification, but that Furchak failed to respond. As a result,
on or about July 17, 1998, independently and without instruction from Nassau County or the
Parks Department, Tully applied for a New York State Security Officer License. Tully asserts
that his pending application for the requisite license rendered him eligible to return to work as a
park ranger.
That same day, July 17, 1998, Tully informed Furchak of his pending application and
"his eagerness to return to work". (Compl.,, 21.) Nevertheless, Tully states that on July 31,
1998, Nassau County terminated his employment. On behalf of Nassau County, Furchak
attempted to inform Tully of his termination by a letter dated July 27, 1998. However, this letter
was returned unopened. Furchak, acting on behalf of Nassau County, sent another letter to
Tully on August 4, 1998, notifYing him that he was no longer on the payroll as of July 31, 1998.
This letter was also returned unopened.
On August 7, 1998, Tully sent a letter to Furchak inquiring about when he could return to
work. Subsequently, on or about August 19, 1998, Furchak sought the assistance of the Nassau
3
County District Attorney to compel Tully to return the uniforms and equipment he was issued.
On September 28, 1998, Tully sent a letter to Furchak and Furchak's superior seeking to enforce
his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994.
According to Tully, who had not read the letters from Furchak dated July 27, 1998 or
August 4, 1998, he learned of his termination from a prospective employer, who informed him
that when he contacted Nassau County, an unknown Nassau County employee stated that Tully
had been "dismissed with cause and a referral was made for criminal prosecution". (Compl., ~
28.) In the complaint, Tully cites to two memoranda supporting his position that he was
terminated following his return from active duty. The first is a memorandum from the Parks
Department Captain Richard George Breusch ("Breusch") to Furchak dated September 30, 1998,
in which Breusch "acknowledged that Tully had numerous contacts with Nassau County in an
effort to return to employment with the Parks [Department]". (Campi.,~ 29.) The second, is a
memorandum written by Furchak on October 2, 1998, in which Furchak "admitted" that "Tully's
employment was terminated by [Nassau County] (he was tying up a budget slot)".
(Campi.,~
30
(alteration in original).)
On June I, 2011, Tully filed the instant complaint against Nassau County asserting
twelve causes of action for alleged violations of USERRA and the New York Military Law.
Specifically, in the first through seventh causes of action, Tully asserts claims under USERRA
(the "USERRA claims"), alleging that: (I) Nassau County discriminated against him in violation
of 38 U.S.C. § 431l(a) by terminating his employment based on his military service in 1995 and
failing to pay or reimburse him for the fees associated with becoming a Park Ranger and Security
Officer in 1995 and 1998; (2) Nassau County violated 38 U.S.C. §§ 4312 and 4313 by failing to
restore his employment, to restore him to his previous position, or to make reasonable efforts to
4
quality him for his former position upon his return from service in April 1998; (3) assuming his
employment was restored in April 1998, Nassau County violated 38 U.S.C. § 4316 by failing to
retain him in its employ for a year following his reinstatement; and (4) Nassau County violated
38 U.S.C. § 4318 by denying him the benefit of continued participation in the New York State
Retirement System, a pension benefit plan, upon his reemployment in April 1998.
In causes of actions eight through twelve, Tully asserts claims under the New York
Military Law (the "New York Military Law claims"), alleging that: (I) Nassau County
discriminated against him in violation of New York Military Law § 242 by denying to him a
leave of absence while he was on active duty; denying reemployment, retention in employment,
promotion, and benefits of employment upon his return; and denying paid time off while he was
on active duty; and (2) Nassau County discriminated against him in violation of New York
Military Law § 243 because his November 1995 termination denied to him the opportunity to
make contributions to his pension and other rights and privileges.
On August 3, 20 II, pursuant to Rule 12(b)( 6), the Defendant filed the instant motion to
dismiss the complaint in its entirety for failure to state a claim. The Defendant contends that all
of the Plaintiffs claims are barred by the statute oflimitations, or, in the alternative, under the
doctrine of laches. In addition, to the extent the Court dismisses the Plaintiffs USERRA claims,
the Defendant seeks the dismissal of the New York Military Law claims for lack of subject
matter jurisdiction. In response, the Plaintiff filed a cross-motion to strike the Defendant's
motion to dismiss on the ground that it was filed one day late. Furthermore, the Plaintiff denies
that any of his claims are time-barred, and asserts that whether a claim is time-barred by the
statute of limitations or the doctrine of laches are inappropriate issues for resolution on a motion
to dismiss.
5
The Court first addresses the Plaintiff's cross-motion to strike, and then addresses the
Defendant's motion with respect to the USERRA claims and the New York Military Law claims
separately.
II. MOTION TO STRIKE
The Plaintiff filed the complaint in this action on June 6, 20 II, and effectuated service on
the Defendant on July II, 20 II. Pursuant to Federal Rule of Civil Procedure 12(a) ("Rule
12(a)"), the Defendant was required to serve a responsive pleading or file the instant motion to
dismiss "within 21 days after being served with the summons and complaint". Fed. R. Civ. P.
12(a)(l)(A). Thus, pursuant to Rule 12(a), the Defendant's motion was due on August I, 2011.
However, due to a purported miscalculation error by counsel, the Defendant filed the instant
motion on August 2, 20 II, one day late.
Based on this one day delay, the Plaintiff moves to strike the Defendant's motion and
requests an order from the Court requiring the Defendant to answer the complaint. In response,
the Defendant states that the motion was filed one day late "as a result of miscounting by
counsel" and requests that the late filing of the complaint be "deemed a request for an extension
of time to respond to the complaint pursuant to [Federal Rule of Civil Procedure 6]". (Def.'s
Opp./Reply Br. at 1.) The Plaintiff did not submit a reply opposing the Defendant's request.
Thus, the Court grants the Defendant's unopposed request for the Court to consider the motion to
dismiss as also requesting a motion for extension of time to file the motion.
Federal Rule of Civil Procedure 6(b) ("Rule 6(b)") provides that a court may grant an
extension of time "after the time has expired if the party failed to act because of excusable
neglect". Fed. R. Civ. P. 6(b)(I)(B). While the Court recognizes the importance of complying
with deadlines, because the Plaintiff submitted arguments in opposition to the motion to dismiss,
6
the Court does not see any way in which the Plaintiff was prejudiced by the Defendant's one day
delay. Furthermore, to grant the Plaintiff's motion would serve no discemable purpose other
than to delay the resolution of this case and waste the resources of the parties and the Court.
Thus, in the exercise of its discretion, the Court grants the Defendant's belated request for an
extension of time and denies the Plaintiff's motion to strike the Defendant's motion to dismiss.
III. MOTION TO DISMISS
A. Legal Standard for a Motion to Dismiss
Under the now well-established Twombly standard, a complaint should be dismissed only
if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its
face." Bell At!. Com. v. Twombly, 550 U.S. 544,570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929
(2007). The Second Circuit has explained that, after Twombly, the Court's inquiry under Rule
12(b)(6) is guided by two principles. Harris v. Mills, 572 F.3d 66 (2d Cir. 2009) (citing Ashcroft
v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)).
"First, although 'a court must accept as true all ofthe allegations contained in a
complaint,' that 'tenet' 'is inapplicable to legal conclusions,' and '[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.' " !d. at
72 (quoting Iqbal, 129 S. Ct. at 1949). "'Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss' and ' [d]etermining whether a complaint states a plausible
claim for relief will ... be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.'" !d. (quoting Iqbal, 129 S. Ct. at 1950). Thus, "[w]hen
there are well-pleaded factual allegations, a court should assume their veracity and ... determine
whether they plausibly give rise to an entitlement of relief." Iqbal, 129 S. Ct. at 1950.
7
In considering a motion to dismiss, this Court accepts as true the factual allegations set
forth in the complaint and draws all reasonable inferences in the Plaintiffs' favor. Zinermon v.
Burch, 494 U.S. 113, 118, 110 S. Ct. 975,979, 108 L. Ed. 2d 100 (1990); In re NYSE Specialists
Sees. Litig., 503 F.3d 89, 91 (2d Cir. 2007). Only if this Court is satisfied that "the complaint
cannot state any set of facts that would entitle the plaintiff to relief' will it grant dismissal
pursuant to Rule 12(b)(6). Hertz Com. v. Citv ofNew York, I F.3d 121, 125 (2d Cir. 1993).
The issue on a motion to dismiss is "not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the claims." Todd v. Exxon Com., 275 F.3d
191, 198 (2d Cir. 2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683,40 L.
Ed. 2d 90 (1974)).
B. As to the Plaintifrs USERRA Claims
In 1994, Congress enacted USERRA to replace the Veterans' Reemployment Rights Act
of 1974 ("the VRRA") in order to "clarify, simplify, and, where necessary, strengthen the
existing veterans' employment and reemployment rights provisions." Gummo v. Village of
Depew, 75 F.3d 98, I 05 (2d Cir. 1996) (quoting H.R. Rep. No. I 03-65(I), at 2451 (1993));
Woodard v. New York Health and Hosp. Com., 554 F. Supp. 2d 329, 347 (E.D.N.Y. 2008), aff'd
in part, 350 F. App'x 586 (2d Cir. 2009); Warren v. IBM Com., 358 F. Supp. 2d 301, 309
(S.D.N.Y. 2005). The stated purpose of the statute is to: (!)"encourage noncareer service in the
uniformed services by eliminating or minimizing the disadvantages to civilian careers and
employment which can result from such service"; (2) minimize disruption in the lives of both
service members and their employers; and (3) "prohibit discrimination against persons because
of their service in the uniformed services." 38 U.S.C. § 430l(a).
8
As with its predecessor statute, at the time it was enacted, USERRA made no reference to
an applicable statute of limitations. In November of 1998, USERRA was amended to explicitly
provide that state statutes oflimitations were not applicable to USERRA claims. See 38 U.S.C.
§ 4323(i) (1998) ("section 4323(i)") ("No State statute oflimitations shall apply to any
proceeding under this chapter."). However, from the time of its enactment until October 10,
2008, USERRA was silent with regard to any applicable federal statute of limitations. As a
result, many courts applied the four-year "catch-all" statute of limitations set forth in
28 U.S.C. § 1658 to USERRA claims.
On October I 0, 2008, Congress enacted the Veterans' Benefits Improvement Act, Pub.L.
No. 110-389, 122 Stat. 4145 ("VBIA"), which, in relevant part, amends USERRA by removing
the reference to the state statute of limitations in section 4323(i) and replaces it with a provision
stating that no limitations period applies to USERRA claims. See 38 U.S.C. § 4327(b) ("section
4327(b)") (stating that "there shall be no limit on the period for filing the Complaint or claim
under USERRA").
The main dispute between the parties is whether the Plaintiffs USERRA claims are timebarred by the statute of limitations. As an initial matter, the Court disagrees with the Plaintiff's
contention that the resolution of this issue is not proper on a motion to dismiss. Where, as here,
the facts necessary to determine whether a claim is time-barred are clear from the face of the
complaint, a court can dismiss claims that are time-barred on a motion to dismiss. The only
relevant fact to the Court's analysis is when the Plaintiff's USERRA claims accrued. According
to the Defendant, the Plaintiff's USERRA claims accrued, at the latest, on September 28, 1998,
when the Plaintiff sent a letter to the Defendant asserting his rights under USERRA. In his
opposition, the Plaintiff does not dispute that September 28, 1998 is the latest accrual date of his
9
claims. Although arguably many of the Plaintiff's claims accrued prior to September 28, 1998,
because it ultimately has no impact on the Court's conclusion, the Court accepts, for purposes of
this motion, that September 28, 1998 is the accrual date of the Plaintiff's USERRA claims.
The Defendant does not dispute that the current version of USERRA does not impose a
statute oflimitations on USERRA claims. Rather, the Defendant contends that the Plaintiffs
claim is nevertheless time-barred because it arose and expired under the pre-VBIA version of the
statute, which the Defendant argues subjected claims to the four-year "catch-all" statute of
limitations in 28 U.S.C. § 1658. According to the Defendant, because the current version of
USERRA does not retroactively revive claims that expired prior to its enactment, the Plaintiffs
USERRA claims are time-barred and should be dismissed.
Thus, to resolve whether the Plaintiff's claims are time-barred, the Court must determine:
(1) whether the four-year "catch-all" statute of limitations applied to USERRA claims that
accrued prior to the enactment of the VBIA, and, if so, (2) whether section 4327(b) retroactively
applies to revive otherwise time-barred USERRA claims.
1. As to the Statute of Limitations Applicable to Pre-VBIA USERRA Claims
In 1990, four years prior to the enactment of the USERRA, Congress enacted
28 U.S.C. § 1658 ("section 1658"), which provides that "[e]xcept as otherwise provided by law,
a civil action arising under an Act of Congress enacted after [December 1, 1990] may not be
commenced later than 4 years after the cause of action accrues." 28 U.S.C. § 1658(a). The
United States Supreme Court addressed the reach of section 1658 in Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 124 S. Ct. 1836, 158 L. Ed. 2d 645 (2004), holding that "a cause of
action 'aris[es] under an Act of Congress enacted' after December 1, 1990-and therefore is
governed by§ 1658's 4-year statute oflimitations-ifthe plaintiffs claim against the defendant
10
was made possible by a post-1990 enactment." 541 U.S. at 382, 124 S. Ct. 1836. The Court
further clarified that, in addition to newly enacted legislation, "a post-1990 enactment" can
include a post-1990 amendment to a law that was instituted prior to section 1658 because
"Congress routinely creates new rights of action by amending existing statutes ... ". Id. at 381,
124 S. Ct. 1836. "What matters is the substantive effect of an enactment-the creation of new
rights of action and corresponding liabilities-not the format in which it appears in the [United
States] Code." Id.
As previously stated, USERRA was not newly enacted legislation, but rather an
amendment to the pre-existing VRRA. Although USERRA amended the VRRA in several
respects, relevant to the instant analysis was the addition of a provision allowing for liquidated
damages. See 38 U.S.C. § 4323(c)(1)(A)(iii) (1998); see also 38 U.S.C. § 4323(d)(1)(A) (2008).
By creating the right to liquidated damages, "Congress converted what had been an equitable
claim into a legal one, which brought along the corresponding right to a jury trial". Middleton v.
City of Chicago, 578 F.3d 655,659 (7th Cir. 2009) (collecting cases).
In the complaint, the Plaintiff includes a jury demand and explicitly seeks liquidated
damages for his USERRA claims pursuant to 38 U.S.C. § 4323(d)(1)(A). As a result, the
Plaintiff's claims were '"made possible by' and 'necessarily depend' on USERRA, meaning
[they] arose under a cause of action enacted after§ 1658". Id. at 660 (quoting Jones, 541 U.S. at
382,384, 124 S. Ct. 1836); see also Risner v. Haines, No. 06-CV-1953, 2009 WL 4280734, at *6
(N.D. Ohio Nov. 24, 2009) ("In this instance, Mr. Risner's rights and liabilities have been
affected by the enactment ofUSERRA, as it has allowed him to broaden his claim to include a
trial by jury and liquidated damages, while also lowering the burden of evidence necessary to
prove his claim. The rights and liabilities substantively affected-i.e. created-by the passage of
11
USERRA are precisely the type contemplated by the Supreme Court in Jones as falling within
the ambit ofthe four-year statute of limitations in section 1658."); Nino v. Haynes Intern .. Inc.,
No. 05-CV-0602, 2005 WL 4889258, at *4 (S.D. Ind. Aug. 19, 2005) (same).
Furthermore, having passed USERRA four years after the enactment of section 1658,
Congress was aware that "except otherwise provided" in the statute, the four-year "catch-all"
statute of limitations would apply. Nevertheless, USERRA is silent with regard to a federal
statute of limitations. See Middleton, 578 F.3d at 665 (prior to the enactment of the VBIA,
USERRA claims were subject to the four-year limitations period in section 1658 because
"Congress enacted USERRA nearly four years after enacting § 1658, and it did not include in
USERRA a statute of limitations or a provision that no limitations period should apply"). As a
result, the Court agrees with those courts that have found that USERRA claims arising before the
enactment ofthe VBIA in October 2008 were subject to the four-year limitations period in
section 1658. Id.; Risner, 2009 WL 4280734, at *6; Wagner v. Novartis Pharrns.Coro., 565 F.
Supp. 2d 940, 945 (E.D. Tenn. 2008) Aull v. McKeon-Grano Assocs .. Inc., No. 06-CV-2752,
2007 WL 655484, at *4 (D.N.J. Feb. 26, 2007); Nino, 2005 WL 4889258, at *3-5; O'Neil v.
Putnam Retail Mgmt, LLP, 407 F. Supp. 2d 310,313-16 (D. Mass. 2005).
Finally, the Court notes that the case relied upon by the Plaintiff for the proposition that
"USERRA specifically prohibits the application of a statute of limitations", (Pl.'s Opp. at 5), not
only does not compel a different result, but supports the Court's conclusion that section 1658 is
applicable to pre-VBIA USERRA claims. In the case cited by the Plaintiff, Potts v. Howard
Universitv Hospital, 598 F. Supp. 2d 36 (D.D.C. 2009), the court held that because the pre-VBIA
version of USERRA expressly prohibited the application of a state statute of limitations, the
plaintiffs USERRA claims were not time-barred by D.C.'s three-year statute of limitations. 598
12
F. Supp. 2d at 39-40. On reconsideration, the court addressed the applicability of section 1658,
and, consistent with this Court's ruling, held that "under the version of the statute that was in
effect when the plaintiff initiated this suit in April 2008, his claim was subject to the four-year
"catch-all" federal statute of limitations set forth in 28 U.S.C. § 1658". Potts v. Howard
University Hospital, 623 F. Supp. 2d 68, 72 (D.D.C. 2009).
Accordingly, under the four-year "catch-all" statute of limitations set forth in section
165 8, the Plaintiffs claim pursuant to USERRA expired, at the latest, on September 28, 2002.
2. As to the Retroactivity of Section 4327(b)
The Supreme Court has noted that "the presumption against retroactive legislation is
deeply rooted in our jurisprudence." Landgrafv. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct.
1483, 1497, 128 L. Ed. 2d 229 (1994). This "time-honored presumption" should be applied
"unless Congress has clearly manifested its intent to the contrary." Hughes Aircraft Co. v.
United States ex rei. Schumer, 520 U.S. 939, 946, 117 S. Ct. 1871, 1876, 138 L. Ed. 2d 135
(1997) (quoting Landgraf, 511 U.S. at 268, 114 S. Ct. at 1498-99). In Landgraf, the Supreme
Court articulated a two-part test for determining whether a statute has retroactive effect. First,
the court should "determine whether Congress has expressly prescribed the statute's proper
reach". 511 U.S. at 280, 114 S. Ct. 1483. If so, the court's inquiry ends here. However, "when .
. . the statute contains no such express command", the second prong of the analysis requires the
court to "determine whether the new statute would have retroactive effect, i.e., whether it would
impair rights a party possessed when he acted, increase a party's liability for past conduct, or
impose new duties with respect to transactions already completed". I d. If the application of the
statute would result in a retroactive effect, "then, in keeping with [the J 'traditional presumption'
against retroactivity, [the court] presume[s] that the statute does not apply to that conduct."
13
Martin v. Hadix, 527 U.S. 343,352, 119 S. Ct. 1998, 144 L. Ed. 2d 347 (1999) (quoting
Landgraf, 511 U.S. at 280, 114 S. Ct. 1483).
As an initial matter, because the Plaintiff's USERRA claims expired six years before the
VBIA was enacted, section 4327(b) is only applicable to the Plaintiff's claims if the statute
retroactively revives otherwise time-barred or "expired" claims. This is distinguishable from the
question of whether section 4327(b) applies retroactively to claims that were still within the fouryear limitations period, and were therefore "live" when section 4327(b) became effective. See
Goodman v. City of New York, Nos. 10-CV-5236, 11-CV-3432, 2011 WL 4469513, *6-8
(S.D.N.Y. Sept. 26, 2011) (holding that a USERRA claim that accrued on January 27,2007 was
not time-barred despite the fact that the complaint was not filed until May 19, 2011-four
months after the expiration of the four-year statute of limitations-because the claim was "live"
at the time of section 4327(b)'s enactment); Andritzky v. Concordia Univ. Chicago, No. 09-CV6633, 2010 WL 1474582, at *4-5 (N.D. Ill. Apr. 8, 2010) (holding that the plaintiff's claims
arising more than four-years before the enactment of the VBIA were time-barred, but not the
plaintiff's USERRA claim that accrued within the four-years before the VBIA). Because the
Plaintiff's claim was not "live" when section 4327(b) became effective-having expired under
section 1658 on September 28, 2002-the Court only addresses whether section 4327(b)
resurrects expired claims.
With respect to the first prong of the Landgraf analysis, the plain language of section
4327(b) states:
(b) Inapplicability of statutes oflimitations.--Ifany person seeks to
file a complaint or claim with the Secretary, the Merit Systems
Protection Board, or a Federal or State court under this chapter
alleging a violation of this chapter, there shall be no limit on the
period for filing the complaint or claim.
14
38 U.S.C. § 4327(b). While the statute prospectively makes reference to "filing the complaint",
it lacks any language expressly or unambiguously directing its retroactive application. In In re
Enterorise Mortgage Acceptance Co., 391 F.3d 401 (2d Cir. 2004), the Second Circuit examined
the retroactive effect of a revised statute of limitations for securities claims contained in Section
804(b) of the Sarbanes-Oxley Act. In that case, the relevant language of the statute provided that
the revised statute of limitations "shall apply to all proceedings ... that are commenced on or
after the date of enactment of this Act". In holding that the plain language of Section 804(b)
does not unambiguously revive expired claims, the Second Circuit stated:
Although Section 804(b) is perhaps most naturally read as
applying to any proceeding that is commenced after SarbanesOxley's July 30, 2002, enactment, the statute contains none of the
unambiguous language that the Supreme Court has asserted would
amount to an express retroactivity command, see Landgraf, 511
U.S. at 255-56 & n. 8, 114 S. Ct. 1483 (stating that the language
"all proceedings pending on or commenced after the date of
enactment" amounted to "an explicit retroactivity command")
(emphasis added); Martin v. Hadix, 527 U.S. 343, 354, 119 S. Ct.
1998, 144 L. Ed. 2d 347 (1999) (describing the sentence, '"[t]he
new provisions shall apply to all proceedings pending on or
commenced after the date of enactment"' as "unambiguously
address[ing] the temporal reach of the statute") (quoting Landgraf,
511 U.S. at 260, 114 S. Ct. 1483); nor that which Congress has
used in previous statutes to indicate its intent to revive time-barred
claims, see. e.g., Riegle-Neal Interstate Banking and Branching
Efficiency Act of 1994, Pub.L. No. 103-328, § 201(a), 108 Stat.
2338, 2368 (codified at 12 U.S.C. § 182l(d)(l4)(C)(i)) (amending
the Act to provide that "the Corporation may bring an action ... on
such claim without regard to the expiration of the statute of
limitation applicable under State law"); Higher Education
Technical Amendments of 1991, Pub.L. No. 102-026, § 3, 105
Stat. 123, 124 (codified at 20 U.S.C. § 109la(a)(2)) (eliminating
statute of limitations with regard to recovering on defaulted student
loans by stating "no limitation shall terminate the period within
which suit may be filed").
391 F.3d at 406--07. Here, section 4327(b) is arguably even more ambiguous than Section
804(b), insofar as it fails to make any reference to its applicability in any proceedings.
15
Ultimately, the language in section 4327(b) falls far short of constituting an "unambiguous
directive" or "express command" that it retroactively revives time-barred claims. Landgraf, 511
U.S. at 263,280, 114 S. Ct. 1483; see Middleton v. City of Chicago, 578 F.3d 655,662--63 (7th
Cir. 2009) ("Congress was aware that for § 4327(b) to have retroactive effect, it needed to say so
expressly, and the absence of any such express language in the text indicates that Congress chose
not to do so."); Risner v. Haines, No. 06-CV-1953, 2009 WL 4280734, at *7 (N.D. Ohio Nov.
24, 2009) ("The VBIA makes no mention of the application of§ 4327(b) as retroactive and, as
such, the absence of an express indication from Congress is fatal to Mr. Risner's argument.").
Having found that Congress has not "expressly prescribed" that section 4327(b) is
retroactive to expired USERRA claims, the Court turns to the second prong of the Landgraf
analysis, namely, whether applying the statute retroactively would have a retroactive effect. "A
statute does not operate 'retrospectively' merely because it is applied in a case arising from
conduct antedating the statute's enactment." Landgraf, 511 U.S. at 269, 114 S. Ct. 1483. Rather,
"[t]he inquiry into whether a statute operates retroactively demands a commonsense, functional
judgment about 'whether the new provision attaches new legal consequences to events
completed before its enactment.'" Martin v. Hadix, 527 U.S. at 358, 119 S. Ct. 1998 (quoting
Landgraf, 511 U.S. at 270, 114 S. Ct. 1483). "This judgment should be informed and guided by
'familiar considerations of fair notice, reasonable reliance, and settled expectations."' Id.
(quoting Landgraf, 511 U.S. at 270, 114 S. Ct. 1483); ~also St. Cyr v. I.N.S., 229 F.3d 406,
418 (2d Cir. 2000), affd, 533 U.S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) (holding that
"an impermissible retroactive effect" occurs when the retroactive application of a statute "would
upset settled expectations and change the legal effect of prior conduct").
16
Here, the Plaintiffs USERRA claims, at the latest, accrued approximately thirteen years
before he filed the complaint. Pursuant to the then applicable four-year limitations period under
section 1658, the expiration of the Plaintiffs USERRA claims occurred approximately six years
before Congress enacted the VBIA and section 4327(b) became effective. The "settled
expectations" of the Defendant for the nine years preceding the filing of the complaint in this
action was that it was no longer subject to liability. By lengthening the applicable limitations
period and requiring the Defendant to defend an action that was previously time-barred, applying
section 4327(b) would have a retroactive effect because it "puts [the Defendant] back at risk at a
point when [the Defendant] reasonably believe[ d) [it was] immune from litigation". Entemrise,
391 F.3d at 410.
Furthermore, if the Plaintiff had commenced the action anytime between September 28,
2002 and October 1, 2008, the Defendant would have been able to successfully raise the statute
of limitations as an affirmative defense. See Ma v. Merrill Lynch. Pierce. Fenner & Smith. Inc.,
597 F.3d 84, 88 n. 4 (2d Cir. 2010) ("A statute of limitations creates an affirmative defense
where plaintiff failed to bring suit within a specified period of time after his cause of action
accrued .... "). Thus, applying section 4327(b) to resurrect the Plaintiffs previously timebarred claims has an "impermissible retroactive effect" because it strips the Defendant "of a
complete affirmative defense [it] previously possessed and may have reasonably relied upon".
Entemrise, 391 F.3d at 410 (citations omitted); cf. Goodman, 2011 WL 4469513, *6-8
(distinguishing cases involving live and expired claims and holding that "applying the VBIA to
[the plaintiffs] [live] USERRA claim does not impair any of Defendants' rights, because, at the
time that the VBIA was enacted, Defendants could not have asserted the statute of limitations
defense").
17
In conclusion, the Court finds that the Plaintiff's USERRA claims were subject to a fouryear statute of limitations, resulting in their expiration on September 28, 2002. In the absence of
an "express command" of retroactivity by Congress, and the presence of impermissible
retroactive effects, the Court fmds no basis to disregard the "traditional presumption against
retroactivity" and revive the Plaintiffs expired USERRA claims. See Middleton, 578 F.3d at
663 ("Middleton asks us to apply§ 4327(b) to revive a time-barred claim, but he has presented
nothing to overcome our presumption against doing so. Congress said nothing about
retroactivity, and under the general rule [that laws enlarging the statute of limitations
traditionally are applied prospectively], we cannot apply § 4327(b) to his thirteen-year-old
USERRA claim."); Moore v. United Air Lines. Inc., No. 10-CV-2100, 2011 WL 2144629, at *67 (D. Colo. May 31, 2011) (holding that the VBIA does not revive USERRA claims that were
time-barred before its enactment); Andritzky, 2010 WL 1474582, at *4-5 (same); Risner, 2009
WL 4280734, at *7 (same).
Thus, the Plaintiffs first through seventh causes of action alleging violations of
USERRA are time-barred and the Defendant's motion to dismiss all of those causes of action is
granted.
C. As to the Plaintiff's New York Militarv Law Claims
The remaining causes of action in the complaint, assert state law claims for alleged
violations of the New York Military Law§§ 242 and 243. The Defendant contends that if the
Court dismisses the Plaintiffs USERRA claims, the Court should also dismiss the Plaintiffs
New York Military Law claims for lack of subject matter jurisdiction. The Court agrees.
A court "may decline to exercise supplemental jurisdiction over a (pendent state law]
claim" if the court "has dismissed all [federal] claims over which it has original jurisdiction." 28
18
U.S.C. § 1367(c)(3). "Once [a court's] discretion is triggered under§ 1367(c)(3), it balances the
traditional values of judicial economy, convenience, fairness, and comity in deciding whether to
exercise jurisdiction." Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)
(internal citation and quotation marks omitted).
Having dismissed all of Plaintiff's federal claims, and given the early stage of this
litigation, the Court declines to exercise supplemental jurisdiction over the Plaintiffs state law
claims. Accordingly, the Defendant's motion to dismiss the Plaintiffs eighth through twelfth
causes of action asserting violations of the New York Military Law is granted. These causes of
action are dismissed without prejudice.
III. CONCLUSION
For the foregoing reasons, it is hereby:
ORDERED, that the Plaintiff's motion to strike the Defendant's Rule 12(b)(6) motion to
dismiss is denied, and it is further
ORDERED, that the Defendant's Rule 12(b)(6) motion to dismiss the complaint in its
entirety is granted, and it is further
ORDERED, that the Clerk ofthe Court is directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
February 14,2012
Is/ Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
19
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