Petition for Writ of Certiorari — Les Schwab Tire Centers of Portland, Inc., et al., Petitioners v. Scott Wilcox, Individually and as the Personal Representative of the Estate of Jenna Wilcox

No.

IN THE

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_______________

LES SCHWAB TIRE CENTERS OF PORTLAND, INC., AND

TOYO TIRE HOLDINGS OF AMERICAS INC.,

Petitioners,

v.

SCOTT WILCOX,

Respondent.

_______________

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of The State Of Oregon

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

JOHN W. KNOTTNERUS

JONATHAN M. HOFFMAN

MB LAW GROUP LLP

117 S.W. Taylor Street

Suite 200

Portland, OR 97204

(503) 914-2015

THOMAS H. DUPREE JR.

Counsel of Record

ANDREW G. I. KILBERG

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

tdupree@gibsondunn.com

Counsel for Petitioners

i

QUESTION PRESENTED

The Servicemembers Civil Relief Act (“SCRA”)

tolls “any action or proceeding . . . by or against the

servicemember or the servicemember’s heirs,

executors, administrators, or assigns” for the “period

of a servicemember’s military service.” 50 U.S.C.

§ 3936(a).

The question presented is whether the SCRA tolls

a statute of limitations applicable to a claim brought

by a servicemember in a purely representative

capacity for another.

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

All parties to the case below are named in the

caption, except that respondent misidentified

petitioner Les Schwab Tire Centers of Portland, Inc.

in the proceedings below as Les Schwab Tire Centers

of Oregon, Inc.

Pursuant to this Court’s Rule 29.6, undersigned

counsel state that petitioner Toyo Holdings of

Americas Inc. is a wholly-owned subsidiary of Toyo

Tire Corporation, a publicly-traded corporation in

Japan.

Petitioner Les Schwab Tire Centers of

Portland, Inc., is a privately-held Oregon corporation

and has no parent company, and no publicly held

company owns 10% or more of its stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................ i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ................................................... ii

TABLE OF APPENDICES ..................................... iv

TABLE OF AUTHORITIES ..................................... v

OPINIONS BELOW ................................................. 1

JURISDICTION ....................................................... 1

STATUTORY PROVISION INVOLVED ................. 1

STATEMENT ........................................................... 2

A. THE SCRA’S TOLLING PROVISION................ 2

B. THE PROCEEDINGS BELOW .......................... 5

REASONS FOR GRANTING THE PETITION ...... 7

I.

FEDERAL AND STATE COURTS ARE SPLIT ON

THE QUESTION PRESENTED ................................. 8

II. THE DECISION BELOW IS WRONG AND WILL

LEAD TO INEQUITABLE RESULTS ....................... 13

III. THIS CASE IS AN EXCELLENT VEHICLE TO

RESOLVE THE QUESTION PRESENTED ............... 17

CONCLUSION ....................................................... 18

iv

TABLE OF APPENDICES

Page

APPENDIX A: Opinion of the Court of Appeals

of the State of Oregon (Aug. 22, 2018) ............... 1a

APPENDIX B: Order of the Circuit Court of

the State of Oregon, Multnomah County

(Apr. 17, 2015) ................................................... 13a

APPENDIX C: Order of the Supreme Court of

the State of Oregon (Jan. 17, 2019).................. 17a

APPENDIX D: Statutory Provisions Involved ...... 19a

50 U.S.C. § 3902 ......................................... 19a

50 U.S.C. § 3911 ......................................... 20a

50 U.S.C. § 3936 ......................................... 23a

v

TABLE OF AUTHORITIES

Cases

Beck v. United States,

No. 86 C 10134, 1987 WL 17154

(N.D. Ill. Sept. 14, 1987) ...................................... 10

Boone v. Lightner,

319 U.S. 561 (1943) .......................................... 3, 15

Clark v. Mechs.’ Nat’l Bank, 282 F. 589

(8th Cir. 1922) ...................................................... 13

Conroy v. Aniskoff,

507 U.S. 511 (1993) .............................................. 16

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) .................................... 1, 17, 18

Ebert v. Poston,

266 U.S. 548 (1925) ........................................ 14, 15

Encino Motorcars, LLC v. Navarro,

138 S. Ct. 1134 (2018) .......................................... 15

Halle v. Cavanaugh,

111 A. 76 (N.H. 1920)..................................... 11, 12

Kerstetter v. United States,

57 F.3d 362 (4th Cir. 1995) .............................. 9, 10

Lopez v. Waldrum Estate,

460 S.W.2d 61 (Ark. 1970) ............................... 9, 14

McCoy v. Atl. Coast Line R.R. Co.,

47 S.E.2d 532 (N.C. 1948) .............................. 7, 8, 9

vi

Miller v. United States,

803 F. Supp. 1120 (E.D. Va. 1992) ...................... 10

Mitchell v. Phillips,

58 Pa. D & C.2d 314 (1972) ................................. 13

Phillips v. Generations Family Health

Ctr.,

No. 3:11-CV-1752-VLB, 2015 WL

4527008 (D. Conn. July 27, 2005) ....................... 11

Stutz v. Guardian Cab Corp.,

74 N.Y.S.2d 818 (N.Y. App. Div.

1947) ............................................................... 12, 13

Van Osdol v. Knappton Corp.,

755 P.2d 744 (Or. App. 1988)............................... 17

Statutes

28 U.S.C. § 1257(a) ................................................ 1, 17

50 U.S.C. § 3902 .................................................... 5, 16

50 U.S.C. § 3911(3) ................................................ 6, 14

50 U.S.C. § 3936(a) ............................................ 1, 4, 14

Colo. Rev. Stat. § 15-12-601 .................................. 7, 14

Or. Rev. Stat. § 30.020(1) ............................................ 5

Or. Rev. Stat. § 30.905 .......................................... 6, 14

Selective Service Act of 1948, Pub. L.

80-759, § 14, 62 Stat. 604, 623 (1948) ................... 4

vii

Servicemembers Civil Relief Act, Pub.

L. 108-189, § 1, 117 Stat. 2835, 2835

(2003) ...................................................................... 4

Soldiers’ and Sailors’ Civil Relief Act of

1918, Pub. L. No. 65-103, §§ 100,

205, 603, 40 Stat. 440, 440, 443, 449

(1918) ...................................................................... 3

Soldiers’ and Sailors’ Civil Relief Act of

1940, Pub. L. 76-861, 54 Stat. 1178

(1940) ...................................................................... 3

Soldiers’ and Sailors’ Civil Relief Act

Amendments of 1942, Pub. L. 77732, § 5, 56 Stat. 769, 770 (1942) .......................... 4

Veterans Benefits Act of 2002, Pub. L.

107-330, § 305, 116 Stat. 2820,

2826–27 (2002) ....................................................... 4

Other Authorities

Comment, Soldiers and Sailors—Civil

Relief Act of 1940—Application to

Decedents’ Estates, Secured

Obligations, Installment Contracts,

Insurance, Taxes, and Assessments,

42 MICH. L. REV. 480 (1943) ................................ 15

R. Chuck Mason, Cong. Research Serv.,

The Servicemembers Civil Relief Act:

An Explanation (2014) ........................................... 2

S. Rep. 76-2109 (1940)............................................... 15

viii

Brooke Tibbs, Soldiers’ and Sailors’

Civil Relief Act in 1942: Operation,

Need for Clarification, Future

Significance, 27 MARQ. L. REV. 59

(1943) .......................................................... 3, 12, 15

PETITION FOR A WRIT OF CERTIORARI

Petitioners Les Schwab Tire Centers of Portland,

Inc. and Toyo Tire Holdings of Americas Inc.

respectfully petition for a writ of certiorari to review

the judgment of the Oregon Court of Appeals.

OPINIONS BELOW

The order of the Oregon Supreme Court denying

petitioners’ petition for review (App. 17a) is

unreported. The opinion of the Oregon Court of

Appeals reversing the circuit court’s dismissal of the

action (App. 1a–12a) is reported at 428 P.3d 900. The

order of the Circuit Court of Multnomah County

granting petitioners’ motion to dismiss (App. 13a–

14a) is unreported.

JURISDICTION

The decision of the Oregon Court of Appeals was

issued on August 22, 2018. Petitioners filed a timely

petition for review with the Oregon Supreme Court,

which was denied on January 17, 2019. This Court

has jurisdiction under 28 U.S.C. § 1257(a). The state

courts have “finally decided” a “federal issue” for

which “later review . . . cannot be had.” Cox Broad.

Corp. v. Cohn, 420 U.S. 469, 481 (1975). Moreover,

reversal “on the federal issue would be preclusive of

any further litigation” and “refusal immediately to

review the state court decision might seriously erode

federal policy.” Id. at 482–83; see also infra Part III

(discussing finality).

STATUTORY PROVISION INVOLVED

The tolling provision of the SCRA, 50 U.S.C.

§ 3936(a), provides:

2

The period of a servicemember’s military service

may not be included in computing any period

limited by law, regulation, or order for the

bringing of any action or proceeding in a court, or

in any board, bureau, commission, department, or

other agency of a State (or political subdivision of

a State) or the United States by or against the

servicemember or the servicemember’s heirs,

executors, administrators, or assigns.

This and other relevant sections of the SCRA are

reproduced in Appendix D to the petition. App. 19a–

23a.

STATEMENT

Does the SCRA toll claims brought by a

servicemember in a purely representative capacity for

another? For nearly a hundred years, the answer has

almost uniformly been “no.” The court below departed

from this consensus, despite acknowledging in the

process that its decision would allow unscrupulous

litigants to evade statutes of limitation that plainly

should bar untimely claims. The Court should step in

now to resolve this square split.

A. THE SCRA’S TOLLING PROVISION

Protecting the legal rights of men and women in

the armed forces has long been an important

congressional objective. Since at least the Civil War,

Congress has recognized that military service can

impede servicemembers’ “ability to meet obligations

and protect their legal interests.” R. Chuck Mason,

Cong. Research Serv., The Servicemembers Civil

Relief Act (SCRA): An Explanation 1 (2014). Thus,

“[d]uring the Civil War, Congress enacted an absolute

moratorium on civil actions brought against soldiers

and sailors.” Id.

3

During World War I, Congress passed the

Soldiers’ and Sailors’ Civil Relief Act of 1918. Pub. L.

No. 65-103, 40 Stat. 440 (1918). The Act’s stated

purposes were “to enable [servicemembers] to devote

their entire energy to the military needs of the

Nation” and “to prevent prejudice or injury to their

civil rights during their term of service” by providing

“for the temporary suspension of legal proceedings . . .

which may prejudice the civil rights of persons in

[military] service during” the war. Id. § 100, 40 Stat.

at 440.

The 1918 Act did not institute a moratorium to

accomplish those purposes, but rather provided an

extensive suite of carefully crafted and limited

protections. One of those protections was a tolling

provision:

That the period of military service shall not be

included in computing any period now or

hereafter to be limited by any law for the bringing

of any action by or against any person in military

service or by or against his heirs, executors,

administrators, or assigns, whether such cause of

action shall have accrued prior to or during the

period of such service.

Id. § 205, 40 Stat. at 443. The 1918 Act expired six

months after World War I concluded. See id. § 603, 40

Stat. at 449.

A little over a year before the United States

entered World War II, Congress passed the Soldiers’

and Sailors’ Civil Relief Act of 1940. Pub. L. 76-861,

54 Stat. 1178 (1940). “The Act of 1940 was a

substantial re-enactment of that of 1918.” Boone v.

Lightner, 319 U.S. 561, 565 (1943); see also Brooke

Tibbs, Soldiers’ and Sailors’ Civil Relief Act in 1942:

4

Operation,

Need

for

Clarification,

Future

Significance, 27 MARQ. L. REV. 59, 59 (1943).

Since then, Congress has periodically amended

the Act. For example, Congress revised the tolling

provision to encompass administrative proceedings in

addition to actions brought in court, see Soldiers’ and

Sailors’ Civil Relief Act Amendments of 1942, Pub. L.

77-732, § 5, 56 Stat. 769, 770 (1942); made the Act

permanent, see Selective Service Act of 1948, Pub. L.

80-759, § 14, 62 Stat. 604, 623 (1948); expanded the

Act’s coverage to include National Guard members in

certain circumstances, see Veterans Benefits Act of

2002, Pub. L. 107-330, § 305, 116 Stat. 2820, 2826–27

(2002); and changed its name to the SCRA, see

Servicemembers Civil Relief Act, Pub. L. 108-189, § 1,

117 Stat. 2835, 2835 (2003).

The tolling provision currently provides, in its

entirety:

The period of a servicemember’s military service

may not be included in computing any period

limited by law, regulation, or order for the

bringing of any action or proceeding in a court, or

in any board, bureau, commission, department, or

other agency of a State (or political subdivision of

a State) or the United States by or against the

servicemember or the servicemember’s heirs,

executors, administrators, or assigns.

50 U.S.C. § 3936(a). In all respects material to this

case, the tolling provision has remained the same

since its initial enactment in 1918.1

1

Because the tolling provision has not changed in a material

way, we will refer to all versions of the legislation in which it has

appeared as “the SCRA” to avoid confusion.

5

The stated purposes of the SCRA also remain the

same: “to enable [servicemembers] to devote their

entire energy to the defense needs of the Nation” and

“to provide for the temporary suspension of judicial

and administrative proceedings . . . that may

adversely affect the civil rights of servicemembers

during their military service.” 50 U.S.C. § 3902.

B. THE PROCEEDINGS BELOW

Respondent bought Toyo tires for his BMW Z3

sports car in 2004. In March 2010, respondent and his

wife, both members of the United States Air Force,

were in the United Kingdom during a period of activeduty leave. On March 27, 2010, respondent and his

wife were driving in the BMW when he noticed an

issue with one of the tires and replaced it with the

spare tire. Respondent’s wife held the tire on her lap

in the passenger seat because there was not enough

room for it in the trunk or the back of the car. While

they were searching for a mechanic, the tire exploded,

injuring respondent’s wife. She died from her injuries

several days later, on April 1, 2010.

Respondent was discharged from the Air Force on

September 30, 2011. Thereafter he was appointed the

personal representative of his wife’s estate by a

Colorado court. On September 17, 2014, he filed this

action against petitioners in Oregon state court as the

personal representative of his wife’s estate, alleging

that a defect in the tire caused his wife’s death. See

Or. Rev. Stat. § 30.020(1) (“When the death of a

person is caused by the wrongful act or omission of

another, the personal representative of the decedent

. . . may maintain an action against the wrongdoer, if

the decedent might have maintained an action, had

the decedent lived, against the wrongdoer for an

injury done by the same act or omission.”).

6

Petitioners moved to dismiss the complaint under

the applicable three-year statute of limitations

because the claim accrued when respondent’s wife

died on April 1, 2010. Or. Rev. Stat. § 30.905(4); see

50 U.S.C. § 3911(3) (providing that a servicemember’s

“period of military service” ends “on the date on which

the servicemember . . . dies while in military service”).

The Circuit Court granted the motion. App. 14a.

Respondent appealed, arguing that his claim was

timely because the SCRA tolled the statute of

limitations until he was discharged from the Air Force

on September 30, 2011.

The Oregon Court of Appeals reversed, holding

that the SCRA tolled claims brought by a

servicemember acting in a representative capacity for

another. The court acknowledged that respondent

served “as the personal representative of his wife’s

estate” and “did not allege any claims of his own.”

App. 4a n.1. Yet the court maintained that the SCRA

“does not distinguish between actions brought by a

servicemember in a personal capacity and those

brought in a representative capacity.” App. 6a; App.

8a (substantially same). The court further reasoned

that because respondent would inherit his wife’s

estate, “applying the SCRA to the action serves the

congressionally identified policies” because the

lawsuit “would affect his civil rights.” App. 8a.

According to the court, it was immaterial that

respondent’s claims were wholly “derivative of the

decedent’s rights,” because the claims were “brought

by him,” and were ultimately “for his benefit” as the

7

heir to his wife’s estate.

original).2

App. 11a (emphases in

The court “acknowledge[d] that [its] construction

of the SCRA might encourage some people to attempt

to circumvent statutes of limitation under

circumstances that would not serve the policies that

Congress enacted the SCRA to serve.” App. 9a. The

court further recognized that “anyone can be

appointed personal representative of an estate” under

Colorado law, not just an heir. App. 7a (citing Colo.

Rev. Stat. § 15-12-601). Nevertheless, it disagreed

with the other courts that have “reject[ed] a

construction of the SCRA that would toll statutes of

limitation in actions brought by servicemembers

acting as personal representatives of estates.” Id.

(citing McCoy v. Atl. Coast Line R.R. Co., 47 S.E.2d

532 (N.C. 1948)).

Petitioners’ petition for review was denied by the

Oregon Supreme Court on January 17, 2019.

REASONS FOR GRANTING THE PETITION

Whether the SCRA tolls claims brought by a

servicemember in a purely representative capacity for

another now depends on the jurisdiction in which the

suit is filed. Tolling is unavailable under these

circumstances in North Carolina, Arkansas, New

Hampshire, New York, the Fourth Circuit, and two

federal district courts. The court below departed from

2

The court characterized petitioners’ demonstration that respondent’s claims belong to his wife’s estate as an “alternative

argument.” App. 9a. But that showing is, in truth, part and parcel of the argument that the SCRA does not toll statutes of limitation for claims brought by a former servicemember in a purely

representative capacity, as opposed to “any claims of his own.”

App. 4a n.1.

8

this consensus; servicemembers suing in Oregon may

take advantage of the SCRA’s tolling provision even

though the claims they bring belong to another. This

case presents an excellent vehicle to resolve this

recognized split and to head off the gamesmanship

that will result from allowing tolling in these

circumstances.

I.

FEDERAL AND STATE COURTS ARE SPLIT ON

THE QUESTION PRESENTED

As the court below acknowledged, lower courts are

squarely in conflict regarding the applicability of the

SCRA’s tolling provision to claims brought by

servicemembers in a purely representative capacity.

The vast majority of courts have held that the

SCRA does not toll claims brought by a

servicemember in a purely representative capacity,

because such claims are not personal to the

servicemember and often could just as easily have

been brought by someone else.

In McCoy, the plaintiff, who had served in the

Pacific during World War II, sued as administrator of

his father’s estate “to recover for the injury and death”

of his father as a result of the defendant’s negligence.

47 S.E.2d at 533. The North Carolina Supreme Court

concluded that the SCRA did not apply because the

plaintiff brought the suit “as a representative of the

estate in an official capacity.” Id. at 535. The court

explained:

It seems to us that it was not the intention of the

[SCRA] to hold up administration [of a decedent’s

estate] until one of many eligible persons might

administer [the estate]; or, if such a person has

administered and brought suit in his official

capacity, that it should be regarded as a suit

9

brought by the sailor or soldier designated in the

[SCRA] in his individual right, merely because of

his interest in a contingent recovery of damages in

a suit brought in behalf of decedent’s estate,

however it might be if the distribution, in case of

recovery, was in dispute.

Id. That is, the SCRA does not toll claims brought by

a former servicemember where he sues in his purely

representative capacity, but does toll any personal

claims the servicemember may have.

In Lopez v. Waldrum Estate, 460 S.W.2d 61 (Ark.

1970), the plaintiff was serving in Vietnam when his

wife and daughter were injured in a car crash. The

Arkansas Supreme Court held “that the statute of

limitations was not tolled as to recovery of damages to

which the wife and child were entitled, each in her

own right.” Id. at 65. “Where there were competent

persons by whom an action was or could have been

brought as easily as it could have been by the person

in military service,” the court explained, “it has been

held that the [SCRA] does not apply, particularly

when the suit is brought in a representative capacity.”

Id. at 64. In contrast, tolling did apply “to those

elements of damage for which [the plaintiff], as

husband and father, was entitled to recover in his own

right,” such as loss of consortium and “medical

expenses incurred.” Id. at 65. “Neither the wife nor

any person other than [the plaintiff] could have sued

for these elements of damage which are personal to

him.” Id.

The Fourth Circuit, in Kerstetter v. United States,

57 F.3d 362 (4th Cir. 1995), reached the same

conclusion. The plaintiffs “sought recovery, on behalf

of their minor child Elizabeth for the personal injuries

she sustained as a result of alleged medical negligence

10

by government doctors, and, in their individual

capacities, for the recovery of medical expenses.” Id.

at 363. The SCRA tolled the statute of limitations for

the father’s “claim for medical expenses,” because he

had served in the Navy and his “claim was

independent of his daughter’s personal injury claims.”

Id. at 367, 369. But the SCRA did not toll “the claims

[the plaintiffs] brought on behalf of Elizabeth.” Id. at

366 (citing Miller v. United States, 803 F. Supp. 1120,

1131 n.4 (E.D. Va. 1992)).3

Beck v. United States, No. 86 C 10134, 1987 WL

17154 (N.D. Ill. Sept. 14, 1987), is in accord. A former

member of the Navy and his minor daughter brought

claims to recover damages related to the daughter’s

brain damage, which allegedly was caused by a

vaccine she received as a newborn. The daughter

“argu[ed] that since she is unable, as a minor and

incompetent, to file a claim for damages, she had to

rely on her father,” and that she thus was entitled to

tolling under the SCRA. Id. at *2. The court rejected

that argument, because the daughter “never served in

the military” and “there is no reason why any other

person, or a duly appointed guardian, could not have

represented [her].” Id. In contrast, the court allowed

the father’s claim for “his injuries in having to

maintain the medical, hospital, and vocational care

for” his daughter, because that claim was “personal”

to him and, therefore, triggered SCRA tolling. Id. at

*3.

3

Miller held that “[a]ctions brought by servicemen on behalf

of minors are not tolled by the [SCRA] when the minor was entitled to recover in his own right when there was no reason why a

non-military representative could not have brought the minor’s

claim.” 803 F. Supp. at 1131 n.4.

11

In Phillips v. Generations Family Health Center,

No. 3:11-CV-1752-VLB, 2015 WL 4527008 (D. Conn.

July 27, 2005), aff’d, 657 F. App’x 56 (2d Cir. 2016),

the plaintiff sought to recover for the death of his

sister, who died after a team of doctors failed to

diagnose her colon cancer. The decedent’s son was on

active duty in the United States Navy. Id. at *2. The

plaintiff, who was eventually appointed administrator

of his sister’s estate, “argue[d] that the SCRA applies

to the time when [decedent’s son] was the executor of

the estate.” Id. at *3, 13. The court rejected that

argument, because “the claims belonged to [the

sister’s] estate and were not personal to [her son], as

is demonstrated by the fact that the action was

ultimately filed by [the plaintiff].” Id. at *14.

A few courts have held that the SCRA tolled the

statute of limitations where the servicemember sued

under the title of executor or administrator, because

in reality the claim was personal to the

servicemember. In reaching this conclusion, these

courts also held that the SCRA does not toll claims

brought in a purely representative capacity for

another.

In Halle v. Cavanaugh, 111 A. 76 (N.H. 1920), the

plaintiff brought a tort claim to recover for injuries

she suffered. She then died, and her husband was

drafted into the armed forces. Id. at 77. After nobody

appeared to prosecute her suit, the court “granted the

defendant’s motion to abate the action.” Id. The New

Hampshire Supreme Court agreed that the SCRA did

not toll the limitations period with respect to the

plaintiff’s claim, because “the rights so sought to be

enforced are primarily hers, and not those of her

husband or of one who was in the military service.”

Id. It thus was “immaterial” that “the person

12

appointed representative of the deceased . . . was at

one time in the military service.” Id.

However, under New Hampshire law, “any person

interested in an estate may bring an action which the

executor declines to prosecute”; despite “[t]he fact that

his proceeding might have to be in the name of the

executor,” the plaintiff’s husband in fact would be

proceeding “individually,” which would trigger the

SCRA’s tolling provision. Id. at 77–78. Halle thus

conforms to McCoy and the other cases discussed

above because the court distinguished between

personal and purely representative claims. “The

husband, as an individual” could proceed, but “the

executor in his official capacity” could not. Id. at 78;

see also Tibbs, supra, at 66 & n.70 (citing Halle when

explaining “that the benefits of the [SCRA] have been

held not [to] extend to a soldier acting in a

representative capacity”).

Stutz v. Guardian Cab Corp., 74 N.Y.S.2d 818

(N.Y. App. Div. 1947), is similar. The plaintiff’s

mother was hit by a taxi and died from her injuries.

Id. at 820. The plaintiff, who served in World War II,

sued as administrator of his mother’s estate to recover

for her death. Id. Under New York law, a wrongful

death claim was “[e]ssentially . . . a suit for injury to

the property rights of the beneficiaries named in the

statute.” Id. at 821. The court explained that “[t]he

fact that the action has been brought in the plaintiff’s

name in a representative role” was merely “a matter

of form.” Id. at 822. Because in this case the

“administrator su[ed] on his own behalf individually,”

the SCRA tolled the limitations period. Id. at 823. On

the other hand, tolling did not apply to the claim “for

conscious pain and suffering,” because the “rights

13

sought to be enforced” were “primarily those of the

decedent.” Id. at 824.

On the other side of the ledger, petitioners are

aware of only one other court that has held, like the

Oregon Court of Appeals, that the SCRA tolls claims

brought by a servicemember in a purely

representative capacity. In Mitchell v. Phillips, 58 Pa.

D & C.2d 314 (1972), a child was injured while ice

skating. His father “was overseas in the military

service at the time” and later sued the defendants as

his son’s guardian. Id. at 315. The court rejected

defendants’ argument “that because the minor

plaintiff could have selected another guardian,

presumably not in the military service, the [SCRA]

should not be invoked” to toll the statute of

limitations. Id. at 317.4

II. THE DECISION BELOW IS WRONG AND WILL

LEAD TO INEQUITABLE RESULTS

The plain text of the SCRA’s tolling provision is

clear that it does not extend to claims brought by a

servicemember in a purely representative capacity for

another. The statute provides:

The period of a servicemember’s military service

may not be included in computing any period

limited by law, regulation, or order for the

bringing of any action or proceeding in a court . . .

by or against the servicemember or the

servicemember’s heirs, executors, administrators,

or assigns.

4

Another case stated in dicta that, “[a]s an illustration, Congress could not have intended . . . that an extension of time

. . . should be denied if a soldier, as next of kin, had a statutory

right to recover for the negligence of someone in causing a death.”

Clark v. Mechs.’ Nat’l Bank, 282 F. 589, 591 (8th Cir. 1922).

14

50 U.S.C. § 3936(a) (emphases added). The Oregon

Court of Appeals’ interpretation ignores the last

clause of the statute. The SCRA contemplates the

very situation presented in this case:

the

administrator of the servicemember’s estate, who also

happens to be her heir, brought a claim on her behalf.

See Ebert v. Poston, 266 U.S. 548, 554 (1925) (“[The

SCRA] deals with a single subject and does so

comprehensively, systematically, and in detail.”). The

period of respondent’s wife’s military service thus

would toll the statute of limitations while she was in

military service. But because her service ended at the

same time that her claim accrued (her death), the

SCRA did not toll the limitations period in this

instance. See 50 U.S.C. § 3911(3); Or. Rev. Stat.

§ 30.905(3).

That respondent was also a servicemember and

remained in active service for a period of time after

his wife’s death is irrelevant because he “did not allege

any claims of his own.” App. 4a n.1. Respondent, as

representative of his wife’s estate, brought claims that

“depend[ed] on whether the decedent could have

maintained an action against defendants for her

injuries had she survived.” App. 11a. Indeed, anyone

could have been appointed as representative of her

estate. App. 6a–7a (citing Colo. Rev. Stat. § 15-12601); see also, e.g., Lopez, 460 S.W.2d at 64 (“Where

there were competent persons by whom an action was

or could have been brought as easily as it could have

been by the person in military service, it has been held

that the [SCRA] does not apply, particularly when the

suit is brought in a representative capacity.”). With

few exceptions, it has been “clear” for decades “that

the extension of the statutory period has no

application to a case where the real party to the action

is not a soldier or sailor but the soldier or sailor, as

15

executor or administrator of the estate of the real

plaintiff or defendant, is prosecuting or defending the

action.” Comment, Soldiers and Sailors—Civil Relief

Act of 1940—Application to Decedents’ Estates,

Secured

Obligations,

Installment

Contracts,

Insurance, Taxes, and Assessments, 42 MICH. L. REV.

480, 487 (1943); see also Tibbs, supra, at 66; Ebert, 266

U.S. at 554 (“[The SCRA] is so carefully drawn as to

leave little room for conjecture.”).

The Oregon Court of Appeals further stated that

“applying the SCRA to the action serves the

congressionally identified policies.” App. 8a. The

court noted this Court’s dicta in Boone that the SCRA

should “be liberally construed to protect”

servicemembers. App. 6a (quoting Boone, 319 U.S. at

575).

But Boone also explained that Congress

carefully crafted the SCRA to “‘prevent any person

from taking undue advantage’ of its provisions,” 319

U.S. at 569 (quoting S. Rep. 76-2109, at 2 (1940)), and

cautioned that courts should “see that the immunities

of the [SCRA] are not put to [ ] unworthy use,” id. at

575. Moreover, the Court has recently made it clear

that a statute should not be read more broadly or more

narrowly in order to better effectuate its “remedial

purpose.” Encino Motorcars, LLC v. Navarro, 138 S.

Ct. 1134, 1142 (2018). “We thus have no license to

give the [statute] anything but a fair reading.” Id.

(emphasis added). So too here. See Ebert, 266 U.S. at

553 (“The judicial function to be exercised in

construing a statute is limited to ascertaining the

intention of the Legislature therein expressed.”).

Regardless, the purposes of the statute in fact

confirm the text’s clear meaning. Congress enacted

the SCRA “to enable [servicemembers] to devote their

entire energy to the defense needs of the Nation,” and

16

“to provide for the temporary suspension of judicial

. . . proceedings . . . that may adversely affect the civil

rights of servicemembers during their military

service.” 50 U.S.C. § 3902. Where, as here, others

could act as an estate’s representative, there is no

reason that a servicemember’s attention would need

to be diverted if the statute of limitations is not tolled.

And, contrary to the rationale of the court below,

tolling is not necessary because a case brought by a

servicemember in his purely representative capacity

does not involve his “civil rights”—rather, the claim

asserted is derivative of his deceased wife’s rights.

App. 8a.

The Oregon court’s interpretation will incentivize

gamesmanship. The tolling provision does not give

courts discretion to consider whether tolling would be

just or equitable; rather, “[t]he statutory command in

[§ 3936]

is

unambiguous,

unequivocal,

and

unlimited.” Conroy v. Aniskoff, 507 U.S. 511, 514

(1993). If the text is extended to cover claims brought

in a purely representative capacity, it will invite

abuses that Congress was careful to avoid. The

Oregon Court of Appeals itself “acknowledge[d] that

[its] construction of the SCRA might encourage some

people to attempt to circumvent statutes of limitation

under circumstances that would not serve the policies

that Congress enacted the SCRA to serve.” App. 9a.

Indeed, the logic of the court’s decision is not cabined

to cases involving a claim brought in a representative

capacity; the court’s rule applies just as easily to

assigned claims. So, for example, payday lenders

could assign claims to servicemembers to increase

recovery of exorbitant interest, and an unscrupulous

party could assign a dubious claim to a servicemember

to extend the statute of limitations and coerce a

settlement from the other side. The decision below

17

similarly will encourage forum shopping to take

advantage of the artificially extended statute of

limitations in Oregon and in any state that may follow

its lead. The Court should step in now to correct the

error below to prevent such abuse of the SCRA.

III. THIS CASE IS AN EXCELLENT VEHICLE TO

RESOLVE THE QUESTION PRESENTED

This petition presents a clean vehicle to address

the split in lower court authority over whether the

SCRA tolls claims brought by servicemembers in a

purely representative capacity. The Oregon Court of

Appeals’ decision rested on its interpretation of the

SCRA, and the court acknowledged that its decision

created a conflict. See App. 7a–8a.

The case’s interlocutory posture is no hindrance.

As this Court has repeatedly recognized, a decision

may constitute a “final judgment” under 28 U.S.C.

§ 1257(a) even where the state court has remanded for

further proceedings. Cox Broad., 420 U.S. at 476–85

(describing four exceptions to requirement of finality).

The third and fourth Cox Broadcasting exceptions

apply here. The third exception applies because the

federal issue “has been finally decided” and “later

review of the federal issue cannot be had, whatever

the ultimate outcome of the case.” Id. at 481. The

applicability of the SCRA’s tolling provision has been

adjudicated and is now law of the case. See, e.g., Van

Osdol v. Knappton Corp., 755 P.2d 744, 745 (Or. App.

1988) (“The law of the case principle precludes

relitigation or reconsideration of a point of law decided

on appeal at an earlier stage of the same case.”). The

fourth exception also applies because (a) “the federal

issue has been finally decided,” (b) petitioners “might

prevail on the merits on nonfederal grounds,” such as

by winning on their argument that the tire was not

18

defective, (c) “reversal of the state court on the federal

issue would be preclusive of any further litigation,”

because the statute of limitations bars the claims, and

(d) “refusal immediately to review the state court

decision might seriously erode federal policy,” namely

the carefully targeted applicability of the SCRA’s

tolling provision. Cox Broad., 420 U.S. at 482–83.

The case is ripe for review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOHN W. KNOTTNERUS

JONATHAN M. HOFFMAN

MB LAW GROUP LLP

117 S.W. Taylor Street

Suite 200

Portland, OR 97204

(503) 914-2015

THOMAS H. DUPREE JR.

Counsel of Record

ANDREW G. I. KILBERG

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

tdupree@gibsondunn.com

Counsel for Petitioners

March 1, 2019