Petition for Writ of Certiorari — Massachusetts v. Reopell

Supreme Court brief1991

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SEP 16 9

No. 91-

ee oe

SF OF FHE CLERK

In the Supreme Court of the”

United States

October Term, 1991

COMMONWEALTH OF MASSACHUSETTS,

Petitioner

EARL J. REOPELL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SCOTT HARSHBARGER

ATTORNEY GENERAL

OF MASSACHUSETTS

Douglas H. Wilkins *

Assistant Attomey General

Government Bureau

One Ashburton Place

Boston, Massachusetts 02108

* Counsel of Record (617)727-2200 ext. 2006

QUESTION PRESENTED

Is the Commonwealth’s Eleventh

Amendment immunity from prejudgment

interest on a retrospective damages

award clearly and unequivocally

abrogated when Congress enacts a statute

authorizing the courts only to

"compensate .. . for any loss of wages

or benefits"?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND

STATUTORY PROVISIONS

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

WRIT

THE PETITION SHOULD

BE GRANTED TO RESOLVE

AN IMPORTANT AND

UNSETTLED ISSUE OF

FEDERALISM.

1. This Case Raises

Important Federalism

Issues Concerning

The Eleventh

Amendment And State

Sovereignty.

2. The Circuit Court

Below Misinterpreted

The Application Of

Shaw And Jenkins To

The States’ Immunity

CONCLUSION

(11)

F pe

TABLE OF AUTHORITIES

Case Page

Atascadero State School

and Hospital v. Scanlon,

473 U.S. 234 (1985) 32, 13, 24

Blatchford v. Native

Village of Noatak and

Circle Village, 111 S.Ct.

2578 (1991) 13

Boyle v. Burke, 925

F.2d 495 (lst Cir.

1991) 4

Chernoff v. Pandick

Press, Inc., 440 F.Supp.

822, 827 (S.D.N.Y. 1977) 15

Dellmuth v. Muth, 491 U.S.

223 (1989) 13, 15, 24

Edelman v. Jordan, 415

U.S. 651 (1974) 10

Hanna v. American Motors

Corp., 724 F.2d 1300, 1311

(7th Cir.), cert. denied,

467 U.S. 1241 (1984) 14

Hembree v. Georgia Power

Co., 637 F.2d 423, 430

(5th Cir. 1981) 15

Hoffman v. Connecticut

Department of Income

Maintenance, 492 U.S. 96 16

(111)

Hughes v. Frank, 414

F.Supp. 468 (E.D.N.Y.)

aff’d 551 F.2d 300 (2d

Cir. 1976), cert. denied,

430 U.S. 968 (1977) 5

Library of Congress Vv.

Shaw, 478 U.S. 310

(1986) passim

Missouri v. Jenkins,

491 U.S. 274 (1989) S, £2h, 226

Pegues v. Mississippi

State Employment

Service, 899 F.2d 1449

(5th Cir. 1990) 1 Pe ee

Pennhurst State School

and Hospital v. Halderman,

465 U.S. 89 (1984) ee

Pennsylvania v. Unio’ Gas,

491 U.S. 1 (1989) 12

Port Authority Trans-

Hudson Corp. v. Feeney,

110 S.Ct. 1868 (1990) 18

Rogers v. Okin, 821 F.2d

22 (ist Cir. 1987),

cert. denied, 484 U.S.

1010 (1988) e. 2

Texaco, Inc. v. Louisiana

Land and Exploration, 113

B.R. 924 (M.D. La. 1990) 16

(iv)

United States v. N.Y.

Rayon Im ti .

329 U.S. 654 (1947)

Ww ee. ff. assachusetts

epartment of Public

Welfare, 840 F.2d 996 (1st

Cir. 1988)

Statutes

11 U.S.C. § 106(c)

ae U.S.C. § 2287

ee aaa Ge 8 3333

ye Saomecs S 2071

ae U.S.C. § 20622

28 Use-.C. § 2023

(Vv)

IN THE SUPREME COURT OF THE

UNITED STATES

No. 91l-

COMMONWEALTH OF MASSACHUSETTS,

Petitioner

VW eo

EARL J. REOPELL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The Commonwealth of Massachusetts

petitions for a writ of certiorari to

review the judgment of the First Circuit

Court of Appeals in this case.

OPINION BELOW

The opinion of the First Circuit

Court of Appeals is reported at 936 F.2d

12 and is reproduced as Appendix A

hereto. The decisions of the United

States District Court are unreported and

-2-

are reproduced as appendices B through E

hereto.

JURISDICTION

The judgment of the First Circuit

Court of Appeals was entered on June 18,

1991. Petitioner invokes the

jurisdiction of this Court under 28

U.S.C. § 1257 (1988 ed.). The District

Court had jurisdiction under 28 U.S.c.

§ 1331 and 38 U.S.C. § 2022.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eleventh Amendment to the United

States Constitution provides:

The Judicial power of the United

States shall not be construed to

extend to any suit in law or

equity, commenced or prosecuted

against one of United States by

Citizens of another State, or by

Citizens or Subjects of any Foreign

State.

38 U.S.C. § 2022 (Supp. 1991)

provides, in pertinent part:

-~3-

If any employer, who is a private

employer or a State or political

subdivision thereof, fails or

refuses to comply with the

provisions of section 2021(a),

(b) (1), or (b) (3), or 2024 of this

title, the district court of the

United States . . . shall have the

power, upon the filing of a motion,

petition, or other appropriate

pleading by the person entitled to

the benefits of such provisions,

specifically to require such

employer to comply with such

provisions and to compensate such

person for any loss of wages or

benefits suffered by reason of such

employer’s unlawful action.

STATEMENT OF THE CASE

The plaintiff is a state police

officer who violated, then challenged,

a state police rule prohibiting

officers from joining a federal or

state military organization without

permission.°* His suit arose under

1/ At the time Reopell was disciplined,

it was unsettled whether a state police

force could prohibit its officers from

joining the military reserves witnout

permission. Cf. Boyle v. Burke,

(footnote continued)

-4-

the Veteran’s Reemployment Rights Act

("VRRA"), 38 U.S.C. §§ 2021 et seg. The

Commonwealth argued that the Rule was

not preempted by the VRRA under th

Strict standards that apply under the

Supremacy Clause (App. E-18).

Summary judgment on liability, and

footnote continued)

925 F.2d 495, 500 (lst J

Hughes v. Frank, 414 F.Supp. 468

(E.D.N.Y.) aff'd, 551 F.2d 300 (2a Cc

1976), cert. denied, 430 U.S. 968

(1977). The rule in question, State

Police rule 10.83, read:

Members of the Uniformed Branch ar:

prohibited from joining any federa

or state military organization

without permission of the

Commissioner except that the

Massachusetts National Guard may

joined without written permis:

denied the Commonwealth’s cross-motion

for judgment (App. D-18 to 19).

The parties filed a stipulated

proposed judgment that resolved all

issues except for prejudgment interest

(App. A-5). Under the judgment, the

plaintiff was due "$3,260.41 as lost

wages resulting from plaintiff’s

suspension from State Police duties for

the period May 1, 1985 to May 30

F 2/

(App. C-1 fo 2).""

4 98 5 .

The stipulation left open the issue

whether, as a matter of law, the

jefendant should pay prejudgment

nterest to plaintiff on the back wages

+t forth in the judgment (App. B-2).

In the event that prejudgment interest

were awarded, the parties agreed that

2/ The rest of the judgment concerned

injunctive relief that is not at issue

in this petition (App. C-2 to 6).

the amount was $1,788.01 (id.).

The parties submitted cross motions

for summary judgment on the prejudgment

interest issue (App. B-2 to 3). On

September 7, 1990, the District Court

(Freedman, C.J.) ruled that the

Commonwealth was not liable for

prejudgment interest and entered

judgment to that effect (App. B-8 to

9). The Court held that the Eleventh

Amendment provided the Commonwealth with

immunity from suit for prejudgment

interest under the VRRA because "the Act

does not express any intent that states

be liable for prejudgment interest."

(App. B-5). Tracking the language of

the statute, the Court noted that

"section 2022 does allow the plaintiff

to recover lost wages and benefits from

a state, but there is no ‘clear

affirmative-tntent of Congress to waive

the sovereign’s immunity’ regarding

prejudgment interest. Library of

Congress v. Shaw, 476 U.8. at. 342."

(App. B-7).

The First Circuit Court of Appeals

reversed. The Court acknowledged that

two of its prior decisions had relied

upon Library of Congress v. Shaw, 478

U.S. 310 (1986) in holding that a

general abrogation of state immunity

from suit did not suffice to waive

immunity from prejudgment interest.

(App. A-11, citing WJM, Inc. Vv.

Massachusetts Department of Public

Welfare, 840 F.2d 996, 1006 (ist Cir.

1988); Rogers Vv. Okin, 821 F.2d 22,

26-28 (list Cir. 1987), cert. denied, 424

U.S. 1010 (1988)). The First Circult,

however, reexamined its position in

light of dicta in an intervening case,

Missouri v. Jenkins, aoi 0.8. 274, 281;

-8-

n.3 (1989). Based upon the dicta

(quoted below, pp. 21-22, n.8), the

Court held "that interest is includable

if, under normal liitigation principles

and rules of statutory construction, a

court could have been expected to allow

prejudgment interest on the underlying

recovery." (App. A-15). After a long

discussion of whether the VRRA abrogated

state Eleventh Immunity from damage

awards -- which the Court noted was not

a contested issue -- the Court held:

While . . . Congress did not

expressly provide for the inclusion

of prejudgment interest in an award

under the VRRA, such interest has

commonly been implied by the courts

as being necessary to carry out

Congress’ purpose to make a veteran

whole.

(App. A-25). The Court reversed and

remanded with directions to enter an

order awarding prejudgment interest to

the plaintiff. (App. A-26).

-9-

REASONS FOR GRANTING THE WRIT

THE PETITION SHOULD BE GRANTED TO

RESOLVE AN IMPORTANT AND UNSETTLED

ISSUE OF FEDERALISM.

This case raises serious questions

regarding the relationship between the

sovereign states and the federal

government under the Eleventh Amendment

to the United States Constitution. 2/

As the Court below recognized, "this

dispute takes on a serious cast because

it is in an area that currently divides

the Supreme Court, and as to which the

Court’s opinions provide unsteady

3/ The award of prejudgment interest

here upon a back pay award falls

squarely within the protection cf the

Eleventh Amendment, as it involves

payment from the state treasury for

retrospective relief. "[A) suit by

private parties seeking to impose a

liability which must be paid from public

funds in the state treasury is barred by

the Eleventh Amendment." Edelman v.

Jordan, 415 U.S. 651, 663 (1974).

-10-

guidance." (App. A-9). A dispute of

this nature and gravity should be

resolved by this Court, rather than by a

circuit court, acting upon what it

termed "unsteady guidance."

i This Case Raises Important

Federalism Issues Concerning

The Eleventh Amendment And State

Sovereignty.

This case presents the issue whether

a mere inference based upon statutory

policy is enough to abrogate the states’

constitutional immunity from prejudgment

interest on a back pay award. If so,

then the states’ immunity from

prejudgment interest is unlike their

immunity from damage awards and the

federal government’s sovereign

immunity.

The "significance of [the Eleventh]

Amendment ‘lies in its affirmation that

the fundamental principle of sovereign

immunity limits the grant of judicial

-ll-

authority in Art. III’ of the

Constitution." Atascadero State

Hospital v. Scanlon, 473 U.S. 234, 238

(1985), quoting Pennhurst State School

and Hospital v. Halderman, 465 U.S. 89,

98 (1984).

While Congress can abrogate the

Eleventh Amendment without the states’

consent, 4/ this extraordinary power

amendment is not exercised by Congress

lightly. Abrogation of the state’s

sovereign immunity upsets "the

fundamental constitutional balance"

between the states and the federal

government and severely strains the

principles of federalism that

4/ In Pennsylvania v. Union Gas, 491

U.S. 1, 14-19 (1989), for example, the

Court ruled that Congress had abrogated

Eleventh Amendment immunity under the

Article I Commerce Clause powers.

-12-

underlie the Eleventh Amendment.

Delilmuth v. Muth, 491 U.S. 223, 227

(1989).

In particular "Congress may abrogate

the States’ constitutionally secured

immunity from suit in federal court only

by making its intention unmistakably

Clear in the language of the statute."

Atascadero, supra, 473 U.S. at 242

(emphasis added). See Dellmuth, supra,

491 U.S. at 230 (1989) ("in this area of

law, evidence of congressional intent

must be both unequivocal and textual.")

(emphasis added). See also, Blatchford

v. Native Village of Noatak and Circle

Village, 111 S.Ct. 2578, 2584-86

(1991).

The parties here dispute whether

this clear statement doctrine applies to

the imposition of pre-judgment interest

whenever awards of back pay against the

-13-

states are authorized.

Here, there has been no statement

whatsoever from Congress -- let alone a

clear statement -- that the states are

to be liable for prejudgment interest in

VRRA cases. The VRRA does not award

"compensation" generally, but only

states that the Court has the power to

"compensate . . . for any loss of wages

or benefits ..." 38 U.S.C. §2022

(emphasis added). This says nothing

above prejudgment interest. It cannot

be a clear statement as to separate

elements of damages such as prejudgment

interest.

Indeed, in the case of private

employers, prejudgment interest has been

awarded under the VRRA based upon, at

most, an implication from the statutory

policy. Hanna v. American Motors Corp.,

724 F.2d 1300, 1311 (7th Cir.), cert.

-1]4-

denied, 467 U.S. 1241 (1984); Hembree v.

Georgia Power Co., 637 F.2d 423, 430

(Sth Cir. 1981). Chernoff v. Pandick

Press, Inc., 440 F.Supp. 822, 827

(S.D.N.Y. 1977). An implication is not

an "unequivocal and textual" abrogation

by Congress. See Dellimuth, supra. 2/

Issues concerning the States’

liability for prejudgment interest have

arisen in a number of contexts other

than the present one. 2/ For instance,

5/ Legislative history is irrelevant,

Since legislative history is not

"textual". Id. In addition, none of the

legislative history cited by the First

Circuit addresses the question of

prejudgment interest in any way.

6/ The Commonwealth does not suggest

that there is a split among the circuit

courts. In Pegues v. Mississippi State

Employment Service, 899 F.2d 1449 (5th

Cir. 1990), the Fifth Circuit, unlike

the First Circuit, concluded that the

(footnote continued)

-15-

such issues have occurred in the context

of the Bankruptcy Act.

§§106(a). WJM,

Court below in this case); Texaco,

11 U.S.C.

supra (overruled by the

The.

v. Louisiana Land and Exploration Co.,

113 B.R. 924 (M.D. La.

Hoffman Vv.

1990) ;

Connecticut Department of

Income Maintenance,

(upholding immunity for

492 U.S.

all purposes

when a state has not filed a proof of

Claim, under 11 U.S.C.

(footnote continued)

issue of the states’

§ 106(c)).

immunity from

prejudgment interest has not been

resolved by dictum in Library of

Congress v. Shaw,

Fifth Circuit held that

abrogated that immunity

VII. The fact that two

found abrogations where

immunity to the federal

Supra.

However, the

Congress had

under Title

Circuits have

Shaw would grant

government

suggests the need for this Court to

decide the issue,

are to be preserved.

-l|16-

if the states’

rights

Similarly, Title VII of the Civil

Rights Act of 1964 has been the source

of litigation over prejudgment

interest. Pegues, supra; Cf. Shaw,

Supra (discussing federal government’s

immunity from prejudgment interest).

Substantial sums of money may be

involved in these types of disputes.

Pegues, for example, involved over

$2,873,000, which included back pay and

at least four years of prejudgment

interest. Rogers, supra, though

addressing attorneys fees (which were

later held not subject to the Eleventh

Amendment), involved prejudgment

interest alone amounting to $575,000.

In short, the questions raised by

the decision below implicate important

issues of federalism that should be

resolved by this Court. When a circuit

-l17-

court applies an erroneously low

stand@ard in finding abrogation, the

"States are unable directly to remedy a

judicial misapprehension of that

abrogation . . .". Port Authority

Trans-Hudson Corp. v. Feeney, 110 5.Ct.

1868, 1872 (1990). Only this Court can

reestablish the proper state-federal

balance.

2 « The Circuit Court Below

Misinterpreted The Applicati

of Shaw And Jenkins To _The

State’s Immunity.

This case also squarely raises the

question whether the States are afforded

mmunity from

4 -

the same or similar

prejudgment interest awards as the

federal government enjoys uncael Shav

supra.

Shaw reiterated the rule "that

interest cannot be recovered unless the

¢ . r = — > Pe ~ £5 rmawkr 1V 7 i, ne

of interes was affirmative.y aie

separately contemplated by Congress."

Iid., 478 U.S. at 315. Recognizing that

the courts "must construe waivers

strictly in favor of the sovereign,"

Shaw applied "an added gloss of

strictness" that is virtually identical

to the clear statement doctrine under

the Eleventh Amendment:

"([T)here can be no consent by

implication or by use of ambiguous

language. Nor can an intent on the

part of the framers of a statute or

contract to permit the recovery of

interest suffice where the intent is

not translated into affirmative

statutory or contractual terms. The

consent necessary to waive the

traditional immunity must be express,

and it must be strictly construed."

id., 478 U.S. at 318, quoting United States

v.§ N.Y. Rayon Importing Co., 329 U.S. 654,

659 (1947).

Finding that the statute at issue

“contains no reference to interest," the

Shaw Court held that "congressicnal

Silence" did not permit reading the statute

-19-

to waive sovereign immunity with respect to

interest. Id., 478 U.S. at 319. The Court

relied upon the general principle that

"interest is an element of damages separate

from damages on the substantive claim."

Id., 478 U.S. at 314, citing C. McCormick,

Law of Damages, § 30, p. 205 (1935). The

principles set forth in Shaw for abrogating

federal immunity apply equally to state

immunity. Under the principles enunciated

by this Court, interest is still a separate

element from a "loss of wages or benefits,"

for which recovery is authorized by the

statute involved in this case, 38 U.S.C.

§ 2022.

Moreover, in the VRRA, the federal and

state liability provisions’ have

identical wording, and neither statute even

mentions interest. It is unlikely that

7/ 38 U.S.C. §§ 2022, 2023.

-20-

Congress, as protector of both the

States’ Eleventh Amendment immunity and

the federal government’s sovereign

immunity, intended identical language to

abrogate one form of immunity but not

the other. Moreover, there is nothing

in the Constitutional plan that suggests

that Congress need be less aware of

consequences of legislation that

abrogates the states’ constitutionally

based rights than when it waives federal

sovereign immunity.

The First Circuit read this Court’s

dicta in Jenkins, supra®’ as requiring

8/ In discussing Shaw, a footnote of

the majority opinion noted, among other

things, that:

[The no-interest} rule which is

applicable to the immunity of the

United States and is therefore not at

issue here, provides an "added gloss of

strictness" . . . only where the United

States’ liability for interest is at

(footnote continued)

-21-

the lower federal courts to rule that

Congress abrogated state sovereign

immunity and Eleventh Amendment immunity

as to interest, even if Congress enacted

(footnote continued)

issue .. . Shaw thus does not

represent a general-purpose

definition of compensation for delay

that governs here. Outside the

context of the “no-interest rule" of

federal immunity, we see no reason

why compensation for delay cannot be

included within § 1988 attorney’s

fee awards, which Hutto held to be

"costs" not subject to Eleventh

Amendment strictures. Jenkins,

Supra, 491 U.S. at 281, n.3

This footnote was carefully limited to

the situation actually before the

Court. It contrasted the Shaw situation

(where federal sovereign immunity did

apply) with the award of attorney’s fees

ancillary to prospective relief, where

Jenkins and Hutto hold that the Eleventh

Amendment simply does not apply at all.

The third situation -- where the state’s

sovereign immunity applies -- was, quite

properly, not discussed in footnote 3.

The Fifth Circuit’s decision in

Pegues, supra, agreed, contrary to the

First Circuit, that Jenkins does not

address the third situation.

-22-

a statute expressly authorizing only

compensation for wages and benefits. In

fact, Shaw did not address a situation

in which the Eleventh Amendment applied

at all. Rather, it held that, because

the attorneys fees in question under 42

U.S.C. §1988 were ancillary to the award

of prospective relief, the Eleventh

Amendment was completely inapplicable.

There was no occasion to consider

whether Congress had abrogated Eleventh

Amendment immunity, or whether Congress

had spoken with sufficient clarity in

the text of the statute on the issue.

There is no principled reason why

Shaw would apply only to the federal

government’s immunity but not to the

-23-

Commonwealth’s.2/ This Court should

address this issue directly to settle

the meaning and status of the dicta in

Shaw, particularly where the decision

below is inconsistent with the

Constitutional scheme and this Court’s

Eleventh Amendment jurisprudence. The

First Circuit’s dramatic restructuring

of federal-state relations calls for

9/ The principles of "sovereign

immunity" are not limited to the federal

government, but apply also to the

states. See Pennhurst, supra, 465 U.S.

at 98 (the Eleventh Amendment’s "greater

significance lies in its affirmation

that the fundamental principle of

sovereign immunity limits the grant of

judicial authority in Art. III")

(emphasis added). Atascadero, supra,

473 U.S. at 242 ("By guaranteeing the

sovereign immunity of the states against

suit in federal court, the Eleventh

Amendment serves to maintain" the

"balance" of power between the states

and the federal government) (emphasis

added). Dellmuth, supra, 109 S.Ct. at

2400 (“abrogation of sovereign immunity

upsets ‘the fundamental constitutional

balance between the federal government

and the states’" [citing Atascadero)

(emphasis added).

-24-

review by this Court.

CONCLUSION

For the foregoing reasons, the

provision for a writ of certiorari

should be granted.

Respectfully submitted,

SCOTT HARSHBARGER

ATTORNEY GENERAL

Douglas H. Wilkins*

Assistant Attorney General

Government Bureau

One Ashburton Place, Room 2019

Boston, Massachusetts 02108

(617) 727-2200, ext. 2066

*Attorney of Record

3155B

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- ete F

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 90-1989

EARL J. REOPELL

Plaintiff, Appellant,

Vv.

COMMONWEALTH OF MASSACHUSETTS

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MASSACHUSETTS

(Hon. Frank H. Freedman,

U.S. District Judge]

Before

Campbell, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Cyr, Circuit Judge.

Jonathan R. Siegel, Appellate Staff,

Civil Division, Department of Justice,

with whom Stuart M. Gerson, Assistant

Attorney General, Wayne A. Budd, United

States Attorney, and Michael Jay Singer,

Appellate Staff, Civil Division,

A-1

Department of Justice, were on brief for

appellant.

Douglas H. Wilkins, Assistant

ttorney General, with whom Scott

Harshbarger, Attorney General, was on

brief for appellee.

June 18, 1991

CAMPELL, Circuit Judge. Earl J.

Reopell, whose rights under the

Veteran’s Reemployment Rights Act

(VRRA), 38 U.S.C. § 2021 et seg., were

violated by the Commonwealth of

Massachusetts, appeals from the denial

of prejudgment interest on the

compensation awarded to him by the

district court. The only issue is

whether, as part of compensatory damages

under the VRRA, states found to have

violated the VRRA and held liable for

back pay and other damages may also,

consistent with the Eleventh Amendment,

A-2

be charged with prejudgment interest on

the award. Recent Supreme Court

pronouncements persuade us that a state

should be so charged with interest in

these circumstances.

The facts are not in dispute: In

1983 Earl J. Reopell was a Massachusetts

State Police Trooper. State Pclice

Regulation 10.83, then in force,

provided that "(mjembers of the

Uniformed Branch are prohibited from

joining any federal or state military

organization without permission of the

Commissioner, except that the

Massachusetts National Guard may be

joined without written permission." On

November 10, 1983, Reopell sought the

Commissioner’s permission to join the

United States Army Reserve. Permission

was denied, but Reopell nonetheless

A@S

enlisted in the Army Reserve on December

15, 1984. On or about January 1, 1985,

he informed his superior officer in the

State Police, Captain Gilman, of his

enlistment. In March 1985, Captain

Gilman informed Reopell that charges

were being drawn against him for

violation of Massachusetts State Police

Regulations 10.83 and 10.21 (disobeying

orders). Reopell waived his right to a

hearing and accepted as punishment a

thirty-day suspension without pay.

Captain Gilman also ordered Reopell to

resign from the Army Reserve. Reopell

was suspended without pay for the

thirty-day period beginning April 30,

1985. As a result, he lost pay and also

vacation time, sick leave, and seniority.

Reopell, reprzsented by the United

States Attorney General, brought an

action in the district court against the

A-4

Commonwealth of Massachusetts. The

court found that the Commonwealth had

violated Reopell’s rights under the

VRRA. The parties thereupon stipulated

to the entry of a judgment providing

that Reopell would be paid $3,260.41 on

account of wages lost because of his

suspension; would be credited with lost

vacation; and would have his seniority

restored. The Massachusetts State

Police were also directed to rescind and

declare null and void the order

requiring Reopell to resign from the

Army, and were to publish a

comprehensive order to the effect, inter

alia, that the court had found such

policies to violate the VRRA and had

enjoined them. The case was thus

settled at the remedy stage by agreement

on all matters except one.

A-5

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U.S. 310 (1986), the Court held that

although interest on attorney’s fees is

recoverable in a Title VII action

against a private employer, it is not

recoverable when the defendant is the

United States.2/ The Court relied on

the traditional "no-interest rule,"

under which the "sovereign" is immune

from an award of interest except to the

extent that it has separately waived its

immunity against interest. The Court

held that Congress’ general waiver of

immunity from suit is not sufficient to

2/ In Shaw, the plaintiff prevailed

against the federal government in a race

discrimination suit under Title VII of

the Civil Rights Act of 1964. 42 U.8.¢.

§ 2000e et seq. He sought and obtained

an award of attorney’s fees in the

district court, with an upward

adjustment of 30% to compensate for

delay in payment. The court held that

the upward adjustment was equivalent to

an impermissible award of interest upon

the attorney’s fees. 478 U.S. at 321-

323-6

waive immunity from interest, because

interest is an element of damages

separate from damages on the substantive

claim. 478 U.S. at 314. Following the

Court’s decision in Shaw, this circuit

has suggested that the “no-interest

rule" also applies, at least to some

degree, to actions against states, which

are shielded by sovereign immunity under

the Eleventh Amendment. WJM, Inc. v.

Massachusetts Department of Public

Welfare, 840 F.2d 996, 1006 (1st Cir.

1988); Rogers v. Okin, 821 F.2d 22,

26-28 (lst Cir. 1987), cert. denied, 484

U.S. 1010 (1988). While expressing some

dissatisfaction in Rogers, 821 F.2d at

28, we concluded in light of Shaw that

the Eleventh Amendment forbade

prejudgment interest on a belated

attorney’s fee award made under 42

U.S.C. § 1988 against a state. Since

A-11

Shaw, it has been our view that an award

of prejudgment interest against a state

is invalid unless the state itself has

waived its immunity with respect to such

an award, or Congress has expressly

indicated its intention to subject

States to this element of damages. WJM,

inc., 840 F.2d at 1006.

Recent Supreme Court developments,

however, require us to reexamine our

position. In i989, the Supreme Court

considered whether the Eleventh

Amendment prohibited the enhancement of

an attorney’s fee award against a state

to compensate for delay in payment.

Missouri v. Jenkins, 109 S. ct. 2463

(1989). The court held it did not,

primarily on the ground that attorneys’

fees were not retroactive payments

barred by the Eleventh Amendment. In a

footnote, however, Justice Brennan,

A-12

————=— rh ll—Ct—Ctst—“‘“‘_ “OSS

writing for five justices, expressly

limited the Court’s holding in Shaw to

the "special ‘’no-interest rule’

applicable to the immunity of the United

nn + ¢ e« 109 S. Ct. at 2468,

note 3. The footnote went on to deny

the “existence of an equivalent rule

relating to state immunity that embodies

the same ultra-strict rule of

construction for interest awards that

has grown up around the federal

no-interest rule." Id. Significantly,

in her dissent joined by only two other

justices, Justice O’Connor cited

approvingly this circuit’s decision in

Rogers v. Okin, wherein we extended the

no-interest rule mentioned in Shaw to

the states. Jenkins, 109 S. Ct. at

2475. While footnote 3 in Jenkins 1s

arguably dicta, and while it is by no

means clear that the dispute in the

A-13

Supreme Court over the reach of the

Eleventh Amendment has been finally

resolved, a circuit court is not at

liberty to turn its back on the Court’s

majority pronouncements. That the

dissent took issue with the footnote,

serves only to strengthen the latter by

reducing the likelihood that the five

justices overlooked the language of the

footnote when signing on. We believe,

therefore, that there is no longer any

strict requirement that prejudgment

interest necessarily be expressly

Sanctioned by Congress in order to be

recoverable in an action against a state

brought pursuant to a federal statute -

provided, of course, the Eleventh

Amendment has been effectively abrogated

by Congress in respect to the underlying

damages award. Contrary to our prior

holdings in Rogers, 821 F.2d 22, and

A-14

WIM, Inc., 840 F.2d 996, we now hold

that interest is includable if, under

normal litigation principles and rules

of statutory construction, a court could

have been expected to allow prejudgment

interest on the underlying recovery.

Accord Peques v. Mississippi State

Employment Service, 899 F.2d 1449, 1454

(Sth Cir. 1990).

This conclusion leads us back to the

first question posed - a question that

was not actually decided below - namely,

does the Eleventh Amendment allow

recovery against a state for back pay

and related damages under the VRRA? The

state defendant here stipulated to the

entry of a judgment which included lost

wages. By so capitulating it mooted, as

a practical matter, this issue, leaving

in dispute only the availability of

interest on that judgment. But if

A=15

compensatory actions against states

under the VRRA are, in fact, barred by

the Eleventh Amendment, so too is the

interest on any award. It is relevant

to our interest analysis, therefore,

whether the private compensatory actions

against states provided by the VRRA run

afoul of the Eleventh Amendment. A

leading circuit holding on this point is

that of the Fifth Circuit in Peel v.

Florida Dept. of Transportation, 600

F.2d 1071, 1073 (1979). The court in

Peel held that the VRRA, enacted by

Congress under its War Powers, U.S.

Const. art. I, § 8, abrogated the

Eleventh Amendment. While the extent of

Congress’ power to abrogate the Eleventh

Amendment continues to divide the Court,

its recent 5-4 decision in Pennsylvania

v. Union Gas Co., 109 S. Ct. 2273 (1989)-

gives powerful and near-conclusive

A~16

Support to Peel, which is cited

approvingly by Justice Brennan writing

for the majority. Id. at 2281. The

battle may not yet be ended, but we are

constrained to accept the Court’s

majority pronouncements. The VRRA, to

be sure, was not enacted under the

Commerce Clause, the focus of Union

Gas. But the Court’s rationale for

holding that Commerce Clause enactments

abrogate the Eleventh Amendment equally

Supports War Power abrogation. it

follows that passage of the VRRA -

assuming Congress expressed its

intention to abrogate with adequate

clarity - removed the Eleventh Amendment

bar to damages actions brought under the

Act against a state. Accord Jennings Vv.

Illinois Office of Fducation, 589 F.2d

934, 937-38 (7th Cir. 1979}.

A-17

The relevant section of the VRRA, as

codified in 38 U.S.c. § 2022, reads:

If any employer, who is a

private employer or a State or

political subdivision thereof

fails or refuses to comply

with the provisions of {the

Act) . . . the district court

for the United States

Shall have the power ... to

require such employer to comply

with such provisions and to

compensate such person for any

loss of wages or benefits

suffered by reason of such

employer’s unlawful

action.

(Emphasis added.) This language was

adopted by Congress in 1974, in an

amendment that expanded veterans’

reemployment rights beyond private

employees to include those employed by

state and local governmeents. Act

of Dec. 3, 1974, Pub. L. No. 93-508, 88

3/ The current version of the statute

ls very similar to what emerged in

1974. Two amendments have since been

made, one in 1982 and one in 1984;

neither of them is relevant to this case.

A-18

private employers before the 1974

amendments as well as subsequently.

Helton v. Mercury Freight Lines, Inc.,

444 F.2d 365 (5th Cir. 1971); Accardi v.

Pennsylvania Railroad Company, 369 F.2d

805 (2d Cir. 1966). It is, therefore,

reasonable to believe that when Congress

enacted the 1974 amendments to the VRRA,

extending to veterans the same reemploy~-

ment rights and remedies against states

against private employers, it

intended to subject states to the same

relief as private employers. Ina

single sentence, the VRRA provides

identical remedies against private and

state employers: "({i]f any employer,

who is a private employer or a State or

political subdivision thereof," violates

the Act, a district court may order the

employer to "compensate" the injured

party. The view that the remedies

A-22

available against a private employer

were to be the same as those against a

state employer is further supported by

the Senate Report to the 1974 amendments

to the VRRA, which states, with specific

regard to the remedy section, § 2022:

In addition to recodifying

existing law, this section

extends to employees of State

and local governments and other

political subdivisions

enforcement rights in the same

manner and to the same extent

as are currently provided for

employees of private employers,

including the specific right to

have their legal rights

litigated in the Federal ccurts.

S. Rep. No. 93-907, 93d Cong., 2d Sess.

109, 110 (1974).

The rationale behind granting

prejudgment interest has been that

"‘ijnterest is a proper ingredient of

the instant ‘make whole’ remedy and

should be granted. Prejudgment interest

is viewed as effectuating the purposes

of the Act, particularly that of

A-23

encouraging reemployment of veterans

. at the earliest opportunity." Peel v.

Florida Dept. of Transp., 500 F. Supp.

526, 528 (N.D. Fla. 1980) (citing

cases). This has been the general

interpretation of most courts, leading

many of them to award interest even in

actions against states. See Thomas v.

City & Borough of Juneau, 638 F. Supp.

303, 307-308 (D. Alaska 1986); Adams v.

Mobile County Personnel Board, 115

L.R.R.M. (BNA) 2936, 1982 WL 1972 (S.D.

Ala. 1982); Griffin v. Tunica County

Schools, 112 L.R.R.M. (BNA) 2167, 1982

WL 1966 (N.D. Miss. 1982); Green v.

Oktibbeha County Hospital, 526 F. Supp.

49, 56 (N.D. Miss. 1981); Peel v.

ori ept. sp., 500 F. Supp.

526; but cf. Micalone v. Long Island R.

Co., 582 F. Supp. 973, 980 (S.D.N.Y.

1983) (in suit brought under VRRA,

A-24

successful plaintiff made whole by award

of back pay and reimbursement only).

While, therefore, Congress did not

expressly provide for the inclusion of

prejudgment interest in an award under

the VRRA, such interest has commonly

been implied by the courts as being

necessary to carry out Congress’ purpose

to make a veteran whole. we accordingly

conclude that, by its express direction

in the VRRA to "compensate" persons for

any unlawful loss of wages or benefits

caused by state employers, Congress

intended to empower courts to award

prejudgment interest. It follows, under

the Supreme Court’s recently expressed

views in Jenkins and Union Gas, supra,

that the states are not shielded by the

Eleventh Amendment from paying such

make-whole compensation including

interest.

The district court expressed

agreement "with the plaintiff’s

contention that prejudgment interest is

properly awarded under the Act, in the

interest of reimbursing the veteran."

Howev r, it understandably felt

constrained to deny interest in light of

Shaw and pre-Jenkins Eleventh Amendment

precedent, including our own. As this

precedent must now give way to Jenkins’

limitation of Shaw to suits against the

United States, we reverse and remand

with directions that the district court

enter an appropriate order awarding

prejudgment interest, in the correct

amount, to plaintiff.

So ordered. Costs to appe lant.

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

EARL J. REOPELL,

)

Mi )

Plaintiff, )

)

Vv. >_c. &. NO.

) 87-0066-F

COMMONWEALTH OF )

MASSACHUSETTS, )

)

Defendant. )

)

MEMORANDUM AND ORDER

September 7, 1990

FREEDMAN, C.J.

This matter arises from a violation

by the Commonwealth of Massachusetts

("the Commonwealth") of rights

guaranteed to plaintiff “arl J. Reopell

by the Vietnam Era Veterans’

Readjustment Act ("the Act"), 38 U.S.C.

B=-1

§ 2021 et seq. The parties agreed that

pursuant to 38 U.S.C. § 2022 ("section

2022"), the Commonwealth would pay the

plaintiff $3,260.41 for lost wages for

the period May 1, 1985 to May 30, 1985.

A judgment was entered by this Court for

that amount.

On April 3, 1990, the Commonwealth

and the plaintiff stipulated that the

only remaining issue in this case was

the matter of prejudgment interest. The

parties agreed that if this Court

determined that an award of prejudgment

interest is warranted, the amount to be

paid by the Commonwealth through

February 28, 1990 would be $1,788.01,

with additional interest accruing at the

rate of 8% annually.

On April 17, 1990 the plaintiff, who

is represented by the United States

Attorney pursuant to section 2022, filed

B-2

a Motion for Summary Judgment seeking an

award of prejudgment interest. The

Commonwealth filed a Cross-Motion for

Summary Judgment on April 25, 1990.

Having determined that prejudgment

interest may not be granted in this

case, the Court will now deny the

plaintiff’s motion and grant the

Commonwealth’s cross-motion.

II. DISCUSSION

The Court is in agreement with the

plaintiff’s contention that prejudgment

interest is properly awarded under the

Act, in the interest of reimbursing the

veteran. Hanna v. American Motors

Corp., 724 F.2d 1300, 1311 (7th Cir.)

(defendant was private employer), cert.

denied, 467 U.S. 1241 (1984); Hembree vy.

Georgia Power Co., 637 F.2d 423 (5th

Cir. 1981) (defendant was private

employer); Brown v. Consolidates Rail

B-3

Corporation, 614 F.Supp. 289, 291 (N.D.

Ohio 1985) (defendant was government

chartered corporation); Ryan v. City of

Philadelphia, 559 F.Supp. 783, 784, 787

(E.D. Pa. 1983) (defendant was municipal

corporation chartered by the state),

aff’d., 732 F.2d 147 (3d Cir. 1984).

However, the Court also agrees with the

Commonwealth’s contention that the

Eleventh Amendment to the United States

Constitution precludes recovery of

prejudgment interest from a sovereign

state which is found to have violated

the act.

The plaintiff relies on Peel v.

Florida Department of Transportation,

500 F.Supp. 526, 528 (N.D. Fla. 1980),

in which the district court found that

Florida law could not preclude an award

of prejudgment interest on a monetary

award arising from a state agency’s

B-4

violation of the Act. While the

district and appeals court in Peel had

earlier rejected the notion that the

Eleventh Amendment would shield the

state from liability under the Act, Peel

v. Florida Department of Transportation,

443 F.Supp. 451 (N.D. Fla. 1977),

aff’d., 600 F.2d 1070 (5th Cir. 1979),

the courts did not consider the Eleventh

Amendment’s applicability to prejudgment

interest. See also, Comacho v. Public

Service Commission, 450 F.Supp. 231

(D.P.R. 1978) (Commonwealth is liable

for damages under the Act, despite

Eleventh Amendment sovereign immunity).

In the instant case, the Act does

not express any intent that states be

liable for prejudgment interest. "In

the absence of express congressional

consent to the award of interest

separate from a general waiver of

B=-5

immunity to suit, the United States is

immune from an interest award." Library

of Congress v. Shaw, 478 U.S. 310, 314

(1986) (no-interest rule precludes

increased compensation for delay in

payment of attorney fees pursuant to

Civil Rights Act of 1964). Likewise, a

clear abrogation of a state’s sovereign

immunity by Congress is also required in

order to make a state subject to suit.

Dellmuth v. Muth, 105 L.Ed. 181, 187-88

(1989); Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 243 (1985). See

also Rogers v. Okin, 821 F.2d 22, 27-28

(lst Cir. 1987) ("neither the statutory

language nor the legislative history

gives any basis for an inference that

Congress actually intended to remove the

states’ Eleventh Amendment immunity from

substantial sums of prejudgment interest

on attorneys’ fee awards"), cert denied,

B-6

ve.

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the period May 1, 1985 to May 30, 1985.

Payment shall be made to Earl Reopell

through the United States Department of

Labor within 60 days of this judgment.

The plaintiff’s claims for pre-judgment

interest are reserved for further

adjudication.

2 The State Police shall credit

plaintiff with forty (40) vacation days

as of the date of this final judgment.

Plaintiff shall be entitled to use the

aforesaid vacation days during a two

year period commencing on the date of

this judgment. The scheduling of

vacation shall be subject to the

approval of the commanding officer of

the barracks, which approval shall not

be withheld unreasonably.

36 The Massachusetts State Police

shall rescind and declare null and void

the order that it issued to plaintiff on

C-2

Or about April 19, 1985 to resign from

the United States Army Reserve.

4. The Massachusetts State Police

shall issue and distribute a special

order within twenty (20) days of this

judgment, containing the following

information:

(a) The Viet Nam Era Veteran’s

Reemployment Rights Act, a federal

statute, prohibits employers,

including state agencies, from

interfering with the right of

employees to join federal or

national guard military reserve

units or otherwise deny an employee

an incident or advantages of

employment because of any

obligations as a member in federal

or national guard military reserve

units.

C-3

(pb) The Federal District Court for

the District of Massachusetts has

ruled that State Trooper Earl J.

Reopell, Jr. was unlawfully

disciplined by the Massachusetts

State Police because he joined the

United States Army Reserve.

State Trooper Earl J. Reopell, Jr.

was unlawfully ordered by the

Massachusetts State Police to

resign from the United States Army

Reserve.

(d) The Commonwealth of

Massachusetts is restoring State

Trooper Earl J. Reopell, Jr. all

vacation, seniority and other

benefits denied to him because of

his membership in the United

c-4

States Army Reserve including payment of

lost wages.

(e) The Federal District Court for

the District of Massachusetts has

enjoined the Massachusetts State

Police from disciplining employees

or officers for joining the

federal reserves and from ordering

employees or officers to resign

from the federal reserves.

a The Massachusetts State Police

Shall expunge any and all references to

disciplinary action taken against

Trooper Earl J. Reopell, Jr., from his

employment records with the

Massachusetts State Police.

6. The Massachusetts State Police

Shall restore to Trooper Earl J.

Reopell, Jr. ary and all seniority

rights and other benefits to which he is

entitled and which have been denied to

him as a result of his membership in the

United States Army Reserve.

7s The Massachusetts State Police

are hereby enjoined from enforcing State

Police Rule 10.83 to discipline

employees or officers for joining the

federal reserve or to order employees or

officers to resign from the federal

reserves.

S/ Frank H. Freedman

United States District

Judge

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

EARL J. REOPELL,

Plaintiff,

V. Ce Be Rs

87-O066-F

COMMONWEALTH OF

MASSACHUSETTS,

Defendant.

— eee ee ee wee es wes wes ws wes we

MEMORANDUM AND ORDER

January 11, 1989

FREEDMAN, C.J.

This case involves the application

of the Veteran’s Reemployment Rights Act

("VRRA"), 38 U.S.C. §§ 2021 et seq., to

the Massachusetts State Police Rule

regarding service in Army Reserves.

D-1

Plaintiff seeks lost wages and other

benefits allegedly suffered by

defendant’s implementation of the State

Police Rules in a manner discriminatory

to his service in the Army Reserves.

The case is before the Court on

defendant’s objections to the

Magistrate’s October 7, 1988 Report and

Recommendation to allow plaintiff's

motion for summary judgment and deny

defendant’s motion for summary

judgment. Having reviewed the

recommendation, the Court makes the de

novo determination that the Magistrate’s

conclusions should be adopted with

certain modification as set forth

below. These modifications address

defendant’s objections and supplement

the Magistrate’s analysis. This

Memorandumand Order should, therefore,

be read in conjunction with the Report

D-2

and Recommendation to make up the

decision of the Court. See 28 U.S.C.

§ 636(b)(1)(B); Fed. R. Civ. P. 72(b);

Rule 3, Rules for United States

Magistrates in the United States

District Court for the District of

Massachusetts.

Ti.

There being no objection to the

Magistrate’s rendition of the facts, the

Court hereby adopts it as follows:

This case was submitted on a joint

stipulation of facts.

Plaintiff is a United States Navy

veteran and was a member of the

United States Navy Ready Reserve

from November 1972 to December

1974. Joint Stipulation of Facts

("Joint Stipulation"), ¥GF 1 and 2.

In November 1974 plaintiff was

hired by the Massachusetts State

Police and received training at the

state police academy. Joint

Stipulation, § 4. The plaintiff,

in order to devote full time to his

state police academy training,

allowed his enlistment in the naval

reserve to expire during December

D-3

1974. Joint Stipulation, q 6.

Plaintiff has served as a

Massachusetts state police trooper

since February 1975. Joint

Stipulation, 4 7.

At issue in this case is State

Police Rule 10.83, which provides:

Members of the Uniformed Branch

{including the State Police] are

prohibited from joining any

federal or state military

organization without permission

of *he Commissioner, except that

the fassachusetts National Guard

may be joined without written

permission.

Pursuant to this regulation, in

November of 1983 plaintiff

requested permission from the State

Police to join the United States

Army Reserve. Joint Stipulation, 4

10. Following the advice of his

superior officer, plaintiff re-

submitted his request to join the

United States Army Reserve by

providing additional information on

December 1, 1983. Joint

Stipulation, @ 12.

Plaintiff’s request was denied on

December 19, 1983. Joint

Stipulation, § 13. Approximately

one year later, in spite of the

denial, plaintiff enlisted in the

United States Army Reserve. Joint

D-4

Stipulation, 15.2/

Plaintiff subsequently informed

his superior officer in the

Massachusetts State Police of his

enlistment in the United States

Army Reserve. Joint Stipulation, 4

Plaintiff was informed by his

superior officer during March of

1985 that charges had been brought

against him for violation of

Rule[{s] 10.83 and 10.21.2/

Plaintiff accepted the option of

waiving his right to a hearing on

the rules violation charges and

accepted the punishment of a

thirty-day suspension without pay.

Joint Stipulation, |q 19 and 20.

The suspension resulted in a loss

of pay, including overtime, in the

amount of $3,008.40; loss of sick

leave in the amount of one and one

quarter days; loss of vacation in

Plaintiff was assigned to the

Westover Air Force Base in Chicopee,

Massachusetts as a Private First

Class. Joint Stipulation, § 16.

State Police Rule 10.21 provides:

"No member of the Uniform Branch

shall wilfully disobey any lawful

command of any commissioned officer,

non-commissioned officer, or member

of the Uniform Branch senior to him."

D-5

the amount of 10 days, and a loss

of seniority. Joint Stipulation,

q 23.

In April of 1985 plaintiff was

ordered by his superior officer of

the State Police to resign from the

United States Army Reserve. Joint

Stipulation, ¢ 21. At the request

of the United States Department of

Labor, this order was suspended

temporarily; although it is still

in effect, it continues to be

stayed. Joint Stipulation, §§ 24

and 25.

There are approximately 1,108

uniformed members of the

Massachusetts State Police, sever

of whom are members of federal

military reserve units. Joint

Stipulation, 44 26 and 35. All oft

these seven troopers were members

of the federal military reserve

units at the time they were hired

by the state police. Joint

Stipulation, q 36.

Members of both the federal

military reserve units and the

Massachusetts National Guard are

required to attend a minimum of 4

drills per year and fourteen days

active duty for training per year.

Joint Stipulation, qq 37 nd 38.

noted in Rule 10.83, membership

the Massachusetts National Guar

inrestricted.

attend mandatory training sessions,

plaintiff requested a leave of

absence from the state police for

the period of August 10th through

the 24th. Joint Stipulation, 4q 40

and 41. Later, on August 9, 1985

plaintiff altered his request to

use his vacation leave for the

August 11 through 24, 1985

training. This request was

grantei. Joint Stipulation, 4 42

Thus, plaintiff performed the

mandatory annutal training

exercises with his military reserve

init by using his own vacation

time. Joint Stipulation, 4 43.

In June of 1986 plaintiff

received additional orders to

attend mandatory military training

from June 21 to July 5, 1986 and

waS again granted vacation leave.

Joint Stipulation, 4 44 and 4:

Again, in August of 1987 plaintiff

ittended mandatory reserve unit

training using vacation time.

Joint Stipulation, 4q 47, 48 an:

In April of 1987 plaintiff filed

this lawsuit, claiming loss of

wages and other benefits due to thse

defendant’s violation of the

Veteran’s Reemployment Rights A

ee 38 U.S.C.A. §§ 2021, 2024.

Where, as here, there is no

jenuine issue as to any material

fact, this case is ripe for summary

l1dgment as to liability. See Fe

Civ. P. 56(C); see also Andersor

/ perry Fale

, ‘

ry . 4

J p Jas b/ Y 4 A 4 *

: )

242, 247-8 (1986). Plaintiff’s

monetary damages may be the subject

of future proceedings.

Magistrate’s Report and

Recommendation at 2-5.

Ill.

The Magistrate concluded that the

State Police Rule barring "’(mjembers of

the Uniform Branch . . . from joining

any federal or state military

organization without permission of the

Commissioner . . .’ conflicts directly

both with the letter of the statutory

prohibitions and with the spirit of

broad Congressional constitutional

authority to raise and support the

militia." Report and Recommendation at

8. In addition to the direct conflict

that the Magistrate pointed out, VRRA

preempts the State Police Rule because

the Rule frustrates the purpose of

VRRA: "’to prevent reservists and

D-8

National Guardsmen not on active duty

who must attend weekend drills or summer

training from being discriminated

against in employment because of their

Reserve membership ... .’" Monroe v.

Standard Oil Co., 452 U.S. 549, 557

(1980) (quoting S. Rep. No. 1477, 90th

Cong., 2d Sess., 1-2 (1968)) (emphasis

added); see Jones v. Rath Packing Co.,

430 U.S. 519 (1977) (a state law

imposing labelling standards on bacon

and flour which were different from

federal standards held invalid because

it would frustrate the Congressional

purpose of providing direct comparisons

for consumers); City of Burbank v.

Lockheed Terminal, Inc., 411 U.S. 624

(1973) (state statute imposing airport

curfew held preempted because it

inhibited the purpose of federal law,

hindering flexibility useful in

D-9

controlling air traffic flow); see;

e.g., Jennings v. Illinois Office of

Education, 589 F. Supp. 935, 944 (7th

Cir.), cert. denied, 441 U.S. 967 (1979)

(holding that VRRA "preempts state law

in view of ’Congress’ explicit design

for uniform enforcement among the States

fin section 20223) .....«-.** Citation

omitted). Given the pre-eminent status

of federal law in this instance, the

controlling question is whether

plaintiff was deprived of the enjoyment

of any “incident or advantage of

employment for reasons causally related

to the employee’s reserve obligations."

Carlson vy. New Hampshire Department of

Safety, 609 F.2d 1024, 1027 (1st Cir.

1979) (emphasis in original).

There is no question that defendant

imposed a thirty-day suspension upon

plaintiff for his violation of the Rule

D-10

requiring that he obtain the

Commissioner’s permission before joining

his reserve unit. State Police Rule

10.83. This suspension was

unequivocally causally related to

plaintiff’s reserve obligations.

Defendant propounds clever obfuscation

of this fact, arguing that plaintiff was

not suspended directly for violating the

permission requirement in Rule 10.83,

but instead for committing an act of

insubordination as defined under Rule

10.21 by joining the reserve unit before

obtaining Rule 10.83 permission.

Defendant also maintains that because

plaintiff allowed the suspension to

stand without taking advantage of the-

prescribed appeal process, plaintiff

should be precluded from challenging his

suspension in this Court. However, the

question is not whether plaintiff was

D-11

afforded due process or exhausted his

administrative remedies or rolled over

and played dead rather than perform an

exercise in futility in the face of

intractable bureaucracy. Instead, the

legality of the Rule inhibiting military

service is at issue. The fact that this

Rule was the basis for suspension only

goes to linking wrongdoing to injury.

For these reasons, defendant’s waiver

and estoppel arguments are inapplicable.

Defendant also objects to the

Magistrate’s conclusion that plaintiff’s

requests for leave were reasonable. The

"rule of reasonableness" was founded in

Lee v. City of Pensacola, 634 F.2d 886,

888-890 (1981). The Lee court dealt

with a situation where a National Guard

member/police officer attempted to get

additional leave beyond the time the

police department had originally

D=12Z

allowed. Specifically, the court found

that:

Lee,

[Fjor several weeks prior to

his application for an

extension of the leave for an

additional four months, Lee was

negotiating with his military

supericrs to ascertain whether

they would extend his period of

training beyond the original

leave which he had requested

and obtained. Yet he had no

communication with the police

department to indicate that he

was seeking such extension of

his training period. He waited

until he received actual orders

amending the original training

orders before he communicated

with the police depart-

ment... . {Hje did not even

then undertake to discuss with

his employer the opportunities

which were available to hin,

but simply stated that he

intended to continue his

absence from his civilian

duties. He completely ignored

the difficulties faced by the

City in carrying out its

important police duties.

634 F.2d at 889; Gulf States Paper

Corp. v. Ingram, 811 F.2d 1464, 1468-69

(lith Cir. 1987) (recognizing that the

Lee reasonableness gloss on the VRRA

De-13

leave requirement, 38 U.S.C. § 2024, is

in essence a direction to the court to

"look for conduct akin to bad faith on

the enmpiovee’s part... « «a").

Contrasting Lee’s conduct with Reopell’s

demonstrates that the latter acted well

within reason given the law concerning

employers’ obligations with regard to

empioyees’ service in the reserves.

Reopell first requested permission, in

accordance with Rule 10.83, to join the

reserve unit. It was only after the

Commissioner denied this permission that

plaintiff went on and joined the

reserves. See Trustees of Boston

University v. NLRB, 548 F.2d 391, 393

(1st Cir. 1977) (recognizing that leeway

is given to an employee’s behavior

especially when it is in response to the

employer’s unlawful behavior); see also,

NLRB v. Steinerfilm, Inc., 669 F.2d 845,

D-14

852 (lst Cir. 1982) (". .. ‘it is

immaterial that the employee’s

misconduct would constitute a sufficient

reason for discharge if the actual

reason for discharge’ is an unlawful

one."). Reopell also demonstrated his

appreciation for the importance of the

work of the Commonwealth’s police force

by using his vacation time to fulfill

his yearly two-week active duty training

obligation with the reserves. Plaintiff

acted as reasonably as possible siven

defendant’s obstinate refusal to allow

plaintiff to serve in the reserves.

Defendant also persists in its ipse

dixit argument that VRRA was not meant

to apply to persons who join the

reserves after commencing employment.

There is no such qualification in the

law which applies simply to "[a]ny

person who seeks or holds a [reserve]

D-15

pesition ... .* 38 -8.6.¢:;

§ 2021(b)(3) (emphasis added).

Furthermore, defendant fails to submit

any legal argument indicating that this

previous enrollment requirement may be

reasonably inferred. But see Chesna v.

International Fueling Company, 99 Lab.

Cas. (CCH) | 10,640 at 20,078 (D. Mass.

1984) (plaintiff who commenced reserve

‘Service after engaging in employment

allowed protection of VRRA).

Defendant’s maintenance of a

separate, more permissive policy for

National Guardsmen further demonstrates

discrimination against plaintiff in his

Capacity as an Army Reservist. In

defense of its Rule, defendant urges the

adoption of the reasoning in Hughes v.

Frank, 414 F. Supp. 468, 469 (E.D.N.Y.),

aff’d without opinion, 551 F.2d 300 (2d

Cir. 1976), cert. denied, 430 U.S. 968

D-16

(1977). The Hughes court upheld a

county police department quota limiting

the number of officers who could serve

in a reserve capacity to one hundred.

Contra Kolkhorst v. Robinson, et al.,

No. JFM-86-3057, slip op. at 7 (D. Md.

June 13, 1988) (striking down as

unlawful under VRRA a municipal police

department’s one-hundred person limit on

the number of officers who may be in the

reserves). Unlike the Rule in the case

at bar, there is no indication that the

Hughes quota policy particularly

discriminated against Army Reservists as

opposed to National Guardsmen. In

addition to the fact that the quota

policy challenged in Hughes does not

Square with the Rule questioned here,

Hughes dealt with the distinct legal

question of whether the plaintiff had

made out an equal protection claim. For

D-17

these reasons, the Court sees no reason

to adopt the conclusion of Hughes.

The Court does not reach this

decision against the Commonwealth

unmindful of the need to maintain a

continually strong State Police Force.

However, as the Court recognized in

Monroe, 452 U.S. at 565, Congress is in

the best position to weigh the benefits

to reservists and the military against

the burden on employers including the

Commonwealth. Kolkhorst, slip op. at

5-6.

IV.

_ For all of the foregoing reasons,

the Court hereby ADOPTS the Report and

Recommendation of the Magistrate insofar

as it is consistent with the

above-stated modifications.

Accordingly, plaintiff’s motion for

summary judgment is ALLOWED and

D-18

defendant’s motion for summary judgment

is DENIED. The plaintiff’s relief may

be the subject of future proceedings.

It is So Ordered.

Chief United States

District Judge

APPENDIX E

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

EARL J. REOPELL,

)

a )

Plaintiff, )

)

Vv. . €.- ha WO

) 87-0066-F

COMMONWEALTH OF )

MASSACHUSETTS, )

)

Defendant. )

)

REPO N G NG

CROSSMOTIONS FOR SUMMARY JUDGMENT

October 7, 1988

PONSOR, U.S.M.

be INTRODUCTION

In this case, plaintiff Earl J.

Reopell, seeks lost wages and other

l/ This matter has been referred to the

court for report and recommendation

pursuant to Rule 3 of the Rules for

United States Magistrates in the United

States District Court for the District

of Massachusetts, 28 U.S.C. § 636(b) (1)

(B).

E-1

benefits suffered allegedly by reason of

the defendant’s violation of the

Veteran’s Reemployment Rights Act ("the

VRRA"). 38 U.S.C.A. §§ 2021 et seq.

The fundamental issue raised by

this lawsuit is whether the

Commonwealth’s State Police Rule 10.83,

which prohibits the plaintiff -- a

Massachusetts state police trooper and

military veteran -- from joining the

army reserves, runs afoul of the VRRA or

the Constitution.

For the reasons set forth below,

the court concludes that it does.

Plaintiff’s motion for summary judgment

should therefore be allowed and the

defendant’s motion for summary judgment

should be denied.

II. FACTUAL BACKGROUND.

This case was submitted on a joint

stipulation of facts.

E-2

Plaintiff is a United States Navy

Veteran and was a member of the United

States Navy Ready Reserve from November

1972 to December 1974. Joint

Stipulation of Facts ("Joint

Stipulation"), 44 1 and 2. In November

1974 plaintiff was hired by the

Massachusetts State Police and received

training at the state police academy.

Joint Stipulation, 4 4. The plaintiff,

in order to devote full time to his

state police academy training, allowed

his enlistment in the naval reserve to

expire during December 1974. Joint

Stipulation, § 6. Plaintiff has served

as a Massachusetts state police trooper

Since February 1975. Joint Stipulation,

G7.

At issue in this case is State

Police Rule 10.83, which provides:

Members of the Uniformed Branch

E-3

{including the State Police] are

prohibited from joining any federal

or state military organization

without permission of the

Commissioner, except that the

Massachusetts National Guard may be

joined without written permission.

Pursuant to this regulation, in

November of 1983 plaintiff requested

permission from the State Police to join

the United States Army Reserve. Joint

Stipulation, | 10. Following the advice

of his superior officer, plaintiff re-

submitted his request to join the United

States Army Reserve by providing

additional information on December 1,

1983. Joint Stipulation, q 12.

Plaintiff’s request was denied on

December 19, 1983. Joint Stipulation,

9 13. Approximately one year later, in

spite of the denial, plaintiff enlisted

in the United States Army Reserve.

Joint Stipulation, 4 15.2/ Plaintiff

subsequently informed his superior

officer in the Massachusetts State

Police of his enlistment in the United

States Army Reserve. Joint Stipulation,

q 17.

Plaintiff was informed by his

superior officer during March of 1985

that charges had been brought against

him for violation of Rule 10.83 and

10.21.2/ Plaintiff accepted the

option of waiving his right to a hearing

on the rules violation charges and

accepted the punishment of a thirty-day

Suspension without pay. Joint

2/ Plaintiff was assigned to the

Westover Air Force Base in Chicopee,

Massachusetts as a Private First Class.

Joint Stipulation, 4 16.

3/ State Police Rule 10.21 provides:

"No member of the Uniform Branch shall

wilfully disobey any lawful command of

any commissioned officer, non-

commissioned officer, or member of the

Uniform Branch senior to him."

E-5

Stipulation, 4§ 19 and 20. The

suspension resulted in a loss of pay,

including overtime, in the amount of

$3,008.40; loss of sick leave in the

amount of one and one quarter days; loss

of vacation in the amount of 10 days,

and a loss of seniority. Joint

Stipulation, q 23.

In April of 1985 plaintiff was

ordered by his superior officer of the

State Police to resign from the United

States Army Reserve. Joint Stipulation,

G 21. At the request of the United

States Department of Labor, this order

was suspended temporarily; although it

is still in effect, it continues to be

stayed. Joint Stipuiation, FG 24 and 25.

There are approximately 1,108

uniformed members of the Massachusetts

State Police, seven of whom are members

of federal military reserve units.

E-6

Joint Stipulation, 44 26 and 35. All of

these seven troopers were members of the

federal military reserve units at the

time they were hired by the state

police. Joint Stipulation, 4 36.

Members of both the federal

military reserve units and the

Massachus*tts National Guard are

required to attend a minimum of 48

drills per year and fourteen days active

duty for training per year. Joint

Stipulation, 4G 37 and 38. As noted in

Rule 10.83, membership in the

Massachusetts National Guard is

unrestricted.

In July of 1985, pursuant to

Federal Army Reserve orders to attend

mandatory training sessions, plaintiff

requested a leave of absence from the

state police for the period of August

10th through the 24th. Joint

E-7

Stipulation, 4G 40 and 41. Later, on

August 9, 1985 plaintiff altered his

request to use his vacation leave for

the August 11 through 24, 1985

training. This request was granted.

Joint Stipulation, § 42. Thus,

plaintiff performed the mandatory annual

training exercises with his military

reserve unit by using his own vacation

time. Joint Stipulation, § 43.

In June of 1986 plaintiff received

additional orders to attend mandatory

military training from June 21 to

July 5, 1986 and was again granted

vacation leave. Joint Stipulation, { 44

and 45. Again, in August of 1987

plaintiff attended mandatory reserve

unit training using vacation time.

Joint Stipulation 4G 47, 48 and 49.

In April of 1987 plaintiff filed

this lawsuit, claiming loss of wages and

E-8

other benefits due to the defendant’s

violation of the Veteran’s Reemployment

Rights Act. See 38 U.S.C.A. §§ 2021,

2024.

Where, as here, there is no genuine

issue as to any material fact, this case

is ripe for summary judgment as to

liability. See Fed. R. Civ. P. 56(c);