# Amicus Curiae Brief — Conroy v. Aniskoff

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 511

## Text

SBorame Court, U.S,
2 RBIUER
No. 91-1353 | GUN 2 1992

CiFICE OF THE CLERK

OCTOBER TERM, 1991

THOMAS F.. CONROY, PETITIONER

WALTER S. ANISKOFF, JR., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME JUDICIAL COURT OF MAINE

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

KENNETH W. STARR
Solic’tor General

JAMES A. BRUTON
Acting Assistant Attorney General

LAWRENCE G. WALLACE
Deputy Solicitor General

JOHN F. MANNING
Assistant to the Solicitor General

RICHARD FARBER
BRIDGET M. ROWAN
Attorneys

Department of Justice
Washington, D.C. 20530
(202) 514-2217

a

QUESTION PRESENTED

Section 205 of the Soldiers’ and Sailors’ Civil Relief
Act of 1940, 50 U.S.C. App. 525, excludes a service mem-
ber’s period of military service after October 6, 1942,
from the computation of “any period * * * provided by
any law for the redemption of real property sold or
forfeited to enforce any obligation, tax, or assessment.”’
The question presented is whether a service member may
invoke the protections of Section 525 without showing
that his military service prejudiced his ability to redeem
his property within the period otherwise prescribed by
state law.

(I)

TABLE OF CONTENTS

Page
Statutory provision involved ...... ... “SS RSE aa sae 1
Statement... | . 2
Discussion St a Re es 4
EE “eae ees 20
TABLE OF AUTHORITIES
Cases:
Bailey Vv. Barranca, 488 P.2d 725 (N.M. 1971) .. 8, 13,
15, 16
Bickford v. United States, 656 F.2d 636 (Ct. Cl.

1981) secsaseenly Be G 29, 28
Boone V. Lightner, 319 US. 561 (1943) 11, 12
Caminetti v. United States, 242 U.S. 470 (1917) 6
Consumer Product Safety Comm'n v. GTE Syl-

vania, Inc., 447 U.S. 102 (1980) .. _ 6
Crouch V. United Technologies Co., 533 So. 2d 220

(Ala. 1988) . - 16
Davis Vv. Michigan Dep’ t of Treasury, 489 U. S. 803

(1989) Rae - . 14-15
Ebert v. Poston, 266 U.S. 548 (1925) - 5, 11
Fishgold v. Sullivan Drydock & Repair Co., 328

U.S. 275 (1946) 12
Halistrom v. Tillamook County, 493 U.S. 20

(1989) . 6
Illinois Nat'l Bank Vv. Gwinn, 61 N.E.2d 249 (ml.

1945) 16
Jones V. Garrett, 386 P.2d 194 (Kan. 1963) 12
King V. St. Vincent’s Hosp., 112 S. Ct. 570 (1991) 4,

12, 13, 14
King, Vv. Zagorski, 207 So. 2d 61 (Fla. Dist. Ct.

App. 1968) . i a Ff
Le Maistre v. Leffers, 333 U.S. 1 (1948) - 4,10, 12
Mallard v. United States District Court for the

Southern District of lowa, 490 U.S. 296 (1989) 6
Mason V. Texaco Inc., 862 F.2d 242 (10th Cir.

1988) ........... 8,17

Monroe V. Standard Oil Co., 452 U.S. 549 (1981) 14

(IIT)

IV
Cases—Continued : Page
Mouradian v. John Hancock Cos., 930 F.2d 972
(Ist Cir. 1991), cert. denied, 112 S. Ct. 1514
(1992) ....... viielbanaaiaapa aims dienatarslinsasit ans taiatasidicmediaitinasiiitel, 17,19
Oberlin v. United States, 727 F. Supp. 946 (E.D.
ee en sae aera a ae 19
Pannell v. Continental Can Co., 554 F.2d 216 (5th
I ac Be 7, 8, 13, 16
Pittston Coal Group \ v. ~ Sebben, 488 U.S. 105
(1988) ..... sienna ican 15
Ray Vv. Porter, 464 F.2d 452 (6th Cir. 1972) es 18
Ricard v. Birch, 529 F.2d 214 (4th Cir. 1975) 6, 8, 18
Rostker v. Goldberg, 453 U.S. 57 (1981) ........ 14
Russello v. United States, 464 U.S. 16 (1983) . 10
St. Vincent’s Hosp. v. King, 901 F.2d 1068 (11th
RRR ee i 13
Smith v. Fitch, 171 P.2d 682 (Wash. 1946) ae re 16
Syzemore Vv. County of Sacramento, 55 Cal. App.
3d 517 (Ct. App. 1976) . ; 19
Townsend V. Secretary of the Air Force, No. 90-
1168 (Nov. 12, 1991) ORES 17
United States v. Ron Pair Enterprises, Ine., 489
TASTE eeve se cone weees 6
Worlow Vv. oe River Fuel Corp., 4448.W. 2d
461 (Mo. 1969) . aia es el 19
Statutes :
National Labor Relations Act § 10(b), 29 U.S.C.
ET eter ie eae ee ” 9
Selective Service Act of 1948, ch. 625, § 14, 62
Stat. 623-624 5, 8
Soldiers’ and Sailors’ Civil Relief Act of 1918, ch.
A 5
Soldiers’ and Sailors’ Relief Act of 1940, ch. 888,
ea is eaneliiiheias = 4
8 a 8
§ 604,54 Stat.1191.__. 5, 8
Soldiers’ and Sailors’ Civil Relief Act of 1940, 50
U.S.C. App. 501 et seq.:
50 U.S.C. App. 510 ............. 4-5, 8
50 U.S.C. App. 511... | - 7
60 U.S.C. App. 611 (1) ..............-...---.----. ketal 6

Vv
Statutes—Continued :

60 U.S.C. App. 611(2) ....
50 U.S.C. App. 511(2) (1988)
50 U.S.C. App. 520(4) _.
50 U.S.C. App. 521... |
50 U.S.C. App. 623...
50 U.S.C. App. 526 (§ 205) . See
50 U.S.C. App. 526 . |
50 U.S.C. App. 530(2)
50 U.S.C. App. 631(3) '
50 U.S.C. App. 532 (2) -
50 U.S.C. App. 535(1) _.
50 U.S.C. App. 535(2)
50 U.S.C. App. 560 |
50 U.S.C. App. 560(1)
50 U.S.C. App. 560(2)
50 U.S.C. App. 560(3) ..
Soldiers’ and Sailors’ Civil Relief Act Amendments
of 1942, ch. 581, § 5, 56 Stat. 769-771

Soldiers’ and Sailors’ Relief Act Amendments of

1991, Pub. L. No. 102-12, § 9(6), 105 Stat. 39
Veterans’ —— | Rights Act, 38 U.S.C.
2021 et seq. a

38 U.S.C. 2024(d).

10 U.S.C. 160(b)
10 U.S.C. 1552
Maine Rev. Stat. Ann. tit. 36 ‘(West 1990) :

Miscellaneous :
55 Cong. Rec. 7788 (1917) ...........
H.R. 4763, 102d Cong., 2d Sess. (1992)
H.R. Rep. No. 181, 65th Cong., Ist Sess. (1917)
H.R. Rep. No. 2198, 77th Cong., 2d Sess. (1942)
S. Rep. No. 2109, 76th Cong., 3d Sess. (1940)
S. Rep. No. 1558, 77th Cong., 2d Sess. (1942)

_passi

:

ewovouvvwvviwvwowvrasa

In the Suprenw Court of the United States

OCTOBER TERM, 1991

No. 91-1353
THOMAS F. CONROY, PETITIONER
v.
WALTER 8S. ANISKOFF, JR., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME JUDICIAL COURT OF MAINE

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order
inviting the Solicitor General to express the views of the
United States.

STATUTORY PROVISION INVOLVED

Section 205 of the Soldiers’ and Sailors’ Civil Relief Act
of 1940, 50 U.S.C. App. 525, provides as follows:

The period of military service shall not be included
in computing any period now or hereafter to be
limited by any law, regulation, or order for the bring-
ing of any action or proceeding in any court, board,
bureau, commission, department, or other agency of
government by or against any person in military
service or by or against his heirs, executors, adminis-
trators, or assigns, whether such cause of action or
the right or privilege to institute such action or pro-
ceeding shall have accrued prior to or during the
period of such service, nor shall any part of such
period which occurs after October 6, 1942 be included
in computing any period now or hereafter provided

(1)

2

by any law for the redemption of real property sold
or forfeited to enforce any obligation, tax, or assess-

ment.’
STATEMENT

1. Petitioner, a Colonel in the United States Army, has
been on continuous active duty with the Army since No-
vember 26, 1966. During that time, petitioner has been
stationed in four foreign countries and several duty sta-
tions in the United States. While stationed in Massa-
chusetts in 1973, petitioner purchased real estate in
Danforth, Maine. Petitioner paid all local real estate taxes
on the property until 1984, but he did not do so in 1984,
1985, or 1986.2 Although the town sent petitioner tax
notices, they were returned 23 “undeliverable as ad-
dressed and unable to forward.” Pet. App. 24-28.

By operation of Maine law, a lien against real estate
arises to secure the payment of taxes legally assessed
against the real estate Maine Rev. Stat. Ann. tit. 36,
$552 (West 1990). After a specified period, the tax
collector may send the taxpayer a notice of lien and a
demand for payment. Maine Rev. Stat. Ann. tit. 36, § 942
(West 1990). If taxes remain unpaid after an additional
30 days, the tax collector records a “tax lien certificate”
in the county registry of deeds. /bid. Recordation of
the certificate creates a tax lien mortgage, and the tax-

'On March 18, 1991, Congress amended 50 U.S.C. App. 525 to
replace a reference to “the date of enactment of the Soldiers’ and
Sailors’ Civil Relief Act Amendments of 1942” with the present
reference to “October 6, 1942.” Soldiers’ and Sailors’ Relief Act
Amendments of 1991, Pub. L. No. 102-12, §9(6), 105 Stat. 39.
That technical amendment does not affect the question presented in
this case. For purposes of convenience, we refer to the present
version of Section 525 throughout.

2 Petitioner testified that he never received tax bills for those
years, that he sent the municipality correspondence in 1985 con-
cerning his 1984 and 1985 bills, and that he ceased to pursue the
matter when he received no response before he moved overseas the
next year. Pet. App. 26-27.

3

payer has a period of redemption of 18 months before the
mortgage is automatically foreclosed after notice to the
taxpayer. Maine Rev. Stat. tit. 36, § 943 (West 1990).

Here, the town sent petitioner notices of the tax liens
and of the impending foreclosure of those liens, but the
notices were returned as undeliverable. Pet. App. 28.
After the automatic foreclosure, the town sold petitioner’s
properties to respondents Walter S. Aniskoff, Jr. and H.C.
Haynes, Inc., in December 1986. /d. at 27-28. At trial,
the parties stipulated:

[A|ll statutory proceedings allowing the Town to
acquire property for non-payment of taxes were
properly followed in this particular instance, includ-
ing notice and recording requirements; and * * *
were it not for the Soldiers’ and Sailors’ Civil Relief
Act, the Town title woul’ have been perfected in this
particular instance.

Id. at 28-29.

2. Petitioner brought this quiet title action against the
town and the two purchasers in the Maine Superior Court.
Noting that 50 U.S.C. App. 525 tolls statutory redemption
periods for any “period of military service,” petitioner
argued that the town did not acquire valid title to his
property because he had been in military service through-
out the relevant period. The superior court rejected that
contention.

The trial court acknowledged decisions holding that
under 50 U.S.C. App. 525 any period of military service
tolls any period of limitations, and explained that those
decisions were based on the principle that a court should
apply the plain meaning of a clearly worded statute. Pet.
App. 32-33. The court, however, also noted that some
courts had concluded that a career service member may
invoke Section 525 only if he can show that his military
service resulted in hardship excusing timely legal action.
Pet. App. 33-34. Those courts, the court observed, had
rejected the contrary rule— requiring no showing of hard-

4

ship by career service members—as “absurd and illogical.”
Id. at 34.

The superior court followed the line of cases requiring
a showing of hardship. The court found reading such a
requirement into the statute necessary to avoid “absurd,
unreasonable or illogical results.” Pet. App. 36. If a
career officer did not have to demonstrate prejudice, the
court reasoned, he could purchase real estate, ignore his
tax obligations for a lengthy period, and reclaim the
property at the end of his military service. /d. at 37-39.
Finding that petitioner was a career service member who
had not alleged any hardship, the court denied him relief
under Section 525. Pet. App. 40.

3. The Maine Supreme Judicial Court affirmed by an
evenly divided court. Pet. App. 42-45.

DISCUSSION

The state court’s decision requiring a career service
member to show hardship before invoking the redemption
provision of 50 U.S.C. App. 525 is contrary to the un-
ambiguous and unqualified language of the statute. The
state court’s analysis, moreover, is inconsistent with this
Court’s approach to construing Section 525, see Le
Maistre v. Leffers, 333 U.S. 1 (1948), as well as an-
other statute protecting service members, the Veterans’
Reemployment Rights Act, see King v. St. Vincent’s
Hosp., 112 S. Ct. 570 (1991). Finally, there is a conflict
among the circuits and state supreme courts concerning
whether Section 525 requires a showing of prejudice. Be-
cause Section 525 applies broadly, and the issue is
recurring, we believe further review is warranted to
resolve the conflict in authority.

1. Congress enacted the Soldiers’ and Sailors’ Civil
Relief Act of 1940 (SSCRA), ch. 888, 54 Stat. 1178, “to
provide for, strengthen, and expedite the nationa! de-
fense” and “to enable the United States more successfully
to fulfill the requirements of the national defense.” 50

5

U.S.C. App. 510. The Act achieves its objective by “sus-
pend|ing}| enforcement of civil liabilities, in certain cases,
of persons in the military service of the United States in
order to enable such persons to devote their entire energy
to the defense needs of the Nation.” Jbid. Although the
immediate rationale for enacting the SSCRA was to ad-
dress “the emergent conditions which | were] threatening
the peace and security of the United States,” ibid., and
the Act was origina!ly to be of limited duration, § 604,
54 Stat. 1191, Congress later extended its protections in-
definitely. Selective Service Act of 1948, ch. 625, § 14,
62 Stat. 623.

The provision at issue here, 5% U.S.C. App. 525, tolls
periods of limitation and redemption during a service
member’s military service. The broad and unconditional
language of that provision mandates that “|t]he period
of military service shall not be included in computing any
period now or hereafter to be limited by any law, regula-
tion, or order for the bringing of any action or proceeding
in any court, board, bureau, commission, department, or
other agency of government by or against any person in
military service.” 50 U.S.C. App. 525. Of specific perti-
nence here, Section 525 also provides: “|NJor shall any
part of such period which occurs after October 6, 1942 be
included in computing any period now or hereafter pro-
vided by any law for the redemption of real property sold
or forfeited to enforce any obligation, tax, or assessment.”
Tbid.*

* Congress had enacted a substantially similar law in 1918.
Soldiers’ and Sailors’ Civil Relief Act, ch. 20, 40 Stat. 440.

‘ The portion of Section 525 pertaining to redemption periods was
enacted in 1942. See Soldiers’ and Sailors’ Civil Relief Act Amend-
ments of 1942, ch. 581, § 5, 56 Stat. 769-771. In Ebert v. Poston,
266 U.S. 548, 553 (1925), this Court had determined that an analo-
gous tolling provision in the previous Soldiers’ and Sailors Civil
Relief Act did not apply to rights of redemption, and Congress
amended the 1940 statute to overcome the effect of that interpreta-
tion. See H.R. Rep. No. 2198, 77th Cong., 2d Sess. 3-4 (1942);
S. Rep. No. 1558, 77th Cong., 2d Sess. 3 (1942).

6

a. As this Court has often stated, “[i]nterpretation of
a statute must begin with the statute’s language.” Mal-
lard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 300 (1989); see, e.9.,
Hallstrom v. Tillamook County, 493 U.S. 20, 25 (1989) ;
Consumer Product Safety Comm’n Vv. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980). And where “the statute’s
language is plain, ‘the sole function of the courts is to
enforce it according to its terms.’”” United States v. Ron
Pair Enterprises, Inc., 489 U.S. 235, 241 (1989), quoting
Caminetti v. United States, 242 U.S. 470, 485 (1917).
The plain language of Section 525 requires no showing of
prejudice or hardship by a career officer or anyone else.
Section 525 fiatly excludes “any part of [the] period [of
military service] which occurs after October 6, 1942,”
from “any period” for the redemption of real estate. Thus,
under the clear terms of Section 525, “|t]he only critical
factor is military service; once that circumstance is shown,
the period of limitations is automatically tolled for the
duration of the service.” Ricard v. Birch, 529 F.2d 214,
217 (4th Cir. 1975); aecord Bickford v. United States,
656 F.2d 636, 639 (Ct. Cl. 1981).

The SSCRA, moreover, explicitly defines both the type
and the duration of military service that qualifies for pro-
tection. The category of “person|s] in the military serv-
ice” encompasses “|a]ll members of the Army of the
United States, the United States Navy, the Marine Corps,
the Air Force, the Coast Guard, and all officers of the Public
Health Service detailed by proper authority for duty either
with the Army or the Navy.” 50 U.S.C. App. 511/(1).
And the statute defines “period of military service” to

5 Although Bickford and Ricard invoived periods of limitation,
and not periods of redemption, their reasoning applies with no less
force to the part of Section 525 dealing with redemption. Section
525 generally excludes “[t|he period of military service” from any
limitations period, but also excludes “any part of such period [of
military service] which occurs after October 6, 1942,” from periods
of redemption.

7

“mean|]|, in the case of any person, the period beginning
on the date on which the person enters active service and
ending on the date of the person’s release from active
service or death while in active service, but in no case
later than the date when this Act [said sections] ceases
to be in force.” 50 U.S.C. App. 511(2).°

Thus, contrary to the state court’s decision, Pet. App.
40, the statute “draws no distinction” among “different
categories of active duty personnel.” Bickford, 656 F.2d
at 639. Section 525 on its face applies equally to “any
person in military service,” a category into which Section
511 places “{a]ll members” of the Armed Forces. Indeed,
the statute does not even suggest any criteria for deter-
mining who would be a career, rather than noncareer,
service member for purposes of Section 525.’ It is unlikely

*Prior to the 1991 amendments to the SSCRA, the statute
provided :
The term “period of military service’, as used in this Act [said
sections], shall include the time between the following dates:
For persons in active service at the date of the approval of this
Act [Get. 17, 1940] it shall begin with the date of approval of
this Act [Oct. 17, 1940]; for persons entering active service
after the date of this Act [Oct. 17, 1940], with the date of
entering active service. It shal! terminate with the date of
discharge from active service or death while in active service,
but in no case later than the date when this Act [said sections}
ceases to be in force.
50 U.S.C. App. 511(2) (1988). Because petitioner entered active
service well after the approval of the SSCRA, the omission of the
transitional provisions relating to the 1940 enactment of the SSCRA
has no effect on this lawsuit. For simplicity, we refer to the
presently effective version of Section 511(2).

7 Although courts have cited length of service as a factor to con-
sider in determining a service member’s “career” status, see, ¢.g.,
Pannell v. Continental Can Co., 554 F.2d 216, 224-225 (5th Cir.
1977) (31 years); King v. Zagorski, 207 So. 2d 61, 62, 64 (Fla.
Dist. Ct. App. 1968) (20 vears), nothing in the Act indicates how
or where a line is to be drawn between career and noncareer mem-
bers based on their length of service. We d not believe that the
ad hoc determinations required by a “length of service” test are

8

that Congress, in enacting so detailed a statute, would
have created two classes of tolling rights for service mem-
bers without specifying any basis for identifying the
members of each category. There is, in particular, no
basis for assuming that Congress, which traditionally has
sought to attract volunteers and to encourage reenlist-
ments (e.g., by payment of reenlistment bonuses), meant
to treat’ either of those categories less favorably than
others under Section 525.

Nor is it plausible to suggest that Congress intended to
require a showing of prejudice. Not only does Section
525 unconditionally exclude the period of military service
from “any period” of redemption," but it stands in marked
contrast with other provisions of the Act that expressly
condition available relief on prejudice arising from mili-
tary service. For example, a court may stay “any action
or proceeding in any court in which a person in military

consistent with the plain and unconditional language of Section 525.
Nor is it tenable to suggest, as some courts have, see, e.g., Pannell,
554 F.2d at 225; Bailey v. Barranca, 488 P.2d 725, 727-729 (N.M.
1971), that Section 525’s availability turns on the member’s status
as a conscript, rather than a volunteer. To be sure, the SSCRA was
enacted in 1940 to deal with the “emergent conditions which [were]
threatening the peace and security of the United States,” and
Congress contemplated that it would be of limited duration. 50
U.S.C. App. 510; 54 Stat. 1179, 1191. But the language of the
SSCRA does not differentiate between conscripts and volunteers.
Indeed, in 1940 the Selective Service Act already provided some
protection for conscripts, and part of the impetus for enacting the
SSCRA was to afford relief to volunteers. S. Rep. No. 2109, 76th
Cong., 3d Sess. 1 (1940). And Congress has extended the SSCRA
indefinitely, 62 Stat. 623-624, making clear that the Act’s protections
are fully intended for service members who serve other than in
periods of emergency or war. In any case, given the present all-
volunteer character of the Armed Forces, a distinction turning on
conscription versus voluntary enlistment is meaningless.

* See, e.g., Mason v. Texaco Inc., 862 F.2d 242, 245 (10th Cir.
1988) (Section 525’s terms are “clear and unambiguous”) ; Bickford,
656 F.2d at 639 (statute’s “express terms” make tolling “uncondi-
tional”) ; Ricard, 529 F.2d at 217 (tolling statute is “unconditional” ).

9

service is involved, either as plaintiff or defendant, * * *
unless, in the opinion of the court, the ability of plaintiff
to prosecute the action or the defendant to conduct his
defense is not materially affected by reason of his military
service.” 50 U.S.C. App. 521. A similar qualification
appears in-many other provisions of the SSCRA relating
to diverse forms of civil relief.” The absence of any similar

* See 50 U.S.C. App. 520(4) (court may reopen judgment entered
against absent service member if “it appears that such person was
prejudiced by reason of his military service in making his defense
thereto”) ; 50 U.S.C. App. 523 (court may enter stay of judgment,
attachment, or garnishment against service member, “unless in the
opinion of the court the ability of the defendant to comply with
the judgment or order entered or sought is not materially affected
by reason of his military service’); 50 U.S.C. App. 526 (limiting
interest rate on obligatiens incurred before entry into military
service unless service member’s ability to pay “is not materially
affected by reason of such service”) ; 50 U.S.C. App. 530(2) (allow-
ing stay of eviction or distress proceedings against military depend-
ents unless tenant’s ability to pay rent “is not materially affected
by reason of such military service”) ; 50 U.S.C. App. 531(3) (allow-
ing stay of eviction or distress proceedings against military depend-
“the ability of the defendant to comply with the terms of the con-
tract is not materially affected by reason of such service”); 50
U.S.C. App. 532(2) (stay of enforcement of secured obligations,
unless “the ability of the defendant to comply with the terms of the
obligation is not materially affected by reason of his military
service”); 50 U.S.C. App. 535(1) (limiting right of assignee of
insurance policy to exercise any right or option under the policy,
unless “the ability of the obligor to comply with the terms of the
obligation is not materially affected by reason of his military
service”); 50 U.S.C. App. 535(2) (limiting right to foreclose or
enforce lien for storage of personal property unless “the ability of
the defendant to pay the storage charges due is not materially
affected by reason of his military service”).

In addition, the National Labor Relations Act establishes a six-
month limitations period for filing an unfair labor practice charge,
unless the aggrieved person “was prevented from filing such charge
by reason of service in the armed forces, in which event the six-
month period shall be computed from the day of his discharge.” 29
U.S.C. 160(b). That provision confirms that when Congress in-
tends to toll a statute of limitations based on the prejudicial effect

10

qualification upon the tolling of redemption under Section
525 indicates that Congress did not intend to qualify the
availability of that relief. See Russello v. United States,
464 U.S. 16, 23 (1983) (“{W]here Congress includes
particular language in one section of a statute but omits
it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.”) (citation
omitted). .
Other parts of the Act confirm that conclusion. The
SSCRA deals directly with the collection of unpaid taxes
and assesments on “real property owned and occupied for
dwelling, professional, business, or agricultural purposes
by a person in military service or his dependents at the
commencement of his period of military service and still
so occupied by his dependents or employees.” 50 U.S.C.
App. 560(1).'° The Act provides that such property may
not be sold to collect unpaid taxes or assessments except by
leave of court, and that collection proceedings may be
stayed until six months after the termination of military
ser'vice—“unless * * * the ability of the person in military
service to pay such taxes or assessments is not materially
affected by reason of such service.” 50 U.S.C. App. 560
(2). When such property is sold for back taxes or assess-

of military service on a service member’s ability to bring an action,
it does so explicitly.

© The state court did not consider, and petitioner does not rely
on, that provision in this case. Nor does petitioner seg¢gest that
he or his dependents ever used the property in question for “dwell-
ing, professional, business, or agricultural purposes,” as required
by Section 560. As this Court has noted, however, the fact that
property is not within the amL.c of Section 560 does not affect the
applicability of Section 525. Le Maistre v. Leffers, 333 U.S. at 5.
The two provisions supplement each other; Section 560 provides
protections relating to both the forced sale and redemption of the
specified kinds of property, whereas Section 525 applies gen rally
to all property but protects only against expiration of the right of
redemption. 333 U.S. at 5-6.

11

ments, however, the SSCRA provides, without qualification,
that a service member “shall have the right to reedeem or
commence an action to redeem such property, at any time
not later than six months after the termination of [mili-
tary| service.” 50 U.S.C. App. 560(3). Thus, two pro-
visions appearing side-by-side in the same section of the
SSCRA differ as to whether prejudice is required; the
subsection dealing with collection proceedings requires
consideration of prejudice while the adjacent subsection
dealing with the right of redemption pointedly omits such
a requirement. This is powerful confirmation that Con-
gress intended to make the right of redemption unqualified
in the SSCRA.

The inference that Congress purposefully omitted a
prejudice requirement from the redemption provision is
generally reinforced by the carefully detailed character of
the SSCRA’s remedial scheme. As this Court observed of
a substantially similar version of the SSCRA enacted
during World War I: "'

This Act is so carefully drawn as to leave little room
for conjecture. It deals with a single subject and does
so comprehensively, systematically, and in detail. * * *
To ensure certainty, separate provision is made for
each of the several classes of transactions to be dealt
with and for the situations likely to arise in each.
* * * Such care and particularity in treatment pre-
clude expansion of the Act in order to include trans-
ac ions supposed to be within its spirit, but which do
not fall within any of its provisions.

Ebert v. Poston, 266 U.S. 548, 554 (1925). Although the
Court made that observation in rejecting a remedy found
nowhere in the statutory text,'’ there is no reason to con-

" “The Act of 1940 was a substantial reenactment of that of
1918." Boone v. Lightner, 319 U.S. 561, 565 (1943).

'2 The Court declined to toll the state-law redemption period for
a service member whose mortgage had been foreclosed prior to the
enactment of the SSCRA in 1918.

12

clude that the “care and particularity” with which the
SSCRA is drawn leaves any greater room for implication
of restrictions on relief that are nowhere in the text of the
statute.

Indeed, there is even less basis for implying nonstatu-
tory restrictions on relief, because the SSCRA must be
liberally construed in favor of service members. See Le
Maistre v. Leffers, 333 U.S. 1, 6 (1948). In Le Maistre
this Court rejected a “technical reading” of Section 525
that would have limited the tolling of periods of redemp-
tion to cases in which a purchaser obtained title to for-
feited land prior to the period of redemption. 333 U.S. at
4. The Court reasoned that Section 525’s language “does
not compel the narrow reading that is suggested,” and
that “the spirit of the amendment [covering redemption
periods} repels any such restriction.” Jbid. The Court
added that “the Act must be read with an eye friendly to
those who |have| dropped their affairs to answer their
country’s call.” Jd. at 6. Thus, even if the SSCRA were
unclear regarding a requirement of prejudice under Sec-
tion 525, any ambiguity would have to be resolved in favor
of the service member. See King v. St. Vincent’s Hosp.,
112 S. Ct. 570, 574 n.9 (1991) (reaffirming “canon that
provisions for benefits to members of the Armed Services
are to be construed in the beneficiaries’ favor’’)."

b. Despite Section 525’s plain language, the state court
in this case held that a requirement of prejudice for a

18 The state court in this case suggested that the pertinent canon
applies on!y when an individual is called to temporary service during
time of war, see Pet. App. 36, but King applied it in the case of a
Nationa! Guard member who voluntarily assumed a three-year tour
of active duty in peace time. 112 S. Ct. at 571-572. AlthoTgh King
arose under the Veterans’ Reemployment Rights Act (VRRA), 38
U.S.C. 2021 et seq., it articulated the canon in general terms that
were not limited to that particular statute. Moreover, the decision
upon which A’»g relied in applying the canon, Fishgold v. Sullivan
Drydock & Repair Corp.. 328 U.S. 275, 285 (1946) (construing
VRRA’s predecessor statute), relied in turn upon Boone v. Lightner,
319 U.S at 575. a case erising under the SSCRA.

13

career service member seeking to toll a period of redemp-
tion is necessary to avoid absurd results. Pet. App. 36-40.
The court relied on several decisions concluding that Con-
gress could not have intended the practical consequences
of a contrary rule—namely, that a career service member
could sow uncertainty in land titles by not paying real
estate taxes, while retaining an unqualified right of
redemption, during the entire period cf his military serv-
ice. See Pannell v. Continental Can Co., 554 F.2d 216,
224-225 (5th Cir. 1977); Bailey v. Barranca, 488 P.2d
725, 729-730 (N.M. 1971); King v. Zagorski, 207 So. 2d
61, 67 (Fla. Dist. Ct. App. 1968). However, that essen-
tially policy-based argument cannot overcome the plain
meaning of the statute.

Indeed, the reasoning of Pannell, Bailey, and Zagorski
is directly contrary to that of this Court’s recent decision
in King v. St. Vincent’s Hosp., supra. At issue in that
case was a provision of the Veterans’ Reemployment
Rights Act (VRRA), 38 U.S.C. 2024/d), that requires
employers to give reservists “a leave of absence” for train-
ing, and assures the returning employee “such seniority,
status, pay, ane vacation” as he would have had without
the absence. The service member in King sought a three-
year leave of absence, but his employer rejected it. Al-
though the plain language of Section 2024(d) was un-
qualified in granting a right of leave, the court of appeals
read a reasonableness requirement into the statute’s guar-
antee of leave time; to do otherwise, the court held, would
cause “absurd, unjust, or unintended” results. St. Vin-
cent’s Hosp. Vv. King, 901 F.2d 1068, 1071-1072 (11th Cir.
1990).

This Court reversed, reasoning that the language of
Section 2024/d) is “unequivocal and unqualified” and
“does not address the ‘reasonableness’ of a reservist’s leave
request.” King, 112 S. Ct. at 573 (citations omitted).
Although acknowledging the force of the argument that a
literal reading of Section 2024(d) would create serious
practical difficulties, the Court determined that “to grant

li

all this is not to find equivocation in the statute’s silence,
so as to render it susceptible to interpretive choice.” 112
S. Ct. at 573. In particular, the Court observed that,
unlike Section 2024(d), certain other provisions of the
VRRA “expressly limit” the duration of reemployment
rights. 112 S. Ct. at 573. In view of “the examples of
affirmative limitations on reemployment benefits con-
ferred by neighboring provisions,” the Court inferred that
“the simplicity of subsection (d! was deliberate, consistent
with a plain meaning to provide its benefit without condi-
tions on length of service.” /d. at 574. Finally, the Court
emphasized that even if there were ambiguity in the
statute, it would have to be resolved in favor of the
service member “under the canon that provisions for
benefits to members of the Armed Services are to be
construed in the beneficiaries’ favor.” Jd. at 574 n.9.

The same analysis applies to the redemption provision
of Section 525. The language of that provision is “un-
equivocal and unambiguous”; it contains no requirement
of prejudice; it is surrounded by other sections of the
SSCRA that “expressly limit” available civil relief with
“affirmative” requirements of prejudice; and it arises in
the context of a statute that must be liberally construed
in favor of the service member. Whatever policy concerns
may arise from an unqualified tolling of the period of
redemption during the period of a military service, the
courts “must deal with the law as it is.” Monroe v. Stand-
ard Oil Co., 452 U.S. 549, 565 (1981)." By adding a
requirement of prejudice to Section 525, the state court
restruck the statutory balance in a manner inconsistent
with the plain language selected by Congress in the
SSCRA.”

4 This is especially so, moreover, under a statute governing the
Nation’s military affairs. Cf. Rostker v. Goldberg, 453 U.S. 57,
65-66 (1981) (noting the great deference owed to Congress in mat-
ters of national defense and military affairs).

15 This Court has noted that “{l)egislative history is irrelevant
to the interpretation of an unambiguous statute,” Davis v. Michigan

15

2. There is a conflict among the circuits and state
supreme courts concerning whether a showing of prejudice
is required under 50 U.S.C. App. 525. The Fifth Circuit
has held that the redemption provision of Section 525 “is
inapplicable to a career service man” who “is not shown
to have been handicapped by his military service from
asserting any claim he had prior to the expiration of the

Dep't of Treasury, 489 U.S. 803, 808-809 n.3 (1989), and we are in
any case unaware of anything in the legislative history that would
contradict the plain meaning of the statute. To be sure, the legis-
lative history accompanying the 1918 enactment of the SSCRA
indicates that “[i]nstead of a rigid suspension of all actions against
a soldier, a restriction upon suits is placed only where a court is
satisfied that the absence of the defendant in military service has
materially impaired his ability to meet that particular obligation.”
H.R. Rep. No. 181, 65th Cong., Ist Sess. 2 (1917). However, as
discussed, where Congress intended tu give effect to that principle
in the legislation, it did so expressly. Congress did not do so with
respect to the tolling provisions. The House sponsor of the 1918
bill, moreover, made clear that the SSCRA would “suspend entirely”
the statute of limitations during the service member's period of
service. 55 Cong. Rec. 7788 (1917) (Rep. Webb).

It is also true that the legislative history surrounding the
SSCRA’s 1940 reenactment reflects a primary purpose of addressing
the urgent conditions that might arise if individuals were called
to serve in the impending war. See, e.g.. Bailey, 488 P.2d at 728
(discussing legislative history). But “[i]t is not the law that a
statute can have no effects which are not explicitly mentioned in
its legislative histury,” Pittston Coal Group v. Sebben, 488 US.
105, 115 (1988); and Congress’s indefinite extension of the
SSCRA in 1948 leaves no doubt that the statute encompasses more
than the protection of service members called to fight in a war.
Finally, the legislative history of the 1942 amendment extending
Section 525 to periods of redemption contains no suggestion of a
prejudice requirement. See H.R. Rep. No. 2198, 77th Cong., 2d
Sess. 3-4 (1942) (“The running of the statutory period during
which real property may be redeemed after sale to enforce any obli-
gation, tax, or assessment is likewise tolled during the part of such
period [of military service] which occurs after the enactment of the
Soldiers’ and Sailors’ Civil Relief Act Amendments of 1942.”):
S. Rep. No. 1558, 77th Cong., 2d Sess. 4 (1942) (same).

16

prescribed period.” Pannell v. Continental Can Co., 554
F.2d at 225. The New Mexico Supreme Court, moreover,
has relied on practical considerations and the legislative
history of SSCRA to hold that a “career” service member
may not invoke Section 525 to extend a period of redemp-
tion, absent a showing of prejudice arising from military
service. Bailey v. Barranca, 488 P.2d at 727-730."
While we are unaware of any decision of a United
States Court of Appeals or a state supreme court that has
squarely held that a showing of prejudice is not required
under the redemption provision of Section 525,'" Pannell
and Bailey cannot be reconciled with the numerous deci-
sions holding that periods of limitaton may be tolled

16 With respect to the portion of Section 525 dealing with the
period of limitations, the Alabama Supreme Court has also held
that a “career” service member may not invoke Section 525 in a
tort suit without a showing that the plaintiff's military service
impaired his ability to file the action. Crouch v. United Tech-
nologies Corp., 533 So. 2d 220, 221-223 (Ala. 1988); see Smith v.
Fitch, 171 P.2d 682, 687-688 (Wash. 1946) (tolling provisions in-
applicable because plaintiff “was in no way prejudiced by being in
the military service”).

17 Jilinois Nat'l Bank v. Gwinn, 61 N.E.2d 249 (Ill. 1945), applied
Section 525 to toll the redemption period for a service member on
active duty with the Navy during World War II. In so doing, the
court observed :

[Section 525] is not merely directory or permissive, but is
imperatively controlling and automatically extends the period
of time allowed for redemption in all cases coming within the
application of its terms. It is evident that the provisions of
[Section 525] * * * , as amended October 6, 1942, are self-
executing, and that it was not the intention of Congress to
make it discretionary with the court whether, under the facts
of the particular case, an extension of time for redemption

should be had.
61 N.E.2d at 254. Although Gwinn did not explicitly address the
issue decided in Pannell and Bailey, those decisions would have
come out differently under Gwinn’s interpretation of the redemp-
tion provision.

17

under Section 525 without any showing of prejudice."*
For example, in Mason v. Texaco Inc., 862 F.2d at 244-
245, the Tenth Circuit rejected the argument that a career
military employee could not invoke Section 525 in a tort
action without showing that his service disabled him from
bringing suit. The court held that Section 525 is “clear
and unambiguous,” and that under “the plain meaning
of the statute,” the only condition upon tolling “is military
service.” 862 F.2d at 245. In so holding, the court of
appeals expressly noted its disagreement with the Fifth
Circuit’s decision in Pannell. Ibid.

Similarly, in Bickford v. United States, 656 F.2d at
639, an action by a service member for back pay and
allowances, the former Court of Claims rejected the gov-
ernment’s contention that Section 525 requires proof that
military service handicapped the service member’s ability
to bring suit."” The Bickford court explained:

'* The text of Section 525 is certainly no less unconditional with
respect to periods of redemption. Section 525 excludes “[t}he
period of military service” from any period of limitation, and also
excludes “any part of such period [of military service] which oc-
curs after October 6, 1942,” from “any period” of redemption. Re-
spondents therefore err in asserting, Br. in Opp. 4-5, that no con-
flict exists because the cases declining to require prejudice have
thus far involved periods of limitation, and not periods of re-
demption.

The Fourth Circuit, in an unpublished opinion, recently ac-
cepted the government’, frgument that Section 525 cannot be
invoked without a showing of prejudice in an action to correct
military records under 10 U.S.C. 1552. Townsend v. Secretary of
the Air Force, No, 90-1168 (Nov. 12, 1991) (947 F.2d 942 (Table) ).
We note that the present case does not present the question whether
Section 525 applies when Congress has provided a statute of limita-
tions that explicitly governs the right of a service member or
former service member to file suit. Cf. Mouradian v. John Hancock
Cos., 930 F.2d 972, 973-975 (1st Cir. 1991) (per curiam) (applying
the specific military service tolling provision in the NLRA’s statute
of limitations, 10 U.S.C. 160(b), rather than applying general pro-
visions of Section 525), cert. denied, 112 8. Ct. 1514 (1992). We
also note that this case does not raise the issue whether a defense

18

There is not ambiguity in the language of § 525 and
no justification for the court to depart from the plain
meaning of its words. The statute draws no distinc-
tion between the many different categories of active
duty personnel. When Congress intended to impose
conditions on the applicability of other provisions in
the SSCRA * * *, it did so in clear terms. Section
525, in marked contrast, in no way suggests that a
serviceman must demonstrate that his military serv-
ice has affected his ability to bring suit as a condition
precedent to its applicability.

656 §£.2d at 639-640. The court expressly noted that it
believed Pannell was “wrongly decided.” Jd. at 641 n.9.
Other courts have also declined to condition relief under
Section 525 upon a showing of prejudice. See, e.g., Ricard
v. Birch, 529 F.2d 214, 216-217 (4th Cir. 1975); Ray v.
Porter, 464 F.2d 452, 454-455 (6th Cir. 1972); Jones Vv.
Garrett, 386 P.2d 194, 200 (Kan. 1963) .”

of laches is available even if Section 525 precludes application of
the statute of limitations.

We are advised by the Department of Defense that the House
Committee on Veterans’ Affairs is considering H.R. 4763, a bill
“tlo restate and clarify the Soldiers’ and Sailors’ Civil Relief Act
of 1940.” As presently drafted, H.R. 4763 would limit the applica-
bility of the statute’s tolling provisions with respect to claims
against the United States, and would require, among other things,
a showing of “material effect” for that class of claims. The com-
mittee has conducted hearings on H.R. 4763, but the bill has not
been reported to the House.

2» Ricard, Ray, and Garrett all involved suits against service
members—which are also subject to the tolling rules of Section
525. Applying the unqualified terms of the statute, those cases
held that a plaintiff may invoke Section 525 without showing that
the defendant’s military service impaired the plaintiff’s ability to
sue. See Ricard, 529 F.2d at 217 (“The tolling statute is uncon-
ditional. The only critic] factor is military service; once that cir-
cumstance is shown, the period of limitations is automatically tolled
for the duration of the service.”); Ray, 464 F.2d at 456 (“[T]jhe
{SSCRA] means exactly what it says, ‘The period of military serv-
ice shall not be included.’”); Garrett, 386 P.2d at 200 (“The

19

Although the present case resulted in an equal division
of the Maine Supreme Court, it warrants further review.
There has been a persistent conflict among the circuits
and state supreme courts on the proper interpretation of
Section 525. See Oberlin v. United States, 727 F. Supp.
946, 947 n.1 (E.D. Pa. 1989) (discussing conflict) ; Syze-
more V. County of Sacramento, 55 Cal.App. 3d 517, 522-
524 (Ct. App. 1976) (same). Moreover, Section 525 ap-
plies broadly to all service members, and the question
whether prejudice is required is recurring. Finally, the
issue presented, which turns on a straightforward appli-
cation of the plain language of the SSCRA, has been thor-
oughly considered in a number of decisions, including the
superior court’s decision in this case. Thus, particularly in
view of the fact that the SSCRA may well be invoked
more frequently in the aftermath of Operation Desert
Storm, the Court should grant certiorari in this case to
resolve the conflict in authority on the requirements of
Section 525.

critical factor which brings section 525 of the act into play is that
of military service. When that circumstance is shown, the period
of limitation is automatically tolled during the duration of that
service.”’).

For other decisions indicating that Section 525’s tolling pro-
visions are unqualified, see, e.g., Mouwradian v. John Hancock Cos.,
930 F.2d at 973 (“The SSCRA * * * tolls the limitations period
during a litigant’s active military service regardless of whether he
or she actually is prevented from filing by reason of his or her
service.”); Worlow vy. Mississippi River Fuel Corp., 444 S.W.2d
461, 463-464 (Mo. 1969) (“A showing of prejudice to the person
in military service is no part thereof [Section 525]; its pro-
visions are mandatory and require a tolling of the statute of limi-
tations during the period of military service.) (citation omitted).

ll

20

CONCLUSION
The petition for a writ of certiorari should be granted.

Respectfully submitted.

KENNETH W. STARR
Solicitor General

JAMES A. BRUTON |
Acting Assistant Attorney General !

LAWRENCE G. WALLACE
Deputy Solicitor General

JOHN F. MANNING
Assistant to the Solicitor General

RICHARD FARBER
BRIDGET M. ROWAN
Attorneys
JUNE 1992

W ov. 5. GOVERNMENT PRINTING OFrice, 1992 312324 45455

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0246%3A04. Public record. Not legal advice.