LAW REVIEW 1083

Congress Beefs up the SCRA Enforcement Mechanism

By Captain Samuel F. Wright, JAGC, USN (Ret.)

4.9—SCRA Enforcement

On October 13, 2010, President Obama signed into law the Veterans’ Benefits Act of 2010 (VBA-2010), Public Law 111-275.  This important new law makes several welcome amendments to the Servicemembers Civil Relief Act (SCRA).

Section 303 of VBA-2010 adds a whole new title (Title VIII) to the SCRA.  The new section 801 of the SCRA is as follows:

Section 801.  ENFORCEMENT BY THE ATTORNEY GENERAL.

(a) Civil Action—The Attorney General [of the United States] may commence a civil action in any appropriate district court of the United States against any person who—(1) engages in a pattern or practice of violating this Act; or (2) engages in a violation of this Act that raises an issue of significant public importance.

(b) RELIEF.—In a civil action commenced under subsection (a), the court may—(1) grant any appropriate equitable or declaratory relief with respect to the violation of this Act; (2) award all other appropriate relief, including monetary damages, to any person aggrieved by the violation; and (3) may, to vindicate the public interest, assess a civil penalty—(A) in an amount not exceeding $55,000 for a first violation; and (B) in an amount not exceeding $110,000 for any subsequent violation.

(c) INTERVENTION.—Upon timely application, a person aggrieved by a violation of this Act with respect to which the civil action is commenced may intervene in such action, and may obtain such appropriate relief as the person could obtain in a civil action under section 802 with respect to that violation, along with costs and a reasonable attorney fee.

It is difficult to overstate the importance of this new provision.  Bringing the resources of the United States Department of Justice and the authority of a federal district court to bear upon an SCRA violator is immensely helpful in protecting the SCRA rights of service members.

As I explained in Law Review 0941, a private right of action is the right to initiate a civil action in court, in one’s own name and with one’s own attorney.  Some statutes explicitly create private rights of action, while other statutes explicitly preclude private rights of action, usually because the statute provides some other remedy, like enforcement through a government agency like the National Labor Relations Board. 

Still other statutes neither explicitly create nor explicitly preclude private rights of action, and until now the SCRA has been in this category.  In this situation, a court must determine, as a question of statutory interpretation, whether Congress intended that there be a private right of action.  Most courts that have addressed this issue have held that the SCRA creates an implied private right of action, but the issue has not been entirely free from doubt.

The new section 802(a) explicitly creates a private right of action to enforce the SCRA.  This new provision is most welcome.

The new section 802(b) provides:  “The court may award to a person aggrieved by a violation of this Act who prevails in an action brought under subsection (a) the costs of the action, including a reasonable attorney fee.”  This attorney fee provision will be most helpful to service members seeking competent counsel to represent them in SCRA matters.

The new section 803 creates several new federal misdemeanors, for creditors, landlords, and others who willfully violate the SCRA.  Conviction can result in imprisonment for up to a year, plus a substantial fine.  Congress is intent on showing that the SCRA is a real law that must be obeyed.

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