LAW REVIEW 1083
Congress Beefs up the SCRA Enforcement
By Captain Samuel F. Wright, JAGC, USN
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:
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.
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
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
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
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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