Number 88, Web Site only:
Right to Continuance of Administrative Hearing

By Fred Denson, Esq.*

Q: I have just been deployed overseas with a 14-day departure date. I have a hearing in four weeks before an administrative judge to determine the status of my driver’s license, which effects my MOS as a truck driver. Does the SSCRA (Soldiers’ and Sailors’ Civil Relief Act) require postponement of that hearing until I return from deployment overseas?

A: Unfortunately, no. When the SSCRA was originally passed in 1940, administrative hearings were somewhat obscure. The current description of jurisdiction found at 50 U.S. Code Appendix section 512 makes no reference to administrative proceedings with the exception of section 205 of the act which suspends the running of the statute of limitations while a member is in the military service. This position was upheld by the court in Polis v. Creedon, 162 F.2d 908. However, Congressional Bill HR 100, introduced by Rep. Lane Evans (D-Ill.), referred to the House Committee on Veterans Affairs on 8 May 2003, would remedy this problem in the future. Section 102(b) of this bill reads:

Applicability to proceedings: This act applies to any judicial or administrative proceeding commenced in any court or agency in any jurisdiction subject to this Act. This Act does not apply to criminal proceedings.

The passage of this act won’t remedy your situation but it will address future situations. I would also ask my attorney to review state law and state administrative procedure rules to see if military absence is covered.

In the meantime, have your attorney contact the judge to request that a new date be set following the termination of your orders. If the judge refuses to do so, make sure that your attorney attends the hearing, and if possible arranges for you to call into the proceeding. If that’s not possible, prepare a sworn affidavit stating your position and, through your attorney, submit the statement because you cannot testify in person.

I find that very few judges are unwilling to cooperate when they have an actual copy of the deployment orders. Good luck.

*Fred Denson is the general counsel for the Tennessee Military Department, which includes the Tennessee Army National Guard, the Tennessee Air National Guard, and the Tennessee Emergency Management Agency. He is also the state ombudsman for Tennessee in the DoD program, The Committee for Employer Support of the Guard and Reserve (ESGR). These are the personal views of Mr. Denson and not necessarily those of his employer.