Hirschberg v. Braniff Airways, Inc.
Decision Date | 24 November 1975 |
Docket Number | No. 75 C 1145.,75 C 1145. |
Citation | 404 F. Supp. 869 |
Parties | Barry HIRSCHBERG, Plaintiff, v. BRANIFF AIRWAYS, INC., a/k/a Braniff International, Defendant. |
Court | U.S. District Court — Eastern District of New York |
David G. Trager, U. S. Atty., Brooklyn, N. Y., for plaintiff; Richard L. Huffman, Asst. U. S. Atty., William J. Kilberg, Sol. of Labor, Francis V. Laruffa, Regional Sol., William H. Berger, Atty., U. S. Dept. of Labor, Brooklyn, N. Y., of counsel.
Hale, Russell, Gray, Seaman & Birkett, New York City, for defendant; Alan D. Sugarman, Rodger C. Field, New York City, of counsel.
Defendant has moved to dismiss the complaint pursuant to F.R.Civ.P. Rule 12(b), based on the alleged bar of the New York statute of limitations.
Plaintiff brings this action pursuant to the veterans' reemployment provisions of the Military Selective Service Act of 1967, 50 U.S.C.App. § 451 et seq., as amended in 1974, 38 U.S.C.A. § 2021 et seq., to recover for lost wages and denial of job advancement.
According to plaintiff's complaint, he was employed by the defendant at John F. Kennedy International Airport as a cargo serviceman from August 11, 1967 until on or about December 23, 1967. During this time plaintiff's salary was approximately $435.00 per month.
On January 5, 1968 plaintiff entered the military service. On August 25, 1969 he was honorably discharged. On September 12, 1969 plaintiff was reemployed by defendant as a cargo serviceman at a salary of approximately $491.00 per month. Plaintiff contends that he was denied a $25.00 per month merit raise and was not granted seniority credit for his military service, which would have resulted in his promotion to the higher-paying position of Passenger Service Agent earlier than October 12, 1970, the actual date of his promotion.
On December 8, 1970, plaintiff first complained to the United States Department of Labor. After almost three years of investigation and negotiation by this Department without results, plaintiff requested on December 4, 1973 that his file be transferred to the Department of Justice.
Six months more elapsed before the file was in fact transferred to the Department of Justice on June 25, 1974. A few weeks later, on July 17, 1974, the file was forwarded to the United States Attorney's Office for the Eastern District of New York. Exactly one year later, on July 17, 1975, the complaint in this action was filed.
The defendant contends that the action is time-barred by the three-year New York State statute of limitations N.Y.C.P.L.R. § 214(2), dealing with a liability created by statute.
Until 1974, veterans' reemployment rights were provided under the Military Selective Service Act of 1967 by 50 U.S. C.App. § 459(b). The United States Attorney was directed to appear and act as attorney for any person claiming reemployment benefits under § 459(d). Both provisions were transferred in 1974 with various amendments to the Veterans' Benefits title of the United States Code, § 459(b) as 38 U.S.C. § 2021, and § 459(d) as 38 U.S.C. § 2022. The 1967 Act did not expressly establish a limitations period within which actions for veterans' reemployment rights must be brought. The 1974 amendments to the Act include the following:
"No State statute of limitations shall apply to any proceedings under this chapter." 38 U.S.C.A. § 2022.
Under Section 503 of the 1974 amendments, Pub.L. 93-508, 88 Stat. 1581, the above quoted provision was made "effective on the date of . . . enactment December 3, 1974." See note to 38 U.S.C.A. § 1652.
The issues on this motion turn on the applicability of these provisions to a claim which was more than three years old before the 1974 amendments became law.
The first issue that must be addressed is whether the provision in 38 U.S.C. § 2022 constitutes a change in the law or a mere clarification; and if it is a change, whether Congress intended the provision to have retrospective application.
The plaintiff's position is that the 1974 amendment does not constitute a change in the law, but simply clarifies what was Congress' original intent. In any case, the plaintiff contends that should the court find that the 1974 amendment was a change in the law, the applicable authorities require the court to apply the 1974 provision to this case. The defendant takes the opposite position, that the 1974 amendment was a change in the law and that judicial precedent requires that the 1974 amendment not be applied retroactively to this case.
This court finds that the 1974 amendment barring the application of state statutes of limitations to veterans' reemployment rights actions was not a clear change in the existing law. Furthermore, the result in this case would remain the same even were defendant's position on this point accepted, since this court is bound to apply the law in effect at the time of its decision.
The state of the law concerning the period of limitations was far from settled prior to the enactment of the 1974 amendment. Several cases applied the forum state's statute of limitations when a claim for legal relief was presented. Hire v. E. I. DuPont DeNemours & Company, 324 F.2d 546 (6th Cir. 1963) ( ); Alvado v. General Motors Corp., 194 F.Supp. 314, 316-17 (S.D.N.Y.1961) (, )aff'd on other grounds, 303 F.2d 718 (2d Cir. 1962); Walsh v. Chicago Bridge & Iron Co., 90 F.Supp. 322 (N.D.Ill.1949) ( ); Gruca v. United States Steel Corp., 495 F.2d 1252 (3d Cir. 1974) ( ); Bell v. Aerodex, Inc., 473 F.2d 869 (5th Cir. 1973) ( ); Blair v. Page Aircraft Maintenance, Inc., 467 F.2d 815 (5th Cir. 1972) ( ). Apparently the cumulative impact of the Bell, Blair, and Gruca cases in 1972-73 led to the 1974 amendment ruling out state statutes of limitations.
The effect of lapse of time was held to be governed by laches when the complaint sought relief of an equitable nature. Delman v. Federal Products Corp., 251 F.2d 123 (1st Cir. 1958) ( ); Greathouse v. Babcock and Wilcox Co., 381 F.Supp. 156 (N.D.Ohio 1974) ( ); Gruca v. United States Steel Corp., supra.
Cases in this circuit before the 1974 amendment liberally characterized the relief sought as equitable, even where wage claims were part of the claims involved. Ufland v. Buffalo Courier Express, 394 F.Supp. 199, 201 (W.D.N.Y. 1974) ( )("Whether the veteran's claim is for reinstatement and back pay, restitution of seniority rights or wage rate adjustments does not alter the basically equitable nature of the rights asserted."); Leonick v. Jones & Laughlin Steel Corp., 258 F.2d 48, 49 (2d Cir. 1958) ( )("We may assume, as the plaintiff argues, that the claim which he asserts, based upon the Veterans' Reemployment Act, is an equitable claim, and that the New York statute of limitations is, accordingly, not controlling."); Denner v. Levine, 232 F.2d 185 (2d Cir. 1956) ( ); Flynn v. Ward Leonard Electric Co., 84 F.Supp. 399 (S.D.N.Y.1949) ( ).
This uncertainty concerning the applicability of state statutes of limitations to veterans' reemployment actions, and specifically to claims for back wages, prior to the 1974 amendment, is consistent with the inference to be drawn from the Senate Report of the Committee on Veterans' Affairs, that the purpose of the 1974 amendment was to clarify the original intent of Congress. See Armstrong v. Baker, 394 F.Supp. 1380, 1385 (N.D.W.Va.1975). The Report states:
S.Rep. No. 93-907, 93d Cong., 2d Sess. at 111-12.
The Senate Report says unmistakably that the amendment "reaffirms and reflects more clearly" the original intent of Congress; in other words that its purpose was...
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