|Soldiers & Sailors Civil Relief Act (SSCRA)|
|Chapter 3, General Relief (Page 4)|
Stay of Proceedings Where Military Service Affects Conduct Thereof
(50 U.S.C. App. § 521)
The nature of section 201 "stay." A "stay" under section 201 differs from those granted under section 301, 302, and 700. It is distinguishable on two principal grounds. First, the latter three stay provisions involve pre-service obligations while section 201 applies to both pre-service and in-service obligations.
Second, in applying sections 301, 302, and 700 "the court makes substantive determinations about the nature of the obligation (i.e., whether it falls within one of these sections) and the service member's ability to meet the obligation (i.e., the presence or absence of material effect). If the court finds that the service member's ability to comply with the terms of his obligation is materially affected by military service, the court may order a stay." On the other hand, in deciding whether to grant a stay under [section 201], a court does not look to the nature of the obligation at all. What the court does examine is whether the ability of the service member to participate in a judicial action has been materially affected by military service.
Who may apply. A proper person to seek a stay is a person in the military service, as defined in section 101 of the Act and, more specifically, one who is involved in the proceedings as either a plaintiff or defendant. The stay does not apply to tort claims by military dependents.
Arguably, when a service member is involved in a proceeding, but is neither the plaintiff nor the defendant, the service member is not entitled to a "stay" under this section. The statutory language has not, however, been interpreted by the courts in such a restricted manner. Rather, at least one court has held that "one who is a proper, as distinguished from an indispensable, party to a proceeding, and whose rights or interests may be affected by its determination is entitled to the benefit of the Act."
If the service member is neither the plaintiff nor the defendant, does this mean that his associates, persons not in the military, can seek the protection of the Act? The answer to the question depends to a large part on the legal relationship of the service member not only to the issue in controversy, but also to the parties involved. One court has held that co-makers of a note are entitled to a stay based on the military service of one of the co-makers. Other courts have reached the opposite conclusion, however, in the following situations: when defendant's counsel was unavailable because of military service;when witnesses were unavailable because of military service; and in the case of an auto accident, when the plaintiff was imputed with the negligence of a learners permittee who was presently unavailable because of military service.
When and where application may be made. The statute specifies that in "any action or proceeding... during the period of service or within sixty days thereafter," the service member may seek a stay. Compliance with applicable court rules prescribing time of filing and requisites for a motion for continuance is not necessary in the application for SSCRA stay relief. While application for a stay may be made at any stage of the proceedings, those aspects of civil court proceedings that may be easily handled without the physical presence of a respondent or plaintiff, will most likely not be approved for a Section 201 stay, e.g., discovery. In Massey v. Kim, a military respondent requested a stay of a civil lawsuit discovery process until he returned from his three-year overseas tour. The court rejected the stay request, pointing out that improvements in modern communications since the passage of the SSCRA made such a stay unnecessary. The impact of the Internet, video teleconferencing, and video depositions on court determinations as to the unavailabilty of service members for civil case discovery has yet to be fully realized. Video teleconferencing or Internet contact, however, should not substitute for service members' physical presence at their trial on the merits. “The opponent of the absent party will always have the edge [at trial].”
Section 201 applies to courts not of record as well as courts of record, but is inapplicable in administrative or departmental hearings or proceedings. Bankruptcy debtor/creditor meetings and relief from automatic stay hearings are considered civil court proceedings covered by the SSCRA. Many states have set up administrative proceedings to expedite handling of child support and paternity support claims; these state administrative proceedings are not covered by Section 201, SSCRA.
Court powers to stay. A court must act on a stay either when a defendant applies to the court or when the proceedings themselves put the court on notice that a service member's rights are affected. Once the court has notice, regardless of how notice was given, it must determine whether "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." The test is therefore one of material effect. If a court finds material effect (and that the service member is unavailable to defend), the court must order a stay. If the stay request is denied, the court must make findings of fact about the lack of material effect, or ensure that there is sufficient evidence in the record to warrant denial.
Granting the stay. Courts have expressed a wide variety of opinions on what they will consider in determining whether to grant a stay. As a matter of policy, it is immaterial that a delay or inconvenience may result from a stay. A stay is a proper imposition upon an individual citizen on behalf of those discharging their obligations to the common defense. On the other hand, the section cannot be used by a party to shield wrongdoing or lack of diligence, or be used as an instrument by which one in the military service may endanger the peace, health, and lives of people by staying proceedings intended to protect the general public.A good way to analyze cases for Section 201 stay is to ask the following questions: (1) Is the service member unavailable to appear ? [Has he attempted to take leave and was it denied?]; (2) What is the actual prejudice (adverse material affect) to the service member if he does not appear at the civil court proceeding? If the facts of the case are uncontested, the service member is not a real party in interest, or the service member has previously acted in bad faith in dealing with the court, the chances of the court granting a Section 201 stay are minimal.
In Boone v. Lightner, the Supreme Court addressed the issue of whether the Act mandates grant of a stay in all cases. The Court held that a trial court must grant a stay only when material effect is present. A more recent state court opinion, however, seems to place this burden on the nonmilitary party in all instances. The court held that a person in the military service is entitled as a matter of law to a stay of any proceeding by or against him, upon a showing that he is in the military service, unless further relevant evidence demonstrates that his ability to prosecute or defend is not materially impaired by his military service. This is clearly the minority view. In almost every case, the service member must show more than his military status to be granted a Section 201 stay. In most instances, the prerequisite to obtaining a stay is a showing that he is unavailable to appear at the civil court hearing. Failure by the service member to demonstrate that he requested leave and was turned down, or that he had no leave available is usually fatal to a Section 201 stay request. In most cases, the military legal assistance practitioner should assume that the burden is on the service member seeking the stay to show that they were unable to take leave to appear.
The Welfare Reform Act of 1996 further complicates the argument of a service member that they cannot take leave. One provision of the Act directs the military services to promulgate regulations to facilitate the granting of leave for service members to appear in court paternity and child support hearings. Department of Defense Directive 1327.5, Leave and Liberty, dated 24 September 1985, was amended on 10 September 1997, to implement this change by adding subsection F.25. The new subsection reads as follows:
In some cases, the service member may not apply for a stay, but the court becomes aware of the fact that one of the parties is in the military service. The statute authorizes the trial court to grant a stay sua sponte in these cases. The court must use the same decision-making process it uses in evaluating requested stays; the court must determine whether the service member's military service materially affected the ability to appear. If the court determines that material effect does exist, it should grant the stay. Failure to grant a stay sua sponte in such circumstances would violate the intent of the Act, as expressed in section 100, and the equitable philosophy behind it. Such a failure would probably be reversed on appeal as an abuse of judicial discretion. It could also serve as a sound equitable basis for attacking a default judgment under section 200(4).
In exercising discretion, a number of courts have established guidelines to assist them. First, since this section of the Act is discretionary, it is not an absolute bar to proceedings against someone in the military service. Therefore, service members are not entitled to stays of proceedings in all instances. In deciding whether to grant a stay, a court must consider all the facts and circumstances in each case. Second, the power to stay under all the facts and circumstances does not imply a power to stay in anticipation that at some future time, as the litigation progresses, the ability of the service member to prosecute or defend will be materially affected by reason of military service. Last, an appellate court will reverse a trial court only when it has abused its exercise of discretion. In 1992, the Tennessee Court of Appeals granted an extraordinary appeal and reversed a trial court's dissolution of a stay previously granted under the SSCRA, stating that there was no evidence in the record to show that military service did not materially effect the defendant's ability to be present. Another factor may be if the other party to the lawsuit is unable to be located (child custody dispute), the court may find it is not necessary for the military member to appear. Where a service member is materially affected by military service from defending a lawsuit, a court may not consider dismissal of the suit without prejudice as an alternative remedy.
Even if the service member can not appear because of military service, courts might consider the presence of the service member unnecessary to the proceeding; and refuse to grant a stay. Generally, no prejudice will be found if the service member is represented at the court proceeding by civilian counsel, although the service member may not personally attend.. Common situations where stays are denied are cases where there are no contested facts. Good examples of such uncontested fact cases are an uncontested divorce, or divorce based upon a joint stipulation or separation agreement, a child support determination hearing based upon an income formula where the service member is not contesting the income figures, or a Revised Uniform Reciprocal Enforcement of Support Act (RURESA) case. Generally, courts will not grant a stay for an appellate oral argument by service member’s counsel, since the service member is not essential to the proceeding. The Mississippi Supreme Court found a military father not a necessary party in a proceeding by the mother challenging custody of his children by their paternal grandmother The Georgia Supreme Court has said that as general rule, temporary modifications of child support do not materially affect the rights of a military defendant as they are interlocutory and subject to modification. Another category of cases where courts will find the presence of a service member unnecessary are personal injury claims where the service member defendant is insured, and the plaintiff is not suing the defendant beyond the plaintiff's insurance policy limits. In these cases the real party in interest is the service member's insurance company.
Who has the burden of proof to show "material effect." In discussing the question of burden of proof, the Supreme Court concluded that:
In response to this language, the trial courts have varied from case to case and jurisdiction to jurisdiction in allocating the burden of showing material effect. As a practical matter, however, the person in the military service should always present evidence that demonstrates that military service has materially affected his ability to prosecute or defend the action.
Minimum evidentiary requirements. No uniform standards prescribe the quantity or quality of evidence necessary to support a stay. Each case requires an individual determination based on the evidence. Similar to the burden of proof issues, the requisites vary from jurisdiction to jurisdiction, often based largely on the visceral reaction of the court to the case and on the judicial philosophy of the individual on the bench.
Nevertheless, one obvious requirement exists in all section 201 cases. The moving party must be a "person in the military service" within the ambit of section 101. In a small minority of jurisdictions such a showing has been a sufficient basis for a stay. The vast majority of jurisdictions follow Boone v. Lightner, however, and require something more of the service member.
One of the most important factors is often unavailability--that is, the service member's ability to attend the court proceedings. If the unavailability is temporary and will end at a fixed date in the relatively near future, the courts will almost always grant a stay. Military practitioners should avoid seeking stays that are unreasonably long in duration, since most courts understand that military members are usually eligible for leave, even if they are stationed overseas. Courts more carefully scrutinize protracted unavailability, particularly when it results from an overseas assignment. In these cases, the courts usually require service members to make some effort to delay their departure or to secure leave to return from their overseas stations. A majority of courts require service members stationed in the continental United States to attempt to obtain leave.
Courts also usually require service members to be diligent in their attempts to appear. A service member may satisfy the requirement by showing that the command denied an effort to obtain leave. In other cases, service members may demonstrate diligent efforts to participate in the proceedings and to complete them before an anticipated unavailability begins. In all instances, service members must act in good faith in their otherwise diligent efforts to protect their rights.
The central issue in these evidentiary requirements is whether the case requires the service member's presence at trial. The trial courts often give substantial weight to the nature of the action and the relationship of the service member to the action. The service member's ignorance of the facts in a dispute may militate against a stay. On the other hand, a court may consider the availability of the service member either personally or by deposition during the pre-trial period to be the determining factor in denying a stay. Finally, where the service member has hired counsel to represent him, but goes overseas on military duty during a case, military service is not itself, without more, a basis for a stay, especially when the service member failed to pay child support during his overseas duty period.
In some situations, courts have consistently denied stays. Denial of stays in appeals involving purely legal issues reflects courts' concern with the need for a service member's presence. Courts have also consistently denied stays when granting them would be contrary to public policy. Abatement of a public nuisance is an example that illustrates this policy. Many courts dealing with paternity, custody, and support, personal injury lawsuits where the claims exceed insurance policy limits or there is no insurance, and personal liability in financial debt lawsuits, however, have favored granting stays.
Above Information Courtesy of United States Army JAG Corps