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Duration and Term of Stays; Codefendants Not in Service

Section 204

(50 U.S.C. App. ' 524)

Any stay of any action, proceeding, attachment, or execution, ordered by any court under the provisions of this Act may, except as otherwise provided, be ordered for the period of military service and three months thereafter or any part of such period, and subject to such terms as may be just, whether as to payment in installments of such amounts and at such times as the court may fix or otherwise. Where the person in military service is a co-defendant with others the plaintiff may nevertheless by leave of court proceed against the others.

This section is a companion provision to other sections of the Act that allow a court to grant a stay of proceedings because of military service. In this regard, with the exception of section 700, none of the stay provisions sets a specific duration for the stay. Ideally, absent other considerations, a service member can obtain a stay for his/her entire period of military service and three months thereafter. The actual duration of a stay will frequently depend on the equities of the case. Generally, it is a bad idea to ask for the full statutory stay length, as civil courts are aware that service members may take leave to resolve civil court actions, even if they are overseas. The better policy is for a commander to seek a stay for a service member only until they are able to take leave and defend or prosecute their civil court action. Litigation under this section principally arises when a court allows an action to proceed against an individual who is a co-defendant of the person in military service. A court will stay all proceedings in a consolidated action as to the non-service defendant when necessary to protect the interest of the service member

When a court grants relief in a factual situation specifically covered by one of the Act's provisions, however, the court must follow the duration provision contained in the specific section rather than the provisions of section 204.

Statute of Limitations as Affected by Period of Service

Section 205

(50 U.S.C. App. § 525)

The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service, nor shall any part of such period which occurs after October 6, 1942 be included in computing any period now or hereafter provided by any law for the redemption of real property sold or forfeited to enforce any obligation, tax, or assessment.

This section of the Act tolls statutes of limitation during the period of military service of any military plaintiff or defendant. Once military service is shown, the period of limitations is automatically tolled for the duration of the service. The courts have held that this section is applicable to state governments municipal governments, bankruptcy, and administrative proceedings. Whether the cause of action accrued prior to or during the period of service is immaterial. This section is inapplicable, however, to periods of limitations imposed by federal internal revenue laws. Courts have recently changed the approach to applying this section to certain suits against the government.

Unlike other general relief provisions, section 205 does not require service member's to show their military service materially affected their ability to participate in the proceedings. Courts have no discretion in applying section 205, which is always self-executing. No stay request is required to assert the tolling provision of section 205. However, the tolling of the statute of limitations does not prevent the conveyance of a deed-in-lieu of foreclosure from a service member's assignees while the service member is on active duty.

Section 205 sometimes has the effect of a two-edged sword. It can operate both to the advantage and to the disadvantage of a service member because it applies to actions by or against the service member.

This section tolls any period of limitation established "by any law, regulation, or order... in any court, board, bureau, commission, department, or other agency of the government" whether related to administrative proceedings, periods for redemption of real estate, enforcement of tax obligation (not federal taxes) or assessment. While the SSCRA does not limit application of this provision to a single term of enlistment or to a specified period of career service, lower courts had interpreted this provision various ways with some requiring a showing of material effect for career personnel to invoke protection. In Pannell v. Continental Can Co., the Fifth Circuit relied on two state court decisions in holding that the Act is inapplicable to a career service member.

On 31 March 1993, the Supreme Court settled the issue in Conroy v. Aniskoff, 507 U.S. 511, 113 S.Ct. 1562 (1993), reversing Conroy v. Danforth, 599 A.2d 426 (Me. 1992). There is no requirement to show material effect.

The Maine court affirmed a judgment that the SSCRA did not protect an Army Colonel on active duty from running of an 18-month redemption period following statutory foreclosure of a tax lien mortgage for nonpayment of taxes; the court ruled that a career service member must prove material effect to toll the redemption period, despite the language of the statute which does not require a showing of material effect.

The Supreme Court held that there is no requirement to show service materially effects a career service member to toll a statute of limitations; the language of section 205, SSCRA is clear.

Recently, the government has invoked the doctrine of laches in wrongful discharge claims against the United States. The government has argued that, although military service tolls the statute of limitations, lengthy delays in filing claims prejudice the government's ability to defend and also significantly increase the government's liability to pay for unrendered services it does not need or want The laches theory has had mixed success in the courts, but it is another example of how defendants may avoid the effects of section 205. Recently, in a case extending the SSCRA tolling provision to the BCMR, the D.C. Circuit examined laches and reaffirmed its potential applicability to SSCRA tolled cases.

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Above Information Courtesy of United States Army JAG Corps