United States Court of Appeals,
Fifth Circuit.
No. 96-60374.
Alvin G. SYKES, Plaintiff-Appellant,
v.
COLUMBUS & GREENVILLE RAILWAY, Defendant-Appellee.
July 21, 1997.
Appeal from the United States District Court for the Northern District of Mississippi.
Before REAVLEY, GARWOOD and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
The issue presented in this appeal is whether pre-employment
military service should be counted toward the four-year service
limitation for eligibility under the Veterans' Reemployment Rights
Act (VRRA). 38 U.S.C. former § 2024(a). Plaintiff-appellant Alvin
G. Sykes (Sykes) brought this action under the VRRA seeking
reinstatement to his position with defendant-appellee Columbus &
Greenville Railway (C&G) together with recovery of lost wages and
benefits. The parties submitted cross-motions for summary
judgment. The district court entered judgment in favor of C&G on
the grounds that Sykes' combined military service in excess of four
years made him ineligible for reemployment rights. We reverse the
district court and remand for further proceedings.
Facts and Proceedings Below
Sykes first entered military service with the United States
Marine Corps on June 2, 1982. He served two successive enlistments
and received an honorable discharge on July 1, 1988. Sykes then
1 returned to Columbus, Mississippi, and was hired as a
conductor-trainee on July 25, 1988, by C&G. Sykes remained with C&G
(ultimately qualifying as a conductor) for approximately nine
months. After informing C&G that he intended to reenlist in the
Marine Corps, Sykes signed a letter furnished to him by C&G on
April 24, 1989, stating that he was resigning his position with C&G
"[e]ffective April 14, 1989" and purporting to "give up [his]
contractual rights." Sykes remained on active duty from April 26,
1989, to April 25, 1993. Sykes was again honorably discharged.
On May 5, 1993, Sykes submitted an application for
reemployment with C&G. His application was denied by C&G on May 9,
1993. Later that same month, Sykes attempted to assert
reemployment rights under the VRRA, but C&G again refused to employ
Sykes. Sykes subsequently accepted employment with the Soo Line
Railroad in March 1994.
On March 29, 1995, Sykes filed this action under the VRRA in
the district court below. C&G defended the suit, asserting that
the cumulative total of Sykes' years in the Marine Corps made him
ineligible for reemployment rights because the four-year military
service limitation found in the VRRA does not distinguish between
pre- and post-employment service. Additionally, C&G contended
that, in any event, Sykes' execution of the resignation letter
waived any rights that he may have had under the VRRA. On
cross-motions for summary judgment, the district court granted
C&G's motion. Finding the "plain language" of the VRRA
dispositive, the district court held that Sykes' cumulative
2 military service in excess of ten years exceeded the four-year
limitation period provided in 38 U.S.C. § 2024(a). At the time
Sykes attempted to assert reemployment rights with C&G, his
post-C&G military service was precisely four years. The district
court did not address the merits of C&G's waiver argument.
Sykes appeals the district court's grant of summary judgment
in favor of C&G. We reverse.
Discussion
The case below was decided on cross-motions for summary
judgment on the basis of undisputed material facts. This Court
reviews a grant of summary judgment de novo, using the same
standards as the district court. Duffy v. Leading Edge Prods.,
Inc., 44 F.3d 308, 312 (5th Cir.1995). Summary judgment is
appropriate if "there is no genuine issue as to any material fact"
and "the moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(c). This Court's review of a district
court's interpretations of law, whether federal or state, is
plenary. Gardes Directional Drilling v. U.S. Turnkey Exploration
Co., 98 F.3d 860, 864 (5th Cir.1996).
I. Pre-Employment Service
The district court determined that the language of the
relevant section of the VRRA clearly and unambiguously provided
reemployment rights only "if the total of any service performed by
that person after August 1, 1961, does not exceed four years."
(emphasis added). The court recognized that the two cases to
address the issue reached contrary conclusions. Finding the
3 discussion of the issue in White v. Frank, 718 F.Supp. 592
(W.D.Tex.1989), aff'd, 895 F.2d 243 (5th Cir.), cert. denied, 498
U.S. 890, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990), controlling, the
district court found unpersuasive the contrary holding in Hall v.
Chicago & E. Ill. R.R., 240 F.Supp. 797 (N.D.Ill.1964).
Sykes and C&G each contend that the language of 38 U.S.C. §
2024(a) is clear and unambiguous, albeit with different results.
Section 2024(a) provides, in full:
"(a) Any person who, after entering the employment on the basis of which such person claims restoration or reemployment, enlists in the Armed Forces of the United States (other than in a Reserve component) shall be entitled upon release from service under honorable conditions to all of the reemployment rights and other benefits provided for by this chapter in the case of persons inducted under the provisions of the Military Selective Service Act (or prior or subsequent legislation providing for the involuntary induction of persons into the Armed Forces), if the total of such person's service performed between June 24, 1948, and August 1, 1961, did not exceed four years, and the total of any service, additional or otherwise, performed by such person after August 1, 1961, does not exceed five years, and if the service in excess of four years after August 1, 1961, is at the request and for the convenience of the Federal Government (plus in each case any period of additional service imposed pursuant to law)." 38 U.S.C. § 2024(a).1
Sykes contends that the plain language of section 2024(a)
makes clear that only military service performed subsequent to the
employment to which VRRA rights are asserted should count towards
1 38 U.S.C. § 2024(a) was transferred and renumbered as 38 U.S.C. § 4304 pursuant to the Veterans' Benefit Act of 1992, Pub.L. No. 102-568 § 506(a), 106 Stat. 4340, 4341. The Uniformed Services Employment and Reemployment Rights Act of 1994, Pub.L. No. 103-353 § 8(a)(1), 108 Stat. 3149, amended 38 U.S.C. § 4304 extensively, but provided that the amendments would be effective "with respect to reemployments initiated on or after" October 13, 1994. The former section 4304 (which, in turn, was the former section 2024) continues to apply to reemployment actions, like that of Sykes, initiated prior to October 13, 1994.
4 the limitation period. Under Sykes' reading of section 2024(a),
the introductory phrase "after entering employment" limits the
relevant military service to that performed post-employment; thus,
the "total of any service" language at the end of the section
simply refers to this post-employment military service. In support
of his position, Sykes relies on Hall.
C&G contends that the phrase "total of any service, additional
or otherwise" qualifies the reemployment rights set forth at the
beginning of section 2024(a) and operates to bar the assertion of
VRRA rights by veterans whose combined pre- and post-employment
military service exceeds the four-year period. C&G argues that the
"after entering employment" language merely requires that the
private employment to which reinstatement is sought precede the
military service. The district court followed this interpretation,
finding the statute "clear and unambiguous." Language in White
supports this interpretation.
At least two district courts, the Department of Labor (DOL),
and the parties to each case have disagreed as to the proper
construction of section 2024(a). The Hall court relied on the
"history and purposes of the [VRRA]" and the White court found its
position supported by the "face [of] the Act." We cannot say that
the district court's interpretation is unreasonable. Indeed, its
interpretation may well be the most reasonable construction of the
wording of section 2024(a). But although we always hesitate to go
beyond the plain language of a federal statute, we believe that
this case presents us with an extremely rare situation where to
5 apply the statute as construed by the district court—even assuming
the language of section 2024(a), parsed with the utmost grammatical
propriety, to be virtually unambiguous—would lead to an absurd
result. See United States v. A Female Juvenile, 103 F.3d 14, 16-17
(5th Cir.1996) ("Axiomatic in statutory interpretation is the
principle that laws should be construed to avoid an absurd or
unreasonable result"); United States v. Mathena, 23 F.3d 87, 92-93
(5th Cir.1994) (same); Carpenters Dist. Council v. Dillard Dep't
Stores, 15 F.3d 1275, 1285 (5th Cir.1994) (same), cert. denied, 513
U.S. 1126, 115 S.Ct. 933, 130 L.Ed.2d 879 (1995); Birdwell v.
Skeen, 983 F.2d 1332, 1337 (5th Cir.1993) (same). We therefore
conclude that section 2024(a)'s service limitation applies to
post-employment service only, notwithstanding the risk that such a
result may not flow from "[t]he most natural grammatical reading"
of the section. See United States v. X-Citement Video, Inc., 513
U.S. 64, 68, 115 S.Ct. 464, 467, 130 L.Ed.2d 372 (1994). See also
McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 1740, 114
L.Ed.2d 194 (1991) ("[S]tatutory language must always be read in
its proper context."); Crandon v. United States, 494 U.S. 152,
156-58, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990) ("In
determining the meaning of the statute, we look not only to the
particular statutory language, but to the design of the statute as
a whole and to its object and policy."); INS v. Cardoza-Fonseca,
480 U.S. 421, 433 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434
(1987) (stating that resort to legislative history is appropriate
to determine "whether there is "clearly expressed legislative
6 intention' contrary to that language"); Offshore Logistics, Inc.
v. Tallentire, 477 U.S. 207, 219-21, 106 S.Ct. 2485, 2493, 91
L.Ed.2d 174 (1986) (stating that a statute should not be
interpreted inconsistently with its purpose and admonishing "not
[to] be guided by a single sentence or member of a sentence, but
[to] look to the provisions of the whole law, and to its object and
policy") (citation omitted); American Tobacco Co. v. Patterson,
456 U.S. 63, 69-71, 102 S.Ct. 1534, 1538, 71 L.Ed.2d 748 (1982)
("Statutes should be interpreted to avoid untenable distinctions
and unreasonable results whenever possible."); United Steelworkers
v. Weber, 443 U.S. 193, 200-02, 99 S.Ct. 2721, 2726, 61 L.Ed.2d 480
(1979) (rejecting a literal construction that would " "bring about
an end completely at variance with the purpose of the statute' ")
(quoting United States v. Public Utilities Comm'n, 345 U.S. 295,
315, 73 S.Ct. 706, 718, 97 L.Ed. 1020 (1953)); Holy Trinity Church
v. United States, 143 U.S. 457, 458-61, 12 S.Ct. 511, 512, 36 L.Ed.
226 (1892) ("It is a familiar rule that a thing may be within the
letter of the statute and yet not within the statute, because not
within its spirit nor within the intention of its makers."); Green
v. Bock Laundry, 490 U.S. 504, 527-28, 109 S.Ct. 1981, 1994, 104
L.Ed.2d 557 (1989) (Scalia, J., concurring) ("I think it entirely
appropriate to consult all public materials ... to verify that what
seems to us an unthinkable disposition ... was indeed unthought of
.... "); cf. Stephen Bryer, On the Uses of Legislative History in
Interpreting Statutes, 65 S. Cal. L.Rev. 845, 848-49 (1992)
(discussing the "uncontroversial" use of legislative history to
7 avoid an "absurd result").
Under the interpretation of section 2024(a) advanced by C&G
and embraced by the district court, veterans who entered civilian
employment after having served in the armed forces for four or more
years would be denied reemployment rights that would otherwise
attach to a subsequent enlistment following their civilian
employment without regard to the duration of their subsequent
enlistment or the time that elapsed between their departure and
subsequent demand for reinstatement, and without regard to the
inconvenience, if any, to the employer. The interpretation
advanced by C & G would preclude a significant portion of veterans
from ever asserting reemployment rights under the VRRA upon
returning to civilian life after a subsequent enlistment.2 This
result is simply incompatible with the obvious and patent purpose
of the VRRA to confer quite broad reemployment rights to veterans
of the United States armed services subject only to a limited
restriction regarding the permissible length of post-employment
service. As this four-year restriction was designed specifically
to address employers' concerns about reemployment rights of
indefinite duration and not to penalize veterans on the basis of
their pre-employment service, we find no articulable basis for
2 A recent GAO report states that the "first enlistment term of duty ... typically is 4 years." Government Accounting Office, Pub. No. B-257481, Military Recruiting: More Innovative Approaches Needed (Dec. 22, 1994). By statute, however, the various armed services may accept "original enlistments ... for a period of at least two but not more than six years." 10 U.S.C. § 505(c) (West Supp.1996). Accordingly, under C & G's interpretation, a service member could exceed section 2024(a)'s service limitation during his original enlistment.
8 including a veteran's pre-employment service in section 2024(a)'s
limitation period.
To the contrary, the history and purpose of the VRRA, the
Supreme Court's consistent admonition to interpret the VRRA's
provisions consistently with its purpose to benefit veterans, the
legislative history of subsequent amendments to section 2024(a),
the consistent and longstanding interpretive pronouncements of the
DOL, and the legislative history of the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), the VRRA's
statutory replacement, all support the reading advanced by Sykes.
We therefore reject C&G's "plain language" interpretation of
section 2024(a) and hold that, in light of the contrary history and
purpose of the VRRA discussed below, section 2024(a)'s four-year
limitation period must be read to limit reemployment rights
eligibility in terms of post-employment service only.
II. History and Purpose of the VRRA
In support of his reading of section 2024(a), Sykes cites
Hall' s discussion of the purpose of section 2024(a), the
legislative history of several amendments to section 2024(a) since
its earliest version in 1940, the general pro-veteran construction
that is to be given to the VRRA, DOL handbooks and interpretive
guidance, and the legislative history of the subsequently-enacted
USERRA, which replaced the statutory scheme set forth in 38 U.S.C.
§§ 2021-2027.
A. Hall v. Chicago & E. Ill. R.R. and White v. Frank
The district court in Hall, noting that one of the purposes of
9 the limitation period "might have been to deny re-employment rights
to persons who entered the Armed Forces for the purpose of making
Military Service a career or to those who deliberately elect not to
be separated," nevertheless determined that Congress's "intention
was not to penalize the patriotic employee, but rather, to relieve
the employer of inconvenience and uncertainty." 240 F.Supp. at
800. The Northern District of Illinois thus viewed the limitations
period as a concession to employers who were concerned not with the
prospect of long-term veterans with reemployment rights, but rather
with reemployment rights of indefinite duration.3 Accordingly, the
Hall court viewed the limitation period as "personal to the
employer" running only against the employer as to whom reemployment
rights are asserted. Addressing (hypothetically) the precise
situation at issue in this case, the court observed the "manifest
injustice" that would result from deeming the limitation period to
include pre-employment military service:
"For example, a veteran who ... graduated from school, enlisted in the Armed Forces for four years, was discharged from the Armed Forces, then found his first job, and
3 As observed by Sykes, when veterans' reemployment rights were first conferred by statute in 1940, there was no prescribed limitation period. In 1948 a three-year limitation period was imposed, Selective Service Act of 1948, 62 Stat. 604, 614-18, followed by the current, four-year period in 1951, Act of June 19, 1951, 65 Stat. 75, 86-87. See also Christner v. Poudre Valley Coop. Ass'n, 235 F.2d 946, 949 (10th Cir.1956) ("The 1951 amendment extended those [reemployment] rights to persons who served for not more than four years."); Smith v. Missouri Pac. Trans. Co., 208 F.Supp. 767, 770 (E.D.Ark.1961) ("The older [1940] statute made no reference to the time spent in military service, whether on a voluntary or involuntary basis, as bearing on reemployment rights of a returning serviceman. The 1948 Act and subsequent Acts amendatory thereof were not silent in that regard."), aff'd, 313 F.2d 676 (8th Cir.1963).
10 subsequently re-enlisted (or was recalled to active duty) ... would never enjoy the re-employment benefits conferred by the Act. Surely Congress would not have intended to deny these individuals their reasonable expectation to re-employment following their satisfactory completion of military service by turning the limitation period in the Act into a weapon for denying such rights." Id. at 800.
C&G does not address the merits of the Hall' s decision,
choosing instead to rest its argument on the grounds that Hall is
neither controlling nor persuasive because it was not decided in
the Fifth Circuit. C&G contends that White alone must control our
analysis.
Hall' s determination that pre-employment military service is
not included in the limitation period appears consistent with the
legislative decision to accommodate employers' concerns regarding
reemployment rights of indefinite duration. Correlating the
duration of a veteran's reemployment rights with the length of his
or her prior enlistment contracts would lead to incongruous
results. For example, an employer's obligation to reemploy two
veterans who terminated their employment and reenlisted on the same
day would expire at different times—based not on the degree of
inconvenience caused by the employees' departure, but rather based
solely on service completed prior to their initial employment.
Such a result could lead to precisely the type of discriminatory
hiring practices now prohibited by the USERRA.4
White v. Frank, 718 F.Supp. 592, involved a thirty-year
veteran of the Air Force who, upon retirement in 1984, subsequently
obtained a position with the Postal Service. The veteran, Bruce
4 See 38 U.S.C. § 4311 (West Supp.1996).
11 White (White), held the position for just under six months before
he resigned to pursue another civilian job opportunity. Id. at
594. Six months after his resignation, White sought reinstatement
to his former Postal Service position, but was denied. White
brought an EEOC claim asserting that he was denied reinstatement on
the basis of his race, color, age, and physical handicap. Id. The
Postal Service and the EEOC denied his claims. Id. White
subsequently filed suit in federal district court under the Age
Discrimination in Employment Act (ADEA), the Rehabilitation Act,
the conspiracy provisions of the Civil Rights Act, and, finally,
the VRRA. Id.
Addressing the defendant's motion to dismiss White's VRRA
claim, the district court observed that White did not even respond
to the arguments that the VRRA was inapplicable. Id. at 597-98.
The district court held that, as there was "no allegation that the
Plaintiff left the Postal Service to join the military" and, in
fact, White had left for a civil service position, the VRRA was
"thus wholly inapplicable to this case." Id.
In what was plainly dicta, the district court went on to
consider the application of section 2024(a) "even if the VR[R]A
applied in theory." Id. at 598. As C & G notes repeatedly, the
district court concluded that section 2024(a)'s limitation period
includes pre-employment military service. Id.
That White 's statements concerning the application of section
2024(a) do not control the present case is obvious from the fact
that White simply had no ability to assert reemployment rights in
12 the first place. The amount of his prior military service was not
relevant unless he could establish that he left his position with
the Postal Service to enlist (or reenlist) in the military. But
White did not ever serve in the military after his Post Office
employment and he did not even claim that he ever so served. The
veteran in White would not have prevailed on his VRRA claim under
either construction of section 2024(a) advanced before this Court.
Although C&G discusses at some length the obligations of this
Court to adhere to its own precedent, the summary affirmance of
White neither addressed the "theoretical" discussion of section
2024(a) nor, for that matter, any issue other than the exhaustion
of administrative remedies under the ADEA. White, 895 F.2d at 243-
44. C&G's entire argument that the Fifth Circuit adopted the
district's court's dicta as a holding rests on the statement in the
affirmance that this Court adopted the district court's holdings
"without limitation." Id. at 243. C&G places too much emphasis on
White 's hypothetical discussion. An alternative holding requires,
at the very least, to be alternative on the facts before, or
asserted to be before, the court. When a court makes a point or
illustrates the infirmities of a particular argument by speaking to
facts or circumstances that are, without dispute, not present
before it, the discussion that follows, by its very nature, does
not address the controversy before the court.5
5 We do not disagree with C&G's undisputed contention on brief that " "[i]t has long been settled that all alternative rationales for a given result have precedential value.' " (quoting Oncale v. Sundowner Offshore Servs., Inc., 83 F.3d 118, 120 (5th Cir.1996) (citation omitted)). Rather we simply reject C&G's hopeful
13 B. Legislative History of Section 2024(a)
Sykes concedes that there is no "contemporaneous explanation
of the effect on pre-employment military service," but argues that
statements in the legislative history of the 1961 and 1968
amendments support his position. Sykes observes that, pursuant to
the Military Training and Service Act of 1968, the legislative
history restated existing law as providing that "[o]nly active
military service from employment to which restoration is claimed is
to be included in computing service time to determine the 4-year
limitation." S.Rep. No. 1477, 90th Cong., 2d Sess., reprinted in
1968 U.S.C.C.A.N. 3421, 3424 n. 2. Although C&G contends that,
because the 1968 amendments were subsequent to the first enacted
statute conferring veteran reemployment rights, the 1968
legislative history is of no significance, the statement was
included in the section restating existing law and is some
indication of congressional understanding of the VRRA. See, e.g.,
Bobsee Corp. v. United States, 411 F.2d 231, 237 n. 18 (5th
Cir.1969) ("Although a committee report written with regard to a
subsequent enactment is not legislative history with regard to a
previously enacted statute, it is entitled to some consideration as
a secondarily authoritative expression of expert opinion."). See
also United States v. Wilson, 884 F.2d 174, 178 n. 7 (5th Cir.1989)
("[A] later Congress' understanding of the legislative intent of an
earlier Congress is entitled to deference."); 2B Norman J. Singer,
characterization of White 's hypothesized situation as an alternative holding.
14 Sutherland Statutory Construction § 49.11, p. 84 (Rev. ed.1992)
(same).
We find the legislative history of the 1961 amendments,
however, somewhat less enlightening. The 1961 amendments, which
added the August 1, 1961, date restrictions in section 2024(a),
were enacted to ensure that veterans of the Korean conflict—some of
whom were approaching the four-year service limitation—would be
able to serve up to an additional four years. The Senate report
addressed the need to extend the post-employment limitation to
enable then-current service members to extend their enlistments
voluntarily, but did not expressly address the issue here
presented. S.Rep. No. 1070, 87th Cong., 1st Sess., reprinted in
1961 U.S.C.C.A.N. 3319, 3320 (noting that "[s]ome of the persons
who will perform additional active duty ... have ... already served
a substantial part of the 4-year period during which they have
reemployment protection under existing law").
C. Interpretive Principles
Aside from the guidance from the plain language of the
statute and the legislative history, the Supreme Court has dictated
that the VRRA is to be given "as liberal a construction for the
benefit of the veteran as a harmonious interplay of the separate
provisions permits." Fishgold v. Sullivan Drydock & Repair Corp.,
328 U.S. 275, 285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946).
Accordingly, Sykes contends that, although VRRA reemployment rights
"can be an ungainly perquisite of military service ... provisions
for benefits to members of the Armed Services are to be construed
15 in the beneficiaries' favor." King v. St. Vincent's Hosp., 502
U.S. 215, 218-20, 221 n. 9, 112 S.Ct. 570, 573, 574 n. 9, 116
L.Ed.2d 578 (1991); see also Lee v. City of Pensacola, 634 F.2d
886, 889 (5th Cir.1981); Bell v. Aerodex, Inc., 473 F.2d 869, 872
(5th Cir.1973). We agree.
To the extent that section 2024(a) is capable of multiple
interpretations, Sykes is quite correct that ambiguities should be
resolved in his favor. Given the purpose of the VRRA—and the
purpose of the limitation period to limit the time an employer must
permit the exercise of reemployment rights—the canon of favorable
construction supports Sykes' reading of the section 2024(a)
limitations period as including solely post-employment military
service.
D. DOL Publications
Sykes argues that deference is owed to DOL publications that
have stated consistently that pre-employment military service is
not included in section 2024(a)'s limitation period. DOL Field
Letter No. 20 (1961), Veterans' Reemployment Rights Legal Guide 163
(1964), and the 1970 and 1988 editions of the Veterans'
Reemployment Rights Handbook all clearly support the position that
pre-employment military service should not be used to determine
eligibility for reemployment rights.6
6 DOL Field Letter 20, issued in 1961, states "[o]nly military service entered from employment to which restoration is claimed is to be included in computing service time under the 4 year limitation." Id. at 10.
The 1964 DOL Legal Guide states that the service limitation was enacted for the "purpose of relieving an
16 C&G contends that DOL publications are entitled to no more
deference than a writing that their attorneys might publish in
support of C&G's position. C&G is incorrect. Although Congress
did not explicitly leave a gap in the VRRA and expressly delegate
to the DOL the authority to issue regulations concerning this
issue, "considerable weight should be accorded to an executive
department's construction of a statutory scheme it is entrusted to
administer." Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 844, 104
S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). The DOL is charged with
administering the VRRA. See 38 U.S.C.A. § 501 et seq.
employer from an unlimited liability to restore to his position an employee who served in the armed forces." Id. at 163. It goes on to state that:
"The aggregate service limitations were intended only for use by an employer as to whom the serviceman's military service interrupted an existing employment, to which the serviceman might seek restoration, and the chargeable service was only that which interrupted this particular employment." Id. (emphasis added).
Similarly, the 1970 Handbook states:
"It is essential to note that these limitations apply only to active duty performed after the employee leaves the employment to which he claims restoration. Active duty performed before the employment relationship began does not count toward the years of active duty for which the employee is permitted to absent himself from the employer in question." Id. at 20.
When the Handbook was reissued in 1988, it contained the same admonition:
"These limitations apply only to active duty performed after the employee leaves the employment to which he claims restoration. Active duty performed before the employment relationship began does not count toward the years of active duty for which the employee is permitted to absent himself from the employer from whom he seeks restoration." Id. at 5-3.
17 Although "[n]either the [Veterans' Reemployment Rights ]
Legal Guide nor the [Veterans' Reemployment Rights ] Handbook has
the status of interpretive regulations, ... they do have a measure
of weight." Helton v. Mercury Freight Lines, Inc., 444 F.2d 365,
368 & n. 4 (5th Cir.1971) (citing Skidmore v. Swift & Co., 323 U.S.
134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); see also Leib v. Georgia-
Pac. Corp., 925 F.2d 240, 245 (8th Cir.1991) (noting that these
publications provide " "informed guidance' " regarding the VRRA).
The weight to be given these DOL publications is enhanced by the
longstanding and consistent nature of the position taken, and its
inception so soon after the 1961 legislation.
E. Uniformed Services Employment and Reemployment Rights Act of 1994
Sykes emphasizes that the USERRA's legislative history
provides that "reemployment rights protection shall apply to an
individual if such person's period of service, with respect to the
employment relationship for which a person seeks reemployment, does
not, with certain exceptions, exceed five years." H. Rep. No. 103-
65, 103d Cong., 2d Sess. 17, reprinted in 1994 U.S.C.C.A.N. 2449,
2450. Sykes contends that this legislative history should be used
to construe section 2024(a).
The USERRA legislative history quoted by Sykes, however,
addresses a newly-enacted version of the reemployment rights
provision which unambiguously provides:
"(a) Subject to subsections (b), (c), and (d) and to section 4304, any person who is absent from a position of employment by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if—
18 ....
(2) the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years.... 38 U.S.C. § 4312(a)(2) (West Supp.1996) (emphasis added).
The newly-enacted provisions of the USERRA unambiguously provide
for the precise result that Sykes contends can be derived from
section 2024(a). The USERRA's legislative history's guidance on
the operation of section 4312(a)(2)—which is worded differently
from section 2024(a)—sheds little light on the construction of
section 2024(a). Much more significant in the legislative history
of the USERRA is the House Report's background discussion that
states that the task force that drafted the Act intended the USERRA
to be largely a clarification of existing law. H. Rep., supra, at
2451 (noting that the "current statute is complex and sometimes
ambiguous, thereby allowing for misinterpretations"). Indeed,
under the USERRA, the DOL is given the authority to promulgate
regulations to resolve the textual ambiguities under the Act. See
38 U.S.C. § 4331; H. Rep., supra, at 2473 (discussing the new
regulatory power and acknowledging the "measure of weight" courts
have afforded statutory interpretations in the Handbook and Legal
Guide ).
Although not dispositive, the legislative history of the
USERRA indicates that a limited degree of deference to the DOL is
appropriate and that the USERRA's provisions—which expressly adopt
Sykes's position—likely were a "clarification" of existing law
under section 2024(a).
19 F. C&G's Abuse Argument
C&G contends that a construction of section 2024(a) that would
include only post-employment military service in a determination of
eligibility for reemployment rights would permit abuse of the
VRRA's reemployment rights scheme:
"[A] person could obtain private employment, quit, enlist in the military, leave the military, demand and obtain reemployment under the VRRA, quit again, reenlist in the military, leave the military, again demand and obtain reemployment under the VRRA, quit again...."
C&G's rather farfetched slippery-slope concern—one that so far as
we are aware has never surfaced in actual practice, in legislative
history, in administrative publications, or in relevant
literature—is more than adequately addressed by the protective
doctrines that both guard against abuses of veteran reemployment
rights and limit employers' exposure.
For example, to qualify for reemployment rights under the
VRRA, "the controlling determination is whether, regardless of the
contract of employment, there was a reasonable expectation that the
employment would be continuous and for an indefinite time." Akers
v. Arnett, 597 F.Supp. 557, 561 (S.D.Tex.1983), aff'd, 748 F.2d 283
(5th Cir.1984). Other abuses of the VRRA are also precluded, for
example, an employer need not create a position where the veteran's
position no longer exists, Horton v. U.S. Steel Corp., 286 F.2d 710
(5th Cir.1961), and an employer need not rehire an employee
terminated for cause simply because he subsequently becomes a
veteran, Henry v. Anderson County, 522 F.Supp. 1112 (D.Tenn.1981).
Further, VRRA reemployment must be sought within ninety days from
20 the receipt of an honorable discharge from military service. 38
U.S.C. former § 2021(a)(2); Leib v. Georgia-Pacific Corp., 925
F.2d 240, 246 n. 10 (8th Cir.1991). In short, legitimate defenses
were available to C&G to challenge either Sykes's status as a
permanent employee or his ability to perform his position
competently. C&G neither alleged nor argued before the district
court that Sykes abused the VRRA; its farfetched theoretical
concerns regarding abuse of the statutory reemployment rights
scheme are not present in this appeal.
III. Sykes's Resignation Letter
C&G contends that Sykes's letter of resignation waived his
reemployment rights under the VRRA. In support of its argument, C&G
cites Hilliard v. New Jersey Army Nat'l Guard, 527 F.Supp. 405
(D.N.J.1981). Hilliard involved a Teaneck, New Jersey police
officer who was also an officer in the New Jersey National Guard.
When Hilliard's repeated requests for leave to complete a special
training course were denied by the Township of Teaneck,7 he formed
a sham corporation, named himself director, and, although still
employed by the Teaneck police force, reapplied listing himself as
self-employed. Id. at 407. When Hilliard's ruse was later
discovered, senior officers with the New Jersey Army National Guard
offered him the choice of immediately returning to his employment
with the Teaneck police or resigning his position and continuing on
active duty. Id. Hilliard signed and sent a resignation letter.
7 The New Jersey Army National Guard required public employees to obtain permission prior to entering active duty to promote comity between the Guard and local government. Id. at 406.
21 Id. & n. 2.
When Hilliard subsequently presented a claim for reemployment,
the district court, observing that the general rule under the VRRA
"is that a resignation from civilian employment to enter military
service does not deprive a veteran of reemployment rights,"
nevertheless held that the "special circumstances present here
require a contrary result." Id. at 410.
Sykes correctly argues that the "special circumstances"
presented in Hilliard—fraud—are not present in this case. It is
beyond dispute that a resignation from a civilian job, whether
verbal or written, does not waive reemployment rights under the
VRRA. See Green v. Oktibbeha County Hosp., 526 F.Supp. 49, 54
(N.D.Miss.1981); Bottger v. Doss Aeronautical Servs., Inc., 609
F.Supp. 583, (D.Ala.1985); see also Winders v. People Express
Airlines, Inc., 595 F.Supp. 1512, 1518 (D.N.J.1984) (stating that
where an employee communicates that he is entering active military
duty even the word "resign" in a communication sent to the employer
cannot waive reemployment rights).
Without addressing the issue of whether a veteran has the
ability to waive statutory reemployment rights prospectively by
contract, we note only that Sykes's "resignation letter," prepared
by C & G and ostensibly addressing seniority and contractual
rights, did not even purport to do so. We see no reason to imply
a waiver of Sykes's statutory reemployment rights when there is no
record evidence to support such a waiver.
Conclusion
22 For the foregoing reasons, we REVERSE the summary judgment
entered by the district court, RENDER judgment for Sykes on the
issue of entitlement to reemployment under the VRRA, and REMAND to
the district court for further proceedings consistent with this
opinion.