Opinion
With the parties' consent, this case was referred and reassigned to the undersigned for all purposes, including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c).
February 22, 2001
PARTIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER NON-JURY TRIAL
I. INTRODUCTION
The plaintiff, Gary W. Lapine (hereinafter, "Lapine" or "plaintiff"), brings claims under the Veterans' Reemployment Rights Act, 38 U.S.C. § 4301-4306, (VRRA) against defendant Town of Wellesley (hereinafter, "the Town" or "defendant"). Lapine resigned from the Wellesley Police Department effective May 13, 1990; he reported for active duty in the Army on July 22, 1990. His three-year term ended August 30, 1993. In this action, Lapine seeks reinstatement as a police officer in the Wellesley Police Department and an award of $65,000 for lost pay from the date of his application for reinstatement in 1993.
After completion of discovery, each party moved for the entry of judgment as a matter of law. Lapine's motion for summary judgment was denied during oral arguments; the Town's motion was denied on July 7, 1997. Lupine v. Town of Wellesley, 970 F. Supp. 55 (D. Mass., 1997).
Thereafter, a non-jury trial was held, transcripts were prepared, the parties filed their proposed findings of fact and conclusions of law, and final arguments were heard. The case is now ripe for decision.
II. FINDINGS OF FACT A. Lupine's Military Career — 1976 — April, 1990
1. The Plaintiff, Gary W. Lapine, was on active duty with the United States Army from July 7, 1974 through August 30, 1976 as a commissioned officer. (Stip. ¶ 1)
A number of findings based on the Stipulation of the parties are adopted as the Court's findings verbatim, but without quotation marks; others are reworded and/or supplemented.
2. Upon leaving active duty, Lapine became aware of veterans' rights to reemployment benefits under the Veterans' Reemployment Rights Act. (Stip. ¶ 1)
3. After leaving active duty on August 30, 1976, Lapine was transferred to the United States Army Reserve and continued service in the Reserve. (Stip.
¶ 1).
4. Lapine was discharged from the Army Reserve on July 7, 1989. (Tr. 122) At the time of the discharge, he was a commissioned officer, i.e., a captain. (Tr. 123) The discharge was due to his being passed over twice for promotion. (Tr. 139)
5. In February, 1990, Lapine enlisted in the United States Army Reserve as a sergeant. (Tr. 123)
6. As of April of 1990, Lapine held the rank of Sergeant (E-5) in the United States Army Reserve and was assigned to the 94th Military Police Company located at the Army Reserve Center at Grenier Field, Manchester, New Hampshire. (Stip. ¶ 6; Tr. 70) He was subject to being involuntarily called up to active duty in the event of a national emergency. (Tr. 21)
B. Lapine's Career as a Police Officer — May, 1977 — May, 1990
7. Lapine applied for a position as a police officer with the Town after he ended active duty with the Army in August, 1976. (Stip. ¶ 4)
8. Lapine was appointed as a full-time police officer in the Town's Police Department on May 9, 1977. (Stip. ¶ 5)
9. As of April of 1990, Lapine held the rank of patrolman in the Wellesley Police Department, with a pay classification of Patrolman-EMT (P18), at a step 4. (Stip. ¶ 6)
10. On April 30, 1990, Lapine submitted a letter of resignation (Exh. 1) to the then Chief of Police, resigning from the Town's police department effective May 13, 1990. (Stip. ¶ 8)
See ¶ 25, infra, in which the letter is reproduced in its entirety.
C. The Events of April — September, 1990
11. In or about April, 1990, Lapine's ex-wife was seeking a modification of their divorce decree seeking a raise in Lapine's payments to her; there was also a petition for contempt pending. (Tr. 33-4, 119)12. In or about April, 1990, Lapine owed approximately $18,527.47 to the Internal Revenue Service (IRS), and on May 9, 1990, the IRS filed a Notice of Levy with the Town of Wellesley Retirement Systems levying against the amount in Lapine's retirement account up to the amount owed. (Exh. 68; Tr. 119)
13. Richard C. Johnson, Esquire, (hereinafter, "Johnson") is an attorney with whom Lapine has been associated both personally and professionally since 1973. (Tr. 32, 37)
14. Johnson has represented Lapine in connection with the divorce proceedings. (Tr. 33)
15. On or shortly after April 12, 1990 but before April 18, 1990, in a telephone conversation, Lapine told Johnson that he was leaving his position with the Wellesley Police Department to go on full-time active duty in the military. (Tr. 34, 49)
16. Lapine also told Johnson that he would use part of his accumulated pension contributions to pay the IRS debt. (Tr. 35)
17. In April, 1990 but before April 12, 1990, Lapine contacted his recruiter, Sergeant First Class Ronald Johnson (hereinafter, "Sgt. Johnson") to determine whether there were any openings in the Active Duty Guard Reserve Program (AGR Program). (Tr. 71)
18. The Active Duty Guard Program is a recruiting command program by which sergeants in a reserve unit called a Troop Program Unit who are going to monthly drills and two week summer training are brought on active duty for a three or four year term to act as recruiters for the Army Reserve. (Tr. 10)
19. It is possible to make a career in the military by remaining in the AGR Program by reenlisting and requesting to remain in the AGR Program at the end of every tour of active duty. (Tr. 11)
20. In the latter part of April, 1990 but before Friday, April 27, 1990, Lapine received a call from a Sergeant First Class Albert Basile (hereinafter, "Basile") who was part of the operations for the Boston Recruiting Battalion with the specific task of recruiting persons who could serve in the Army as recruiters. (Tr. 9, 71-2) Although Sgt. Johnson does not recall it, I find by a preponderance of the direct and circumstantial evidence that Basile's call was as a result of Sgt. Johnson having told Basile of Lapine's interest.
21. Basile attempted to recruit Lapine to go on active duty under the AGR Program. (Tr. 12); Lapine was under no obligation to go on active duty. (Tr. 21)
22. After discussing the matter, Basile told Lapine that he would be an excellent candidate for the AGR Program. (Tr. 13)
23. Basile then proceeded to set up a board of three members who would interview Lapine, review his qualifications and determine his suitability. (Tr. 14)
24. The board was held on May 7, 1990; the board's decision was unanimously in Lapine's favor. (Tr. 15)
25. On Monday, April 30, 1990, after speaking with Basile but before the board was held, Lapine wrote the following letter to the Chief of Police of the Wellesley Police Department (Exh. 1) which reads as follows:
April 30, 1990
John K. Fritts Chief of Police Wellesley Police Department 485 Washington Street Wellesley, MA 02181
SUBJECT: Resignation from Employment
Dear Sir:
I am writing to you to inform you of my intent to resign from the Wellesley Police Department. As you may or may not already realize, I have not been satisfied with the working conditions of the department for several years now. Only the opportunity to secure other employment prevented me from resigning earlier, and possibly, the hopes that the conditions would change. However, as you know, the conditions have not changed, nor do you or I expect them to in the future.
Your mishandling of major incidents in the past few years has been deplorable, and has placed your patrolmen in jeopardy. Your handling of the weapons procurement has left half of your department with outmoded service weapons. Your continual persecution of certain police officers in your department has led to a hardened polarization between members of your staff and the rest of your department. And finally, your response to my request for an internal investigation into the theft and illegal copying of official Wellesley Police Association documents, and your unauthorized use of these documents in a public forum, is not only inexcusable, but has thwarted any hopes of identifying the perpetrator of the break-in and larceny. As these documents were secured in my locker, I feel that my civil rights have been violated, and that by your inaction on this matter, that you condone such activity.
The effective date of my resignation is May 13th 1990. If there are any vacation or personal days remaining, I am using this opportunity to let the department know, that I would like to be reimbursed for said days.
Thank you for your consideration in this matter.
Respectfully submitted,
Gary W. Lapine Patrolman, Badge #24
cc: Board of Selectmen Wellesley Personnel Board Wellesley Retirement Board
26. Lapine did not mention or discuss with anyone in the Wellesley Police Department any intention on his part to go into active duty with the military prior to the letter of resignation of April 30, 1999. (Tr. 133, 159, 161)
27. On April 30, 1990, Lapine completed and submitted an application (Exh. 2) to the Wellesley Retirement Board for withdrawal of his accrued retirement benefits, which amounted to $31,021.79. (Stip. ¶ 8) In the application, Lapine, inter alia, subscribed to the following statements:
I resigned from my position as Police Officer in the Wellesley Police Department. The date of my termination of service was May 13, 1990 and the last deduction made from my regular compensation was for the payroll period ending May 14, 1990.
It is not my present intention to accept a position in the service of the Commonwealth of Massachusetts or of a political subdivision thereof which would entitle me to become a member of any other similar contributory retirement system maintained within the Commonwealth by public funds.
* * *
I understand that if I hereafter should return to active service as an employee I do so with the status of a new employee not entitled to credit for my previous service, unless after the date of my re-employment and before the date of any retirement allowance becomes effective for me, I shall pay into the annuity savings fund of the Retirement System, either in one lump sum or in installments, make-up payments of an amount equal to the accumulated regular deductions withdrawn by me, together with regular interest.
28. Upon receiving his retirement benefits, Lapine paid approximately $18,000.00 of the amount to the IRS in satisfaction of a personal tax liability, penalties and interest. (Stip. ¶ 9)
29. Lapine placed the remainder of his accrued retirement benefits into a bank and used the money for his daily expenses, including child support. (Stip. ¶ 10)
30. On May 7, 1990, immediately after the board concluded its deliberations, Lapine completed and submitted an Application for Active Guard Reserve (AGR) Duty (Exh. 3), and an Application for Active Duty for Training for Members of the Army National Guard and U.S. Army Reserve (Exh. 4).
31. On June 12, 1990, the United States Recruiting Command at Fort Sheridan, Illinois sent Lapine notice of his active duty assignment to the U.S. Army Recruiting Command (Exh. 5). (Stip. ¶ 12)
32. On June 20, 1990, Lapine was issued orders (Exh. 6) to report on July 22, 1990 for active duty training at Fort Benjamin Harrison, Indiana, for forty days. (Stip. ¶ 13)
33. Until such time as Lapine successfully completed his active duty training, he was not obligated to go on active duty. (Tr. 20)
34. On July 13, 1990, Lapine was issued orders (Exh. 7) to report for active duty on September 10, 1990. (Stip. ¶ 14)
35. On September 3, 1990, Lapine executed an Oath of Extension of Enlistment or Reenlistment (Exh. 8) for a three year term expiring on August 30, 1993. (Stip. ¶ 15)
C. The Events Occurring After September, 1990
36. On June 26, 1992, Lapine sent a letter to Wellesley Chief of Police, Thomas J. O'Loughlin (Exh. 9), "explor[ing] the opportunity or feasibility of re-employment with the Wellesley Police Department." (Stip. ¶ 6)
37. Police Chief O'Loughlin wrote to Lapine on July 6, 1992 (Exh. 10) that it was unlikely that a position would be available to Lapine and of his reluctance to hire police officers through reinstatement. (Sup. ¶ 17)
38. One year later, on July 6, 1993, Lapine sent another letter to Police Chief O'Loughlin (Exh. 11) requesting reemployment under the Veterans' Reemployment Rights Act with the Wellesley Police Department after his current AGR duty term ended on August 30, 1993. (Stip. ¶ 18) This was the first time Lapine had officially told anyone in the Wellesley Police Department that he had entered upon full time military duty following his resignation from the Wellesley Police Department; this was also the first time he informed anyone in an official position with the Town that he was seeking reemployment pursuant to the Veterans' Reemployment Rights Act. (Tr. 126-9)
Lapine testified that he mentioned that he had gone on active duty to Lieutenant Whalen in October, 1990 (Tr. 126) and perhaps other officers (Tr. 127); Officer Whalen was not asked to corroborate Lapine's testimony when he himself testified. (Tr. 163-75) Another witness, Officer Lally, could not recall Lapine ever telling him before he resigned on April 30th that he was resigning in order to enter the military. (Tr. 161) Whether Officer Whalen and/or Lally were told, they were told in passing conversation. This is the basis of my finding that before July 6, 1993, Lapine did not officially notify the Town or its Police Department that he was going or had gone on active duty with the military.
39. In a letter dated July 14, 1993 (Exh. 12), Police Chief O'Loughlin denied Lapine's request for reemployment under the Veterans' Reemployment Rights Act. (Stip. ¶ 19)
40. On August 31, 1993, Lapine was issued a Certificate of Release of Discharge from Active Duty, DD Form 214 (Exh. 13) and was honorably discharged. (Stip. ¶ 20)
41. Upon his discharge from AGR duty, Lapine continued service in the Army Reserve as a Sergeant. (Stip. ¶ 21)
D. Findings of Fact Re: Lapine's Intent
42. I find by a preponderance of the evidence that Lapine did, in fact, resign from the Wellesley Police Department in order voluntarily to enter on active duty with the United States Army Reserve.
43. I find by a preponderance of the evidence that at no time either before or after entering on active duty did Lapine form the intention to pursue a active-duty career with the military.
44. I find by a preponderance of the evidence that at the time Lapine resigned from the Wellesley Police Department in order to enter on active duty, Lapine had no intention of ever returning to work at the Wellesley Police Department.
45. I find by a preponderance of the evidence that Lapine formed the intention to return to work at the Wellesley Police Department sometime shortly before June 1992 after he had been on active duty for almost two years.
III. CONCLUSIONS OF LAW A. Introduction
I framed the legal issues in the case in an opinion denying the Town's motion for summary judgment. See Lupine v. Town of Wellesley, 970 F. Supp. 55 (D. Mass., 1997). At trial, the Town made additional arguments in support of its contention that Lapine had no rights under the VRRA.
Hereinafter, "Lupine".
B. Does VRRA Protect One Who Voluntarily Enters the Military?
Defendant contends that neither 38 U.S.C. § 4304 (b)(1) nor 38 U.S.C. § 4301(b)(3), the two statutory sections discussed in Lupine, protect an employee who resigns his position in order to volunteer for active duty in the Reserve. In my opinion, 38 U.S.C. § 4304 (b)(1) protects Lapine if in fact his purpose in resigning his position with the Wellesley Police Department was to go on active duty and he has not waived his VRRA rights. See Lapine, 970 F. Supp. at 60-64.
Section 4304(b)(1) as it read in 1993 provides:
Any person who, after entering the employment on the-basis of which such person claims restoration or reemployment, enters upon active duty (other than for the purpose of determining physical fitness and other than for training), whether or not voluntarily, in the Armed Forces of the United States or Public Health Service in response to an order or call to active duty shall, upon such person's relief from active duty under honorable conditions, be entitled to all of the reemployment rights and 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 active duty performed between June 24, 1948, and August 1, 1961, did not exceed four years, and the total of any such active duty, additional or otherwise, performed after August 1, 1961, does not exceed four years (plus in each case any additional period in which such person was unable to obtain orders relieving such person from active duty).
Title 38 U.S.C. § 4304 (b)(1) (1991).
Defendant argued in its closing argument and in its Reply to Plaintiff's Supplemental Trial Brief that § 4304(b)(1) does not apply to Lapine because he did not receive "an order or call to active duty." Defendant contends that the statute only applies when reserves are called to active duty in response to a federal emergency. (#57, p. 17) Defendant points to the language of § 4304(b)(1), which gives reservists responding to a call or order to active duty "all of the reemployment rights and benefits provided for by this chapter in the case of persons inducted under the provisions of the Military Selective Service Act." Title 38 U.S.C. § 4304 (b)(1)(1991). The Town argues this language illustrates the protections of the VRRA were intended only for those who are compelled to go on active duty: those inducted under the Selective Service Act, and those reservists who, similar to inductees, are compelled to go on active duty during a federal emergency.
The problem with this interpretation is that it renders the statutory language "whether or not voluntarily" meaningless. Defendant responded that that language only referred to whether a reservist went to active duty willingly or whether a reservist went "screaming and kicking." (#57, p. 15) I am of the opinion that defendant's interpretation is not correct.
It is important to note that Congress specifically added the phrase "whether or not voluntarily" to the law in 1951. The provision originated in the Selective Service Act of 1948 and was codified at 50 U.S.C. App. § 459(g)(2). Upon enactment on June 24, 1948, the section read:
Any person who, subsequent to the effective date of this title and while it is in effect, enters upon active duty in the armed forces of the United States, the Coast Guard, or the Public Health Service in response to an order or call to active duty shall, upon his relief from active duty under honorable conditions, be entitled to all of the reemployment rights and benefits provided by this section in case of inductees, if he is relieved from active duty not later than three years after the date of entering upon active duty or as soon after the expiration of three years as he is able to obtain orders relieving him from active duty.
Selective Service Act of 1948, § 9(g)(2) reprinted in U.S. Code Cong. Adm. News, 80th Cong, 2nd Sess., 1948, Vol. I, p. 631.
On June 19, 1951, Congress amended the provision in the Universal Military Training and Service Act. Upon enactment of the amendment, the provision read:
Any person who, subsequent to June 24, 1948, enters upon active duty (other than for the purpose of determining his physical fitness), whether or not voluntarily, in the Armed Forces of the United States, or the Public Health Service in response to an order or call to active duty shall, upon his relief from active duty under honorable conditions, be entitled to all of the reemployment right and benefits provided by this section in case of persons inducted under the provisions of this title, if he is relieved from active duty not later than four years after the date of entering upon active duty or as soon after the expiration of such four years as he is able to obtain orders relieving him from active duty.
Universal Military Training and Service Act amending 50 U.S.C. App. § 459(g)(2) reprinted in U.S. Code Cong. Adm. News, 82nd Cong, 1st Sess., 1951, Vol. I, p. 83 (emphasis added).
The Section By Section Analysis of this provision reads as follows:
This paragraph extends to persons entering upon active duty subsequent to June 24, 1948, other than for the purpose of determining physical fitness, whether or not voluntarily the same reemployment rights and benefits upon relief from active duty under honorable conditions as are provided for persons inducted or enlisted in the Armed Forces.
U.S. Code Cong. Adm. News, 82nd Cong, 1st Sess., 1951, Vol. 2, p. 1502. Given this history, it is hard to conclude that Congress was making a distinction between one who was happy to get orders and one who was not. The more logical interpretation is that "voluntarily" refers to one who volunteers to go on active duty under no compulsion.
Defendant's interpretation also ignores the fact that the VRRA provides protection for other volunteers. Section 4304(a) affords reemployment rights to private citizens who enlist voluntarily in the armed forces. Thus, the Town is wrong to suggest that the VRRA was only intended to provide protection for those who are compelled to go to active duty through no choice of their own; § 4304(a) provides protection for private citizens who volunteer for active duty, so it is reasonable to find that the VRRA protects reservists who volunteer for active duty, too. In total, it seems the intent of the VRRA was to provide reemployment rights to individuals (other than career service personnel) who spend some time away from their jobs serving their country, no matter how they came to that point: through induction (§ 4301(a)), through enlistment (§ 4304(a)), as a reserve member ordered to active duty involuntarily (§ 4304(b)(1)), or as a reserve member volunteering for active duty (§ 4304(b)(1)).
Title 38 U.S.C. § 4304 (a)(1991) provides:
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 the chapter in the case of persons inducted under the provisions of the Military Selective Service Act . . . .
Defendant also contrasts the fact that § 4304(b)(1) contains the language "in response to an order or call to active duty," while § 4301(a) does not contain this language. Thus) the Town argues the VRRA provides more narrow protection for reservists and is only intended to cover them when they are called to respond to a national emergency. But it seems more likely that the language "in response to an order or call to active duty" is included in § 4304(b)(1) alone only because of the nature of a reservist's service: reservists either may be on active or inactive duty (and this portion of the VRRA is not addressed to those on inactive duty), while those inducted or enlisted into the regular service can only be on active duty.
See Boston Maine R.R. v. Hayes, 160 F.2d 325 (1 Cir., 1947) in which the Court of Appeals discusses the fact that the 1940 Act protects one who resigns a civilian job to enter the military rather than one who waits to be inducted.
This broad interpretation seems to have been assumed by other courts. Though I have found no case which addresses the question directly, a number of reported cases have involved reservists who volunteered for active duty and invoked the protections of the VRRA. For instance, the plaintiff in Lemmon v. County of Santa Cruz, 686 F. Supp. 797 (N.D.Cal., 1988), was a member of the Army Reserve who in 1979 applied for active duty for training in a program requiring a three year tour. Shortly after his tour began, the training program in which he participated was phased out. He was then given the opportunity to convert to full-time active duty (not for training) or to terminate active duty entirely. He chose to convert to full-time active duty. The court held that the plaintiff continued to be covered by the VRRA — specifically, § 2024(b)(1) — after he converted to full-time active duty. Lemmon, 686 F. Supp. at 804. No question was raised regarding the fact that the plaintiff had volunteered for active duty during peacetime.
The plaintiff sought a leave of absence for training from his employer, which was granted. Thus, the plaintiff initially was protected by 38 U.S.C. § 4304 (d) ("Any employee not [otherwise] covered . . . shall upon request be granted a leave of absence of such person's employer for the period required to perform active duty for training . . . in the armed forces of the United States."). The court held that this protection ceased at the time the plaintiff converted to regular active duty. Lemmon, 686 F. Supp. at 803 n. 11.
Under this option, plaintiff would no longer qualify for protection under § 4304(d), since that provision only applies to active duty for training.
Section 4304(b)(1) previously was found at § 2024(b)(1) of Title 38.
Also instructive are Hilliard v. New Jersey Army Nat'l Guard, 527 F. Supp. 405 (D.N.J., 1981), and Witter v. Pennsylvania Nat'l Guard, 462 F. Supp. 299 (E.D.Pa., 1978). In Hilliard, the plaintiff was on active duty for training with the National Guard when he was recruited to active duty with the regular Army. The court stated that under § 2024(b)(1), the plaintiff had "voluntarily entered upon active duty in response to an order." Hilliard, 527 F. Supp. at 409. The plaintiff was denied coverage under the VRRA for unrelated reasons. In Witter, the plaintiff was a National Guardsman who in 1967 volunteered for active duty in Vietnam. The court held plaintiff was entitled to reemployment under 2024(b)(1), and no question was raised regarding whether the VRRA covered one who volunteered to go on active duty, as opposed to those Guardsmen who may have been ordered to active duty involuntarily during the Vietnam War.
See footnote 6, supra.
See footnote 6, supra.
See also Duey v. City of Eufaula, Alabama, 1979 WL 1936 (M.D. Ala.) (two police officers protected by the Act despite that the fact that they resigned in order to enter on active duty with the U.S. Army) and Jennings v. Illinois Office of Education, 1978 W.L. 1564 (S.D. Ill.), aff'd, 589 F.2d 935 (7 Cir.), cert. denied, 441 U.S. 967 (1979) (plaintiff resigned in order to enter the U.S. Navy voluntarily). But see Riser v. Northern States Power Co., 1978 WL 1564 (S.D. Ill.) (plaintiff not protected because he did not leave employment for the purpose of entering the military but rather because he detested his job).
As far as I can tell, there is no case law which would support the narrow interpretation of § 4304(b)(1) proposed by defendant. Indeed, the VRRA is to be liberally construed in favor of granting rights to veterans who leave private employment to serve their country. Coffy v. Republic Steel Corp., 447 U.S. 191, 195 (1980); Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609, 613 (1 Cir., 1996). Therefore, I conclude that § 4304(b)(1) can apply to reservists like Lapine who volunteer for active duty in peacetime. Since I have found that Lapine resigned from the Wellesley Police Department with the intent to enter on active duty with the military, he has rights under § 4304(b)(1).
The only case which might lend some support to defendant's position is Smith v. Missouri Pacific Transp. Co., 208 F. Supp. 767 (E.D.Ark., 1961). In that case, the district court held in part that the VRRA did not apply to an individual who volunteered for active duty. Id. at 771. But in the appeal of that decision, the Eighth Circuit noted the apparent inconsistency between the words "whether or not voluntarily" and the district court's interpretation of the phrase "in response to an order or call to active duty." Smith v. Missouri Pacific Transp. Co., 313 F.2d 676, 682 (8 Cir., 1963). It declined to address the apparent inconsistency by court's judgment on separate grounds. Id.
See finding at ¶ 42, supra . . .
III. Did Lapine Waive The Rights Provided By 4304(b)(1)
The most difficult issue in this case is whether Lapine waived his rights under the Veterans' Reemployment Rights Act. The defendant argues that the waiver is found in Lapine's resignation from the Wellesley Police Department to enter the military with no intention of ever returning to work for the department. See Finding # 44, supra.
Two circuit courts have split on the issue of whether a person can ever waive his reemployment rights by acts taken either before entering the military or while employed in the military. In the case of Leonard v. United Air Lines, Inc., 972 F.2d 155 (7 Cir., 1992), a pilot recalled to active service during the Berlin airlift, opted to withdraw from United's pension plan upon entering active duty and to receive all of the contributions he had made. Leonard, 972 F.2d at 156. When he was honorably discharged in 1952, he sought to make up the contributions he missed while in the military; United refused. Id. Holding that United should have allowed him to do so since participation in the plan was a "perquisite of seniority," United was ordered to put Leonard in ". . . the position he would have been in had he not been called to service" regardless the fact that Leonard had withdrawn from the plan upon entering on active duty. Leonard, 972 F.2d at 156-7.
The Seventh Circuit noted that in deciding to withdraw from the plan upon being called to active duty, "Leonard made a knowing and intelligent choice [and] [i]f a soldier called to arms can waive his rights under the Veterans' Act, Leonard did so." Leonard, 972 F.2d at 159. But nonetheless the Court declined to find a waiver, writing:
There is no question that veterans can waive their rights to reemployment and the perquisites of seniority after return from service. [citations omitted] Further, the Eighth Circuit has held that a veteran may waive his reemployment rights by making a career in the military. Smith v. Missouri Pacific Transp. Co., 313 F.2d 676, 681-2 (8th Cir., 1963) (Blackmun, J.). But although we have found no case law directly on point, we do not think that an employee can waive his rights under the Act before entering military service. [citation omitted].Leonard, 972 F.2d at 159.
In short, "[v]eterans should not be burdened by the choices they make when called to arms." Leonard, 972 F.2d at 160.
The Tenth Circuit followed Leonard in holding that a person could waive reemployment rights after leaving military service. Whitehead v. Oklahoma Gas Electric Company, 187 F.3d 1184, 1192 (10 Cir., 1999). In Whitehead, the employee came back to work for the company after military service and then accepted an offer of early retirement. As part of the acceptance, the employee waived his reemployment rights. The Court upheld the waiver.
Of course, there is an obvious distinction between the Leonard case and the instant one. The plaintiff in Leonard was seeking relief under 38 U.S.C. § 2021 (b)(1) which dealt with persons inducted involuntarily into the Armed Forces. The situation is quite different in the case of one such as Lapine who voluntarily enters the military. However, the Court in Leonard did not make the distinction between inducted persons and those who enter voluntarily. And in holding that an employee cannot waive his reemployment rights before entering the military, the Court noted the Eighth Circuit's decision in Smith v. Missouri Pacific Transportation Co., 313 F.2d 676 (8 Cir., 1963) in which the Court held that a person can waive his reemployment rights while in the military if, after entering on active duty, the person decides to forsake a civilian career and make the military a career. Id. at 681.
In Smith, the plaintiff left his employ and entered on active duty in July, 1942. Id. at 677. Since he was born in 1892 and was then 50 years old, one can assume that he was inducted voluntarily rather than being drafted. The applicable provision of the Selective Training and Service Act of 1940, 50 U.S.C. App. § 308, gave reemployment rights to anyone "inducted" into the land or naval forces regardless of whether the induction was voluntary or involuntary. Smith v. Missouri Pacific Transportation Co., 208 F. Supp. 767, 770 (E.D. Ark., 1961).
The district court in Smith found that the plaintiff was "given a commission as a Captain in the Army of the United States." Smith v. Missouri Pacific Transportation Co., 208 F. Supp. 767, 768 (E.D. Ark., 1961).
What occurred thereafter was that Smith's normal tour of duty would have ended in 1948 but he took advantage of opportunities to remain on active duty for additional periods and was not released from service until 1953. Smith, 313 F.2d at 678. After release, he sought reemployment with the same employer by whom he had been employed in 1942. Smith, 313 F.2d at 676.
The Eighth Circuit found that by voluntarily extending his time in the military, Smith waived his rights to reemployment. Construing the 1940 Act, 50 U.S.C. App. § 303, which seemingly conferred reemployment rights regardless of the length of time spent in the military, the Court wrote:
To render a decision in favor of this plaintiff would be to recognize and to vest in one in his position the power, step by step, as extension-of-duty opportunities present themselves, in effect to make a career of the service and at the same time to force his civilian employer to hold or make a place available for him throughout his career period and until such time as he chooses to bring his military life to an end or until it is finally terminated for him because of age, physical disability, or the like. This, we think, was not the intent of Congress. Appropriate civilian reemployment protection at the end of a non-career period of service was what our national legislative body had in mind.Smith, 313 F.2d at 682.
A later Eighth Circuit case, Paisley v. City of Minneapolis. 79 F.3d 722 (8 Cir., 1996) basically followed the reasoning of Smith. The Paisley decision is discussed in my earlier decision denying defendant's motion for summary judgement. Lapine, 970 F. Supp. at 62-3. In a nutshell, Paisley, a Minneapolis Police Officer, was granted three two-year periods of leave to serve with the military. When he asked for further leave, the police department denied the request. Paisley resigned and remained on active duty for a total of fifteen years. At the conclusion of that time, he asked for his job back. The Court found a waiver of any reemployment rights on the ground that he had chosen to make the military a career. Paisley, 79 F.3d at 724.
Obviously, the Smith case is distinguishable from Lapine's situation in that Lapine, after entering on active duty in September, 1990, did not make the military a career. Further, he had not intended to when he entered on active duty. See Finding # 43, supra. In 1948, Congress did put time limits on the amount of time one could spend in the military and still claim reemployment rights. These time limits remained in the statutes from 1948 through the time period applicable to Lapine's case during which the limit was four years. See 38 U.S.C. § 4304 (b)(1) (1991).
Smith, therefore, would not control Lapine's case. The question then becomes can a person such as Lapine waive his reemployment rights when he voluntarily leaves a civilian job to which he has no intention of returning in order to enter the military service voluntarily?
The one case which I have found which would indicate that the answer to the question is "yes" is Hilliard, 527 F. Supp. 405. While acknowledging that a resignation to enter the armed forces will not normally deprive a veteran of reemployment rights, it does if it is clear that the person entering the military service is making a "career choice" to leave his civilian employment never to return. Hilliard, 527 F. Supp. at 410, n. 5.
The facts of Hillard are that plaintiff was an employee of the Teaneck, New Jersey police department. He joined the Army National Guard and was granted leave to attend Officer Candidate School. Hillard, 527 F. Supp. at 406-7. However an additional request for leave to attend a special training course was denied. Hillard, 527 F. Supp. at 407. The plaintiff then submitted his application for the special training course without naming the police department as his employer. Id. This maneuver circumvented the fact that under an arrangement between the police and National Guard, the National Guard would not call a police officer to active duty without first receiving the consent of the local police department. Id. at 406-7.
When the police department and the National Guard realized what had occurred, they decided to allow the plaintiff to rectify his omission by resigning from the police department retroactively, "such resignation to be a precondition to plaintiffs release to the Army Corps of Engineers." Id. at 407. He accepted the offer, writing:
This is to clarify my resignation dated 4 August 1979. I resign as any patrolman that desires to stop working for Teaneck and start working someplace else. I can not make it any plainer than that. I have already handed in my gun and shields to Lt. Finn. Now would you please accept my designation and let me go?Hillard, 527 F. Supp. at 408.
The resignation was accepted, and the plaintiff entered the military. Hillard, 527 F. Supp. at 408.
The Court held that the defendant "voluntarily entered upon active duty in response to an order . . ." and thus, facially was covered by 38 U.S.C. § 2024 (b)(1). Id. at 409. However, the Court held that due to the "extraordinary facts presented," § 2024(b)(1) ". . . does not entitle this plaintiff to reemployment with the Teaneck Police Department." Id. And while noting that "[w]hile the basic rule of law under the Act is that a resignation from civilian employment to enter the military does not deprive a veteran of reemployment rights the special circumstances present here require a contrary result." Id. at 410 (citations omitted).
It is manifest that the Court was concerned with the fact the plaintiff had gotten into the military through a knowing misrepresentation of his employment status and that the resignation was a procedure devised by the Army and the police department to resolve the problem created by the misrepresentation. If these are the "extraordinary facts" and "special circumstances," the case is easily distinguishable from that of Lapine.
However, the Court also seems to denote as "extraordinary facts" and "special circumstances" the following: (1) the "resignation was in no way coerced" by the police department, (2) the "plaintiff was fully aware of what he was doing when he resigned," (3) his resignation was considered by all concerned to be a permanent severance of his employment relationship with the Teaneck Police Department, and (4) "[p]laintiff made a career choice" and "[t] he fact that he selected the Army Corps of Engineers does not cloak that preference with the statutory right to revert back to the Teaneck Police Department if [he] is later dissatisfied with his decision." Hilliard, 527 F. Supp. at 410 and n. 5.
All of these factors apply to Lapine with the exception of that part of the fourth factor about making the military a career. Lapine made a "career choice" when he left the Wellesley Police Department with no intention of returning, but he had not chosen to make the military a career.
Perhaps this last distinction is the key. In granting reemployment rights to veterans who leave their civilian jobs to enter the military for short periods of time, Congress created incentives to encourage civilians to enter the military. It did not want civilians to be deterred from entering the military for a period of non-career service (not to exceed a limited period of time) because they would be unable to be reemployed when they left the military. So long as the civilian left his employment with the intention of entering the military, he would be protected, even if he disliked his civilian job and, indeed, at the time of resigning, did not intend to return to it. If the civilian decided to make the military a career and stayed in more than four years, he would not have reemployment rights. But if he left after less than four years of service, he is entitled to reemployment rights.
Perhaps this concept is part of what led to the Seventh Circuit's holding that a veteran could not waive his reemployment rights before entering the military. Leonard, 952 F.2d at 156-7.
Accordingly, I rule that Lapine did not waive his reemployment rights by resigning from the Wellesley Police Department with no intention of returning or by any other action he took before entering the military.