JAMES E. RICHARDS, individually and on behalf of all others similarly situated, Plaintiff,
CANYON COUNTY, a governmental entity and local political subdivision of the State of Idaho, Defendant.
MEMORANDUM DECISION AND ORDER
RONALD E. BUSH, Magistrate Judge.
Now pending before the Court is Plaintiff James E. Richards's Motion to Certify Class (Dkt. 14). Having carefully reviewed the record, heard oral argument, and otherwise being fully advised, the undersigned enters the following Memorandum Decision and Order.
Federal law prohibits discrimination based on military status and specifically prohibits an employer from requiring any person serving in the uniformed services "to use vacation, annual, or similar leave" during a period of military service. Richards sues under this law, known as the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq., alleging that former and current employees of Canyon County, Idaho who performed service in the uniformed services were required by Canyon County's practice or policy to use accrued vacation, similar leave or to work compensatory hours during the employees' periods of service in the uniformed services. Compl., ¶ 1 (Dkt. 1).
For his part, Richards alleges that he was required to use 202.80 hours of vacation leave time for his service in the uniformed services while he was employed as a deputy sheriff by the Canyon County Sheriff's Office. Compl., ¶ 32; see Goodsell Decl., Ex. G (Dkt. 19).
Richards filed the pending class certification motion on July 29, 2013. Defendant Canyon County ("the County") challenged Richards' standing to bring his claim, arguing that (a) he is no longer employed by Canyon County and therefore cannot seek injunctive relief, and (b) he has not suffered compensatory damages. The County also contends that at least some claims of the proposed class are barred by the statute of limitations. These issues are threshold questions and will be considered first.
Richards concedes that he lacks standing to seek injunctive relief, but maintains that he has standing to bring a claim for money damages. Pl.'s Reply, pp. 3-4 (Dkt. 21). See, e.g., Wang v. Chinese Daily News, 2013 WL 4712728, *4 (9th Cir. Sept. 3, 2013) (noting that none of the named plaintiffs had standing to pursue injunctive relief on behalf of the class, as none was a current employee of the defendant). The County contends, however, that Richards was paid for all accrued vacation leave when he ended his employment with Canyon County. Hence, according to the County, Richards was ultimately fully compensated for all his vacation leave, either when used in conjunction with military leave or when he was paid for all his accrued vacation leave at the end of his employment, regardless of whether he was "required" to use his vacation leave for his periods of military service. Richards does not dispute having been so paid, but contends that he has been injured separate and apart from any direct pay compensation for the vacation time - in other words, he distinguishes the fact of having received his regular vacation pay from his loss of use of vacation benefits. See Pl.'s Reply, p. 5 (Dkt. 21).
Richards is correct that USERRA defines benefits to includes "vacations" and that an aggrieved plaintiff may seek remedies that include compensation for "any loss of wages or benefits suffered." 38 U.S.C. §§ 4303(2); 20 C.F.R. Part 1002.312. One might think that the discrete issue at play in this lawsuit has been encountered elsewhere, but the parties, and the Court's own research, have only uncovered a single decision considering similar facts. In Miller v. City of Indianapolis, the plaintiffs were allowed fifteen calendar days of military leave under state law and when those days were exhausted, their employer charged their vacation leave. 2001 WL 406346, *2 (S.D. Ind. April 13, 2001). The court stated it had "no problem concluding that vacations benefits are a benefit of employment.'" Id. at *7. That court dismissed the plaintiffs' claims, however, because there was no evidence they were " required to use vacation benefits after exhausting their military leave." Id. (emphasis added).
The task, then, is to determine whether Richards's argument as to the "vacation benefits" being something different than "vacation pay" is of any consequence under applicable law. Significantly, USERRA does not allow recovery for punitive or emotional damages. The statute does, however, allow recovery of lost wages or benefits (38 U.S.C. § 4323(d)(1)(B)), liquidated damages equal to the wages or benefits lost if the violation was willful (§ 4323(d)(1)(C)), equitable remedies, (§4323(e)), and attorney fees (§ 4323(h)).
The County contends that where Richards has been compensated with pay for all his vacation time, either when used in conjunction with military leave or when his employment ended, there can be no other benefits for which he is entitled to be compensated. The Court has pondered this issue at some length and has concluded that the issue needs more development from the parties than the rather cryptic and somewhat attenuated attention it has received previously. Further, the issue needs to be answered sooner than later, as issues of standing are best resolved before determining whether to certify a class, and the Court would prefer to have a complete record and full argument on the standing issue before making its ruling.
STATUTE OF LIMITATIONS
The complaint in this case was filed on August 16, 2012. Therefore, the County contends that the four year statute of limitations found at 28 U.S.C. § 1658(a) bars any claims arising from conduct that occurred before August 16, 2008.
On October 10, 2008, Congress enacted 38 U.S.C. § 4327(b) of USERRA which prohibits the application of any statute of limitations to USERRA claims. Previously, the four-year "catch-all" statute of limitations found at 28 U.S.C. § 1658(a) was applied to USERRA claims. See Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369 (2004). Even so, most courts have held § 4327(b) cannot be applied retroactively to revive claims that otherwise would have been barred at the time of the statute's enactment. See Middleton v. City of Chicago, 578 F.3d 655 (7th Cir. 2009); Baldwin v. City of ...