The Servicemembers Civil Relief Act (SCRA): Does It Provide for a Private Cause of Action?

Congress has long recognized the need for protective legislation for servicemembers whose service to the nation may compromise their ability to meet obligations and protect their legal interests. The purpose of the Servicemembers Civil Relief Act is to provide for, strengthen, and expedite the national defense by protecting servicemembers, enabling them to “devote their entire energy to the defense needs of the Nation.” The SCRA protects servicemembers by temporarily suspending certain judicial and administrative proceedings and transactions that may adversely affect their legal rights during military service.

Various sections of the SCRA include provisions providing for penalties for violations of the afforded protections. The act does not specifically state who may bring an application for relief, nor does it specifically exclude private individuals from filing a cause of action. Most courts considering the issue have found that a private cause of action exists under the SCRA. However, a recent opinion from the United States District Court for the Western District of Michigan, Hurley v. Deutsche Bank Trust Company, disagreed with decisions from U.S. district courts in Illinois, Louisiana, Oregon, and Texas, and found that a private cause of action does not exist under the act.

While the U.S. Supreme Court has not ruled on whether a private cause of action exists under the SCRA, the Court has dealt with the issue of an implied cause of action under other statutes. In Cort v. Ash, the Court established a four-part test for determining if a private cause of action exists under a particular statute. However, in Alexander v. Sandoval, it appears that the Court has adopted a single-factor test rather than the four-part test.

The split in the U.S. district courts creates uncertainty in how the act may be enforced in the future. In many jurisdictions across the country it may be unclear whether a servicemember has the right to bring a private cause of action for violations of the SCRA. This ambiguity is likely to persist if the courts continue to reach different conclusions on the right to bring a private cause of action. The current ambiguity provides options for Congress. Congress may provide guidance to the courts by clarifying the purpose and intent of the act. A bill introduced in the 110th Congress would have done so. Or Congress may want to amend individual sections of the act or the act in its entirety with language that explicitly states whether a private cause of action exists. However, Congress also has the option to not act and allow the courts to interpret the SCRA, as they have in the past, with the possibility that the issue will be resolved by the U.S. Supreme Court.