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HIRSCHBERG v. BRANIFF AIRWAYS

November 24, 1975

BARRY HIRSCHBERG, Plaintiff,
v.
BRANIFF AIRWAYS, INC., a/k/a Braniff International, Defendant



The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER

 JUDD, J.

 Defendant has moved to dismiss the complaint pursuant to F.R.C.P. Rule 12(b), based on the alleged bar of the New York statute of limitations.

 Facts

 Plaintiff brings this action pursuant to the veterans' reemployment provisions of the Military Selective Service Act of 1967, 50 U.S.C.App. § 451 et seq., as amended in 1974, 38 U.S.C.A. § 2021 et seq., to recover for lost wages and denial of job advancement.

 According to plaintiff's complaint, he was employed by the defendant at John F. Kennedy International Airport as a cargo serviceman from August 11, 1967 until on or about December 23, 1967. During this time plaintiff's salary was approximately $435.00 per month.

 On January 5, 1968 plaintiff entered the military service. On August 25, 1969 he was honorably discharged. On September 12, 1969 plaintiff was reemployed by defendant as a cargo serviceman at a salary of approximately $491.00 per month. Plaintiff contends that he was denied a $25.00 per month merit raise and was not granted seniority credit for his military service, which would have resulted in his promotion to the higher-paying position of Passenger Service Agent earlier than October 12, 1970, the actual date of his promotion.

 On December 8, 1970, plaintiff first complained to the United States Department of Labor. After almost three years of investigation and negotiation by this Department without results, plaintiff requested on December 4, 1973 that his file be transferred to the Department of Justice.

 Six months more elapsed before the file was in fact transferred to the Department of Justice on June 25, 1974. A few weeks later, on July 17, 1974, the file was forwarded to the United States Attorney's Office for the Eastern District of New York. Exactly one year later, on July 17, 1975, the complaint in this action was filed.

 The defendant contends that the action is timebarred by the three-year New York State statute of limitations N.Y.C.P.L.R. § 214(2), dealing with a liability created by statute.

 Discussion

 Until 1974, veterans' reemployment rights were provided under the Military Selective Service Act of 1967 by 50 U.S.C.App. § 459(b). The United States Attorney was directed to appear and act as attorney for any person claiming reemployment benefits under § 459(d). Both provisions were transferred in 1974 with various amendments to the Veterans' Benefits title of the United States Code, § 459(b) as 38 U.S.C. § 2021, and § 459(d) as 38 U.S.C. § 2022. The 1967 Act did not expressly establish a limitations period within which actions for veterans' reemployment rights must be brought. The 1974 amendments to the Act include the following:

 
"No State statute of limitations shall apply to any proceedings under this chapter." 38 U.S.C.A. § 2022.

 Under Section 503 of the 1974 amendments, Pub.L. 93-508, 88 Stat. 1581, the above quoted provision was made "effective on the date of . . . enactment [December ...


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