20 C.F.R. § 1002.311

Is there a statute of limitations in an action under USERRA?

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USERRA does not have a statute of limitations, and it expressly precludes the application of any State statute of limitations. At least one court, however, has held that the four-year general Federal statute of limitations, 28 U.S.C. 1658, applies to actions under USERRA. Rogers v. City of San Antonio, 2003 WL 1566502 (W.D. Texas), reversed on other grounds, 392 F.3d 758 (5th Cir. 2004). But see Akhdary v. City of Chattanooga, 2002 WL 32060140 (E.D. Tenn.). In addition, if an individual unreasonably delays asserting his or her rights, and that unreasonable delay causes prejudice to the employer, the courts have recognized the availability of the equitable doctrine of laches to bar a claim under USERRA. Accordingly, individuals asserting rights under USERRA should determine whether the issue of the applicability of the Federal statute of limitations has been resolved and, in any event, act promptly to preserve their rights under USERRA.

Notes of Decisions

Cited in 6 cases (2 in the last 5 years), 2008–2024 · leading case: Middleton v. City of Chicago, 578 F.3d 655 (7th Cir. 2009).

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Middleton v. City of Chicago, 578 F.3d 655 (7th Cir. 2009). · cites it 3× “In the preamble to its final rule (codified at 20 C.F.R. § 1002.311 ), the DOL noted that it “has long taken the position that no Federal statute of limitations applied to actions under USERRA” but that at least one district court had reached the opposite conclusion.”

Wagner v. Novartis Pharm. Corp., 565 F. Supp. 2d 940 (E.D. Tenn. 2008). · cites it 2× “See 20 C.F.R. 1002.311 (ruling that USER-RA does not have a statute of limitations, but cautioning that courts have held otherwise).”

Hogan v. United Parcel Serv., 648 F. Supp. 2d 1128 (W.D. Mo. 2009). · cites it 2× “2006) (rejecting application of Jones to USERRA actions against a government employer); 20 C.F.R. 1002.311 (acknowledging that courts have held otherwise, but stating that USERRA does not have a statute of limitations).”

Charles Middleton, Sr. v. City of Chicago (7th Cir. 2009). · cites it 3× “In the preamble to its final rule (codified at 20 C.F.R. § 1002.311 ), the DOL 2 “[The applicable provision] would reaffirm .”

Peace v. Panorama Orthopedics & Spine Ctr., Inc. (D. Colo. 2024). “” Mahone, 2023 WL 2837164 , at *5 (quoting 20 C.F.R. § 1002.311 ). Dr. Peace has identified no statute or case law suggesting that laches is not a valid defense for a USERRA claim.”

Tole v. Amazon.com Inc (W.D. Wash. 2023). “20 C.F.R. § 1002.311 (emphasis in original).”

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