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In a case raising questions about the interplay of state and federal law, a judge in Albany, N.Y., has held, as a matter of first impression, that New York’s adjutant general can be sued in state court for allegedly denying employment benefits to 15 federal military technicians. In deciding that Adjutant General Thomas P. Maguire Jr. can be sued under the federal provisions of the Uniform Services Employment and Reemployment Rights Act (USERRA), Acting Supreme Court Justice Thomas J. McNamara ruled there is no federal statute of limitations on such an action and that the New York state statute of limitations is preempted by the lack of a federal time restriction. Jopson v. Maguire, 4215-05, involves 15 current and former military technicians who served under Major General Maguire. The plaintiffs sued under the federal act alleging that before December 2000 they were denied employment benefits because of their part-time service in the National Guard. They claim that the adjutant general, who is now General Maguire, charged them for military leave for all consecutive days they were on reservist duty without taking into account non-workdays and holidays when they would not have been on the job anyway. Consequently, they had to use annual leave, sick leave benefits and leave-of-absence benefits to meet their military commitments. The act bars discrimination against persons because of their service in the reserves, National Guard or other uniformed services. The general is a state commissioner who heads the Division of Naval and Military Affairs. But the National Guard employees who work under General Maguire are federal employees of the Department of the Army or the Department of the Air Force. A threshold issue, then, was whether the plaintiffs had failed to join a necessary party — namely, the federal government. McNamara found that the plaintiffs had properly cited General Maguire as the defendant because he has the “authority and obligation to properly administer the plaintiffs’ military benefits.” Matthew B. Tully, founding partner of Tully, Rinckey & Associates, a niche firm near Albany that concentrates on military discrimination issues, said the ruling apparently marked the first time any judge in the country has held that a state adjutant general can be held liable for military discrimination. Tully’s firm represents the plaintiffs in this case. McNamara also dispatched a statute of limitations issue raised by Assistant Attorney General Bridget E. Holohan, who represents the general. She sought to apply the four-year statute of limitations under 28 USC �1658 or, in the alternative, the four-month statute of limitations in CPLR �217. But McNamara cited federal authority in finding there is no statute of limitations under USERRA, and held New York to the same standard. “While the concept of a claim with no applicable statute of limitations is entirely foreign to New York State practice with its catch all six year limit of CPLR �213 (1), it is apparently not uncommon in federal practice,” he wrote. “USERRA does not contain any statute of limitations and expressly provides ‘[n]o State statute of limitations shall apply to any proceeding under this chapter’ … Based on such federal authority, the Court determines that neither the four year statute of limitations [in federal law] nor the four month statute of limitations [in state law] is applicable.” ‘TRULY UNIQUE’ CASE The plaintiffs are represented by Breanne S. Skivington and Kiley D. Scott of Tully Rinckey. “This … involves federal employees working underneath a state supervisor,” Tully said. “It is complicated because if the [attorney general] were to settle, it would be up to the federal government to pay the settlement. So it is a truly unique and complex case.” There was no immediate response from the Department of Law. Tully, a major in the National Guard, just returned from Iraq after a four-month tour with the New York Army National Guard. A former Army paratrooper, he was a lawyer for Morgan Stanley at Two World Trade Center on Sept. 11, 2001, and had just stepped into the lobby when a terrorist-hijacked plane crashed into One World Trade Center. Shortly after, he moved to Albany and opened a small practice devoted almost entirely to military discrimination cases. Tully said a practice that began out of a spare bedroom now employs 10 lawyers and is one of the few firms concentrating on discrimination matters involving members of the National Guard and reserves. Kent Kisselbrack, spokesman for the Division of Military and Naval Affairs, said a virtually identical case was earlier dismissed in federal court. He also stressed that General Maguire was not in office at the time of the alleged transgressions. Apparently, the alleged infractions occurred during a prior administration, Kisselbrack said.

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