1 United States Court of Appeals,

Fifth Circuit.

No. 96-60374.

Alvin G. SYKES, Plaintiff-Appellant,

v.

COLUMBUS & GREENVILLE RAILWAY, Defendant-Appellee.

July 21, 1997.

Appeal from the United States District Court for the Northern

District of Mississippi.

Before REAVLEY, GARWOOD and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

The issue presented in this appeal is whether pre-employment

military service sh ould be counted toward the four-year service

limitation for eligibility under the Veterans' Reemployment Rights

Act (VRRA). 38 U.S.C. former § 2024(a). Plaintiff-appellant Alvin

G. Sykes (Sykes) brought this action under the VRRA seeking

reinsta tement to his position with defendant-appellee Columbus &

Greenville Railway (C&G) together with recovery of lost wages and

benefits. The parties submitted cross-motions for summary

judgment. The district court entered judgment in favor of C&G on

the grounds that Sykes' combined military service in excess of four

years made him ineligible for reemployment rights. We reverse the

district court and remand for further proceedings.

Facts and Proceedings Below

Sykes first entered military serv ice with the United States

Marine Corps on June 2, 1982. He served two successive enlistments

and received an honorable discharge on July 1, 1988. Sykes then2

returned to Columbus, Mississippi, and was hired as a

conductor-trainee on July 25, 1988, by C&G. Sykes remained with C&G

(ultimately qualifying as a conductor) f o r approximately nine

months. After informing C&G that he intended to reenlist in the

Marine Corps, Sykes signed a letter furni shed to him by C&G on

April 24, 1989, stating that he was resigning his position with C&G

"[e]ffective April 14, 1989" and purporting to "give up [his]

contractual rights." Sykes remained on active duty from April 26,

1989, to April 25, 1993. Sykes was again honorably discharged.

On May 5, 1993, Sykes submitted a n application for

reemployment with C&G. His application was denied by C&G on May 9,

1993. Later that same month, Sykes attempted to assert

reemployment rights under the VRRA, but C&G again refused to employ

Sykes. Sykes subsequently accepted employment with the Soo Line

Railroad in March 1994.

On March 29, 1995, Sykes filed this action under the VRRA in

the district court below. C&G defended the suit, asserting that

the cumulative total of Sykes' years in the Marine Corps made him

ineligible for reemployment rights because the four-year military

service limitation found in the VRRA does not distinguish between

pre- and post-employment serv ice. Additionally, C&G contended

that, in any event, Sykes' execution of the resignation letter

waived any rights that he may have had u nder the VRRA. On

cross-motions for s ummary judgment, the district court granted

C&G's mo tion. Finding the "plain language" of the VRRA

dispos itive, the district court held that Sykes' cumulative3

military service in excess of ten years exceeded the four-year

limitation period provided in 38 U.S.C. § 2024(a). At the time

Sykes a ttempted to assert reemployment rights with C&G, his

post -C&G military service was precisely four years. The district

court did not address the merits of C&G's waiver argument.

Sykes appeals the district court's grant of summary judgment

in favor of C&G. We reverse.

Discussion

The case below was decided on cr oss-motions for summary

judgment on the basis of undisputed material facts. This Court

reviews a grant of summary judgment de novo, using the same

standards as the district court. D uffy v. Leading Edge Prods.,

Inc., 44 F.3d 308, 312 (5th Cir.1995). Summary judgment is

appropriate if "there is no genuine issue as to any material fact"

and "the moving party is entitled to a judgment a s a matter of

law." Fed.R.Civ.P. 56(c). This Court's review of a district

court's inter pretations of law, whether federal or state, is

plenary. Gardes Directional Drilling v. U.S. Turnkey Exploration

Co., 98 F.3d 860, 864 (5th Cir.1996).

I. Pre-Employment Service

The district court determined that the la nguage of the

relevant section of the VRRA clearly and unambiguously provided

reemployment rights only "if the total of any service performed by

that person after August 1, 1961, does not exceed four years."

(emphasis added). The court recognized that the two cases to

address the i ssue reached contrary conclusions. Finding the1 38 U.S.C. § 2024(a) was transferred and renumbered as 38

U.S.C. § 4304 pursuant to the Veterans' Benefit Act of 1992, Pub.L.

No. 102-568 § 506(a), 106 Stat. 4340, 4341. The Uniformed Services

Employment and Reemployment Rights Act of 1994, Pub.L. No. 103-353

§ 8(a)(1), 108 Stat. 3149, amended 38 U.S.C. § 4304 extensively,

but provided that the amendments would be effective "with respect

to reemployments initiated on or after" October 13, 1994. The

former section 4304 (which, in turn, was the former section 2024)

continues to apply to reemployment actions, li ke that of Sykes,

initiated prior to October 13, 1994.

4 discussion of the issue in White v. Frank, 718 F.Supp. 592

(W.D.Tex.1989), aff'd, 895 F.2d 243 (5th Cir.), cert. denied, 498

U.S. 890, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990), controlling, the

district court found unpersuasive the contrary holding in Hall v.

Chicago & E. Ill. R.R., 240 F.Supp. 797 (N.D.Ill.1964).

Sykes and C& G each contend that the language of 38 U.S.C. §

2024(a) is clear and unambiguous, albeit with different results.

Section 2024(a) provides, in full:

"(a) Any person who, after entering the employment on the

basis of which such person claims restoration or reemployment,

enlists in the Armed Forces of the United States (other than

in a Reserve component ) shall be entitled upon release from

service under honorable conditions to all of the reemployment

rights and other benefits provided for by this chapter in the

case of persons inducted under the provisions of the Military

Selective Service Act (or prior or subsequent legislation

providing for the involuntary induct ion of persons into the

Armed Forces), if the total of such person's service performed

between June 24, 1948, and August 1, 1961, did not exceed four

years, and the total of any service, additional or otherwise,

performed by such person after August 1, 1961, does not exceed

five years, and if the service in excess of four years after

August 1, 1961, is at the request and for the convenience of

the Federal Government (plus in each case any period of

addit ional service imposed pursuant to law)." 38 U.S.C. §

2024(a). 1

Sykes contends that the plain language of sect ion 2024(a)

makes clear that only military service performed subsequent to the

employment to which VRRA rights are asserted should count towards5

the limitation period. Under Sykes' reading of section 2024(a),

the introductory phrase "after entering employment" limits the

relevant military service to that performed post-employment; thus,

the "total of any service" language at the end of the section

simply refers to this post-employment military service. In support

of his position, Sykes relies on Hall.

C&G contends that the phrase "total of any service, additional

or otherwise" qualifies the reemployment rights set f orth at the

beginning of section 2024(a) and operates to bar the assertion of

VRRA rights by vetera ns whose combined pre- and post-employment

military service exceeds the four-year period. C&G argues that the

"after entering employmen t " language merely requires that the

privat e employment to which reinstatement is sought precede the

military service. The district court followed this interpretation,

finding the statu te "clear and unambiguous." Language in W hite

supports this interpretation.

At least two district courts, the Department of Labor (DOL),

a nd the parties to each case have disagreed as to the proper

construction of section 2024(a). The H all court relied on the

"history and purposes of the [VRRA]" and the White court found its

position supported by the "face [of] the Act." We cannot say that

the district court's interpretation is unreasonable. Indeed, its

interpretation may well be the most reasonable construction of the

wording of section 2024(a). But although we always hesitate to go

beyond the plain language of a federal statute, we believe that

this case presents us with an extremely rare situation where to6

apply the statute as construed by the district court—even assuming

the language of section 2024(a), parsed with the utmost grammatical

propriety, to be virtually unambiguous—would lead to an absurd

result. S ee United States v. A Female Juvenile, 103 F.3d 14, 16-17

(5th Cir.1996) ("Axiomatic in statutory interpretation is the

principle that laws should be construed to avoid an absurd or

unreasonable result"); U nited States v. Mathena, 23 F.3d 87, 92-93

(5th Cir.1994) (same); Carpenters Dist. Council v. Dillard Dep't

Stores, 15 F.3d 1275, 1285 (5th Cir.1994) (same), cert. denied, 513

U.S. 1126, 115 S.Ct. 933, 130 L.Ed.2d 879 (19 95); B irdwell v.

Skeen, 983 F.2d 1332, 1337 (5th Cir.1993) (same). We therefore

conclude that section 202 4 (a)'s service limitation applies to

post-employment service only, notwithstanding the risk that such a

result may not flow from "[t]he most natural grammatical reading"

of the section. See United States v. X-Citement Video, Inc., 513

U.S. 64, 68, 115 S.Ct. 464, 467, 130 L.Ed.2d 372 (1994). S ee also

McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 1740, 114

L.Ed.2d 194 (1991) ("[S]tatut ory language must always be read in

its proper context."); C randon v. United States, 494 U.S. 152,

156-58, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990) ("In

determining the meaning of the statute, we look no t only to the

particular statutory language, but to the design of the statute as

a whole and to its object and policy."); INS v. Cardoza-Fonseca,

480 U.S. 421, 433 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434

(1987) (stating that resort to legislative history is appropriate

to determine "whether there is "clearly expressed legislative7

intention' contrary to that language"); Offshore Logistics, Inc.

v. Tallentire, 477 U.S. 207, 219-21, 106 S.Ct. 2485, 2493, 91

L.Ed.2d 174 (1986) (stating that a statute should not be

interpreted inconsistently with its p urpose and admonishing "not

[to] be g uided by a single sentence or member of a sentence, but

[to] look to the provisions of the whole law, and to its object and

policy") (citatio n omitted); A merican Tobacco Co. v. Patterson,

456 U.S. 6 3, 69-71, 102 S.Ct. 1534, 1538, 71 L.Ed.2d 748 (1982)

("Statutes should be inte rpreted to avoid untenable distinctions

and unreasonable results whenever possible."); U nited Steelworkers

v. Weber, 443 U.S. 193, 200-02, 99 S.Ct. 2721, 2726, 61 L.Ed.2d 480

(1979) (rejecting a literal construction that would " "bring about

an end completely at variance with the purpose of the statute' ")

(quoting Unit ed States v. Public Utilities Comm'n, 345 U.S. 295,

315, 73 S.Ct. 706, 718, 97 L.Ed. 1020 (1953)); Holy Trinity Church

v. United States, 143 U.S. 457, 458-61, 12 S.Ct. 511, 512, 36 L.Ed.

226 (1892) ("It is a familiar rule that a thing may be within the

letter of the statute and yet not within the statute, because not

within its spirit nor within the intention of its makers."); G reen

v. Bock Laundry, 490 U.S. 504, 527-28 , 109 S.Ct. 1981, 1994, 104

L.Ed.2d 557 (1989) (Scalia, J., concurring) ("I think it entirely

appropriate to consult all public materials

... to verify that what

seems to us an unthinkable disposition

... was indeed unthought of

.... "); cf. Stephen Bryer, O n the Uses of Legislative History in

Interpreting Statutes, 6 5 S. Cal. L.Rev. 845, 848-49 (1992)

(discussing the "uncontroversial" use of legis lative history to2 A recent GAO report states that the "first enlistment term of

duty

... typically is 4 years." Government Accounting Office, Pub.

No. B-257481, Military Recruiti ng: More Innovative Approaches

Needed (Dec. 22, 1994). By statute, however, the various armed

services may accept "original enlistments

... for a period of at

least two but not more than six years." 10 U.S.C. § 505(c) (West

Supp.1996). Accordingly, under C & G's interpretation, a service

member could exceed section 2024(a)'s service limitation during his

original enlistment.

8 avoid an "absurd result").

Under the interpretation of section 2024(a) advanced by C&G

and embraced by the district court, veterans who entered civilian

employment after having served in the armed forces for four or more

years would be denied reemployment rights that would otherwise

attach to a subsequent enlistment following their civilian

employment without regard to the duration of their subsequent

enlistment or the time that elapsed between their departure and

subsequ ent demand for reinstatement, and without regard to the

inconvenience, if any, to the employer. The interpretation

advanced by C & G would preclude a significant portion of veterans

from ever asserting re employment rights under the VRRA upon

returning to civilian life after a subseq uent enlistment. 2 This

result is simply incompatible with the obvious and patent purpose

of the VRRA to confer quite broad reemployment rights to veterans

of the United States armed services subject only to a limited

restriction regarding the permissible length of post-employment

service. As this four-year restriction was designed specifically

to address emp loyers' concerns about reemployment rights of

indefinite duration and not to penalize veterans on the basis of

their pre-employment service, we find no articulable basis for9

including a veteran's pre-employment service in section 2024(a)'s

limitation period.

To the contrary, the history and purpose of the VRRA, the

Supreme Court's co n sistent admonition to interpret the VRRA's

provisions consistently with its purpose to benefit veterans, the

legislative history of subsequent amendments to section 2024(a),

the consistent and longstanding interpretive pronouncements of the

D OL, and the legislative history of the Uniformed Service s

Employment and Reemployment Rights Act of 1994 (USERRA), the VRRA's

statutory replacement, all support the reading advanced by Sykes.

We therefore reject C&G's "plain language" interpretation of

section 2024(a) and hold that, in light of the contrary history and

purpose of the VRRA discussed below, sect ion 2024(a)'s four-year

limitation period must be read to limit reemp loyment rights

eligibility in terms of post-employment service only.

II. History and Purpose of the VRRA

In support of his reading of section 2024(a), Sykes cites

Hall' s discussion of the purpose of section 2024(a), the

legislative history of several amendments to section 2024(a) since

its earliest version in 1940, the general pro-veteran construction

that is to be given to the VRRA, DOL handbooks and interpretive

guidance, and the legislative history of the subsequently-enacted

USERRA, which replaced the statutory scheme set forth in 38 U.S.C.

§§ 2021-2027.

A. Hall v. Chicago & E. Ill. R.R. and White v. Frank

The district court in Hall, noting that one of the purposes of3 As observed by Sykes, when veterans' reemployment rights were

first conferred by statute in 1940, there was no prescribed

limitation period. In 1948 a three-year limitation period was

imposed, S elective Service Act of 1948, 62 Stat. 604, 614-18,

followed by the current, four-year period in 1951, Act of June 19,

1951, 65 Stat. 75, 86-87. S ee also Christner v. Poudre Valley

Coop. Ass'n, 235 F.2d 946, 949 (10th Cir.1956) ("The 1951 amendment

extended those [reemployment] rights to persons who served for not

mor e than four years."); Smith v. Missouri Pac. Trans. Co., 208

F.Supp. 767, 770 (E.D.Ark.1961) ("The older [1940] statute made no

reference to the time spent in military service, whether on a voluntary or involuntary basis, as bearing on reemployment rights

of a returning serviceman. The 1948 Act and subsequent Acts

a mendatory thereof were not silent in that regard."), aff'd, 313

F.2d 676 (8th Cir.1963).

10 the limitation period "might have been to deny re-employment rights

to persons who entered the Armed Forces for the purpose of making

Military Service a career or to those who deliberately elect not to

be separated," nevertheless determined that Congress's "intention

was not to penalize the patriotic employee, but rather, to relieve

the employer of inconvenience and uncertainty." 240 F.Supp. at

800. The Northern District of Illinois thus viewed the limitations

period as a concession to employers who were concerned not with the

prospect of long-term veterans with reemployment rights, but rather

with reemployment rights of indefinite duration. 3 Accordingly, the

Hall court viewed the limitation period as "personal to the

employer" running only against the employer as to whom reemployment

rig h ts are asserted. Addressing (hypothetically) the precise

situation at issue in this case, the court observed the "manifest

injustice" that would result from deeming the limitation period to

include pre-employment military service:

"For example, a vet eran who ... graduated from school,

enlisted in th e Armed Forces for four years, was discharged

from the Armed Forces, then found his f irst job, and4 See 38 U.S.C. § 4311 (West Supp.1996).

11 subsequently re-enlisted (or was recalled to active duty)

... would never enjoy the re-employment benefits conferred by the

Act. Surely C ongress would not have intended to deny these

individuals their reasonable expectation to re-employment

following their satisfactory completion of military service by

turning the limitation period in the Act into a weapon for

denying such rights." Id. at 800.

C&G does not address the merits of the Hall' s decision,

choosing instead to rest its argument on the grounds that Hall is

neither controlli ng nor persuasive because it was not decided in

the Fifth Circuit. C&G contends that W hite alone must control our

analysis.

Hall' s determination that pre-employment military service is

not included in the limitation period appears consistent with the

legislative decision to accommodate employers' concerns regarding

reemployment rights of indefinite duration. Correlating the

duration of a veteran's reemployment rights with the length of his

or her prior enlistment con tracts would lead to incongruous

results. For example, an employer's obligation to reemploy two

veterans who terminated their employment and reenlisted on the same

day would expire at different times—based not on the degree of

inconvenience caused by the employees' departure, but rather based

solely on service completed prior to their initial em ployment.

Such a result could lead to precisely the type of discriminatory

hiring practices now prohibited by the USERRA. 4

White v. Frank, 718 F.Supp. 592, involved a thirty-year

veteran of the Air Force who, upon retirement in 1984, subsequently

obtained a position with the Postal Service. The veteran, Bruce12

White (White), held the position for just under six months before

he resigned to pursue another civilian job opportunity. I d. at

594. Six months after his resignation, White sought reinstatement

to his former Postal Service position, but was denied. White

brought an EEOC claim asserting that he was denied reinstatement on

the basis of his race, color, age, and physical handicap. I d. The

Postal Service and the EEOC denied his claims. I d. White

subsequent ly filed suit in federal district court under the Age

Discrimination in Employm ent Act (ADEA), the Rehabilitation Act,

t he conspiracy provisions of the Civil Rights Act, and, final ly,

the VRRA. Id.

Addressing the defendan t's motion to dismiss White's VRRA

claim, the district court observed that White did not even respond

to the argume nts that the VRRA was inapplicable. I d. at 597-98.

The district court held that, as there was "no allegation that the

Plaintiff left the Postal Service to join the military" and, in

fact, White had left for a c ivil service position, the VRRA was

"thus wholly inapplicable to this case." Id.

In what was plainly dicta, the district court went on to

consider the application of section 2024(a) "even if the VR[R]A

applied i n theory." I d. at 598. As C & G notes repeatedly, the

district court concluded that section 2024(a)'s limitation period

includes pre-employment military service. Id.

That White 's statements concerning the application of section

2024(a) do not control th e present case is obvious from the fact

that White simply had no ability to assert reemployment rights in5 We do not disagree with C&G's undisputed contention on brief

that " "[i]t has long been settled that all alternative rationales

for a given result have precedential value.' " (quoting Oncale v.

S undowner Offshore Servs., Inc., 83 F.3d 118, 120 (5th Cir.19 96)

(citation omitted)). Rather we simply reject C&G's hopeful

13 the first place. The amount of his prior military service was not

relevant unless he could establish that he left his position with

t he Postal Service to enlist (or reenlist) in the military. But

Whi te did not ever serve in the military after his Post Office

employment and he did not even claim that he ever so served. The

veteran in White would not have prevailed on his VRRA claim under

either construction of section 2024(a) advanced before this Court.

Although C&G discusses at some length the obligations of this

Court to adhere to its own precedent, the summary affirmance of

White neither address ed the "theoretical" discussion of section

2024(a) nor, for that matter, any issue other than the exhaustion

of administrative remedies under the ADEA. White, 895 F.2d at 243-

44. C&G's entire argument that the Fifth Circuit adopted the

district's court's dicta as a holding rests on the statement in the

affirmance that this Court adopted the district c ourt's holdings

"without limitation." I d. at 243. C&G places too much emphasis on

White 's hypothetical discussion. An alternative holding requires,

a t the very least, to be alternative on the facts bef ore, or

a sserted to be before, the court. When a court makes a point or

illustrates the infirmities of a particular argument by speaking to

facts or circumstances that are, without dispute, not present

before it, the discussion that follows, by its very nature, does

not address the controversy before the court. 5c haracterization of White 's hypothesized situation as an

alternative holding.

14 B. Legislative History of Section 2024(a)

Sykes concedes that there is no "contemporaneous explanation

of the effect on pre-employment military service," but argues that

state ments in the legislative history of the 1961 and 1968

amendments support his position. Sykes observes that, pursuant to

the Military Training and Service Act of 1968, the legislative

history restated existing law as providing that "[o]nly active

military service from employment to which restoration is claimed is

to be included in computing service time to determine the 4-year

limitation." S.Rep. No. 1477, 90th Cong., 2d Sess., reprinted in

1968 U.S.C.C.A.N. 3421, 3424 n. 2. Although C&G contends that,

becau se the 1968 amendments were subsequent to the first enacted

statute conferring veteran reemployment rights, the 1968

legislative h istory is of no significance, the statement was

inc luded in the section restating existing law and is some

indication of congressional understanding of the VRRA. See, e.g.,

Bobsee Corp. v. United States, 411 F.2d 231, 237 n . 18 (5th

Cir.1969) ("Although a commit tee report written with regard to a

s ubsequent enactment is not legislative history with regard to a

previously enacted statute, it is entitled to some consideration as

a secondarily authoritative expression of expert opinion."). See

also United States v. Wilson, 884 F.2d 174, 178 n. 7 (5th Cir.1989)

("[A] later Congress' understanding of the legislative intent of an

earlier Congress is entitled to deference."); 2B Norman J. Singer,15

Sut herland Statutory Construction § 49.11, p. 84 (Rev. ed.1992)

(same).

We find the legislative history of the 1961 amendments,

however, somewhat less enlightening. The 1961 amendments, which

added the August 1, 1961, date restrictions in section 2024(a),

were enacted to ensure that veterans of the Korean conflict—some of

whom were approaching the four-year service limitation—would be

able to serve up to an additional four years. The Senate report

address ed the need to extend the post-employment limitation to

enable then-current s ervice members to extend their enlistments

voluntarily, but did not expressly address the issue here

presented. S.Rep. No. 1070, 87th Cong., 1st Sess., r eprinted in

1961 U.S.C.C.A.N. 3319, 3320 (noting that "[s]ome of the persons

who will perform additional active duty

... have

... already served

a substantial part of the 4-year period during which they have

reemployment protection under existing law").

C. Interpretive Principles

Aside from the guidance from the plain language of the

statute and the legislative history, the Supreme Court has dictated

that the VRRA is to be given "as liberal a construction for the

benefit of the veteran as a harmonious interplay of the separate

provisions permits." F ishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275, 285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946).

Accordingly, Sykes contends that, although VRRA reemployment rights

"can be an ungainly perquisite of military service ... provisions

for benefits to members of the Armed Services are to be construed6 DOL Field Letter 20, issued in 1961, states "[o]nly military

service entered from employment to which restoration is claimed is

to be included in computing service time under the 4 year

limitation." Id. at 10.

The 1964 DOL Legal Guide states that the service

limitation was enacted for the "p urpose of relieving an

16 in the beneficiaries' favor." K ing v. St. Vincent's Hosp., 502

U .S. 215, 218-20, 221 n. 9, 112 S.Ct. 570, 573, 574 n. 9, 116

L .Ed.2d 578 (1991); s ee also Lee v. City of Pensacola, 634 F.2d

886, 889 (5th Cir.1981); B ell v. Aerodex, Inc., 473 F.2d 869, 872

(5th Cir.1973). We agree.

To the extent that section 2024(a) is capable of multiple

interpretations, Sykes is quite correct that ambiguities should be

resolved in his favor. Given the purpose of the VRRA—and the

purpose of the limitation period to limit the time an employer must

permit the exercise of reemployment rights—the canon of favorable

construction supports Sykes' reading of the section 2024(a)

limitations period as including solely post-employment military

service.

D. DOL Publications

Sykes argues that deference is owed to DOL publications that

have stated consisten tly that pre-employment military service is

not included in section 2024 (a)'s limitation period. DOL Field

Letter No. 20 (1961), Veterans' Reemployment Rights Legal Guide 163

(1964), and t he 1970 and 1988 editions of the V eterans'

Reemployment Rights Handbook all clearly support the position that

pre-employment military service should not be used to determine

eligibility for reemployment rights. 6employer from an unlimited liability to restore to his

position an employee who served in the armed forces." I d. at

163. It goes on to state that:

"The aggregate service limitations were intended only for

use by an employer as to whom the serviceman's military

service interrupted an existing employment, to which the

serviceman might seek restoration, and the chargeable

service was only that which interrupted this particular

employment. " Id. (emphasis added).

Similarly, the 1970 Handbook states:

" It is essential to note that these limitations apply

only to active duty performed after the employee leaves

the employment to which he claims restoration. Active

duty performed before the employment relationship began

does not count toward the years of active duty for which

the employee is permitt ed to absent himself from the

employer in question." Id. at 20.

When the Handbook was reissued in 1988, it contained the

same admonition:

"These limitations apply only to active duty

performed after the employee leaves the employment to

which he claims res t oration. Active duty performed

before the employment relationship began does not count

toward the years of active duty for which the employee is

permitted to absent himself from the employer from whom

he seeks restoration." Id. at 5-3.

17 C&G contends that DOL publications are entitled to no more

deference than a writing that their attorneys might publish in

support of C&G's position. C&G is incorrect. Although Congress

did not explicitly leave a gap in the VRRA and expressly delegate

to the DOL the authority to issue regulations concerning this

issue, "considera ble weight should be accorded to an executive

department's construction of a statutory scheme it is entrusted to

administer." C hevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 844, 104

S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). The DOL is charged with

administering the VRRA. See 38 U.S.C.A. § 501 et seq.18

Altho ugh "[n]either the [ V eterans' Reemployment Rights ]

Legal Guide nor the [ Veterans' Reemployment Rights ] Handbook has

the status of interpretive regulations,

... they do have a measure

of weight." Helton v. Mercury Freight Lines, Inc., 444 F.2d 365,

368 & n. 4 (5th Cir.1971) (citing Skidmore v. Swift & Co., 323 U.S.

134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); s ee also Leib v. GeorgiaPac. Corp., 925 F.2d 240, 245 (8th Cir.1991) (noting that these

publications provide " "informed guidance' " regarding the VRRA).

The weight to be given th ese DOL publications is enhanced by the

longstanding and consistent nature of the position taken, and its

inception so soon after the 1961 legislation.

E. Uniformed Services Employment and Reemployment Rights Act of

1994

Sykes emphasizes that the USERRA's legislative history

provides that "reemployment ri ghts protection shall apply to an

individual if such person's period of service, with respect to the

employment relationship for which a person seeks reemployment, does

not, with certain exceptions, exceed five years." H. Rep. No. 103-

65, 103d Cong., 2d Sess. 17, reprinted in 1994 U.S.C.C.A.N. 2449,

2450. Sykes contends that this legislative history should be used

to construe section 2024(a).

The USERRA legislative history quoted by Sykes, how e ver,

addresses a newly-enact ed version of the reemployment rights

provision which unambiguously provides:

"(a) Subject to subsections (b), (c), and (d) and to section

4304, any person who is absent from a position of employment

by reason of service in the uniformed servi ces shall be

entitled to the reemployment rights and benefits and other

employment benefits of this chapter if—19 ....

(2) the cumulative length of the absence and of all

previous absences fro m a position of employment with that

employer by reason of service in the uniformed services does

not exceed five years.... 38 U.S.C. § 4312(a)(2) (West

Supp.1996) (emphasis added).

The newly -enacted provisions of the USERRA unambiguously provide

for the precise result that Sykes contends can be derived from

section 2024(a). The USERRA's legislative history's guidance on

the operat ion of section 4312(a)(2)—which is worded differently

from se ction 2024(a)—sheds little light on the construction of

section 2024(a). Much more significant in the legislative history

of the USERRA is the House Report's background discussion that

states that the task force that drafted the Act intended the USERRA

to be largely a clarification of existing law. H. Rep., s upra, at

2451 (noting that the "current statute is c omplex and sometimes

ambiguous, thereby allowing for misinterpretations"). Indeed,

under the USERRA, the DOL is given the authority to promulgate

regulations to resolve the textual ambiguities under the Act. See

38 U.S.C. § 4331; H. Rep., s upra, at 2 473 (discussing the new

regulatory power and acknowledging the "measure of weight" courts

have afforded statutory interpretations in the Handbook and Legal

Guide ).

Although not dispositive, the legislative his t ory of the

USERRA indicates that a limited degree of deference to the DOL is

appropriate and that the USERRA's provisions—which expressly adopt

Sykes's position—likely were a "clarification" of existing law

under section 2024(a).20

F. C&G's Abuse Argument

C&G contends that a construction of section 2024(a) that would

include only post-employment military service in a determination of

eligibility for reemployment rights would permit abuse of the

VRRA's reemployment rights scheme:

"[A] person could obtain private employment, quit, enlist in

the mil itary, leave the military, demand and obtain

reemployment under the VRRA, quit again, reenlist in the

military, leave the military, again demand and obtain

reemployment under the VRRA, quit again...."

C&G's rather farfetched slippery-slope concern—one that so far as

we are aware has never surfaced in actual practice, in legislative

history, in administrative publications, or in relevant

literature—is more than adequately addressed by the protective

doctrines that both guard against abuses of veteran reemployment

rights and limit employers' exposure.

Fo r example, to qualify for reemployment rights under the

VRRA, "the controlling determination is whether, regardless of the

contract of employment, there was a reasonable expectation that the

employment would be continuous and for an indefinite time." A kers

v. Arnett, 597 F.Supp. 557, 561 (S.D.Tex.1983), aff'd, 748 F.2d 283

(5th Cir.1984). Other abuses of the VRRA are also precluded, for

example, an employer need not create a position where the veteran's

position no longer exists, Horton v. U.S. Steel Corp., 286 F.2d 710

(5th Cir.1961), and an employer need not rehire an employee

terminated for cause simply because he subsequently becomes a

veteran, Henry v. Anderson County, 522 F.Supp. 1112 (D.Tenn.1981).

Further, VRRA reemployment must be sought within ninety days from7 The New Jersey Army National Guard required public employees

to obtain permission p rior to entering active duty to promote

comity between the Guard and local government. Id. at 406.

21 the receipt of an honorable discharge from military service. 38

U.S.C. former § 2021(a)(2); L eib v. Geo rgia-Pacific Corp., 925

F.2d 240, 246 n. 10 (8th Cir.1991). In short, legitimate defenses

were available to C&G to challenge either Sykes's status as a

permanent employee or his ability to perform his position

competently. C&G neither alleged nor argued before the district

court that Sy kes abused the VRRA; its farfetched theoretical

concerns regarding abuse of the statutory reemployme n t rights

scheme are not present in this appeal.

III. Sykes's Resignation Letter

C&G conte nds that Sykes's letter of resignation waived his

reemployment rights under the VRRA. In support of its argument, C&G

cites Hilliard v. New Jersey Army Nat'l Guard, 527 F.Supp. 405

(D.N.J.1981). H illiard involved a Teaneck, New Jersey police

officer who was also an officer in the New Jersey National Guard.

When Hilliard's repeated requests for leave to complete a special

training course were denied by the Township of Teaneck, 7 he formed

a sham corporation, named himself director, and, although still

employed by the Teaneck police force, reapplied listing himself as

self-employed. I d. at 407. When Hilliard's ruse was later

discovered, senior officers with the New Jersey Army National Guard

offered him the choice of immediately returning to his employment

with the Teaneck police or resigning his position and continuing on

active duty. I d. Hilliard signed and sent a resignation letter.22

Id. & n. 2.

When Hilliard subsequently presented a claim for reemployment,

the district court, observing that the general rule under the VRRA

"is that a resignation from civilian employment to enter military

service does not deprive a vet eran of reemployment rights,"

nevertheless held that the "special circumstances present here

require a contrary result." Id. at 410.

Sykes correctly argues that the "special cir c umstances"

presented in Hilliard —fraud—are not present in this case. It is

beyond dispute that a resignation from a civilian job, whether

verbal or written, does not waive reemployment rights under the

VRRA. See Green v. Oktibbeha County Hosp., 526 F.Supp. 49, 54

(N.D.Miss.1981); B ottger v. Doss Aeronau tical Servs., Inc., 609

F.Supp. 583, (D.Ala.1985); see also Winders v. People Express

Airlines, Inc., 595 F.Supp. 1512, 1518 (D.N.J.1984) (stating that

where an employee communicates that he is entering active military

duty even the word "resign" in a communication sent to the employer

cannot waive reemployment rights).

Without addressing the issue of whether a veteran has the

ability to wa ive statutory reemployment rights prospectively by

contract, we note only that Sykes's "resignation letter," prepared

by C & G and ostensibly addressin g seniority and contractual

rights, did not even purport to do so. We see no reason to imply

a waiver of Sykes's statutory reemployment rights when there is no

record evidence to support such a waiver.

Conclusion23

For the foregoing reasons, we REVERSE the summary jud gment

entered by the district court, RENDER judgment for Sykes on the

issue of entitlement to reemployment under the VRRA, and REMAND to

the district court for further proceedings consiste nt with this

opinion.