II 112th CONGRESS 2d Session S. 2299 IN THE SENATE OF THE UNITED STATES April 18, 2012 Mrs. Murray (for herself, Mr. Begich, Mr. Whitehouse, Mr. Rockefeller, and Mr. Akaka) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs A BILL To amend the Servicemembers Civil Relief Act and title 38, United States Code, to improve the provision of civil relief to members of the uniformed services and to improve the enforcement of employment and reemployment rights of such members, and for other purposes.

1.

Short title

This Act may be cited as the Servicemembers Rights Enforcement Improvement Act of 2012.

2.

Modification of plaintiff affidavit filing requirement for default judgments against servicemembers

Paragraph (1) of section 201(b) of the Servicemembers Civil Relief Act (50 U.S.C. App. 521(b)) is amended to read as follows: (1)

Plaintiff to file affidavit

(A)

In general

In any action or proceeding covered by this section, the plaintiff, before seeking a default judgment, shall file with the court an affidavit— (i)stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (ii)if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service. (B)

Due diligence

Before filing the affidavit, the plaintiff shall conduct a diligent and reasonable investigation to determine whether or not the defendant is in military service, including a search of available records of the Department of Defense and any other information available to the plaintiff. The affidavit shall set forth in the affidavit all steps taken to determine the defendant’s military status. .

3.

Retroactive application of private right of action under Servicemembers Civil Relief Act

Section 802(a) of the Servicemembers Civil Relief Act (50 U.S.C. App. 597a(a)) shall apply with respect to violations of such Act occurring on or after December 19, 2003.

4.

Enforcement of rights of members of uniformed services with respect to States and private employers

(a)

Action for relief

Subsection (a) of section 4323 of title 38, United States Code, is amended— (1)in paragraph (1)— (A)by striking appear on behalf of, and act as attorney for, the person on whose behalf the complaint is submitted and; (B)by striking for such person; (C)by striking the fourth sentence; and (D)by adding at the end the following: The person on whose behalf the complaint is referred may, upon timely application, intervene in such action, and may obtain such appropriate relief as is provided in subsections (d) and (e).; (2)by striking paragraph (2) and inserting the following new paragraph (2): (2)(A)Not later than 60 days after the date the Attorney General receives a referral under paragraph (1), the Attorney General shall transmit, in writing, to the person on whose behalf the complaint is submitted— (i)if the Attorney General has made a decision to commence an action for relief under paragraph (1) relating to the complaint of the person, notice of the decision; and (ii)if the Attorney General has not made such a decision, notice of when the Attorney General expects to make such a decision. (B)If the Attorney General notifies a person that the Attorney General expects to make a decision under subparagraph (A)(ii), the Attorney General shall, not later than 30 days after the date on which the Attorney General makes such decision, notify, in writing, the person of such decision. ; (3)by redesignating paragraph (3) as paragraph (4), (4)by inserting after paragraph (2) the following new paragraph (3): (3)Whenever the Attorney General has reasonable cause to believe that a State (as an employer) or a private employer is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights and benefits provided for under this chapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of such rights and benefits, the Attorney General may commence an action for relief under this chapter. ; and (5)in paragraph (4), as redesignated by paragraph (3), by striking subparagraph (C) and inserting the following new subparagraph (C): (C)has been notified by the Attorney General that the Attorney General does not intend to commence an action for relief under paragraph (1) with respect to the complaint under such paragraph. . (b)

Standing

Subsection (f) of such section is amended to read as follows: (f)

Standing

An action under this chapter may be initiated only by the Attorney General or by a person claiming rights or benefits under this chapter under subsection (a). . (c)

Conforming amendment

Subsection (h)(2) of such section is amended by striking under subsection (a)(2) and inserting under paragraph (1) or (4) of subsection (a).

5.

Subpoena power for Special Counsel in enforcement of employment and reemployment rights of members of uniformed services with respect to Federal executive agencies

Section 4324 of title 38, United States Code, is amended by adding at the end the following new subsection: (e)(1)In order to carry out the Special Counsel’s responsibilities under this section, the Special Counsel may require by subpoena the attendance and testimony of Federal employees and the production of documents from Federal employees and Federal executive agencies. (2)In the case of contumacy or failure to obey a subpoena issued under paragraph (1), upon application by the Special Counsel, the Merit Systems Protection Board may issue an order requiring a Federal employee or Federal executive agency to comply with a subpoena of the Special Counsel. (3)An order issued under paragraph (2) may be enforced by the Merit Systems Protection Board in the same manner as any order issued under section 1204 of title 5, United States Code. .

6.

Issuance and service of civil investigative demands by Attorney General

(a)

Issuance under Servicemembers Civil Relief Act

Section 801 of the Servicemembers Civil Relief Act (50 U.S.C. App. 597) is amended by adding at the end the following: (d)

Issuance and service of civil investigative demands

(1)

In general

Whenever the Attorney General has reason to believe that any person may be in possession, custody, or control of any documentary material relevant to an investigation under this Act, the Attorney General may, before commencing a civil action under subsection (a), issue in writing and serve upon such person, a civil investigative demand requiring— (A)the production of such documentary material for inspection and copying; (B)that the custodian of such documentary material answer in writing written questions with respect to such documentary material; or (C)the production of any combination of such documentary material or answers. (2)

False claims

The provisions of section 3733 of title 31, United States Code, governing the authority to issue, use, and enforce civil investigative demands shall apply with respect to the authority to issue, use, and enforce civil investigative demands under this section, except that, for purposes of applying such section 3733— (A)references to false claims law investigators or investigations shall be considered references to investigators or investigations under this Act; (B)references to interrogatories shall be considered references to written questions, and answers to such need not be under oath; (C)the definitions relating to false claims law shall not apply; and (D)provisions relating to qui tam relators shall not apply. . (b)

Issuance under chapter 43 of title 38, United States Code

Section 4323 of title 38, United States Code, is amended— (1)by redesignating subsection (i) as subsection (j); and (2)by inserting after subsection (h) the following new subsection (i): (i)

Issuance and service of civil investigative demands

(1)Whenever the Attorney General has reason to believe that any person may be in possession, custody, or control of any documentary material relevant to an investigation under this subchapter, the Attorney General may, before commencing a civil action under subsection (a), issue in writing and serve upon such person, a civil investigative demand requiring— (A)the production of such documentary material for inspection and copying; (B)that the custodian of such documentary material answer in writing written questions with respect to such documentary material; or (C)the production of any combination of such documentary material or answers. (2)The provisions of section 3733 of title 31 governing the authority to issue, use, and enforce civil investigative demands shall apply with respect to the authority to issue, use, and enforce civil investigative demands under this section, except that, for purposes of applying such section 3733— (A)references to false claims law investigators or investigations shall be considered references to investigators or investigations under this subchapter; (B)references to interrogatories shall be considered references to written questions, and answers to such need not be under oath; (C)the definitions relating to false claims law shall not apply; and (D)provisions relating to qui tam relators shall not apply. .