[Congressional Record Volume 158, Number 56 (Wednesday, April 18, 2012)]
[Senate]
[Pages S2500-S2502]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. MURRAY (for herself, Mr. Begich, Mr. Whitehouse, Mr. 
        Rockefeller, and Mr. Akaka):
  S. 2299. 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; to the Committee on Veterans' Affairs.
  Mrs. MURRAY. Mr. President, today, as Chairman of the Senate 
Committee on Veterans' Affairs, I am pleased to introduce the 
Servicemembers Rights Enforcement Improvement Act of 2012.
  I remain deeply committed to protecting our servicemembers and 
veterans. I was concerned, last year, when banks improperly overcharged 
and foreclosed upon deployed servicemembers in violation of the 
Servicemembers Civil Relief Act. Failure to comply with the protections 
provided to our servicemembers is unacceptable.
  Our men and women in uniform deserve better than this, and I 
appreciate the President's and the Attorney General's leadership and 
commitment to enforcing these important protections. This bill, which 
includes a significant number of proposals provided to the Congress by 
the Department of Justice, would further strengthen the Department's 
ability to enforce these laws on behalf of servicemembers and veterans.
  The bill I am introducing today would improve the Department of 
Justice's ability to enforce the protections of the Servicemembers 
Civil Relief Act by giving the Attorney General limited authority to 
issue civil investigative demands, which would allow the Attorney 
General to take a more proactive approach to investigating allegations 
of Servicemembers Civil Relief Act violations. This bill would 
strengthen the protections that prevent judgements against a 
servicemember when they cannot appear in court because of military 
service. Finally, it would clarify that servicemembers may bring a 
private right of action to enforce their rights under the 
Servicemembers Civil Relief Act.
  I also remain deeply concerned about veteran employment. The number 
of unemployed veterans remains unacceptably high. Last year, 
significant provisions of a bill I introduced, the Hiring Heroes Act, 
were signed into law as the VOW to Hire Heroes Act. This legislation 
was a good first step in combatting the high rate of unemployment among 
our nation's veterans. But we must do more. We must also ensure

[[Page S2501]]

that the laws designed to protect the employment rights of our 
servicemembers during periods of service are equally strong.
  The Uniformed Services Employment and Reemployment Rights Act, 
commonly referred to as USSERA, protects servicemembers' employment 
rights during a period of military service. It also prohibits employer 
discrimination based on military service or obligation. This 
legislation would strengthen the ability of the Department of Justice 
and the Office of Special Counsel to enforce these valuable 
protections.
  Specifically, this bill would grant the Attorney General the 
authority to investigate and file suit to challenge a pattern or 
practice in violation of USERRA and would grant the Attorney General 
limited authority to issue civil investigative demands. It will also 
provide the Office of Special Counsel with subpoena authority in USERRA 
investigations. These enhancements will ensure that when our National 
Guard and Reserve members deploy, they do so knowing their jobs are 
secure.
  It is vital that the Federal departments and agencies charged with 
protecting our servicemembers have the tools necessary to enforce the 
protections provided to them. The legislation I am introducing today 
would do just that.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record as follows:

                                S. 2299

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

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

     SEC. 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.''.

     SEC. 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.

     SEC. 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)''.

     SEC. 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.''.

     SEC. 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),

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     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.''.

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