[House Report 105-448]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
 2d Session             HOUSE OF REPRESENTATIVES                105-448
_______________________________________________________________________


 
                     USERRA AMENDMENTS ACT OF 1998

                                _______
                                

 March 17, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Stump, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3213]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Veterans' Affairs, to whom was referred the 
bill (H.R. 3213) to amend title 38, United States Code, to 
clarify enforcement of veterans' employment and reemployment 
rights with respect to a State as an employer or a private 
employer, to extend veterans' employment and reemployment 
rights to members of the uniformed services employed abroad by 
United States companies, and for other purposes, having 
considered the same, reports favor-ably thereon with amendments 
and recommends that the bill as amended do pass.

  The amendments (stated in terms of the page and line numbers 
of the introduced bill) are as follows:
  Page 1, after line 2, insert the following new section (and 
redesignate the succeeding sections accordingly):

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``USERRA Amendments Act of 
1998''.

  Page 3, beginning on line 18, strike out ``Attorney General'' 
and insert in lieu thereof ``United States''.

  Page 5, line 16, strike out ``(2)''.

                              Introduction

    H.R. 3213 was introduced on February 12, 1998 by Mr. Quinn. 
Other cosponsors of the bill on the day it was introduced 
included Mr. Filner, Mr. Stump, Mr. Evans, Mr. Buyer, Mr. 
Kennedy of Massachusetts, Mr. Bachus, Mr. Mascara, Mr. Cooksey, 
Mr. Rodriguez, Mr. Olver, Mr. Pascrell, Ms. Waters, and Mr. 
Manton. The Subcommittee on Education, Training, Employment and 
Housing of the Committee on Veterans' Affairs held a hearing on 
May 30, 1996, (during the 104th Congress) on the subject of the 
applicability of the Uniformed Services Employment and 
Reemployment Rights Act (USERRA) to States as employers. The 
Subcommittee on Benefits held a hearing on July 16, 1997, 
during which a bill, H.R. 166, that is similar to H.R. 3213, 
was discussed.

                        Summary of Reported Bill

    USERRA (Uniformed Services Employment and Reemployment 
Rights Act) is the continuation of policy originally enacted in 
1940 (Pub. L. No. 76-96). Its purpose is to provide persons who 
serve for a limited period in the U.S. Armed Forces the right 
to return to civilian employment. This law applies to all 
employers, regardless of their size. The employment and 
reemployment rights provided under USERRA are particularly 
important today to persons serving in the Guard and Reserve.
    This bill would substitute the United States for an 
individual veteran as the plaintiff in enforcement actions in 
cases where the Attorney General believes that a State has not 
complied with USERRA. Since the Attorney General, through U.S. 
Attorneys, is already involved in enforcing this law, the 
enactment of H.R. 3213 will not impose any new duties on the 
Attorney General. Individuals not represented by the Attorney 
General would be able to bring enforcement actions in state 
court.
    The bill also makes a technical change to USERRA suggested 
by the Department of Labor concerning overseas employees of 
U.S. companies and another needed change affecting Federal 
employee enforcement rights that was discovered as a result of 
hearings held two years ago.

                       Background and Discussion

    The Uniformed Services Employment and Reemployment Rights 
Act (USERRA) is the continuation of a national policy to 
encourage service in the United States Armed Forces by 
providing persons who serve for a limited period the right to 
return to civilian employment without adverse effect on their 
career progress. Originally enacted by Congress in 1940 (Pub. 
L. No. 76-96), the law applies to all employers, regardless of 
their size. Modified in 1986 to prohibit hiring discrimination 
against Reserve and National Guard members, it is particularly 
important today to such persons who are integral to this 
country's defense. Under the ``Total Force'' concept, members 
of the Guard and Reserve are frequently called to active duty 
to carry out missions integral to the national defense.
    The 50 States and the District of Columbia employ a 
significant number of persons who also serve their country 
through service in the National Guard and the Reserve 
components of the military services. Although disputes between 
state agencies and employees about the scope and meaning of 
USERRA and its predecessor laws (commonly referred to as 
Veterans Reemployment Rights (VRR) laws) have arisen from time 
to time, state employers regularly afford persons serving in 
the Armed Forces and Selected Reserve the rights guaranteed by 
these laws. Recently, however, several States have taken the 
position that the Eleventh Amendment to the Constitution makes 
USERRA inapplicable to state agencies. This argument is based 
on a 1996 Supreme Court decision (Seminole Tribe of Florida v. 
Florida, 517 U.S. 44, 116 S. Ct.1114 (1996)) holding that 
Congress was prohibited by the Eleventh Amendment from allowing 
individuals to sue States for violating Federal statutes. At 
least two U.S. district courts have ruled in favor of defendant 
States in actions brought under USERRA since that 1996 
decision.

    The Eleventh Amendment to the United States Constitution 
provides:

          The Judicial power of the United States shall not be 
        construed to extend to any suit in law or equity, 
        commenced or prosecuted against one of the United 
        States by Citizens of another State, or by Citizens or 
        Subjects of any Foreign State.

    As one witness testified to Members of a VA subcommittee:

          Although the text of the Eleventh Amendment may seem 
        quite limited, the Supreme Court has long interpreted 
        the Amendment to stand for a broad principle: the 
        principle of state sovereign immunity from suit in 
        federal court. The Supreme Court has held that the 
        States, as sovereigns within our federal system of 
        government, are not subject to suit in federal court 
        without their consent.

          Accordingly, even though the Amendment appears to be 
        directed only to lawsuits brought against a state by 
        citizens of another state (or citizens of a foreign 
        state), the Supreme Court has held that a nonconsenting 
        state is not subject to suit in federal court even when 
        the suit is brought by a citizen of that very state. 
        Moreover, the state's immunity from suit applies even 
        if the suit is based on federal law. [footnotes 
        omitted]

Statement of Professor Jonathan Siegel, Hearing on USERRA and 
Veterans Preference, Committee on Veterans' Affairs, 
Subcommittee on Education, Training, Employment, and Housing; 
Serial No. 104-23, at 85 (May 30, 1996)

    As recently as 1989, the Supreme Court had upheld the 
Congress' power to make States subject to suit by citizens in 
Federal court when it was exercising its power under the 
Interstate Commerce Clause, Art. I, sec. 8, cl. 3. Pennsylvania 
v. Union Gas Co., 491 U.S. 1 (1989), stating that the power to 
regulate interstate commerce would be ``incomplete without the 
authority to render States liable in damages.'' Id. at 19-20. 
This view of Congress' power to create remedies for violation 
of Federal laws was widely assumed to be no more than a 
restatement of Congress' power under Article I. This view 
changed dramatically, however, when the Supreme Court decided 
the case of Seminole Tribe of Florida v. Florida, 517 U.S. 44, 
116 S. Ct.1114 (1996). Briefly stated, the reasoning of 
Seminole Tribe is that:

        Even when the Constitution vests in Congress complete 
        law making authority over a particular area, the 
        Eleventh Amendment prevents congressional authorization 
        of suits by private parties against unconsenting 
        States. [footnote omitted]. The Eleventh Amendment 
        restricts the judicial power under Article III, and 
        Article I cannot be used to circumvent the 
        constitutional limitations placed upon federal 
        jurisdiction.

Id. at 1131

    The Supreme Court has always held that the United States 
may bring an action in federal court against a State. Over the 
years, disputes over the meaning of the Eleventh Amendment have 
led the judiciary to recognize or create exceptions to the 
apparent bar on suits by individuals against States. Professor 
Siegel described these exceptions in his testimony.

     LActions to enforce the Fourteenth Amendment 
(which deals with illegal discrimination) may be brought by 
citizens against States.
     LA 1908 Supreme Court decision permits citizen 
suits against state officials to require compliance with 
Federal law.

    When the Committee on Veterans' Affairs first considered 
revising the law on Veterans Reemployment Rights (VRR) in 1991, 
it took note of numerous court decisions interpreting and 
upholding the law, which had its origins in a law enacted in 
1940 in contemplation of the United States entry into what 
became known as World War II. Despite Supreme Court 
consideration of several cases arising under the VRR law, no 
State defendant had ever successfully argued that it was immune 
from the law under the Eleventh Amendment to the Constitution. 
Thus, the House Report accompanying the bill which eventually 
became Pub. L. No. 103-353, the Uniformed Services Employment 
and Reemployment Rights Act of 1994, did not deal at length 
with the provisions covering state employees. The intent of the 
bill under consideration in the 103d Congress, H.R. 995, was to 
restate, ``clarify, simplify, and, where necessary, strengthen 
the existing veterans' employment and reemployment rights 
provisions''. H. R. Rep. 65, 103d Cong., 1st Sess. 18 (Part I, 
to Accompany H.R. 995). Similarly, the House Report to 
accompany H.R. 1578, 102d Congress, a similar measure to revise 
reemployment rights passed by the House in 1991, noted that:

        ``[T]he courts have had no difficulty in finding an 
        abrogation of state sovereign immunity under both the 
        Tenth and Eleventh Amendments by virtue of the explicit 
        language in current section 2022 (see Jennings v. 
        Illinois Office of Ed. 589 F. 2d 935 (7th Cir. 1979); 
        Peel v. Florida Dept. of Transportation, 600 F.2d 1070 
        (5th Cir. 1979) . . . . ''

    Given the lack of controversy surrounding the general 
subject of VRR, and the relatively good record of compliance by 
state agencies with the law as it existed at that time, it is 
not surprising to find very little discussion in the 1991 and 
1993 committee reports about the remedies available to state 
employees. In almost all respects, the former law and USERRA 
treat States in the same manner as private employers.
    Today, section 4323(a) of title 38, United States Code, 
provides that after the Secretary of Labor has investigated and 
validated a complaint of violation of USERRA's provisions, the 
aggrieved person may request that the Attorney General commence 
an action for appropriate relief in an appropriate United 
States district court. This provision applies to persons 
employed by either a State or private employer. As an 
alternative to requesting that the Attorney General represent 
the person in an action brought in United States district 
court, or if the Attorney General refuses to provide such 
representation, the person may choose to commence an action in 
the same United States district court with private 
representation. In two reported instances, a State has 
successfully raised the Eleventh Amendment as a bar to such 
private actions against States under section 4323(a). Velasquez 
v. Trustees of Indiana University, No. IP 96-0557-C H/G (S.D. 
Ind. Feb. 6, 1998); Palmatier v. Michigan Dept. of State 
Police, 981 F. Supp. 529 (W.D. Mich. 1997). In both cases, U.S. 
district courts have cited the Supreme Court's sweeping 
decision in Seminole Tribe as the basis for their decisions 
holding that veterans may not bring individual actions against 
States in Federal court to enforce State compliance with 
USERRA, and that section 4323 as currently written exceeds 
Congress' constitutional authority.
    These decisions threaten not only a long-standing policy 
protecting individuals' employment right, but also raise 
serious questions about the United States ability to provide 
for a strong national defense. Far more than in the days when 
the Constitution was being drafted, the peace enjoyed 
throughout much of the world is dependent on the responsive and 
powerful armed forces of the United States. Accordingly, to 
assure that the policy of maintaining a strong national defense 
is not inadvertently frustrated by States refusing to grant 
employees the rights afforded to them by USERRA, the committee 
is favorably reporting this legislation.

                      Section By Section Analysis

    Section 1 of the reported bill would completely revise 
existing section 4323 of title 38, United States Code, which is 
captioned ``Enforcement of rights with respect to a State or 
private employer.''

    Subsection (a)(1) of revised section 4323 contains all of 
the existing language of section 4323(a)(1) and adds a sentence 
that in the case of an action brought by the Attorney General 
to enforce the rights or benefits of a state employee, the 
action against the State shall be brought in the name of the 
United States.

    Subsection (a)(2) is a slightly revised version of existing 
subsection (a)(2) which describes the conditions under which a 
person may commence an action without assistance from the 
Attorney General.

    Subsection (b) specifies that United States district courts 
have jurisdiction over an action brought by the United States 
against a state or private employer and over actions brought 
against a private employer by a person. Paragraph (2) would 
codify existing law that provides that state courts have 
jurisdiction to hear complaints brought by persons alleging 
that the State has violated USERRA.

    Subsection (c) specifies the appropriate venue for such 
actions and revises without substantive change existing 
subsection (b).

    Subsection (d) states the remedies available to persons 
bringing USERRA actions and is a restatement of remedies 
specified in existing subsection (c) of section 4323. Paragraph 
(2)(B) deals with compensation which may be paid to the United 
States and requires the Attorney General to pay the amount 
recovered to the person on whose behalf the action was brought.

    Subsection (e) restates the provision contained in existing 
section 4323(c)(3) pertaining to the use of equity powers.

    Subsection (f) restates the provision contained in existing 
section 4323(c)(4) delimiting who may bring an action under 
this chapter.

    Subsection (g) restates the provision contained in existing 
section 4323(c)(5) defining what parties are necessary 
defendants in an action under this chapter.

    Subsection (h) restates the provision contained in existing 
section 4323(c)(2) authorizing and restricting fees and court 
costs which may be awarded in an action under this chapter.

    Subsection (i) restates the provision contained in existing 
section 4323(c)(6) pertaining to the inapplicability of state 
statutes of limitations in actions brought under this chapter.

    Subsection (j) defines a private employer as including a 
political subdivision of a State. This definition is intended 
to preclude a defense of sovereign immunity which a political 
subdivision of a State may raise in an action brought under 
this chapter.

    The revised section 4323 of title 38, United States Code, 
would apply to all actions commenced after the date of 
enactment of this Act, and would also apply to all actions in 
which no final decision has been made as of the date of 
enactment. A final action is one in which the prescribed period 
for the filing of an appeal of a lower court decision has 
expired and no appeal has been filed. Courts are directed to 
grant motions in pending actions against state employers to 
substitute the United States as the plaintiff instead of the 
person on whose behalf the United States brought the action.

    Section 2 of the bill would revise the definition of 
``employee'' presently found in section 4303(3) of title 38, 
United States Code, to clarify that it includes persons 
employed in a foreign country by an employer that is 
incorporated or otherwise organized in the United States or 
that is controlled by an entity organized in the United States. 
It would also add a new section 4319 to chapter 43 to clarify 
the liability of the controlling U.S. employer for violations 
of the law, to set out when an employer shall be considered to 
be covered by the law, and to exempt employers when compliance 
would cause the employer to violate the law of the foreign 
country in which the workplace is located.

    Section 3 of the bill would amend section 4324(c) to 
clarify that the Merit Systems Protection Board has 
jurisdiction to hear complaints brought by Federal employees 
under section 4324 without regard as to when the complaint 
accrued.

                           Oversight Findings

    No oversight findings have been submitted to the Committee 
by the Committee on Government Reform and Oversight.

                Congresional Budget Office Cost Estimate

    The following letter was received from the Congressional 
Budget Office concerning the cost of the reported bill:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 11, 1998.
Hon. Bob Stump,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3213, a bill that 
addresses the enforcement and applicability of veterans' 
employment and reemployment rights.
    If you wish further details on this estimate, we will be 
pleased to provide them. the CBO staff contact is Valerie 
Barton, who can be reached at 226-2840.

            Sincerely,
                                           June E. O'Neill,
                                                           Director

    Enclosure

               congressional budget office cost estimate

  H.R 3213--A bill to amend title 38, United States Code, to clarify 
   enforcement of veterans' employment and reemployment rights with 
  respect to a State as an employer or a private employer, to extend 
    veterans' employment and reemployment rights to members of the 
  uniformed services employed abroad by U.S. companies, and for other 
                               purposes.

As ordered reported by the House Committee on Veterans' Affairs 
on March 11, 1998

    Summary. --H.R. 3213 would expand the scope of the 
Uniformed Services Employment and Reemployment Rights Act of 
1994 (USERRA) to include certain employers in foreign 
countries, and would make certain procedural changes to the 
act's enforcement provisions in response to a recent Supreme 
Court decision.
    CBO estimates that implementing H.R. 3213 would have no 
significant cost to the federal government. Because it could 
affect direct spending and receipts, pay-as-you-go procedures 
would apply, but any such effects would not be significant. the 
bill is excluded from consideration under the Unfunded Mandates 
Reform Act of 1995 (UMRA) because it is necessary for the 
national security.

    Estimated cost to the Federal Government. --Implementing 
H.R. 3213 would raise costs of the Veterans' Employment and 
Training Service (VETS) and the Merit Systems Protection Board 
(MSPB). However, CBO estimates that the additional costs would 
not be significant. The bill would also have an insignificant 
effect on direct spending and receipts.
    USERRA authorized an eligible individual to bring an action 
against a state employer in federal district court for 
violations of the rights guaranteed under the act. However, in 
1996 the Supreme Court held that the 11th Amendment to the U.S. 
Constitution precluded Congressionally authorized suits by 
private parties against unconsenting states (Seminole Tribe of 
Florida v. The State of Florida, 517 U.S. 44 (1996)). In order 
to ensure states' continuing adherence to the rights and 
protections afforded employees under USERRA and in response to 
the Seminole decision, H.R. 3213 would require the United 
States to be the plaintiff in any enforcement action against a 
state if the action alleges a violation of rights protected 
under USERRA. The bill would also subject U.S. employers in 
foreign countries to USERRA, thus increasing both the number of 
cases heard in district courts and the number of claims 
processed by VETS.
    Based on information from VETS, CBO estimates that H.R. 
3213 would not affect caseloads for VETS or district courts 
significantly because the current USERRA caseload is small and 
the marginal effects of the bill would be even smaller. In 
1997, VETS investigated about 1,200 claims, and about five of 
those claims were taken to a district court.
    The bill would also require MSPB to hear complaints against 
the federal government that were filed after enactment of 
USERRA but which were based on events occurring before its 
enactment. Under current law, MSPB does not hear any USERRA 
claims against a federal employer that accrued before October 
13, 1994, the enactment date of USERRA. H.R. 3213 would require 
the MSPB to hear claims filed after that date, regardless of 
when the claim accrued. The MSPB hears about 60 USERRA claims 
each year at an average cost of $2,500 per claim. CBO estimates 
that any backlog of claims would be small and that the costs of 
dealing with them would be insignificant.

    Pay-as-you-go considerations. --The bill would require the 
United States to be the plaintiff in any enforcement action 
against a state as an employer for violations of USERRA and, 
therefore, any monetary damages awarded would be revenues to 
the United States. The damages would be placed in a depository 
account and would be paid to the veteran harmed by the state's 
actions. These payments would be federal outlays and direct 
spending. CBO estimates that the deposits and payments to 
veterans would be small and offsetting in any given year, and 
that there would be no net impact on the deficit or surplus in 
any year.

    Intergovernmental and private-sector impact. --Section 4 of 
the Unfunded Mandates Reform Act (Public Law 104-4) excludes 
from consideration under that act any bill that is necessary 
for the national security. CBO has determined that H.R. 3213 
fits within this exclusion. The bill would enforce the 
employment and reemployment rights of individuals currently in, 
or applying to be a member of, the uniformed services.

    Estimate prepared by:
          Federal Costs: Valerie Barton
          Impact on State, Local, and Tribal Governments:
Marc Nicole
          Impact on the Private Sector: Rachel Schmidt
    Estimate approved by:
          Robert A. Sunshine, Deputy Assistant Director for 
        Budget Analysis

                     Inflationary Impact Statement

    The enactment of the reported bill would have no 
inflationary impact.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    Section 206 of the Congressional Accountability Act (Pub. 
L. No. 104-1) provides for Legislative Branch compliance with 
USERRA.

                     Statement of Federal Mandates

    The reported bill would not establish a federal mandate 
under the Unfunded Mandates Reform Act, Pub. L. No. 104-4.

                 Statement of Constitutional Authority

    Pursuant to Article I, section 8 of the United States 
Constitution, the reported bill is authorized by Congress' 
power to ``provide for the common Defence and general Welfare 
of the United States.''

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italics, existing law in which no change is proposed 
is shown in roman):

                      TITLE 38, UNITED STATES CODE

          * * * * * * *

              PART III--READJUSTMENT AND RELATED BENEFITS

          * * * * * * *

   CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
                           UNIFORMED SERVICES

          * * * * * * *

                          subchapter i--general

4301.    Purposes; sense of Congress.
     * * * * * * *

   subchapter ii--employment and reemployment rights and limitations; 
                              prohibitions

4311.    Discrimination against persons who serve in the uniformed 
          services and acts of reprisal prohibited.
     * * * * * * *
4319.    Employment and reemployment rights in foreign countries.
          * * * * * * *

                         SUBCHAPTER I--GENERAL

          * * * * * * *

Sec. 4303. Definitions

  For the purposes of this chapter--
          (1) * * *
          * * * * * * *
          (3) The term ``employee'' means any person employed 
        by an employer. Such term includes any person who is a 
        citizen, national, or permanent resident alien of the 
        United States employed in a workplace in a foreign 
        country by an employer that is an entity incorporated 
        or otherwise organized in the United States or that is 
        controlled by an entity organized in the United States, 
        within the meaning of section 4319(c) of this title.
          * * * * * * *

  SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; 
                              PROHIBITIONS

          * * * * * * *

Sec. 4319. Employment and reemployment rights in foreign countries

  (a) Liability of Controlling U.S. Employer of Foreign 
Entity.--If an employer controls an entity that is incorporated 
or otherwise organized in a foreign country, any denial of 
employment, reemployment, or benefit by such entity shall be 
presumed to be by such employer.
  (b) Inapplicability to Foreign Employer.--This subchapter 
does not apply to foreign operations of an employer that is a 
foreign person not controlled by an United States employer.
  (c) Determination of Controlling Employer.--For the purpose 
of this section, the determination of whether an employer 
controls an entity shall be based upon the interrelations of 
operations, common management, centralized control of labor 
relations, and common ownership or financial control of the 
employer and the entity.
  (d) Exemption.--Notwithstanding any other provision of this 
subchapter, an employer, or an entity controlled by an 
employer, may--
          (1) discriminate within the meaning of section 4311 
        of this title;
          (2) deny reemployment rights within the meaning of 
        section 4312, 4313, 4314, or 4315 of this title; or
          (3) deny benefits within the meaning of section 4316, 
        4317, or 4318 of this title,
with respect to an employee in a workplace in a foreign 
country, if compliance with any such section would cause such 
employer, or such entity controlled by an employer, to violate 
the law of the foreign country in which the workplace is 
located.

      SUBCHAPTER III--PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND 
                             INVESTIGATION

          * * * * * * *

[Sec. 4323. Enforcement of rights with respect to a State or private 
                    employer

  [(a)(1) A person who receives from the Secretary a 
notification pursuant to section 4322(e) relating to a State 
(as an employer) or a private employer may request that the 
Secretary refer the complaint to the Attorney General. If the 
Attorney General is reasonably satisfied that the person on 
whose behalf the complaint is referred is entitled to the 
rights or benefits sought, the Attorney General may appear on 
behalf of, and act as attorney for, the person on whose behalf 
the complaint is submitted and commence an action for 
appropriate relief for such person in an appropriate United 
States district court.
  [(2) A person may commence an action for relief with respect 
to a complaint if that person--
          [(A) has chosen not to apply to the Secretary for 
        assistance under section 4322(a);
          [(B) has chosen not to request that the Secretary 
        refer the complaint to the Attorney General under 
        paragraph (1); or
          [(C) has been refused representation by the Attorney 
        General with respect to the complaint under such 
        paragraph.
  [(b) In the case of an action against a State as an employer, 
the appropriate district court is the court for any district in 
which the State exercises any authority or carries out any 
function. In the case of a private employer the appropriate 
district court is the district court for any district in which 
the private employer of the person maintains a place of 
business.
  [(c)(1)(A) The district courts of the United States shall 
have jurisdiction, upon the filing of a complaint, motion, 
petition, or other appropriate pleading by or on behalf of the 
person claiming a right or benefit under this chapter--
          [(i) to require the employer to comply with the 
        provisions of this chapter;
          [(ii) to require the employer to compensate the 
        person for any loss of wages or benefits suffered by 
        reason of such employer's failure to comply with the 
        provisions of this chapter; and
          [(iii) to require the employer to pay the person an 
        amount equal to the amount referred to in clause (ii) 
        as liquidated damages, if the court determines that the 
        employer's failure to comply with the provisions of 
        this chapter was willful.
  [(B) Any compensation under clauses (ii) and (iii) of 
subparagraph (A) shall be in addition to, and shall not 
diminish, any of the other rights and benefits provided for in 
this chapter.
  [(2)(A) No fees or court costs shall be charged or taxed 
against any person claiming rights under this chapter.
  [(B) In any action or proceeding to enforce a provision of 
this chapter by a person under subsection (a)(2) who obtained 
private counsel for such action or proceeding, the court may 
award any such person who prevails in such action or proceeding 
reasonable attorney fees, expert witness fees, and other 
litigation expenses.
  [(3) The court may use its full equity powers, including 
temporary or permanent injunctions, temporary restraining 
orders, and contempt orders, to vindicate fully the rights or 
benefits of persons under this chapter.
  [(4) An action under this chapter may be initiated only by a 
person claiming rights or benefits under this chapter, not by 
an employer, prospective employer, or other entity with 
obligations under this chapter.
  [(5) In any such action, only an employer or a potential 
employer, as the case may be, shall be a necessary party 
respondent.
  [(6) No State statute of limitations shall apply to any 
proceeding under this chapter.
  [(7) A State shall be subject to the same remedies, including 
prejudgment interest, as may be imposed upon any private 
employer under this section.]

Sec. 4323. Enforcement of rights with respect to a State or private 
                    employer

  (a) Action for Relief.--(1) A person who receives from the 
Secretary a notification pursuant to section 4322(e) of this 
title of an unsuccessful effort to resolve a complaint relating 
to a State (as an employer) or a private employer may request 
that the Secretary refer the complaint to the Attorney General. 
If the Attorney General is reasonably satisfied that the person 
on whose behalf the complaint is referred is entitled to the 
rights or benefits sought, the Attorney General may appear on 
behalf of, and act as attorney for, the person on whose behalf 
the complaint is submitted and commence an action for relief 
under this chapter for such person. In the case of such an 
action against a State (as an employer), the action shall be 
brought in the name of the United States as the plaintiff in 
the action.
  (2) A person may commence an action for relief with respect 
to a complaint against a State (as an employer) or a private 
employer if the person--
          (A) has chosen not to apply to the Secretary for 
        assistance under section 4322(a) of this title;
          (B) has chosen not to request that the Secretary 
        refer the complaint to the Attorney General under 
        paragraph (1); or
          (C) has been refused representation by the Attorney 
        General with respect to the complaint under such 
        paragraph.
  (b) Jurisdiction.--(1) In the case of an action against a 
State (as an employer) or a private employer commenced by the 
United States, the district courts of the United States shall 
have jurisdiction over the action.
  (2) In the case of an action against a State (as an employer) 
by a person, the action may be brought in a State court of 
competent jurisdiction in accordance with the laws of the 
State.
  (3) In the case of an action against a private employer by a 
person, the district courts of the United States shall have 
jurisdiction of the action.
  (c) Venue.--(1) In the case of an action by the United States 
against a State (as an employer), the action may proceed in the 
United States district court for any district in which the 
State exercises any authority or carries out any function.
  (2) In the case of an action against a private employer, the 
action may proceed in the United States district court for any 
district in which the private employer of the person maintains 
a place of business.
  (d) Remedies.--(1) In any action under this section, the 
court may award relief as follows:
          (A) The court may require the employer to comply with 
        the provisions of this chapter.
          (B) The court may require the employer to compensate 
        the person for any loss of wages or benefits suffered 
        by reason of such employer's failure to comply with the 
        provisions of this chapter.
          (C) The court may require the employer to pay the 
        person an amount equal to the amount referred to in 
        subparagraph (B) as liquidated damages, if the court 
        determines that the employer's failure to comply with 
        the provisions of this chapter was willful.
  (2)(A) Any compensation awarded under subparagraph (B) or (C) 
of paragraph (1) shall be in addition to, and shall not 
diminish, any of the other rights and benefits provided for 
under this chapter.
  (B) In the case of an action commenced in the name of the 
United States for which the relief includes compensation 
awarded under subparagraph (B) or (C) of paragraph (1), such 
compensation shall be held in a special deposit account and 
shall be paid, on order of the Attorney General, directly to 
the person. If the compensation is not paid to the person 
because of inability to do so within a period of three years, 
the compensation shall be covered into the Treasury of the 
United States as miscellaneous receipts.
  (3) A State shall be subject to the same remedies, including 
prejudgment interest, as may be imposed upon any private 
employer under this section.
  (e) Equity Powers.--The court may use its full equity powers, 
including temporary or permanent injunctions, temporary 
restraining orders, and contempt orders, to vindicate fully the 
rights or benefits of persons under this chapter.
  (f) Standing.--An action under this chapter may be initiated 
only by a person claiming rights or benefits under this chapter 
under subsection (a) or by the United States under subsection 
(a)(1).
  (g) Respondent.--In any action under this chapter, only an 
employer or a potential employer, as the case may be, shall be 
a necessary party respondent.
  (h) Fees, Court Costs.--(1) No fees or court costs may be 
charged or taxed against any person claiming rights under this 
chapter.
  (2) In any action or proceeding to enforce a provision of 
this chapter by a person under subsection (a)(2) who obtained 
private counsel for such action or proceeding, the court may 
award any such person who prevailsin such action or proceeding 
reasonable attorney fees, expert witness fees, and other litigation 
expenses.
  (i) Inapplicability of State Statute of Limitations.--No 
State statute of limitations shall apply to any proceeding 
under this chapter.
  (j) Definition.--In this section, the term ``private 
employer'' includes a political subdivision of a State.

Sec. 4324. Enforcement of rights with respect to Federal executive 
                    agencies

  (a)(1) * * *
          * * * * * * *
  (c)(1) The Merit Systems Protection Board shall adjudicate 
any complaint brought before the Board pursuant to subsection 
(a)(2)(A) or (b), without regard as to whether the complaint 
accrued before, on, or after October 13, 1994. A person who 
seeks a hearing or adjudication by submitting such a complaint 
under this paragraph may be represented at such hearing or 
adjudication in accordance with the rules of the Board.
          * * * * * * *

                                   - 
