[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Rights Act) is the continuation of policy originally enacted in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.
* * * * * * *
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