I

104TH CONGRESS

2D SESSION H. R. 3538

To amend title 38, United States Code, to clarify the conditions under

which an action may be brought against a State to enforce veterans’

reemployment rights, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MAY 29, 1996

Mr. FILNER introduced the following bill; which was referred to the

Committee on Veterans’ Affairs

A BILL

To amend title 38, United States Code, to clarify the conditions under which an action may be brought against

a State to enforce veterans’ reemployment rights, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Veterans’ Job Protec5 tion Act’’.
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1 SEC. 2. CLARIFICATION OF ACTIONS AGAINST STATES TO

2 ENFORCE VETERANS’ REEMPLOYMENT

3 RIGHTS.

4 (a) ACTION AGAINST A STATE.—Section 4323 of title

5 38, United States Code, is amended—

6 (1) in subsection (a)(1), by striking out ‘‘of an

7 unsuccessful effort to resolve a complaint relating to

8 a State (as an employer) or’’ and inserting in lieu

9 thereof ‘‘relating to’’;

10 (2) in subsection (a)(2)—

11 (A) by inserting ‘‘against a private em12 ployer’’ after ‘‘commence an action’’ in the mat13 ter preceding subparagraph (A); and

14 (B) in subparagraph (A), by striking out

15 ‘‘regarding the complaint under section

16 4322(c)’’ and inserting in lieu thereof ‘‘under

17 section 4322(a)’’;

18 (3) in clauses (ii) and (iii) of subsection

19 (c)(1)(A), by inserting ‘‘or the United States, as ap20 propriate,’’ after ‘‘person’’ both places it appears;

21 (4) by redesignating the second sentence of sub22 section (b) as paragraph (3) of subsection (a); and

23 (5) by amending subsection (b), as so amended,

24 to read as follows:

25 ‘‘(b)(1) A person who receives from the Secretary a

26 notification pursuant to section 4322(e) relating to a State
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1 (as an employer) may request that the Secretary refer the

2 complaint to the Attorney General. If the Attorney Gen3 eral is reasonably satisfied that the person on whose behalf

4 the complaint is referred is entitled to the rights or bene5 fits sought, the Attorney General may commence an action

6 for appropriate relief in an appropriate United States dis7 trict court. The action shall be brought in the name of

8 the United States. In the case that such relief includes

9 an award of compensation under subsection (c)(1), such

10 compensation shall be held in a special deposit account

11 and shall be paid, on order of the Attorney General, di12 rectly to the person. Any such moneys not paid to a person

13 because of inability to do so within a period of three years

14 shall be covered into the Treasury of the United States

15 as miscellaneous receipts.

16 ‘‘(2) A person may commence an action against a

17 State as an employer for relief with respect to a complaint

18 if that person—

19 ‘‘(A) has chosen not to apply to the Secretary

20 for assistance under section 4322(a);

21 ‘‘(B) has chosen not to request that the Sec22 retary refer the complaint to the Attorney General

23 under paragraph (1); or
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1 ‘‘(C) has been refused representation by the At2 torney General with respect to the complaint under

3 such paragraph.

4 ‘‘(3)(A) In the case of an action commenced against

5 a State as an employer under paragraph (2), the action

6 shall be brought in the name of the United States.

7 ‘‘(B) A copy of the complaint and written disclosure

8 of substantially all material evidence and information the

9 person possesses shall be served on the United States pur10 suant to Rule 4(d)(4) of the Federal Rules of Civil Proce11 dure.

12 ‘‘(C)(i) The person bringing the action shall have the

13 right to conduct the action. If the United States so re14 quests, it shall be served with copies of all pleadings filed

15 in the action and shall be supplied with copies of all depo16 sition transcripts (at the expense of the United States).

17 When a person proceeds with the action, the court, with18 out limiting the status and rights of the person initiating

19 the action, may nevertheless permit the United States to

20 intervene at a later date upon a showing of good cause.

21 ‘‘(ii) If the United States intervenes and thereafter

22 proceeds with the action, it shall have the primary respon23 sibility for prosecuting the action, and shall not be bound

24 by an act of the person bringing the action. Such person

25 shall have the right to continue as a party to the action.
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1 ‘‘(iii) The United States may settle the action with

2 the defendant notwithstanding the objections of the person

3 initiating the action if the court determines, after a hear4 ing, that the proposed settlement is fair, adequate, and

5 reasonable under all the circumstances.

6 ‘‘(D) After intervention by the United States, upon

7 a showing by the defendant that unrestricted participation

8 during the course of the litigation by the person initiating

9 the action would be for purposes of harassment or would

10 cause the defendant undue burden or unnecessary ex11 pense, the court may limit the participation by the person

12 in the litigation.

13 ‘‘(4) If the United States does not intervene under

14 paragraph (3) and the person bringing the action prevails

15 or settles the claim, the person shall receive appropriate

16 relief, including an amount for compensation or liquidated

17 damages under subsection (c)(1). The amount shall be

18 paid out of the proceeds of the action or settlement. The

19 person prevailing in the action or settling the claim shall

20 also receive an amount for reasonable expenses which the

21 court finds to have been necessarily incurred, plus reason22 able attorneys’ fees and costs. All such expenses, fees, and

23 costs shall be awarded against the defendant.

24 ‘‘(5) In the case of an action brought under this sub25 section, the appropriate district court is the court for any
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1 district in which the State exercises any authority or car2 ries out any function.

3 ‘‘(6) The United States is not liable for expenses

4 which a person incurs in bringing an action under this

5 subsection.’’.

6 (b) EFFECTIVE DATE.—The amendments made by

7 subsection (a) shall apply to all actions commenced under

8 chapter 43 of title 38, United States Code, that are not

9 final on the date of the enactment of this Act. In the case

10 of any such action, the court shall, upon motion of a party,

11 substitute parties to the action so that such action may

12 proceed in accordance with section 4323 of such title, as

13 amended by subsection (a) of this section.

Æ