79–006 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 111–111 

VETERANS EMPLOYMENT RIGHTS REALIGNMENT ACT OF 

2009 

MAY 14, 2009.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. FILNER, from the Committee on Veterans’ Affairs, 

submitted the following 

R E P O R T 

[To accompany H.R. 1089] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Veterans’ Affairs, to whom was referred the 

bill (H.R. 1089) to amend title 38, United States Code, to provide 

for the enforcement through the Office of Special Counsel of the 

employment and unemployment rights of veterans and members of 

the Armed Forces employed by Federal executive agencies, and for 

other purposes, having considered the same, report favorably thereon with amendments and recommend that the bill as amended do 

pass. 

CONTENTS 

Page 

Amendment .............................................................................................................. 2 

Purpose and Summary ............................................................................................ 3 

Background and Need for Legislation .................................................................... 3 

Hearings ................................................................................................................... 4 

Subcommittee Consideration .................................................................................. 5 

Committee Consideration ........................................................................................ 5 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 5 

Statement of General Performance Goals and Objectives .................................... 5 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 6 

Earmarks and Tax and Tariff Benefits .................................................................. 6 

Committee Cost Estimate ....................................................................................... 6 

Congressional Budget Office Estimate ................................................................... 6 

Federal Mandates Statement ................................................................................. 7 

Advisory Committee Statement .............................................................................. 7 

Constitutional Authority Statement ...................................................................... 7 

Applicability to Legislative Branch ........................................................................ 7 


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Section-by-Section Analysis of the Legislation ...................................................... 8 

Changes in Existing Law Made by the Bill as Reported ...................................... 8 

AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Veterans Employment Rights Realignment Act of 

2009’’. 

SEC. 2. ENFORCEMENT THROUGH OFFICE OF SPECIAL COUNSEL OF VETERANS’ EMPLOYMENT OR REEMPLOYMENT RIGHTS WITH RESPECT TO EMPLOYERS THAT ARE 

FEDERAL EXECUTIVE AGENCIES. 

(a) ENFORCEMENT OF RIGHTS THROUGH OFFICE OF SPECIAL COUNSEL.—Section 

4322 of title 38, United States Code, is amended— 

(1) by striking subsection (a) and inserting the following new subsection (a): 

‘‘(a)(1)(A) A person described in subparagraph (B) may file a complaint with the 

Secretary, and the Secretary shall investigate such complaint. 

‘‘(B) A person described in this subparagraph is a person who claims that— 

‘‘(i) such person is entitled under this chapter to employment or reemployment rights or benefits with respect to employment by an employer other than 

an employer that is a Federal executive agency; and 

‘‘(ii) such employer has failed or refused, or is about to fail or refuse, to comply with the provisions of this chapter. 

‘‘(2)(A) A person described in subparagraph (B) may file a complaint with the Special Counsel established by section 1211 of title 5. 

‘‘(B) A person described in this subparagraph is a person who claims that— 

‘‘(i) such person is entitled under this chapter to employment or reemployment rights or benefits with respect to employment by an employer that is a 

Federal executive agency; and 

‘‘(ii)(I) such employer has failed or refused, or is about to fail or refuse, to 

comply with the provisions of this chapter; or 

‘‘(II) such employer or the Office of Personnel Management has failed or refused, or is about to fail or refuse, to comply with the provisions of this chapter.’’; 

(2) by striking subsections (d) and (e) and inserting the following new subsections (d) and (e): 

‘‘(d)(1) The Secretary shall investigate each complaint submitted pursuant to subsection (a)(1). If the Secretary determines as a result of the investigation that the 

action alleged in such complaint occurred, the Secretary shall attempt to resolve the 

complaint by making reasonable efforts to ensure that the person or entity named 

in the complaint complies with the provisions of this chapter. 

‘‘(2) If the efforts of the Secretary with respect to any complaint filed under subsection (a)(1) do not resolve the complaint, the Secretary shall notify the person who 

submitted the complaint of— 

‘‘(A) the results of the Secretary’s investigation; and 

‘‘(B) the complainant’s entitlement to proceed under the enforcement of rights 

provisions provided under section 4323. 

‘‘(e)(1) In the case of a complaint filed under subsection (a)(2), the Special Counsel 

shall investigate the complaint. If the Special Counsel determines as a result of the 

investigation that the action alleged in such complaint occurred, the Special Counsel 

shall attempt to resolve the complaint by making reasonable efforts to ensure that 

the person or entity named in the complaint complies with the provisions of this 

chapter. 

‘‘(2) If the efforts of the Special Counsel with respect to any complaint filed under 

subsection (a)(2) do not resolve the complaint, the Special Counsel shall notify the 

person who submitted the complaint of— 

‘‘(A) the results of the investigation by the Special Counsel; and 

‘‘(B) the complainant’s entitlement to proceed under the enforcement of rights 

provisions provided under section 4324.’’. 

(b) TECHNICAL AND CONFORMING AMENDMENTS.—Such title is further amended— 

(1) in section 4322(b), by striking ‘‘Such complaint’’ and inserting ‘‘Each complaint filed under subsection (a)’’; 

(2) in section 4323(a)— 

(A) in paragraph (1), by striking ‘‘section 4322(e)’’ and inserting ‘‘section 

4322(d)(2)’’; and 


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(B) in paragraph (3)(A), by striking ‘‘section 4322(a)’’ and inserting ‘‘section 4322(a)(1)’’; 

(3) in section 4324— 

(A) in subsection (a)(1)— 

(i) in the first sentence, by striking ‘‘Secretary’’ each place it appears 

and inserting ‘‘Special Counsel’’; 

(ii) by striking ‘‘section 4322(e)’’ and inserting ‘‘section 4322(e)(2)’’; 

and 

(iii) by striking the second sentence; and 

(B) in subsection (b)— 

(i) in paragraph (1)— 

(I) by striking ‘‘Secretary’’ and inserting ‘‘Special Counsel’’; and 

(II) by striking ‘‘section 4322(a)’’ and inserting ‘‘section 4322(a)(2) 

of this title’’; and 

(ii) in paragraph (2)— 

(I) by striking ‘‘Secretary’’ and inserting ‘‘Special Counsel’’; and 

(II) by striking ‘‘section 4322(e)’’ and inserting ‘‘section 4322(e)(2) 

of this title’’; 

(4) in section 4325(c), by striking ‘‘section 4322(d)’’ and inserting ‘‘section 

4322(d)(1)’’; and 

(5) in section 4326— 

(A) in subsection (a), by inserting ‘‘or the Special Counsel’s’’ after ‘‘Secretary’s’’; and 

(B) by striking ‘‘Secretary’’ each place it appears and inserting ‘‘Secretary 

or the Special Counsel’’. 

(c) CONFORMING REPEAL.—The Veterans Benefits Improvement Act of 2004 (Public Law 108–454) is amended by striking section 204. 

(d) EFFECTIVE DATE.—The amendments made by this section shall apply with respect to complaints filed on or after the date of the enactment of this Act. 

Amend the title so as to read: 

A bill to amend title 38, United States Code, to provide for the enforcement 

through the Office of Special Counsel of the employment and reemployment rights 

of veterans and members of the Armed Forces employed by Federal executive agencies, and for other purposes. 

PURPOSE AND SUMMARY

H.R. 1089 was introduced on March 19, 2009, by Representative 

Stephanie Herseth Sandlin of South Dakota, the Chairwoman of 

the Subcommittee on Economic Opportunity of the Committee on 

Veterans’ Affairs. H.R. 1089, as amended, seeks to provide for the 

enforcement of Uniformed Services Employment and Reemployment Rights Act (USERRA) protections through the U.S. Office of 

Special Counsel (OSC) of the employment and reemployment rights 

of veterans and members of the Armed Forces employed by Federal 

executive agencies. 

BACKGROUND AND NEED FOR LEGISLATION

The OSC is an independent Federal investigative and prosecutorial agency that was created by Congress with the goal of protecting employees, former employees, and applicants for employment from prohibited personnel practices. The OSC has the duty 

to receive allegations of prohibited personnel practices and to investigate such allegations, as well as to conduct investigations of possible prohibited personnel practices on its own initiative, absent 

any allegation. 

On March 4, 2009, Mr. Patrick H. Boulay, Chief, USERRA Unit, 

U.S. Office of Special Counsel highlighted the avenues available 

through which to pursue allegations and complaints. Specifically, 

Mr. Boulay highlighted OSC’s authority of: investigating prohibited 

personnel practice allegations and, where warranted, seeking corVerDate Nov 24 2008 03:47 May 15, 2009 Jkt 079006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR111.XXX HR111

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rective action on behalf of Federal employees and applicants and 

disciplinary action against Federal officials, including by prosecuting violations before the U.S. Merit Systems Protection Board 

(MSPB); receiving and evaluating disclosures of government wrongdoing and, where warranted, forwarding such disclosures to subject 

federal agencies for investigation, report, and appropriate action; 

and, providing advisory opinions, investigating complaints, and 

prosecuting violations of the Hatch Act before the MSPB. 

Mr. Boulay also emphasized that OSC employs a staff of attorneys, investigators, and personnel specialists who are experts in 

Federal personnel law and are trained to evaluate, investigate, 

analyze, and resolve Federal employment complaints. The Special 

Counsel, head of OSC, is nominated by the President and confirmed by the Senate to a five-year term. 

Pursuant to a demonstration project established by the Veterans 

Benefits Improvement Act of 2004, Public Law 108–454 (118 Stat. 

3598), OSC was given authority to investigate Federal-sector 

USERRA claims brought by persons whose social security number 

ends in an odd-numbered digit. Currently, OSC can represent veterans before the Merit System Protective Board while the U.S. Department of Labor (DOL) does not. 

Under the demonstration project, OSC also received and investigated all Federal-sector USERRA claims containing a related prohibited personnel practice allegation over which OSC has jurisdiction regardless of the person’s social security number. OSC administered the demonstration project, which initially ran from February 8, 2005, until September 30, 2007, and was extended to December 31, 2007. 

On February 13, 2008, the Subcommittee on Economic Opportunity held a hearing entitled ‘‘Review of Expiring Programs.’’ In 

the hearing, veterans service organizations expressed interest in 

continuing funding for the demonstration project. According to the 

veterans service organizations, OSC has done a good job handling 

claims and has increased the DOL’s effectiveness by decreasing 

their turnaround rate for pending cases. 

It is imperative that we continue to improve the efficiency of the 

claims process and reduce the backlog of pending USERRA claims. 

By assigning all Federal USERRA cases to OSC, we expect to see 

a more aggressive stance on resolving the Federal cases that seem 

to present difficulty to the DOL. The Committee will continue to 

monitor the progress being made by DOL on non-Federal USERRA 

cases and OSC on Federal USERRA cases. 

HEARINGS

On March 4, 2009, the Subcommittee on Economic Opportunity 

held a legislative hearing on several bills introduced during the 

111th Congress, including H.R. 1089. The following witnesses testified: The Honorable Steve Israel of New York; The Honorable Peter 

Welch of Vermont; The Honorable Lloyd Doggett of Texas; Mr. Justin Brown, Legislative Associate, National Legislative Service, Veterans of Foreign Wars of the United States; Ms. Cheryl Beversdorf, 

RN, MHS, MA, President and Chief Executive Officer, National Coalition for Homeless Veterans; Mr. John L. Wilson, Associate National Legislative Director, Disabled American Veterans; Mr. Mark 

Walker, Assistant Director, National Economic Commission, The 


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American Legion; Mr. Thomas Zampieri, Ph.D., Director of Government Relations, Blinded Veterans of America; Mr. Patrick H. 

Boulay, Chief, USERRA Unit, U.S. Office of Special Counsel; Mr. 

Keith M. Wilson, Director, Education Service, Veterans Benefits 

Administration, U.S. Department of Veterans Affairs. Those submitting statements for the record included: Mr. John M. 

McWilliam, Deputy Assistant Secretary, Veterans’ Employment 

and Training Service, U.S. Department of Labor; The Honorable 

Rodney Alexander of Louisiana; The Honorable Steve Buyer of Indiana; The Honorable Bob Filner of California; Mr. David French, 

Vice President, Government Relations, International Franchise Association; Mr. Thomas S. Whitaker, President and Deputy Chairman, North Carolina Employment Security Commission, on behalf 

of National Association of State Workforce Agencies; and the Paralyzed Veterans of America. 

SUBCOMMITTEE CONSIDERATION

On March 19, 2009, the Subcommittee on Economic Opportunity 

met in open markup session and ordered favorably forwarded to 

the full Committee H.R. 1089 by voice vote. During consideration 

of the bill the following amendment was considered: 

An amendment by Mrs. Kirkpatrick of Arizona to replace 

‘‘unemployment’’ rights with ‘‘reemployment’’ rights and clarify 

that the U.S. Office of Special Council has the same authority 

as the U.S. Department of Labor to conduct investigations and 

issue subpoenas when investigating USERRA complaints was 

agreed to by voice vote. 

COMMITTEE CONSIDERATION

On May 6, 2009, the full Committee met in an open markup session, a quorum being present, and ordered H.R. 1089, as amended, 

reported favorably to the House of Representatives, by voice vote. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion 

to report the legislation and amendments thereto. There were no 

record votes taken on amendments or in connection with ordering 

H.R. 1089 reported to the House. A motion by Mr. Buyer of Indiana 

to order H.R. 1089, as amended, reported favorably to the House 

of Representatives was agreed to by voice vote. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goals and 

objectives are reflected in the descriptive portions of this report. 


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NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX

EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee adopts as its own the estimate of new budget authority, entitlement authority, or tax expenditures or revenues contained in the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

EARMARKS AND TAX AND TARIFF BENEFITS

H.R. 1089 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), 

or 9(f) of rule XXI of the Rules of the House of Representatives. 

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate on H.R. 1089 

prepared by the Director of the Congressional Budget Office pursuant to section 402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate for H.R. 1089 

provided by the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, May 13, 2009. 

Hon. BOB FILNER, 

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. 1089, the Veterans Employment Rights Realignment Act of 2009. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

DOUGLAS W. ELMENDORF, Director. 

Enclosure. 

H.R. 1089—Veterans Employment Rights Realignment Act of 2009 

H.R. 1089 would amend the Uniformed Services Employment 

and Reemployment Rights Act of 1994 (USERRA) to transfer more 

responsibility for investigating and resolving claims made against 

federal agencies under that act to the Office of Special Counsel 

(OSC). Assuming appropriation of the necessary amounts, CBO estimates that the OSC would spend an additional $14 million over 

the 2010–2014 period to implement its new responsibilities. Enacting the bill would have no effect on revenues or direct spending. 

USERRA protects the civilian employment rights of veterans by 

providing a claims process for individuals whose employment is affected by their military service. Under that act, employees (includVerDate Nov 24 2008 03:47 May 15, 2009 Jkt 079006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR111.XXX HR111

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ing those of federal agencies) who believe that their rights have 

been violated may file claims with the Department of Labor’s 

(DOL’s) Veterans’ Employment Training Service (VETS). VETS 

then investigates and attempts to resolve such claims. If VETS 

cannot resolve a claim made by an employee of the federal government, the case may then be referred to the OSC for further action. 

Under H.R. 1089, all such claims against federal employers 

would be made directly to the OSC. Claims against all other entities would continue to be handled by VETS. Based on information 

provided by DOL and the OSC, CBO expects that handling an estimated 200 to 300 additional cases per year would increase the 

OSC’s annual budget of $17 million by about $3 million a year and 

$14 million over the next five years. VETS has offices in each state 

to handle USERRA enforcement and claims as well as other veterans’ issues, including investigations and mediation, briefings to 

educate employers and service members, and general armed service-related employment and reemployment matters. Because VETS 

would continue to handle most USERRA claims and all other 

issues related to veterans’ employment, CBO expects that the 

transfer of responsibility for resolving claims against federal agencies to the OSC would not significantly reduce the VETS’ workload 

at any of its individual offices. 

The legislation contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandates Reform Act and 

would not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates regarding H.R. 1089 prepared by the Director of the Congressional Budget Office pursuant to section 423 of the Unfunded Mandates Reform Act. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act would be created by H.R. 1089. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds that the Constitutional authority for H.R. 1089 is provided by Article I, section 8 of the Constitution of the United States. 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 


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SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title 

This section provides the short title of H.R. 1089, as amended, 

as the ‘‘Veterans Employment Rights Realignment Act of 2009.’’ 

Section 2. Enforcement through office of special counsel of veterans’ 

employment or reemployment rights with respect to employers 

that are federal executive agencies 

This section would provide the U.S. Office of Special Counsel 

with initial jurisdiction to investigate and prosecute all Uniformed 

Services Employment and Reemployment Rights Act (USERA) complaints involving Federal executive agencies and provide authority 

for individuals to file complaints with the U.S. Office Special Counsel. This section would clarify that the U.S. Office Special Counsel 

has the same authority as the U.S. Department of Labor to conduct 

investigations and issue subpoenas when investigating USERA 

complaints. Finally, this section provides that amendments made 

by this section shall apply to complaints filed on or after the date 

of enactment of this Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) 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 italic, 

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 III—PROCEDURES FOR ASSISTANCE, 

ENFORCEMENT, AND INVESTIGATION 

* * * * * * * 

§ 4322. Enforcement of employment or reemployment rights 

ø(a) A person who claims that— 

ø(1) such person is entitled under this chapter to employment or reemployment rights or benefits with respect to employment by an employer; and 

ø(2)(A) such employer has failed or refused, or is about to fail 

or refuse, to comply with the provisions of this chapter; or 

ø(B) in the case that the employer is a Federal executive 

agency, such employer or the Office of Personnel Management 


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has failed or refused, or is about to fail or refuse, to comply 

with the provisions of this chapter, 

may file a complaint with the Secretary in accordance with subsection (b), and the Secretary shall investigate such complaint.¿ 

(a)(1)(A) A person described in subparagraph (B) may file a complaint with the Secretary, and the Secretary shall investigate such 

complaint. 

(B) A person described in this subparagraph is a person who 

claims that— 

(i) such person is entitled under this chapter to employment 

or reemployment rights or benefits with respect to employment 

by an employer other than an employer that is a Federal executive agency; and 

(ii) such employer has failed or refused, or is about to fail or 

refuse, to comply with the provisions of this chapter. 

(2)(A) A person described in subparagraph (B) may file a complaint with the Special Counsel established by section 1211 of title 

5. 

(B) A person described in this subparagraph is a person who 

claims that— 

(i) such person is entitled under this chapter to employment 

or reemployment rights or benefits with respect to employment 

by an employer that is a Federal executive agency; and 

(ii)(I) such employer has failed or refused, or is about to fail 

or refuse, to comply with the provisions of this chapter; or 

(II) such employer or the Office of Personnel Management has 

failed or refused, or is about to fail or refuse, to comply with 

the provisions of this chapter. 

(b) øSuch complaint¿ Each complaint filed under subsection (a) 

shall be in writing, be in such form as the Secretary may prescribe, 

include the name and address of the employer against whom the 

complaint is filed, and contain a summary of the allegations that 

form the basis for the complaint. 

* * * * * * * 

ø(d) The Secretary shall investigate each complaint submitted 

pursuant to subsection (a). If the Secretary determines as a result 

of the investigation that the action alleged in such complaint occurred, the Secretary shall attempt to resolve the complaint by 

making reasonable efforts to ensure that the person or entity 

named in the complaint complies with the provisions of this chapter. 

ø(e) If the efforts of the Secretary with respect to any complaint 

filed under subsection (a) do not resolve the complaint, the Secretary shall notify the person who submitted the complaint in writing of— 

ø(1) the results of the Secretary’s investigation; and 

ø(2) the complainant’s entitlement to proceed under the enforcement of rights provisions provided under section 4323 (in 

the case of a person submitting a complaint against a State or 

private employer) or section 4324 (in the case of a person submitting a complaint against a Federal executive agency or the 

Office of Personnel Management).¿ 

(d)(1) The Secretary shall investigate each complaint submitted 

pursuant to subsection (a)(1). If the Secretary determines as a result 

of the investigation that the action alleged in such complaint ocVerDate Nov 24 2008 03:47 May 15, 2009 Jkt 079006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6603 E:\HR\OC\HR111.XXX HR111

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curred, the Secretary shall attempt to resolve the complaint by making reasonable efforts to ensure that the person or entity named in 

the complaint complies with the provisions of this chapter. 

(2) If the efforts of the Secretary with respect to any complaint 

filed under subsection (a)(1) do not resolve the complaint, the Secretary shall notify the person who submitted the complaint of— 

(A) the results of the Secretary’s investigation; and 

(B) the complainant’s entitlement to proceed under the enforcement of rights provisions provided under section 4323. 

(e)(1) In the case of a complaint filed under subsection (a)(2), the 

Special Counsel shall investigate the complaint. If the Special 

Counsel determines as a result of the investigation that the action 

alleged in such complaint occurred, the Special Counsel shall attempt to resolve the complaint by making reasonable efforts to ensure that the person or entity named in the complaint complies with 

the provisions of this chapter. 

(2) If the efforts of the Special Counsel with respect to any complaint filed under subsection (a)(2) do not resolve the complaint, the 

Special Counsel shall notify the person who submitted the complaint of— 

(A) the results of the investigation by the Special Counsel; 

and 

(B) the complainant’s entitlement to proceed under the enforcement of rights provisions provided under section 4324. 

* * * * * * * 

§ 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 øsection 4322(e)¿ section 

4322(d)(2) 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. Not later than 60 days after the Secretary receives such 

a request with respect to a complaint, the Secretary shall 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. 

* * * * * * * 

(3) 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 

øsection 4322(a)¿ section 4322(a)(1) of this title; 

* * * * * * * 


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

(a)(1) A person who receives from the øSecretary¿ Special Counsel a notification pursuant to øsection 4322(e)¿ section 4322(e)(2) 

may request that the øSecretary¿ Special Counsel refer the complaint for litigation before the Merit Systems Protection Board. 

øNot later than 60 days after the date the Secretary receives such 

a request, the Secretary shall refer the complaint to the Office of 

Special Counsel established by section 1211 of title 5.¿ 

* * * * * * * 

(b) A person may submit a complaint against a Federal executive 

agency or the Office of Personnel Management under this subchapter directly to the Merit Systems Protection Board if that person— 

(1) has chosen not to apply to the øSecretary¿ Special Counsel for assistance under øsection 4322(a)¿ section 4322(a)(2) of 

this title; 

(2) has received a notification from the øSecretary¿ Special 

Counsel under øsection 4322(e)¿ section 4322(e)(2) of this title; 

* * * * * * * 

§ 4325. Enforcement of rights with respect to certain Federal 

agencies 

(a) * * * 

* * * * * * * 

(c) In prescribing procedures for the investigation and resolution 

of allegations under subsection (b), the head of an agency shall ensure, to the maximum extent practicable, that the procedures are 

similar to the procedures for investigating and resolving complaints 

utilized by the Secretary under øsection 4322(d)¿ section 

4322(d)(1). 

* * * * * * * 

§ 4326. Conduct of investigation; subpoenas 

(a) In carrying out any investigation under this chapter, the Secretary’s or the Special Counsel’s duly authorized representatives 

shall, at all reasonable times, have reasonable access to and the 

right to interview persons with information relevant to the investigation and shall have reasonable access to, for purposes of examination, and the right to copy and receive, any documents of any 

person or employer that the øSecretary¿ Secretary or the Special 

Counsel considers relevant to the investigation. 

(b) In carrying out any investigation under this chapter, the 

øSecretary¿ Secretary or the Special Counsel may require by subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. In 

case of disobedience of the subpoena or contumacy and on request 

of the øSecretary¿ Secretary or the Special Counsel, the Attorney 

General may apply to any district court of the United States in 

whose jurisdiction such disobedience or contumacy occurs for an 

order enforcing the subpoena. 


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(c) Upon application, the district courts of the United States shall 

have jurisdiction to issue writs commanding any person or employer to comply with the subpoena of the øSecretary¿ Secretary or 

the Special Counsel or to comply with any order of the øSecretary¿ 

Secretary or the Special Counsel made pursuant to a lawful investigation under this chapter and the district courts shall have jurisdiction to punish failure to obey a subpoena or other lawful order 

of the øSecretary¿ Secretary or the Special Counsel as a contempt 

of court. 

* * * * * * * 

VETERANS BENEFITS IMPROVEMENT ACT OF 2004 

* * * * * * * 

TITLE II—EMPLOYMENT MATTERS 

Subtitle A—Employment and 

Reemployment Rights 

* * * * * * * 

øSEC. 204. DEMONSTRATION PROJECT FOR REFERRAL OF USERRA 

CLAIMS AGAINST FEDERAL AGENCIES TO THE OFFICE OF 

SPECIAL COUNSEL. 

ø(a) ESTABLISHMENT OF PROJECT.—The Secretary of Labor and 

the Office of Special Counsel shall carry out a demonstration 

project under which certain claims against Federal executive agencies under the Uniformed Services Employment and Reemployment 

Rights Act under chapter 43 of title 38, United States Code, are referred to, or otherwise received by, the Office of Special Counsel for 

assistance, including investigation and resolution of the claim as 

well as enforcement of rights with respect to the claim. 

ø(b) REFERRAL OF ALL PROHIBITED PERSONNEL ACTION CLAIMS

TO THE OFFICE OF SPECIAL COUNSEL.—(1) Under the demonstration 

project, the Office of Special Counsel shall receive and investigate 

all claims under the Uniformed Services Employment and Reemployment Rights Act with respect to Federal executive agencies in 

cases where the Office of Special Counsel has jurisdiction over related claims pursuant to section 1212 of title 5, United States 

Code. 

ø(2) For purposes of paragraph (1), a related claim is a claim involving the same Federal executive agency and the same or similar 

factual allegations or legal issues as those being pursued under a 

claim under the Uniformed Services Employment and Reemployment Rights Act. 

ø(c) REFERRAL OF OTHER CLAIMS AGAINST FEDERAL EXECUTIVE

AGENCIES.—(1) Under the demonstration project, the Secretary— 

ø(A) shall refer to the Office of Special Counsel all claims described in paragraph (2) made during the period of the demonstration project; and 

ø(B) may refer any claim described in paragraph (2) filed before the demonstration project that is pending before the Secretary at the beginning of the demonstration project. 


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ø(2) A claim referred to in paragraph (1) is a claim under chapter 

43 of title 38, United States Code, against a Federal executive 

agency by a claimant with a social security account number with 

an odd number as its terminal digit, or, in the case of a claim that 

does not contain a social security account number, a case number 

assigned to the claim with an odd number as its terminal digit. 

ø(d) ADMINISTRATION OF DEMONSTRATION PROJECT.—(1) The Office of Special Counsel shall administer the demonstration project. 

The Secretary shall cooperate with the Office of Special Counsel in 

carrying out the demonstration project. 

ø(2) In the case of any claim referred, or otherwise received by, 

to the Office of Special Counsel under the demonstration project, 

any reference to the ‘‘Secretary’’ in sections 4321, 4322, and 4326 

of title 38, United States Code, is deemed a reference to the ‘‘Office 

of Special Counsel’’. 

ø(3) In the case of any claim referred to, or otherwise received 

by, the Office of Special Counsel under the demonstration project, 

the Office of Special Counsel shall retain administrative jurisdiction over the claim. 

ø(e) PERIOD OF PROJECT.—The demonstration project shall be 

carried out during the period beginning on the date that is 60 days 

after the date of the enactment of this Act, and ending on September 30, 2007. 

ø(f) EVALUATIONS AND REPORT.—(1) The Comptroller General of 

the United States shall conduct periodic evaluations of the demonstration project under this section. 

ø(2) Not later than April 1, 2007, the Comptroller General shall 

submit to Congress a report on the evaluations conducted under 

paragraph (1). The report shall include the following information 

and recommendations: 

ø(A) A description of the operation and results of the demonstration program, including— 

ø(i) the number of claims described in subsection (c) referred to, or otherwise received by, the Office of Special 

Counsel, and the number of such claims referred to the 

Secretary of Labor; and 

ø(ii) for each Federal executive agency, the number of 

claims resolved, the type of corrective action obtained, the 

period of time for final resolution of the claim, and the results obtained. 

ø(B) An assessment of whether referral to the office of special counsel of claims under the demonstration project— 

ø(i) improved services to servicemembers and veterans; 

or 

ø(ii) significantly reduced or eliminated duplication of effort and unintended delays in resolving meritorious claims 

of those servicemembers and veterans. 

ø(C) An assessment of the feasibility and advisability of referring all claims under chapter 43 of title 38, United States 

Code, against Federal executive agencies to the Office of Special Counsel for investigation and resolution. 

ø(D) Such other recommendations for administrative action 

or legislation as the Comptroller General determines appropriate. 

ø(g) DEFINITIONS.—In this section: 


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ø(1) The term ‘‘Office of Special Counsel’’ means the Office 

of Special Counsel established by section 1211 of title 5, United 

States Code. 

ø(2) The term ‘‘Secretary’’ means the Secretary of Labor. 

ø(3) The term ‘‘Federal executive agency’’ has the meaning 

given that term in section 4303(5) of title 38, United States 

Code.¿ 

* * * * * * * 

Æ 


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