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 condi-
tions under which an action may be brought against
a State to enforce veterans’ reemployment rights, and
for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Veterans’ Job Protec-
tion Act’’.
SEC. 2. CLARIFICATION OF ACTIONS AGAINST STATES TO
ENFORCE 
VETERANS’ 
REEMPLOYMENT
RIGHTS.
(a) ACTION AGAINST A STATE.—Section 4323 of title
38, United States Code, is amended—
(1) in subsection (a)(1), by striking out ‘‘of an
unsuccessful effort to resolve a complaint relating to
a State (as an employer) or’’ and inserting in lieu
thereof ‘‘relating to’’;
(2) in subsection (a)(2)—
(A) by inserting ‘‘against a private em-
ployer’’ after ‘‘commence an action’’ in the mat-
ter preceding subparagraph (A); and
(B) in subparagraph (A), by striking out
‘‘regarding 
the 
complaint 
under 
section
4322(c)’’ and inserting in lieu thereof ‘‘under
section 4322(a)’’;
(3) in clauses (ii) and (iii) of subsection
(c)(1)(A), by inserting ‘‘or the United States, as ap-
propriate,’’ after ‘‘person’’ both places it appears;
(4) by redesignating the second sentence of sub-
section (b) as paragraph (3) of subsection (a); and
(5) by amending subsection (b), as so amended,
to read as follows:
‘‘(b)(1) A person who receives from the Secretary a
notification pursuant to section 4322(e) relating to a State
(as an employer) may request that the Secretary refer the
complaint to the Attorney General. If the Attorney Gen-
eral is reasonably satisfied that the person on whose behalf
the complaint is referred is entitled to the rights or bene-
fits sought, the Attorney General may commence an action
for appropriate relief in an appropriate United States dis-
trict court. The action shall be brought in the name of
the United States. In the case that such relief includes
an award of compensation under subsection (c)(1), such
compensation shall be held in a special deposit account
and shall be paid, on order of the Attorney General, di-
rectly to the person. Any such moneys not paid to a person
because of inability to do so within a period of three years
shall be covered into the Treasury of the United States
as miscellaneous receipts.
‘‘(2) A person may commence an action against a
State as an employer 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 Sec-
retary refer the complaint to the Attorney General
under paragraph (1); or
‘‘(C) has been refused representation by the At-
torney General with respect to the complaint under
such paragraph.
‘‘(3)(A) In the case of an action commenced against
a State as an employer under paragraph (2), the action
shall be brought in the name of the United States.
‘‘(B) A copy of the complaint and written disclosure
of substantially all material evidence and information the
person possesses shall be served on the United States pur-
suant to Rule 4(d)(4) of the Federal Rules of Civil Proce-
dure.
‘‘(C)(i) The person bringing the action shall have the
right to conduct the action. If the United States so re-
quests, it shall be served with copies of all pleadings filed
in the action and shall be supplied with copies of all depo-
sition transcripts (at the expense of the United States).
When a person proceeds with the action, the court, with-
out limiting the status and rights of the person initiating
the action, may nevertheless permit the United States to
intervene at a later date upon a showing of good cause.
‘‘(ii) If the United States intervenes and thereafter
proceeds with the action, it shall have the primary respon-
sibility for prosecuting the action, and shall not be bound
by an act of the person bringing the action. Such person
shall have the right to continue as a party to the action.
‘‘(iii) The United States may settle the action with
the defendant notwithstanding the objections of the person
initiating the action if the court determines, after a hear-
ing, that the proposed settlement is fair, adequate, and
reasonable under all the circumstances.
‘‘(D) After intervention by the United States, upon
a showing by the defendant that unrestricted participation
during the course of the litigation by the person initiating
the action would be for purposes of harassment or would
cause the defendant undue burden or unnecessary ex-
pense, the court may limit the participation by the person
in the litigation.
‘‘(4) If the United States does not intervene under
paragraph (3) and the person bringing the action prevails
or settles the claim, the person shall receive appropriate
relief, including an amount for compensation or liquidated
damages under subsection (c)(1). The amount shall be
paid out of the proceeds of the action or settlement. The
person prevailing in the action or settling the claim shall
also receive an amount for reasonable expenses which the
court finds to have been necessarily incurred, plus reason-
able attorneys’ fees and costs. All such expenses, fees, and
costs shall be awarded against the defendant.
‘‘(5) In the case of an action brought under this sub-
section, the appropriate district court is the court for any
district in which the State exercises any authority or car-
ries out any function.
‘‘(6) The United States is not liable for expenses
which a person incurs in bringing an action under this
subsection.’’.
(b) EFFECTIVE DATE.—The amendments made by
subsection (a) shall apply to all actions commenced under
chapter 43 of title 38, United States Code, that are not
final on the date of the enactment of this Act. In the case
of any such action, the court shall, upon motion of a party,
substitute parties to the action so that such action may
proceed in accordance with section 4323 of such title, as
amended by subsection (a) of this section.
Æ