HR 3538

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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.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the “Veterans’ Job Protection 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 employer” after “commence an action” in the matter 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 appropriate,” after “person” both places it appears;

(4) by redesignating the second sentence of subsection (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 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 commence an action for appropriate relief in an appropriate United States district 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, directly 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 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.

“(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 pursuant to Rule 4(d)(4) of the Federal Rules of Civil Procedure.

“(C)(i) The person bringing the action shall have the right to conduct the action. If the United States so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts (at the expense of the United States). When a person proceeds with the action, the court, without 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 responsibility 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 hearing, 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 expense, 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 reasonable 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 subsection, the appropriate district court is the court for any district in which the State exercises any authority or carries 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. <all>