
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 38USC4323]

 
                      TITLE 38--VETERANS' BENEFITS
 
               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
 
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 3 
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 
prevails in 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.

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3165; 
amended Pub. L. 104-275, title III, Sec. 311(10), Oct. 9, 1996, 110 
Stat. 3335; Pub. L. 105-368, title II, Sec. 211(a), Nov. 11, 1998, 112 
Stat. 3329.)


                            Prior Provisions

    A prior section 4323 was renumbered section 7623 of this title.


                               Amendments

    1998--Pub. L. 105-368 amended section generally, substituting 
present provisions for provisions which had: in subsec. (a), authorized 
reference of complaint to Attorney General and commencement of action 
for relief on behalf of person whose complaint was referred; in subsec. 
(b), described appropriate venues in cases where defendant is State or 
private employer; and in subsec. (c), set forth provisions relating to 
jurisdiction, abridgement of rights, court and attorney fees, equity 
power of court, standing, respondents, statute of limitations, and 
remedies.
    1996--Subsec. (a)(1). Pub. L. 104-275, Sec. 311(10)(A), struck out 
``of an unsuccessful effort to resolve a complaint'' after 
``notification pursuant to section 4322(e)''.
    Subsec. (a)(2)(A). Pub. L. 104-275, Sec. 311(10)(B), substituted 
``under section 4322(a)'' for ``regarding the complaint under section 
4322(c)''.


                    Effective Date of 1998 Amendment

    Pub. L. 105-368, title II, Sec. 211(b), Nov. 11, 1998, 112 Stat. 
3330, provided that:
    ``(1) Section 4323 of title 38, United States Code, as amended by 
subsection (a), shall apply to actions commenced under chapter 43 of 
such title on or after the date of the enactment of this Act [Nov. 11, 
1998], and shall apply to actions commenced under such chapter before 
the date of the enactment of this Act that are not final on the date of 
the enactment of this Act, without regard to when the cause of action 
accrued.
    ``(2) In the case of any such action against a State (as an 
employer) in which a person, on the day before the date of the enactment 
of this Act [Nov. 11, 1998], is represented by the Attorney General 
under section 4323(a)(1) of such title as in effect on such day, the 
court shall upon motion of the Attorney General, substitute the United 
States as the plaintiff in the action pursuant to such section as 
amended by subsection (a).''


                    Effective Date of 1996 Amendment

    Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section 
313 of Pub. L. 104-275, set out as a note under section 4301 of this 
title.


                             Effective Date

    Section effective with respect to reemployments initiated on or 
after the first day after the 60-day period beginning Oct. 13, 1994, 
with transition rules, except that provisions necessary for 
implementation of section 4311 of this title are effective Oct. 13, 
1994, see section 8 of Pub. L. 103-353, set out as a note under section 
4301 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 4322, 4332 of this title; 
title 2 section 1316; title 3 section 416.
