[House Report 111-111]
[From the U.S. Government Publishing Office]
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
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
(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 corrective 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 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.
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 (including 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.
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
* * * * * * *
Sec. 4322. Enforcement of employment or reemployment rights
[(a) A person who claims that--
[(1) such person is entitled under this chapter to
employment or reemployment rights or benefits with
respect to employment by an employer; and
[(2)(A) such employer has failed or refused, or is
about to fail or refuse, to comply with the provisions
of this chapter; or
[(B) in the case that the employer is a Federal
executive agency, 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,
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) [Such 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.
* * * * * * *
[(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.
[(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--
[(1) the results of the Secretary's investigation;
and
[(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 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.
* * * * * * *
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)] 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 [section 4322(a)] section 4322(a)(1) of this title;
* * * * * * *
Sec. 4324. Enforcement of rights with respect to Federal executive
agencies
(a)(1) A person who receives from the [Secretary] Special
Counsel a notification pursuant to [section 4322(e)] section
4322(e)(2) may request that the [Secretary] Special Counsel
refer the complaint for litigation before the Merit Systems
Protection Board. [Not 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 [Secretary]
Special Counsel for assistance under [section 4322(a)]
section 4322(a)(2) of this title;
(2) has received a notification from the [Secretary]
Special Counsel under [section 4322(e)] section
4322(e)(2) of this title;
* * * * * * *
Sec. 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
[section 4322(d)] section 4322(d)(1).
* * * * * * *
Sec. 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
[Secretary] Secretary or the Special Counsel considers relevant
to the investigation.
(b) In carrying out any investigation under this chapter, the
[Secretary] 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 [Secretary] 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.
(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
[Secretary] Secretary or the Special Counsel or to comply with
any order of the [Secretary] 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 [Secretary]
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
* * * * * * *
[SEC. 204. DEMONSTRATION PROJECT FOR REFERRAL OF USERRA CLAIMS AGAINST
FEDERAL AGENCIES TO THE OFFICE OF SPECIAL COUNSEL.
[(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.
[(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.
[(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.
[(c) Referral of Other Claims Against Federal Executive
Agencies.--(1) Under the demonstration project, the Secretary--
[(A) shall refer to the Office of Special Counsel all
claims described in paragraph (2) made during the
period of the demonstration project; and
[(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.
[(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.
[(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.
[(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''.
[(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.
[(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.
[(f) Evaluations and Report.--(1) The Comptroller General of
the United States shall conduct periodic evaluations of the
demonstration project under this section.
[(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:
[(A) A description of the operation and results of
the demonstration program, including--
[(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
[(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.
[(B) An assessment of whether referral to the office
of special counsel of claims under the demonstration
project--
[(i) improved services to servicemembers and
veterans; or
[(ii) significantly reduced or eliminated
duplication of effort and unintended delays in
resolving meritorious claims of those
servicemembers and veterans.
[(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.
[(D) Such other recommendations for administrative
action or legislation as the Comptroller General
determines appropriate.
[(g) Definitions.--In this section:
[(1) The term ``Office of Special Counsel'' means the
Office of Special Counsel established by section 1211
of title 5, United States Code.
[(2) The term ``Secretary'' means the Secretary of
Labor.
[(3) The term ``Federal executive agency'' has the
meaning given that term in section 4303(5) of title 38,
United States Code.]
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