S 2299
Version: Introduced
Author: Murray
112th CONGRESS
2d Session
S. 2299
To amend the Servicemembers Civil Relief Act and title 38, United States Code,
to improve the provision of civil relief to members of the uniformed services
and to improve the enforcement of employment and reemployment rights of such
members, and for other purposes.
IN THE SENATE OF THE UNITED STATES
April 18, 2012
Mrs. Murray (for herself, Mr. Begich, Mr. Whitehouse, Mr. Rockefeller, and Mr.
Akaka) introduced the following bill; which was read twice and referred to the
Committee on Veterans' Affairs
A BILL
To amend the Servicemembers Civil Relief Act and title 38, United States Code,
to improve the provision of civil relief to members of the uniformed services
and to improve the enforcement of employment and reemployment rights of such
members, 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 "Servicemembers Rights Enforcement Improvement Act
of 2012".
SEC. 2. MODIFICATION OF PLAINTIFF AFFIDAVIT FILING REQUIREMENT FOR DEFAULT
JUDGMENTS AGAINST SERVICEMEMBERS.
Paragraph (1) of section 201(b) of the Servicemembers Civil Relief Act (50
U.S.C. App. 521(b)) is amended to read as follows:
"(1) Plaintiff to file affidavit.--
"(A) In general.--In any action or proceeding covered by this section, the
plaintiff, before seeking a default judgment, shall file with the court an
affidavit--
"(i) stating whether or not the defendant is in military service and showing
necessary facts to support the affidavit; or
"(ii) if the plaintiff is unable to determine whether or not the defendant is
in military service, stating that the plaintiff is unable to determine whether
or not the defendant is in military service.
"(B) Due diligence.--Before filing the affidavit, the plaintiff shall conduct a
diligent and reasonable investigation to determine whether or not the defendant
is in military service, including a search of available records of the
Department of Defense and any other information available to the plaintiff. The
affidavit shall set forth in the affidavit all steps taken to determine the
defendant's military status.".
SEC. 3. RETROACTIVE APPLICATION OF PRIVATE RIGHT OF ACTION UNDER SERVICEMEMBERS
CIVIL RELIEF ACT.
Section 802(a) of the Servicemembers Civil Relief Act (50 U.S.C. App. 597a(a))
shall apply with respect to violations of such Act occurring on or after
December 19, 2003.
SEC. 4. ENFORCEMENT OF RIGHTS OF MEMBERS OF UNIFORMED SERVICES WITH RESPECT TO
STATES AND PRIVATE EMPLOYERS.
(a) Action for Relief.--Subsection (a) of section 4323 of title 38, United
States Code, is amended--
(1) in paragraph (1)--
(A) by striking "appear on behalf of, and act as attorney for, the person on
whose behalf the complaint is submitted and";
(B) by striking "for such person";
(C) by striking the fourth sentence; and
(D) by adding at the end the following: "The person on whose behalf the
complaint is referred may, upon timely application, intervene in such action,
and may obtain such appropriate relief as is provided in subsections (d) and
(e).";
(2) by striking paragraph (2) and inserting the following new paragraph (2):
"(2)(A) Not later than 60 days after the date the Attorney General receives a
referral under paragraph (1), the Attorney General shall transmit, in writing,
to the person on whose behalf the complaint is submitted--
"(i) if the Attorney General has made a decision to commence an action for
relief under paragraph (1) relating to the complaint of the person, notice of
the decision; and
"(ii) if the Attorney General has not made such a decision, notice of when the
Attorney General expects to make such a decision.
"(B) If the Attorney General notifies a person that the Attorney General
expects to make a decision under subparagraph (A)(ii), the Attorney General
shall, not later than 30 days after the date on which the Attorney General
makes such decision, notify, in writing, the person of such decision.";
(3) by redesignating paragraph (3) as paragraph (4), (4) by inserting after
paragraph (2) the following new paragraph (3):
"(3) Whenever the Attorney General has reasonable cause to believe that a State
(as an employer) or a private employer is engaged in a pattern or practice of
resistance to the full enjoyment of any of the rights and benefits provided for
under this chapter, and that the pattern or practice is of such a nature and is
intended to deny the full exercise of such rights and benefits, the Attorney
General may commence an action for relief under this chapter."; and
(5) in paragraph (4), as redesignated by paragraph (3), by striking
subparagraph (C) and inserting the following new subparagraph (C):
"(C) has been notified by the Attorney General that the Attorney General does
not intend to commence an action for relief under paragraph (1) with respect to
the complaint under such paragraph.".
(b) Standing.--Subsection (f) of such section is amended to read as follows:
"(f) Standing.--An action under this chapter may be initiated only by the
Attorney General or by a person claiming rights or benefits under this chapter
under subsection (a).".
(c) Conforming Amendment.--Subsection (h)(2) of such section is amended by
striking "under subsection (a)(2)" and inserting "under paragraph (1) or (4) of
subsection (a)".
SEC. 5. SUBPOENA POWER FOR SPECIAL COUNSEL IN ENFORCEMENT OF EMPLOYMENT AND
REEMPLOYMENT RIGHTS OF MEMBERS OF UNIFORMED SERVICES WITH RESPECT TO FEDERAL
EXECUTIVE AGENCIES.
Section 4324 of title 38, United States Code, is amended by adding at the end
the following new subsection:
"(e)(1) In order to carry out the Special Counsel's responsibilities under this
section, the Special Counsel may require by subpoena the attendance and
testimony of Federal employees and the production of documents from Federal
employees and Federal executive agencies.
"(2) In the case of contumacy or failure to obey a subpoena issued under
paragraph (1), upon application by the Special Counsel, the Merit Systems
Protection Board may issue an order requiring a Federal employee or Federal
executive agency to comply with a subpoena of the Special Counsel.
"(3) An order issued under paragraph (2) may be enforced by the Merit Systems
Protection Board in the same manner as any order issued under section 1204 of
title 5, United States Code.".
SEC. 6. ISSUANCE AND SERVICE OF CIVIL INVESTIGATIVE DEMANDS BY ATTORNEY
GENERAL.
(a) Issuance Under Servicemembers Civil Relief Act.--Section 801 of the
Servicemembers Civil Relief Act (50 U.S.C. App. 597) is amended by adding at
the end the following:
"(d) Issuance and Service of Civil Investigative Demands.--
"(1) In general.--Whenever the Attorney General has reason to believe that any
person may be in possession, custody, or control of any documentary material
relevant to an investigation under this Act, the Attorney General may, before
commencing a civil action under subsection (a), issue in writing and serve upon
such person, a civil investigative demand requiring--
"(A) the production of such documentary material for inspection and copying;
"(B) that the custodian of such documentary material answer in writing written
questions with respect to such documentary material; or
"(C) the production of any combination of such documentary material or answers.
"(2) False claims.--The provisions of section 3733 of title 31, United States
Code, governing the authority to issue, use, and enforce civil investigative
demands shall apply with respect to the authority to issue, use, and enforce
civil investigative demands under this section, except that, for purposes of
applying such section 3733--
"(A) references to false claims law investigators or investigations shall be
considered references to investigators or investigations under this Act;
"(B) references to interrogatories shall be considered references to written
questions, and answers to such need not be under oath;
"(C) the definitions relating to `false claims law' shall not apply; and
"(D) provisions relating to qui tam relators shall not apply.".
(b) Issuance Under Chapter 43 of Title 38, United States Code.--
Section 4323 of title 38, United States Code, is amended--
(1) by redesignating subsection (i) as subsection (j); and
(2) by inserting after subsection (h) the following new subsection (i):
"(i) Issuance and Service of Civil Investigative Demands.--
(1) Whenever the Attorney General has reason to believe that any person may be
in possession, custody, or control of any documentary material relevant to an
investigation under this subchapter, the Attorney General may, before
commencing a civil action under subsection (a), issue in writing and serve upon
such person, a civil investigative demand requiring--
"(A) the production of such documentary material for inspection and copying;
"(B) that the custodian of such documentary material answer in writing written
questions with respect to such documentary material; or
"(C) the production of any combination of such documentary material or answers.
"(2) The provisions of section 3733 of title 31 governing the authority to
issue, use, and enforce civil investigative demands shall apply with respect to
the authority to issue, use, and enforce civil investigative demands under this
section, except that, for purposes of applying such section 3733--
"(A) references to false claims law investigators or investigations shall be
considered references to investigators or investigations under this subchapter;
"(B) references to interrogatories shall be considered references to written
questions, and answers to such need not be under oath;
"(C) the definitions relating to `false claims law' shall not apply; and
"(D) provisions relating to qui tam relators shall not apply.".