38 U.S.C. § 4323 — Enforcement of rights with respect to a

Page 1012 TITLE 38—VETERANS’ BENEFITS § 4323 Subsec. (e). Pub. L. 104–275, § 311(9)(B)(i), substituted ‘‘with respect to any complaint filed under subsection (a) do not resolve the complaint,’’ for ‘‘with respect to a complaint under subsection (d) are unsuccessful,’’ in introductory provisions. Subsec. (e)(2). Pub. L. 104–275, § 311(9)(B)(ii), inserted ‘‘or the Office of Personnel Management’’ after ‘‘Fed- eral executive agency’’. Statutory Notes and Related Subsidiaries 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 ini- tiated 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 sec- tion 4311 of this title are effective Oct. 13, 1994, see sec- tion 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4323. Enforcement of rights with respect to a State or private employer (a) ACTION FOR RELIEF.—(1) A person who re- ceives from the Secretary a notification pursu- ant to section 4322(e) of this title of an unsuc- cessful effort to resolve a complaint relating to a State (as an employer) or a private employer may request that the Secretary refer the com- plaint to the Attorney General. Not later than 60 days after the Secretary receives such a re- quest with respect to a complaint, the Secretary shall refer the complaint to the Attorney Gen- eral. If the Attorney General is reasonably satis- fied that the person on whose behalf the com- plaint is referred is entitled to the rights or ben- efits 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 chap- ter 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) Not later than 60 days after the date the Attorney General receives a referral under para- graph (1), the Attorney General shall— (A) make a decision whether to appear on behalf of, and act as attorney for, the person on whose behalf the complaint is submitted; and (B) notify such person in writing of such de- cision. (3) A person may commence an action for re- lief 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 Sec- retary refer the complaint to the Attorney General under paragraph (1); or (C) has been refused representation by the Attorney General with respect to the com- plaint 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 jurisdic- tion 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 ac- tion. (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 dis- trict court for any district in which the State exercises any authority or carries out any func- tion. (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 the amount referred to in sub- paragraph (B) and interest on such amount, calculated at a rate of 3 percent per year. (D) The court may require the employer to pay the person the greater of $50,000 or the amount equal to the amounts referred to in subparagraphs (B) and (C) as liquidated dam- ages, if the court determines that the em- ployer knowingly failed to comply with the provisions of this chapter. (2)(A) Any compensation awarded under sub- paragraph (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 subpara- graph (B) or (C) of paragraph (1), such compensa- tion shall be held in a special deposit account and shall be paid, on order of the Attorney Gen- eral, 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 compensa- tion shall be covered into the Treasury of the United States as miscellaneous receipts. (3) A State shall be subject to the same rem- edies, including prejudgment interest, as may be imposed upon any private employer under this section. (e) EQUITY POWERS.—(1) The court shall use, in any case in which the court determines it is ap- propriate, its full equity powers, including tem- porary or permanent injunctions, temporary re- straining orders, and contempt orders, to vindi- cate fully the rights or benefits of persons under this chapter. (2) A person bringing an action to enforce a provision of this chapter pursuant to subsection Page 1013 TITLE 38—VETERANS’ BENEFITS § 4324 (a) shall be entitled to an injunction under para- graph (1) if such person demonstrates— (A) a violation— (i) of the provisions of this chapter; or (ii) of the provisions of this chapter is threatened or is imminent; (B) the harm to the person outweighs the in- jury to the employer; (C) a likelihood of success on the merits of such action; and (D) awarding such relief is in the public in- terest. (3) The court may not deny a motion for in- junctive relief on the basis that a party bringing an action to enforce a provision of this chapter may be awarded wages unearned due to an un- lawful termination or denial of employment at the conclusion of such action. (f) STANDING.—An action under this chapter may be initiated only by a person claiming rights or benefits under this chapter under sub- section (a) or by the United States under sub- section (a)(1). (g) RESPONDENT.—In any action under this chapter, only an employer or a potential em- ployer, 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 per- son claiming rights under this chapter. (2) In any action or proceeding to enforce a provision of this chapter by a person under sub- section (a)(3) who obtained private counsel for such action or proceeding, the court shall award any such person who prevails in such action or proceeding reasonable attorney fees, expert wit- ness fees, and other litigation expenses. (i) DEFINITION.—In this section, the term ‘‘pri- vate employer’’ includes a political subdivision of a State. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3165; amended Pub. L. 104–275, title III, § 311(10), Oct. 9, 1996, 110 Stat. 3335; Pub. L. 105–368, title II, § 211(a), Nov. 11, 1998, 112 Stat. 3329; Pub. L. 110–389, title III, §§ 311(d)(1), (e)(1), (f)(3), 315, Oct. 10, 2008, 122 Stat. 4162–4164, 4167; Pub. L. 118–210, title II, § 221(c), (d), (e)(3), Jan. 2, 2025, 138 Stat. 2778, 2779.) Editorial Notes PRIOR PROVISIONS A prior section 4323 was renumbered section 7623 of this title. AMENDMENTS 2025—Subsec. (d)(1)(C), (D). Pub. L. 118–210, § 221(d), added subpars. (C) and (D) and struck out former sub- par. (C) which read as follows: ‘‘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.’’ Subsec. (e). Pub. L. 118–210, § 221(c), designated exist- ing provisions as par. (1) and added pars. (2) and (3). Subsec. (h)(2). Pub. L. 118–210, § 221(e)(3), substituted ‘‘subsection (a)(3)’’ for ‘‘subsection (a)(2)’’ and ‘‘the court shall award any such person who prevails in such action or proceeding reasonable attorney fees’’ for ‘‘the court may award any such person who prevails in such action or proceeding reasonable attorney fees’’. 2008—Subsec. (a)(1). Pub. L. 110–389, § 311(d)(1), in- serted ‘‘Not later than 60 days after the Secretary re- ceives such a request with respect to a complaint, the Secretary shall refer the complaint to the Attorney General.’’ after ‘‘to the Attorney General.’’ Subsec. (a)(2), (3). Pub. L. 110–389, § 311(e)(1), added par. (2) and redesignated former par. (2) as (3). Subsec. (e). Pub. L. 110–389, § 315, substituted ‘‘shall use, in any case in which the court determines it is ap- propriate,’’ for ‘‘may use’’. Subsecs. (i), (j). Pub. L. 110–389, § 311(f)(3), redesig- nated subsec. (j) as (i) and struck out former subsec. (i) which read as follows: ‘‘INAPPLICABILITY OF STATE STATUTE OF LIMITATIONS.—No State statute of limita- tions shall apply to any proceeding under this chap- ter.’’ 1998—Pub. L. 105–368 amended section generally, sub- stituting present provisions for provisions which had: in subsec. (a), authorized reference of complaint to At- torney 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 limi- tations, and remedies. 1996—Subsec. (a)(1). Pub. L. 104–275, § 311(10)(A), struck out ‘‘of an unsuccessful effort to resolve a com- plaint’’ after ‘‘notification pursuant to section 4322(e)’’. Subsec. (a)(2)(A). Pub. L. 104–275, § 311(10)(B), sub- stituted ‘‘under section 4322(a)’’ for ‘‘regarding the complaint under section 4322(c)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENT Pub. L. 105–368, title II, § 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 com- menced 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 rep- resented 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, sub- stitute 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 ini- tiated 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 sec- tion 4311 of this title are effective Oct. 13, 1994, see sec- tion 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4324. Enforcement of rights with respect to Federal executive agencies (a)(1) A person who receives from the Sec- retary a notification pursuant to section 4322(e) may request that the Secretary refer the com- plaint for litigation before the Merit Systems Protection Board. Not later than 60 days after