Text: S.646 — 115th Congress (2017-2018)All Information (Except Text)

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Introduced in Senate (03/15/2017)


115th CONGRESS
1st Session
S. 646


To amend title 38, United States Code, to improve the enforcement of employment and reemployment rights of members of the uniformed services, to amend the Servicemembers Civil Relief Act to improve the protection of members of the uniformed services, and for other purposes.


IN THE SENATE OF THE UNITED STATES

March 15, 2017

Mr. Blumenthal (for himself, Ms. Hirono, Mr. Franken, Mr. Durbin, and Mr. Whitehouse) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs


A BILL

To amend title 38, United States Code, to improve the enforcement of employment and reemployment rights of members of the uniformed services, to amend the Servicemembers Civil Relief Act to improve the protection of members of the uniformed services, 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; table of contents.

(a) Short title.—This Act may be cited as the “Justice for Servicemembers and Veterans Act of 2017”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 101. Action for relief in enforcement of employment and reemployment rights of members of uniformed services with respect to a State or private employer.

Sec. 102. Waiver of sovereign immunity for enforcement of employment and reemployment rights of members of uniformed services.

Sec. 103. Venue for cases against private employers for violations of employment and reemployment rights of members of uniformed services.

Sec. 104. Standing in cases involving violations of employment and reemployment rights of members of uniformed services by States and private employers.

Sec. 105. Civil investigative demands by Attorney General in enforcement of employment and reemployment rights of members of uniformed services with respect to States and private employers.

Sec. 106. Treatment of disability discovered after employee entitled to reemployment by reason of uniformed service status resumes employment.

Sec. 107. Burden of identifying proper reemployment positions for employees entitled to reemployment by reason of uniformed service status.

Sec. 108. Clarifications regarding scope of employment and reemployment rights of members of the uniformed services.

Sec. 201. Improved protection of members of uniformed services against default judgments.

Sec. 202. Authority for issuance and service of civil investigative demands by Attorney General.

Sec. 203. Oral notice sufficient to invoke interest rate cap.

Sec. 204. Harmonization of sections.

Sec. 205. Expansion of protection for termination of residential and motor vehicle leases.

Sec. 206. Portability of professional licenses of members of the uniformed services and their spouses.

SEC. 101. Action for relief in enforcement of employment and reemployment rights of members of uniformed services with respect to a State or private employer.

(a) Initiation of actions.—Paragraph (1) of subsection (a) of section 4323 of title 38, United States Code, is amended by striking the third sentence and inserting the following new sentences: “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 relief under this chapter, including on behalf of the person. The person on whose behalf the complaint is referred may, upon timely application, intervene in such action and may obtain such appropriate relief as provided in subsections (d) and (e).”.

(b) Attorney General notice to servicemember of decision.—Paragraph (2) of such subsection is amended to read as follows:

“(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 about whether the United States will 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 of when 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.”.

(c) Pattern or practice cases.—Such subsection is further amended—

(1) by redesignating paragraph (3) as paragraph (4); and

(2) by inserting after paragraph (2) (as amended by paragraph (2) of this subsection) 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 or benefits secured by this chapter, the Attorney General may commence an action under this chapter.”.

(d) Actions by private persons.—Subparagraph (C) of paragraph (4) of such subsection, as redesignated by paragraph (3)(A), is amended by striking “refused” and all that follows and inserting “notified by the Attorney General that the Attorney General does not intend to bring a civil action.”.

(e) Conforming amendment.—Subsection (h)(2) of such section is amended by striking “subsection (a)(2)” and inserting “subsection (a)(1) or subsection (a)(4)”.

SEC. 102. Waiver of sovereign immunity for enforcement of employment and reemployment rights of members of uniformed services.

(a) In general.—Paragraph (2) of section 4323(b) of title 38, United States Code, is amended to read as follows:

“(2) (A) In the case of an action against a State (as an employer), any instrumentality of a State, or any officer or employee of a State or instrumentality of a State acting in that officer or employee’s official capacity, by any person, the action may be brought in the appropriate district court of the United States or in a State court of competent jurisdiction, and the State, instrumentality of the State, or officer or employee of the State or instrumentality acting in that officer or employee’s official capacity shall not be immune under the Eleventh Amendment of the Constitution, or under any other doctrine of sovereign immunity, from such action.

“(B) (i) No State, instrumentality of such State, or officer or employee of such State or instrumentality of such State, acting in that officer or employee’s official capacity, that receives or uses Federal financial assistance for a program or activity shall be immune, under the Eleventh Amendment of the Constitution or under any other doctrine of sovereign immunity, from suit in Federal or State court by any person for any violation under this chapter related to such program or activity.

“(ii) In an action against a State brought pursuant to subsection (a), a court may award the remedies (including remedies both at law and in equity) that are available under subsections (d) and (e).”.

(b) Modification of purposes.—Section 4301(a) of such title is amended, in the matter before paragraph (1), by striking “The” and inserting “Pursuant to the power of Congress to enact this chapter under section 8 of article I of the Constitution of the United States, the”.

SEC. 103. Venue for cases against private employers for violations of employment and reemployment rights of members of uniformed services.

Section 4323(c)(2) of title 38, United States Code, is amended by striking “United States district court for any district in which the private employer of the person maintains a place of business.” and inserting “United States district court for—

“(A) any district in which the employer maintains a place of business;

“(B) any district in which a substantial part of the events or omissions giving rise to the claim occurred; or

“(C) if there is no district in which an action may otherwise be brought as provided in subparagraph (A) or (B), any district in which the employer is subject to the court’s personal jurisdiction with respect to such action.”.

SEC. 104. Standing in cases involving violations of employment and reemployment rights of members of uniformed services by States and private employers.

Section 4323(f) of title 38, United States Code, is amended—

(1) by inserting “by the United States or” after “may be initiated only”; and

(2) by striking “or by the United States under subsection (a)(1)”.

SEC. 105. Civil investigative demands by Attorney General in enforcement of employment and reemployment rights of members of uniformed services with respect to States and private employers.

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 by attorney general.— (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 chapter, the Attorney General may, before commencing a civil action under subsection (a), issue in writing and cause to be served 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 governing the authority to issue, use, and enforce civil investigative demands under section 3733 of title 31 (known as the ‘False Claims Act’) shall govern the authority to issue, use, and enforce civil investigative demands under paragraph (1), except that for purposes of that paragraph—

“(A) a reference in that section to false claims law investigators or investigations shall be applied as referring to investigators or investigations under this chapter;

“(B) a reference to interrogatories shall be applied as referring to written questions, and answers to such need not be under oath;

“(C) the statutory definitions for purposes of that section relating to ‘false claims law’ shall not apply; and

“(D) provisions of that section relating to qui tam relators shall not apply.”.

SEC. 106. Treatment of disability discovered after employee entitled to reemployment by reason of uniformed service status resumes employment.

Section 4313(a)(3) of title 38, United States Code, is amended, in the matter before subparagraph (A), by inserting “including a disability that is brought to the employer’s attention within 5 years after the person resumes employment,” after “during, such service,”.

SEC. 107. Burden of identifying proper reemployment positions for employees entitled to reemployment by reason of uniformed service status.

Section 4313 of title 38, United States Code, is amended by adding at the end the following new subsection:

“(c) For purposes of this section, the employer shall have the burden of identifying the appropriate reemployment positions.”.

SEC. 108. Clarifications regarding scope of employment and reemployment rights of members of the uniformed services.

(a) Clarification regarding definition of rights and benefits.—Section 4303(2) of title 38, United States Code, is amended—

(1) by inserting “(A)” before “The term”; and

(2) by adding at the end the following new subparagraph:

“(B) Any procedural protections or provisions set forth in this chapter shall also be considered a right or benefit subject to the protection of this chapter.”.

(b) Clarification regarding relation to other law and plans for agreements.—Section 4302 of such title is amended by adding at the end the following:

“(c) (1) Pursuant to this section and the procedural rights afforded by subchapter III of this chapter, any agreement to arbitrate a claim under this chapter is unenforceable, unless all parties consent to arbitration after a complaint on the specific claim has been filed in court or with the Merit Systems Protection Board and all parties knowingly and voluntarily consent to have that particular claim subjected to arbitration.

“(2) For purposes of this subsection, consent shall not be considered voluntary when a person is required to agree to arbitrate an action, complaint, or claim alleging a violation of this chapter as a condition of future or continued employment, advancement in employment, or receipt of any right or benefit of employment.”.

SEC. 201. Improved protection of members of uniformed services against default judgments.

(a) Appointment of attorney To represent defendant in military service.—Paragraph (2) of section 201(b) of the Servicemembers Civil Relief Act (50 U.S.C. 3931(b)) is amended to read as follows:

“(2) APPOINTMENT OF ATTORNEY TO REPRESENT DEFENDANT IN MILITARY SERVICE.—

“(A) IN GENERAL.—If in an action covered by this section it appears that the defendant is in military service, the court shall not enter a judgment until after the court appoints an attorney to represent the defendant.

“(B) ACTIONS OF ATTORNEY.—

“(i) IN GENERAL.—The court appointed attorney shall act only in the best interests of the defendant.

“(ii) REQUEST FOR STAY OF PROCEEDINGS.—The court appointed attorney, when appropriate to represent the best interests of the defendant, shall request a stay of proceedings under this Act.

“(iii) FAITHFUL PERFORMANCE.—The court shall require the court appointed attorney to perform duties faithfully and, upon failure to do so, shall discharge the attorney and appoint another.

“(C) LOCATION.—

“(i) IN GENERAL.—The court appointed attorney shall use due diligence to locate and contact the defendant.

“(ii) PROVISION OF CONTACT INFORMATION.—The plaintiff must provide to the court appointed attorney all contact information it has for the defendant.

“(iii) REPORT ON EFFORTS TO LOCATE.—A court appointed attorney unable to make contact with the defendant shall report to the court on all of the attorney’s efforts to make contact.

“(iv) IMPLICATIONS OF FAILURE TO LOCATE.—If an attorney appointed under this section to represent a defendant in military service cannot locate the defendant, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember.

“(D) NOTIFICATION AND ASSERTION OF RIGHTS.—

“(i) NOTIFICATION OF RIGHTS.—Upon making contact with the defendant, the court appointed attorney shall advise the defendant of the nature of the lawsuit and the defendant’s rights provided by this Act, including rights to obtain a stay and to request the court to adjust an obligation.

“(ii) ASSERTION OF RIGHTS.—Regardless of whether contact is made under clause (i), the court appointed attorney shall assert such rights on behalf of defendant if there is an adequate basis in law and fact, unless the defendant provides informed consent to not assert such rights.”.

(b) Expansion of authority for court To vacate or set aside judgment.—Paragraph (1) of section 201(g) of the Servicemembers Civil Relief Act (50 U.S.C. 3931(g)) is amended by striking subparagraphs (A) and (B) and inserting the following new subparagraphs (A) and (B):

“(A) (i) the servicemember was materially affected by reason of that military service in making a defense to the action; and

“(ii) the servicemember has a meritorious or legal defense to the action or some part of it; or

“(B) an attorney appointed to represent the servicemember failed to adequately represent the best interests of the defendant.”.

SEC. 202. Authority for issuance and service of civil investigative demands by Attorney General.

(a) In general.—Section 801 of the Servicemembers Civil Relief Act (50 U.S.C. 4041) is amended by adding at the end the following new subsection:

“(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) PROCEDURES.—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 in that section to false claims law investigators or investigations shall be read as references to investigators or investigations;

“(B) references in that section to interrogatories shall be read as references to written questions, and answers to such need not be under oath;

“(C) the statutory definitions relating to ‘false claims law’ shall not apply; and

“(D) provisions relating to qui tam relators shall not apply.”.

(b) Retroactive applicability.—Section 801 of such Act (50 U.S.C. 4041), as amended by subsection (a), shall apply as if such section were included in the enactment of the Soldiers' and Sailors' Civil Relief Act of 1940 (54 Stat. 1178, chapter 888) and included in the restatement of such Act in Public Law 108–189.

SEC. 203. Oral notice sufficient to invoke interest rate cap.

Paragraphs (1) and (2) of section 207(b) of the Servicemembers Civil Relief Act (50 U.S.C. 3937(b)) are amended to read as follows:

“(1) NOTICE TO CREDITOR.—

“(A) IN GENERAL.—In order for an obligation or liability of a servicemember to be subject to the interest rate limitation in subsection (a), the servicemember shall provide to the creditor oral or written notice of military service and any further extension of military service, not later than 180 days after the date of the servicemember's termination or release from military service.

“(B) RECORDS.—The creditor shall retain a record of the servicemember’s oral or written notification.

“(2) LIMITATION EFFECTIVE AS OF DATE OF ORDER TO ACTIVE DUTY.—

“(A) SEARCH OF RECORDS.—Upon receipt of oral or written notice of military service, the creditor shall conduct a search of Department of Defense records available through the Department of Defense Manpower Data Center.

“(B) MILITARY SERVICE CONFIRMED.—If military service is confirmed by a search under subparagraph (A), the creditor shall treat the debt in accordance with subsection (a), effective as of the date on which the servicemember is called to military service.

“(C) MILITARY SERVICE NOT CONFIRMED.—If a search of Department of Defense records under subparagraph (A) does not confirm military service, the creditor shall notify the servicemember and may require the servicemember to provide a copy of the servicemember’s military orders before treating the debt in accordance with subsection (a), effective as of the date on which the servicemember is called to military service.”.

SEC. 204. Harmonization of sections.

(a) In general.—Section 303 of the Servicemembers Civil Relief Act (50 U.S.C. 3953) is amended—

(1) in subsection (b), in the matter before paragraph (1), by striking “filed” and inserting “pending”; and

(2) in subsection (c)(1), by striking “with a return made and approved by the court”.

(b) Repeal of sunset.—Section 710(d) of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (Public Law 112–154; 50 U.S.C. 3953 note) is amended—

(1) by striking “Extension of sunset” and all that follows through “Subsection (c)” and inserting “Elimination of prior sunset.—Subsection (c)”; and

(2) by striking paragraph (3).

SEC. 205. Expansion of protection for termination of residential and motor vehicle leases.

(a) Termination of residential leases.—

(1) IN GENERAL.—Section 305 of the Servicemembers Civil Relief Act (50 U.S.C. 3955) is amended—

(A) in subsection (a)—

(i) in paragraph (1)—

(I) in subparagraph (A), by striking “or” at the end;

(II) in subparagraph (B), by striking the period at the end and inserting “; or”; and

(III) by adding at the end the following new subparagraph:

“(C) in the case of a lease described in subparagraph (C) of subsection (b)(1), the date the lessee is assigned to or otherwise relocates to quarters or a housing facility as described in such subparagraph.”; and

(ii) in paragraph (2), by striking “dependent of the lessee” and inserting “co-lessee”; and

(B) in subsection (b)(1)—

(i) in subparagraph (A), by striking “or” at the end;

(ii) in subparagraph (B)—

(I) by inserting “(as defined in the Joint Federal Travel Regulations, chapter 5, paragraph U5000B)” after “permanent change of station”; and

(II) by striking the period at the end and inserting “; or”; and

(iii) by adding at the end the following new subparagraph:

“(C) the lease is executed by or on behalf of a person who thereafter and during the term of the lease is assigned to or otherwise relocates to quarters of the United States or a housing facility under the jurisdiction of a uniformed service (as defined in section 101 of title 37, United States Code), including housing provided under the Military Housing Privatization Initiative.”.

(2) MANNER OF TERMINATION.—Subsection (c)(1) of such section is amended—

(A) in subparagraph (A)—

(i) by inserting “in the case of a lease described in subsection (b)(1) and subparagraph (A) or (B) of such subsection,” before “by delivery”; and

(ii) by striking “and” at the end;

(B) by redesignating subparagraph (B) as subparagraph (C); and

(C) by inserting after subparagraph (A) the following new subparagraph (B):

“(B) in the case of a lease described in subparagraph (C) of subsection (b)(1), by delivery by the lessee of written notice of such termination, and a letter from the servicemember's commanding officer indicating that the servicemember has been assigned to or is otherwise relocating to quarters of the United States or a housing facility under the jurisdiction of a uniformed service (as defined in section 101 of title 37, United States Code), to the lessor (or the lessor's grantee), or to the lessor's agent (or the agent's grantee); and”.

(b) Waiver impermissible.—Such section is further amended by adding at the end the following new subsection:

“(i) Waiver not permitted.—The provisions of this section may not be waived or modified by the agreement of the parties under any circumstances.”.

SEC. 206. Portability of professional licenses of members of the uniformed services and their spouses.

(a) In general.—Title VII of the Servicemembers Civil Relief Act (50 U.S.C. 4021 et seq.) is amended by inserting after section 705 (50 U.S.C. 4025) the following new section:

“SEC. 705A. Portability of professional licenses of servicemembers and their spouses.

“In any case in which a servicemember has a professional license in good standing in a jurisdiction or the spouse of a servicemember has a professional license in good standing in a jurisdiction and such servicemember or spouse relocates his or her residency because of military orders to a location that is not in such jurisdiction, the professional license or certification of such servicemember or spouse shall be considered valid and in good standing in the jurisdiction of such new residency for the duration of such military orders if such servicemember or spouse—

“(1) provides a copy of such military orders to the licensing authority in the jurisdiction in which the new residency is located;

“(2) remains in good standing with the licensing authority that issued the license; and

“(3) submits to the authority of the licensing authority in the new jurisdiction for the purposes of standards of practice, discipline, and fulfillment of any continuing education requirements.”.

(b) Clerical amendment.—The table of contents in section 1(b) of such Act is amended by inserting after the item relating to section 705 the following new item:


“Sec. 705A. Portability of professional licenses of servicemembers and their spouses.”.