Executive Summary

Since the tragic events of September 11, 2001 and our country’s involvement in Afghanistan and Iraq, millions of troops have deployed overseas in the interest of protecting our nation and advancing others. Over seven years of war has caused record high deployment rates of citizen soldiers, who have the responsibility of maintaining employment while waiting for their call to serve our country. Many of these soldiers, who struggle daily to balance their dual military and civilian lives, have returned home to find that same contract of balance not upheld by their employer. As a result, complaints of military leave violations have been on the rise since 2002 as countless employers have violated the rules laid out in the Uniformed Services Employment and Re-employment Act (USERRA). 

It is the responsibility and duty of the federal government to provide these esteemed service members with the best possible resources to combat the employment problems they face back home. From the Department of Labor, Veterans’ Employment and Training service to the Office of Special Counsel, the government has failed in this responsibility. These Federal Agencies have proven to be only a maze of bureaucracy and red tape for veterans to navigate upon their return home. Instead of being provided with the immediate assistance they require to transition back into civilian life, the program has held claims in review for years, often encouraging the claimants to withdraw their allegations or simply dismissing them and then having a private attorney get involved to recover damages in the six figures.

The men and women who have so bravely served our country deserve a system that will be responsive and efficient. The only way to have effective enforcement of USERRA is through proper representation, which has not been seen with the Department of Labor and the Office of Special Counsel. Through the aggressive and successful representation by private attorneys, allegations of discrimination under USERRA are prosecuted in a timely manner, giving military personnel the respect they deserve in return for protecting our country.

To improve the effectiveness of USERRA, several initiatives have been proposed. These initiatives include: referring USERRA claims to privately retained attorneys, mandating attorneys’ fees when a USERRA allegation is proven, allowing judges to award liquidated, compensatory and punitive damages, and giving the Office of Special Counsel disciplinary authority so that federal supervisors are held personally accountable for their violations of USERRA.

These recommendations will provide military personnel with an outlet to effectively pursue, prosecute and protect the rights they have earned through their service and are the first step towards eliminating claims of military discrimination.

Mr. Chairman and distinguished members of the committee, I am honored to appear before you today to speak about my experiences with the Department of Labor, Veterans’ Employment and Training Program Claim Referral Program to the Office of Special Counsel. As a Major in the New York Army National Guard and a veteran of Operation Iraqi Freedom, the matters of today’s hearing are of particular importance to me.

In order for you to better understand my connection to the expiring VA program of discussion today, I would like to provide you with some information about myself. From 1991 to 1995, I was enrolled in the Reserve Officer Training Corp (ROTC) at Hofstra University with my current law partner, Greg Rinckey. In May of 1995, I was commissioned as a Second Lieutenant in the United States Army and I found myself unemployed while awaiting the Officer Basic Course. I applied for several law enforcement positions with the Federal Bureau of Prisons and was hired on August 20, 1995. In early October of the same year, I was activated to attend military schooling and remained on active duty until April 1998.

During the entire time that I was on active duty, I was placed on leave without pay status under USERRA by the Bureau of Prisons. Almost immediately upon my return from active duty, I was subjected to intentional violations of USERRA by my superiors as a result of my military service. The discrimination varied from receiving poor performance evaluations during the time I was away performing military duty, which is a period of time that should not be evaluated, to being publicly ridiculed for making the Bureau of Prisons fill my position with overtime employees and “Blowing the Budget”.

Throughout late 1999 to early 2000, I filed numerous complaints with the Merit Systems Protection Board (MSPB) against the Bureau of Prisons alleging violations of USERRA. I pursued this avenue after being told, repeatedly, by Labor Law attorneys that going through the Department of Labor would only result in delays. This was confirmed by various members of my military unit, who had gone through employment issues as well. As a result, I chose to exercise my rights under USERRA and to file my allegations of USERRA violations directly with the MSPB. Very shortly after the claims were filed, the Bureau of Prisons conducted an internal investigation. It can be assumed that the investigation found merit to my allegations, as I was offered a substantial cash settlement and paid leave to withdraw my claims and resign from employment with the agency.

The large sum of money and extended paid time off were too enticing to turn down, given my recent enrollment in law school. As such, I entered into a settlement agreement with the agency, which contains a confidentiality clause and prevents discussing the details of the case.

While out on extended paid leave pursuant to the agreement, I began looking for other employment opportunities. Without many prospects on the horizon, I sought a vacant position at another Bureau of Prisons institution in August 2000.  In late 2000, I found out that, once the institution became aware of my prior protected USERRA activities, they refused to process my application for employment.

While I had already found employment as a paralegal with Morgan Stanley, I was deeply disturbed that I was being subjected to further retaliation by the Bureau of Prisons only months after they had entered into a settlement agreement with me. It was my understanding that this agreement reflected their implicit acknowledgement of supervisory employees violating USERRA. As a result, I filed another USERRA complaint, which continued for many years against the Department of Justice and alleged, inter alia, that my application for employment was not processed in retaliation of my prior protected USERRA activities.

In the meantime, on September 11, 2001 my office on the 65th floor of the World Trade Center came under attack. After September 11th, I served with the New York Army National Guard at Ground Zero for many weeks. In May 2002, I graduated from law school and was admitted to practice law before the New York State Courts.

In January 2003, I sold my cooperative apartment overlooking New York Harbor and moved with my wife Kimberly to our ski condo in upstate New York. It was at that point that I opened a law firm out of the back bedroom of my house. Some of my earliest clients were colleagues from the Bureau of Prisons, who asked me to represent them in employment matters, including allegations of EEO violations, whistle blowing violations and disciplinary actions.

In February 2004, my current law partner and long time friend, Greg Rinckey, returned from active duty and we entered into a law partnership together. Throughout 2004, the number of cases we received from federal employees increased so dramatically that we hired several associates to accommodate the influx of clients.

In June of 2005, I received orders to report to Iraq with the 42nd Infantry Division. On July 30, 2006, I reported to Fort Drum, New York for deployment training and was subsequently deployed to Iraq, where I served as the Division Chief of Operations. This deployment, as determined by the United States Small Business Administration, resulted in my law firm suffering financial losses in the amount of $173,000.00. The Small Business Administration provided my firm with a Disaster Assistance Loan for the above-mentioned amount to help recover from my deployment. In addition to the financial suffering, I was also injured and have subsequently been rated by the United States Department of Veterans’ Affairs to be 60% disabled.

On March 21, 2007, nearly seven years after I originally filed my complaint with the MSPB alleging that the Bureau of Prisons retaliated against me by failing to process my application, the New York Regional Office of the MSPB awarded me nearly $300,000.00 in back pay and benefits. The Board also ordered the Bureau of Prisons to appoint me, effective August 22, 2002, to the position of Correctional Officer. The initial decision of the Board became final on April 5th, 2007, when neither the Agency nor I appealed. As of this date, the Bureau of Prisons has not reinstated me to the position of Correctional Officer, nor has it timely paid me the back pay, interest and accrued leave that I am owed. I believe, as evidenced by the MSPB’s decision in my favor awarding me substantial back pay as well as the original settlement agreement with the Bureau of Prisons in 2000, that all of my allegations of misconduct by Department of Justice officials have been vindicated.  

Due to my personal experiences as a victim of USERRA discrimination as well as being a member of the New York Army National Guard and an Iraqi War Veteran, I have over the past several years built a considerable law practice, primarily representing others who have been victimized by their employers in violation of USERRA.

As such, I have dealt with the Department of Labor extensively, on both a personal and professional level.  While the overall focus should be to eliminate discrimination against military personnel as a whole, the first step towards achieving that goal is to maintain a harsh and critical review of USERRA complaints.

FROM FEBRUARY 8, 2005 THROUGH DECEMBER 30, 2006

According to the United States Government Accountability Office, report number GAO-07-907, during the time period February 8, 2005 to September 30, 2006 the Department of Labor investigated 166 allegations of USERRA discrimination by federal employees. During that same time period, the Office of Special Counsel investigated 269 allegations for USERRA discrimination. I would point out that, during the same time, my law firm not only investigated but prosecuted before the MSPB a total of 1,802 cases. That represents more than 4 times the combined number of cases that the Department of Labor and the Office of Special Counsel handled.

I would also point out that, on page 9 of the GAO report, it listed 189 employees with the Department of Labor who are responsible for investigating USERRA complaints (my firm has under 20). On page 16 of the GAO report, the Department of Labor said only about 7% of those 166 cases were referred for prosecution.  That means only approximately 12 cases during the time period relevant to the GAO report was a DOL case actually prosecuted. By contrast, in a July 6th, 2007 response to the GAO report, the Office of Special Counsel was proud of its 25% corrective rate, which translates into 67 times during the relevant time period that a federal employee received corrective action from the Office of Special Counsel.

I find these numbers to be astonishing, given my firm’s experience and success in helping federal employees win USERRA claims before the MSPB. I would point out that, of the 1,802 cases prosecuted by my firm during the relevant time period, our clients received the remedy they sought in approximately 73% of the cases. That translates into a success rate nearly three times that of the Office of Special Counsel and at least ten times better than the Department of Labor.

Further, I would respectively point out that the GAO report referenced above does not provide the proper context as to how a claim is investigated to any of the committees it reported to. Specifically, I would note that, on page 38 of the report, it admits that it did not contact any private law firm or attorneys that specialize in USERRA litigation. Had it contacted my firm or the handful of others who concentrate their practice in USERRA enforcement, they would have learned that very few service members who believe they are a victim of USERRA discrimination go to the Department of Labor. In my opinion, the Department of Labor has developed a reputation of poor investigative work and poor use of investigative tools, such as ordering subpoenas and sworn testimony by employers. Further, the non-responsive nature of investigators and outrageously long processing times have only caused additional decline in the agency’s status.

I would also point out that the GAO report incorrectly shows figures describing how USERRA claims are processed. I note on page 8 of the report that it fails to list the retention of a private attorney for the investigation and prosecution of claims. I believe that it is important to address that private attorneys, like myself and the others within my firm, handle many more cases per year than the Department of Labor, the Department of Justice and the Office of Special Counsel combined.

THE THREE METHODS OF BRINGING A USERRA COMPLAINT

1. Department of Labor

In my opinion, the Department of Labor has proven time after time that they do not aggressively investigate allegations of USERRA discrimination or retaliation. This is evidenced by the low number of Reservists and National Guardsman who go to the Department of Labor for help. I find it obscene that the Department of Labor has 189 personnel assigned in various capacities to investigate USERRA violations and yet my firm consistently investigates more allegations of USERRA violations with an astronomically higher corrective rate.

As such, committee members and others on Capital Hill should consider abolishing this program and shifting the resources going to DOL VETS to the Department of Defense, Employers’ Support of the Guard and Reserve (ESGR). ESGR could handle all of the educational briefings that DOL Vets claims it does. In fact, I believe the Federal Government could save millions of dollars over the next decade by simply abolishing the Department of Labor’s involvement in USERRA enforcement and mandating the award of attorneys’ fees and litigation costs when a victim successfully proves his or her case of discrimination or retaliation.

2. Office of Special Counsel

In 2000, the Demonstration Project fundamentally altered the manner in which USERRA claims are processed by granting the Office of Special Counsel (OSC) the authority to receive and investigate claims when the filing servicemember had a social security number ending with an odd integer or the matter deals with a violation of veterans’ preference rights under 5 USC § 2302(b)(11), effectively dividing USERRA review between VETS and OSC. VETS investigates all other claims and remains responsible for referring unresolved claimant matters to OSC or the Department of Justice (DOJ) at the election of the filing claimant.

While the Office of Special Counsel has a more successful history of investigating and prosecuting violations of USERRA than the Department of Labor, they have still failed to provide efficient and timely representation for claimants. Their success rate is sub par and average processing time is delayed beyond excuse. The inadequacies of the appeal process cannot be corrected by merely implementing a DOL VETS referral system. The tangible effect of which would merely result in an additional bureaucratic layer, which will increase the processing time of USERRA complaints

  Moreover, the referral system failed to provide remedies for those claimants who are dissuaded from pursuing their claim with OSC. My law firm is consistently contacted by claimants who were encouraged to withdraw their claims from the OSC or have had their cases held up in review only to see them dismissed. I am glad to hear that the demonstration project with OSC ended in January 2008.

3. Private Law Firms

Currently, Tully Rinckey is the largest firm in the country that handles extensive numbers of USERRA cases. We handle USERRA cases not only against the Federal Government, but against states and private employers as well. Our track record of success is well documented and has resulted in the firm receiving an average of forty-five new USERRA allegations per week.

Despite the dramatically higher number of cases we investigated during the period of time relevant to the GAO report, we also had a substantially higher success rate in comparison to the Department of Labor and Office of Special Counsel. While the ultimate goal should be to end discrimination against members of the National Guard and Reserves, these numbers clearly indicate that the best practice for handling matters of military discrimination is through private attorneys, not Government entities.

If this committee wants to protect today’s military personnel and ensure that allegations under USERRA are properly prosecuted and investigated, it must not limit its research to the Department of Labor and the Office of Special Counsel. It must also focus on the overwhelming success of persons who retain private attorneys.

THE SOLUTION

Not only am I going to provide this committee with my opinions, observations, and thoughts, but also common sense solutions that will achieve Congress’ intent of making the Federal Government the model employer, while dramatically reducing the number of people discriminated against because of their military service. In the absence of the referral program, these recommendations will provide an efficient and effective system of representation for USERRA claimants. My suggestions are as follows:

1. Make attorneys’ fees mandatory when a victim proves his/her allegations.

2. Give USERRA teeth by allowing judges to award liquidated, compensatory and        punitive damages.

3. Give the Office of Special Counsel disciplinary authority and make federal supervisors personally accountable for their violation of USERRA, as is provided under the Hatch Act.

4. Implement strict deadlines for the processing and completion of USERRA claims.

In order for the above suggestions to be implemented, USERRA must incorporate the following amendments:

USERRA should be amended to mandate the payment of reasonable attorneys’ fees, expert witness fees and other litigation expenses where the claimant has procured an Order directing the employer to comply with the provisions of the statute after a hearing or adjudication.

In a recent decision, the Court of Appeals for the Federal Circuit determined that while the MSPB mayaward attorneys’ fees and litigation costs to successful USERRA claimants, such awards are not mandatory under 38 U.S.C. § 4324(c)(4).  See, Jacobsen v. Department of Justice, 2007 US App LEXIS 22412.  The statute should be amended to specifically overrule this interpretation.

The award of reasonable attorneys’ fees and litigation costs is par-for-the-course in virtually all other forms of employment discrimination and veterans’ benefits legislation.  For example, 33 U.S.C. § 918 entitles Longshoremen and harbor workers to attorneys’ fees in successful employment discrimination and workers’ compensation claims.  Similarly, whistleblowers and veterans discriminated against in violation of the Veterans Employment Opportunities Act are also entitled to an award of attorneys’ fees and litigation costs, just to name a few.[1] Congress clearly intended to ensure that veterans who have meritorious employment discrimination complaints will not be deterred from bringing such claims due to costs associated with the effective assistance of counsel.

This intent must be stated in an amendment to USERRA so that no deserving claimant will be forced to bear the burden of his or her own legal representation or worse, be deterred from bringing the claim due to economic hardship. Congress enacted USERRA to protect veterans from unlawful discrimination in their employment because of their military service.  An essential aspect of that protection is ensuring that aggrieved Veterans have access to affordable, skilled and experienced legal counsel to successfully enforce their rights under USERRA.

Furthermore, over the past two years, the GAO has conducted multiple investigations into the efficiency of USSERA enforcement.[2]  The reports unanimously conclude that the Department of Labor (DOL) and the Department of Justice (DOJ) are failing our service men and women in their administration of USERRA.  The GAO found deficiencies in the manner in which both departments advised claimants, processed claims and enforced claimants’ rights.[3] 

The current enforcement scheme and the program in question fail to provide adequately for victims of USERRA violations.  Such a systematic failure to properly administer the provisions and protections of the Act cannot be justified.  Under the circumstances, the only efficient and effective method of redress for victims of USERRA violations is representation by private counsel who will zeolously pursue their claim.  Given this fact, a mandatory award of attorneys’ fees is imperative in the interest of justice. No victim of a USERRA violation should have to endure two harms as a result of an unlawful employment practice, namely, the denial of a benefit of employment and the financial burden of enforcing his or her rights in the face of such a violation.

With this in mind, I propose that 38 U.S.C. § 4324(c)(4) be deleted and replaced with the following language:

(c) (4) If the Merit Systems Protection Board determines as a result of a hearing or adjudication that the claimant is entitled to an order referred to in paragraph (2), the Board shall order the agency to comply with such provisions and award compensation for any loss of wages or benefits suffered by the individual by reason of the violation involved. A successful claimant SHALL be awarded reasonable attorneys’ fees, expert witness fees, and other litigation expenses.  (Emphasis added). 

Similarly, I propose that 38 U.S.C. § 4323(h)(2), which governs the remedies available to State and private employees, be amended to read as follows:

(h)(2) In any action or proceeding to enforce a provision of this chapter [38 USCS §§ 4301 et seq.] by a person under subsection (a)(2) who obtained private counsel for such action or proceeding, the court SHALL award any such person who prevails in such action or proceeding reasonable attorneys’ fees, expert witness fees, and other litigation expenses. (Emphasis added.)

These amendments are a cost-neutral and minimally restrictive method for achieving congressional goals. By mandating the payment of reasonable attorneys’ fees and litigation costs, the amendment will effectively overrule the prejudicial holding in Jacobsen and eliminate the barrier between aggrieved veterans and the legal counsel they need to adequately pursue their rights. It would also finally place USERRA on equal ground with other employment discrimination and Veterans’ benefits statutes, thereby effectuating the intent of Congress. This minor revision will provide veterans the best option for enforcing their rights, enabling them to retain private counsel and bypass the failed referral system.

Moreover, the change will prevent malicious and detrimental agency action.  By making attorneys’ fees a statutory benefit under the Act, we can prevent the malicious and injurious agency conduct, which occurred in Seitz v. Department of Veterans’ Affairs. [4]  In Seitz, the agency intentionally protracted the litigation, thereby increasing the amount of the claimant’s litigation costs and attorneys’ fees.  On the eve of the hearing, however, the agency paid the claimant the disputed amount of damages and sought to moot the claim.  As a result of the agency’s litigation tactics, an award only in the amount of the claimant’s disputed damages was grossly insufficient to return the claimant to the Status Quo Ante.  The Board ultimately concluded that the inappropriate conduct of the agency entitled the claimant to litigate the issue of attorneys’ fees. 

Nonetheless, codification of this principle is essential.  Only by expressly incorporating the claimant’s statutory entitlement to attorneys’ fees can we prevent the aforementioned disingenuous conduct. An agency must not be allowed to take actions that facilitate unnecessary legal expenses and then, at the last minute, pay the claimant damages in order to render the claim moot. This conduct places the burden of legal representation on the claimant, in violation of Congressional intent and the prevailing equitable considerations favoring retention of private counsel by USERRA claimants.

USERRA must be amended to expand the availability of liquidated damages for successful claimants.

USERRA currently provides limited instances where a successful claimant may be awarded liquidated damages.  Pursuant to section 4323(d)(1)(C), if a claimant was found to be the victim of a willful violation, he or she is entitled to liquidated damages in the amount of his or her actual damages.  The provision, however, applies only to servicemen and women employed by state or local governments or private employers.

H.R. 3393, proposes to amend section 4323(d) by extending its coverage to federal government employees and by ensuring that liquidated damages will always be available to victims of willful USERRA violations.  The bill seeks to increase the amount of liquidated damages available to a successful claimant from the amount of his/her actual damages to the greater of either $20,000.00 or the claimant’s actual damages.  I support these proposals and hope to see both of them implemented. 

The payment of liquidated damages is often the only true award granted to victims of USERRA violations.  For example, if the victim of a wrongful termination under USERRA promptly finds comparable work, his or her actual damages may be quite small.  As a result, an award of additional liquidated damages that merely doubles his or her miniscule actual damages award is an insufficient deterrent to employers who would discriminate against military personnel in civilian employment.  Liquidated damages of the greater of either $20,000.00 or the claimant’s actual damages should be available to USERRA claimants in every case.

It is imperative that the language in HR 3393 extend this provision is adopted to protect federal employees in the same manner as state and private employees.  The purpose of USERRA is to protect ALL veterans, reservists and National Guard members irrespective of their place of employment.  By treating our service men and women differently by virtue of their employer we are defeating the very basis of the statute.  USERRA demands parity.  Justice demands parity.  Equitable treatment among all USERRA eligible employees is an ethical absolute and is necessary to fulfill the intent of Congress by extending the promise of USERRA protections to all eligible employees.

Therefore, I propose that section 4323(d) be amended to read as follows:

(1) In any action under this section, the court may award relief as follows:  (C) If the court determines that an employer has failed to comply with the provisions of this chapter, the court SHALL require the employer to pay the person as liquidated damages an amount equal to the greater of:…(i) the amount referred to in subparagraph(B); or (ii) $20,000.00. (Emphasis added).

Additionally, section 4324(c) must be amended, pursuant to 38 U.S.C. §§ 4301 and 4331, to provide the same protection.  I propose that 38 U.S.C. 4324(c) be amended to add a new subsection (7) which reads as follows:

(7) In any action under this section, the court may award relief as follows: (i) if the court determines that an employer has failed to comply with the provisions of this chapter, the court SHALL require the employer to pay the person as liquidated damages an amount equal to the greater of: (A) the amount referred to in subparagraph(C)(2); or (B) $20,000.00. (Emphasis added).

USERRA must be amended to mandate the payment of complete compensatory damages for successful claimants.

Currently, USERRA does not provide a statutory entitlement to compensatory damages for successful claimants. This is an anomaly in employment discrimination and veterans’ benefits legislation.[5] Pursuant to 38 U.S.C. §§ 4301 and 4331, USERRA must be amended to provide comparable relief to federal employees for violations of the Act. Law and equity demand that USERRA eligible employees receive the same quality anti-discrimination protection as all other employees.

Title VII was amended to provide for compensatory damages because Congress recognized that a financial award, typically consisting of back pay, is often insufficient by itself to fully compensate the victim for his or her injuries. Discrimination cases commonly involve complex, non-pecuniary injuries. Successful claimants should be entitled to compensation for these injuries in addition to their financial damages. For example, Section 102 of the Civil Rights Act of 1991 has been held to allow recovery for the following non-pecuniary injuries under its compensatory damages remedy: “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.”[6] The same remedies available to victims of unlawful employment practices under the Civil Rights Act of 1991 should be available to victims of discrimination under USERRA.

Therefore, I propose that 38 U.S.C. § 4324(c) be amended to add a new subsection (9) to read as follows:

(9) In any claim brought pursuant to the laws of this chapter [38 U.S.C. §§ 4301 et seq.], where the Merit Systems Protection Board or Administrative Judge determines that an employer failed to comply with the provisions of this chapter, the Board or Judge shall award the claimant compensatory damages in addition to, but not including, any other relief granted pursuant to this chapter.

Additionally, I propose that 38 U.S.C. § 4323(d)(1) be amended to add a new subsection (E), which reads as follows:

(E) In any action brought pursuant to the laws of this chapter [38 U.S.C. §§ 4301 et seq.], where the court determines that an employer failed to comply with the provision of this chapter, the court shall award the claimant compensatory damages in addition to, but not including, any other relief granted pursuant to this chapter.

USERRA must be amended to provide for punitive damages in the worst cases of discrimination.

Presently, USERRA does not provide for an award of punitive damages.  As mentioned above, section 4323(d) allows for liquidated damages in only the most limited of instances.  Representative Davis’ RAJA proposals in HR 3393, however, include a provision that would allow for punitive damage awards to victims of the worst kinds of discrimination.

H.R. 3393 proposes to amend USERRA section 4323(d) to provide for the availability of punitive damages, in addition to liquidated damages, where the court finds that the violation was committed with “malice or reckless indifference to the federally protected rights of the person.”  The proposal would apply only to state and local governments and private employers with more than fifteen (15) employees.  I support these proposals. However, I believe that punitive damage awards need to be expanded even further.

Punitive damage awards should be available in all cases where the employer knowingly, willfully, maliciously or with reckless indifference violated an employees protected USERRA rights.  Punitive damages are imposed as a deterrent to future egregious behavior.  Any act taken by an employer of his or her own volition with the knowledge that he or she is denying a member of the military his or her protected rights offends the most sacred principles of our society.  Such behavior must be discouraged in the clearest and strongest manner possible.  A simple amendment to the existing law unambiguously granting employees a right to punitive damages in such cases will greatly reduce the number of employers willing to flout the law.

Moreover, limiting the availability of punitive damage awards to cases against state and local governments and private employers of 15 or more persons leaves a vast number of USERRA-eligible employees unprotected.  Congress intended for veterans benefit and employment discrimination statutes to apply to all eligible parties equally, regardless of their employer.  By allowing punitive damage awards only for employees of state and local governments and large private employers, the HR 3933 proposal discriminates against an enormous number of veterans, reservists and National Guard members who are employed either by federal agencies or by smaller private employers.  USERRA, to be effective, demands parity.  How can we look a veteran in the eye and tell him or her that we value his or her service less because he or she is employed by a ten (10)-person construction crew and not by the Commonwealth of Massachusetts or Morgan Stanley?

Therefore, I propose that 38 U.S.C § 4323 be amended to read as follows:

(d)(1)(D) If the court determines that the employer willfully, knowingly, maliciously, or with reckless indifference failed to comply with the provisions of this chapter, in violation of the employee’s federally-protected rights, the person shall be entitled to an award of punitive damages in addition to all other remedies outlined in this chapter.

Likewise, 38 U.S.C § 4324(c) must also be amended to provide for punitive damages awards in cases of willful or malicious discrimination.  I propose section 4324(c) be amended to add a new subsection (8) to read as follows:

(8) If the court determines that the employer willfully, knowingly,  maliciously, or with reckless indifference failed to comply with the provisions of this chapter, in violation of the employee’s federally-protected rights, the person shall be entitled to an award of punitive damages in addition to all other remedies outlined in this chapter.

USERRA must be amended to permit the investigation and discipline of Federal Employees who violate the Act.

5 U.S.C. § 1215 provides the Office of Special Counsel (OSC) broad powers to investigate and discipline Federal employees who violate any “law, rule or regulation” falling within its vast jurisdiction. Unfortunately, USERRA violators have not yet been subject to the oversight and disciplinary authority of the OSC. USERRA should be amended to empower OSC to investigate and punish violators personally for their unlawful discriminatory acts. Personal liability is the ultimate deterrent and its implementation would have a profound effect on those unsavory individuals who might otherwise commit a USERRA violation.

Thus, I propose that 38 U.S.C. § 4324 be amended to provide for three (3) new subparagraphs (f), (g), and (h) which read as follows:

(f)(1) Except as provided in subsection (g), if the Special Counsel determines that disciplinary action should be taken against any employee for having—

(A) committed a prohibited personnel practice, adverse or unlawful employment practice, or violated any provisions of this chapter;

(B) violated the provisions of any law, rule, or regulation, or engaged in any other conduct within the scope of this chapter [37 U.S.C. §§ 4301 et seq.];

(C) knowing fully and willfully refused or failed to comply with an order of the Merit Systems Protection Board, the Special Counsel shall prepare a written complaint against the employee containing the Special Counsel’s determination, together with a statement of supporting facts, and present the complaint and statement to the employee and the Board, in accordance with this subsection.

(2) Any employee against whom a complaint has been presented to the Merit Systems Protection Board under paragraph (1) is entitled to—

(A) a reasonable time to answer orally and in writing, and to furnish affidavits and other documentary evidence in support of the answer;

(B) be represented by an attorney or other representative;

(C) a hearing before the Board or an administrative law judge as prescribed by 38 U.S.C. § 4324(c)(1)(A);

(D) have a transcript kept of any hearing under subparagraph (C); and

 (E) a written decision and reasons therefore at the earliest practicable date, including a copy of any final order imposing disciplinary action.

(3) A final order of the Board may impose disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.

(4) There may be no administrative appeal from an order of the Board.

An employee subject to a final order imposing disciplinary action under this subsection may obtain judicial review of the order by filing a petition therefore with such court, and within such time, as provided for under section 7703(b) [5 USCS § 7703(b)].

(g) In the case of an employee in a confidential, policy-making, policy-determining, or policy-advocating position appointed by the President, by and with the advice and consent of the Senate (other than an individual in the Foreign Service of the United States), the complaint and statement referred to in subsection (f)(1), together with any response of the employee, shall be presented to the President for appropriate action in lieu of being presented under subsection (f).

(h) (1) In the case of members of the uniformed services and individuals employed by any person under contract with an agency to provide goods or services, the Special Counsel may transmit recommendations for disciplinary or other appropriate action (including the evidence on which such recommendations are based) to the head of the agency concerned.

(2) In any case in which the Special Counsel transmits recommendations to an agency head under paragraph (1), the agency head shall, within 60 days after receiving such recommendations, transmit a report to the Special Counsel on recommendation and the action taken, or proposed to be taken, with respect to each such recommendation.

USERRA must be amended to provide strict timelines for the investigation and processing of complaints brought before DOL VETS

A servicemember who believes that he or she fell victim to a USERRA violation may choose to file a complaint with the Merit Systems Protection Board or with the Secretary of Labor. 38 USC § 4324(b); 38 USC § 4322; 5 CFR §1208.11. As currently drafted, USERRA fails to provide a mechanism for the timely investigation and resolution of complaints for individuals who elect the latter option. The length of time DOL VETS requires to investigate and process a single USERRA claim is unacceptable, constituting an affront to Congressional intent and the plain meaning of the Act, which unambiguously provides for “the prompt reemployment” of servicemembers, in order to “minimize the disruption” to the civilian lives of servicemembers. 38 USC § 4301. If DOL VETS is not disbanded, I implore you to amend 38 USC § 4322 to provide strict timelines that will require DOL VETS to provide relief for our nations veterans within a one hundred and eighty day (180) time period.

Thus, I propose that 38 U.S.C. § 4322 be amended to read as follows:

3. The Secretary shall, upon request, provide technical assistance to a potential claimant with respect to a complaint under this subsection, and when appropriate, to such claimant's employer.

4. The Secretary shall investigate each complaint submitted pursuant to subsection (a). Such investigation shall in no circumstance extend beyond one hundred and eighty days (180) days. 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. (Emphasis added)

5. 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 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).

USERRA must be amended to require the payment of pre-judgment interest on all back pay awards.

As currently drafted, 38 U.S.C. § 4323(d)(1)(B) provides that, “[t]he court may require the employer to compensate the person [claimant] for any loss of wages or benefits suffered by reason of the employer’s failure to comply with the provisions of this chapter.”  This section should be amended to specifically provide for the payment of pre-judgment interest on back pay awards for three (3) reasons:  (i) an award of pre-judgment interest is necessary to fully compensate the victim; (ii) Congress intended for awards of back pay to include an award of pre-judgment interest; and, (iii) it is necessary in order to provide the same level of protection to victims of USERRA violations that Congress has extended to all other victims of employment discrimination. 

An award of back pay lacking accrued interest fails to properly compensate the victim for his or her actual damages.  For example, paying someone in 2007 for a loss that was suffered in 2002 does not take into account two (2) undeniable market forces that effect the contemporary value of money: inflation and opportunity cost or time value.  If an aggrieved veteran receives an award of back pay in 2007 for lost wages occurring in 2002, inflation will have devalued that sum to a measurable extent.  Furthermore, not having had that money in his or her possession over the past five (5) years caused the victim to lose his or her opportunity to invest that sum and earn interest.

It is true that neither §§ 4323(d)(1)(B) nor 4324(c)(2) expressly guarantees a successful claimant interest on an award of back pay.  Nonetheless, Congress clearly intended that veterans discriminated against in violation of USERRA should receive interest on awards.  Section 4323(d)(3) expressly provides for the payment of prejudgment interest for awards against State and private employers.  Additionally, under USERRA’s predecessor, the Veterans’ Reemployment Rights Law of 1940 (VRR), prejudgment interest was commonly awarded, a fact that was well known to Congress at the time of USERRA’s enactment.[7] Prejudgment interest is routinely awarded in all other employment discrimination cases. 

Prejudgment interest serves to compensate for the loss of money due as damages from the time a claim accrues until judgment is entered, thereby achieving full compensation for the injury these damages are intended to redress…[T]o the extent the damages awarded to the plaintiff represent compensation for lost wages, it is ordinarily an abuse of discretion not to include prejudgment interest.  Fink v. City of New York, 129 F.Supp 511, 525-26 (E.D.N.Y. 2001) (Addressing interest on back pay awards under USERRA).

Until the statutory language is amended to unambiguously include interest on awards for USERRA violations, zealous agency attorneys will continue to argue that the absence of an express entitlement to an award of interest is evidence that such an award is NOT mandatory.  Given the regularity with which these cases take years to resolve, prejudgment interest is an essential part of any compensatory remedy.

Therefore, I propose that 38 U.S.C. § 4323(d)(1)(B) be amended to read as follows:

The court may require the employer to compensate the person [claimant] for any loss of wages or benefits, INCLUDING INTEREST, suffered by reason of the employer’s failure to comply with the provisions of this chapter.  (Emphasis added)

As noted above, sections 4301(b) and 4331(b)(1) demand that Federal employees receive at least the same degree of protection and quality of benefits as all other employees under USERRA.  Consequently, I propose that § 4324(c)(2) also be amended, and that it read as follows:

(2) If the Board determines that a Federal executive agency or the Office of Personnel Management has not complied with the provisions of this chapter [38 USCS §§ 4301 et seq.] relating to the employment or reemployment of a person by the agency, the Board shall enter an order requiring the agency or Office to comply with such provisions and to compensate such person for any loss of wages or benefits, INCLUDING INTEREST, suffered by such person by reason of such lack of compliance. (Emphasis added).

USERRA must be amended to make injunctive and interim relief mandatory where appropriate.

Under the current statutory structure, section 4323(e) of USERRA permits courts to invoke their full equity powers to remedy violations at the courts’ discretion.  Section 4324 contains no provision regarding the courts’ power to grant equitable relief.  In 2005 the Seventh Circuit Court of Appeals upheld a lower court decision denying injunctive relief under section 4323(e) in Bedrossian v. Northwestern Memorial Hospital, 409 F.3d 840 (7th Cir 2005).  Dr. Bedrossian, in addition to his military service in the Air Force Reserves, was employed as a physician and professor at Northwestern Memorial Hospital.  The Hospital sought to fire Dr. Bedrossian because of the inconvenience caused by his military service and the Doctor responded by seeking an injunction.  The trial court held, and the Seventh Circuit affirmed, that regardless of the strength of the claimant’s case, an injunction was not an available remedy.  This decision should be overruled.

By merely, changing the word “may” in section 4323(e) to “shall”, Congress could ensure that equitable relief is available to all USERRA victims when appropriate.  The claimant would still need to demonstrate his or her entitlement to equitable relief in the form of an injunction. However, under the proposed amendment, once the claimant has established that an injunction is appropriate, the court would be required to grant it.

This proposal is one of many contained in H.R. 3393, the Reservists Access to Justice Act (RAJA), sponsored by Representative Artur Davis (D-AL).  RAJA recognizes that the driving force behind the enactment of USERRA was to support and protect the members of our armed forces.  The national defense interests of our country require that the segment of our military composed of civilian employees is supported by their civilian employers.  We are currently fighting a global war on terror on multiple fronts.  For the first time in our nation’s history, we are waging war on a grand scale without conscription and in reliance on an all volunteer military. Congress recognizes this and strongly supports this nation’s commitment to voluntary military service.  Nonetheless:

Congress also recognizes that the reliance on volunteers means that we must include substantial incentives for young men and women to join and remain in our nation’s uniformed services.  We also must mitigate the disincentives to service, including the realistic fear that “if I sign up, I will lose my civilian job.”[8]

Thus, I, too, propose that 38 U.S.C. § 4323 be amended to add a new subsection (e) which reads as follows:

The court SHALL 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. (Emphasis added)

Pursuant to 38 U.S.C. § 4301(b), “It is the sense of Congress that the Federal Government should be a model employer in carrying out the provisions of this chapter [38 USCS §§ 4301 et seq.]”  With this in mind, Congress enacted 38 U.S.C. § 4331(b)(1) which states, in relevant part:

The Director of the Office of Personnel Management (in consultation with the Secretary and the Secretary of Defense) may prescribe regulations implementing the provisions of this chapter [38 USCS §§ 4301 et seq.] with regard to the application of this chapter [38 USCS §§ 4301 et seq.] to Federal executive agencies (other than the agencies referred to in paragraph (2)) as employers. Such regulations shall be consistent with the regulations pertaining to the States as employers and private employers, except that employees of the Federal Government may be given greater or additional rights. (Emphasis added).

Therefore, any amendment to § 4323 resulting in greater benefits to an employee must also, by law, be reflected in a comparable amendment to § 4324.  As a result, I also propose that section 4324(c) be amended to provide a new subsection (5) that reads as follows:

The Merit System Protection Board or Presiding Administrative Judge SHALL 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. (Emphasis added)

Additionally, USERRA should be amended to provide for interim relief comparable to that afforded to other employees under 5 U.S.C. § 7701(b)(2) for deserving section 4324 claimants.  5 U.S.C. § 7701(b)(2) directs the Merit Systems Protection Board (MSPB or Board) to award successful Appellants, “the relief provided in the decision effective upon making the decision, and remaining in effect pending the outcome of any petition for review under subsection (e).”  In contrast, USERRA does not require a Federal Executive Agency under section 4324 to furnish any relief until a final decision has been entered. 

Thus, a claimant who successfully established an unlawful employment practice may be required to remain unemployed and uncompensated for a period of up to two (2) years until the MSPB enters a final decision, whereas, an otherwise identical claimant who files an action before the Equal Employment Opportunity Commission is entitled to interim relief immediately upon the entering of an initial decision.  This inequity cannot be justified and must be remedied.

The MSPB’s interim relief authority pursuant to 5 U.S.C. § 7701(b)(2) must be extended to USERRA claims.  Therefore, I propose that 38 U.S.C. § 4324(c) be amended to provide a new subsection (6) that reads as follows:

            (e) (1) If an employee or applicant for employment is the prevailing party in an appeal under this subsection, the employee or applicant shall be granted the relief provided in the decision effective upon the making of the decision, and remaining in effect pending the outcome of any petition for review under subsection (d), unless--
         (A)(i) the relief granted in the decision provides that such employee or applicant shall return or be present at the place of employment during the period pending the outcome of any petition for review under subsection (e); and
             (ii) the employing agency, subject to the provisions of subparagraph (a), determines that the return or presence of such employee or applicant is unduly disruptive to the work environment.
      (2) If an agency makes a determination under subparagraph (A) that prevents the return or presence of an employee at the place of employment, such employee shall receive pay, compensation and all other benefits as terms and conditions of employment during the period pending the outcome of any petition for review under subsection (d).

USERRA must be amended to unambiguously preclude USERRA claims from binding arbitration agreements.

38 U.S.C. § 4302(b) expressly states that any law, agreement, or practice which, “reduces, limits, or eliminates in any manner any right or benefit” provided under USERRA is preempted by the statute.  Nonetheless, the Fifth Circuit Court of Appeals recently held that this provision only preempts agreements limiting the claimants’ substantive rights and not his or her procedural rights (e.g. the right to pursue a lawsuit in federal court as opposed to being required to proceed via arbitration).  See, Garrett v. Circuit City Stores, Inc., 449 F.2d 672 (5th Cir. 2006).  This is an egregious misapplication of the text and purpose and intent of USERRA and must be overturned by legislative mandate.  Veterans must not be denied the procedural due process of law as a result of employment agreements contradicting federal law.

Accordingly, I implore you to support H.R. 3393, and its proposed amendment to Chapter 1 of Title 9 of the United States Code, which would unambiguously exempt USERRA disputes from binding arbitration agreements and expressly overrule Garrett.  In that vein, I too propose that 38 U.S.C. § 4322 be amended to add a new subsection that reads as follows:

(g) Chapter 1 of title 9 shall not apply with respect to employment or reemployment rights or benefits claimed under this subchapter.

USERRA must be amended to adopt two additional exceptions to section 4312’s five-year limitation on section 4313 reemployment rights.

As currently drafted, USERRA’s reemployment protections lapse after a five-year period of consecutive active duty service.  Section 4312(c) establishes eight specific exceptions to this five-year limitation, thereby enabling employees to serve five or more years of continuous active duty while working for a single employer and retaining his or her reemployment rights under the Act.  Additionally, the Department of Labor (DOL) regulations implementing USERRA recognize a ninth exception.

DOL USERRA regulation § 1002.103 applies to service members who are forced to mitigate economic losses suffered as a result of an employer’s USERRA violation.  The regulation provides, in relevant part, that a service member who remains or returns to the armed services in an attempt to “mitigate economic losses caused by the employer’s unlawful refusal to reemploy that person,” [9] shall not be required to count the time “against the five-year limit.”[10]  The regulation is grounded in equitable considerations. Those same considerations demand that the exception created by the regulation be fully incorporated into the text of the statute.

I propose that 38 U.S.C. § 4312(c) be amended to add a new subsection (5) which reads as follows:

(5) which is undertaken by an individual who remains in or returns to uniformed service in order to mitigate economic damages suffered as a consequence of the employer’s unlawful failure to comply with the provisions of this chapter.

An additional exception should also be added for National Guard members who are called to state active duty service in response to homeland emergencies.  As currently drafted, time spent fulfilling active duty training commitments, time on active duty support for critical missions and time called upon for Federal active duty National Guard service are all exempt from consideration in calculating a person’s 4312 time.  Presumably, these missions are considered so important that they warrant preferential treatment.  Under this reasoning, active duty service in furtherance of a State’s emergency response is an equally compelling interest and should receive equivalent treatment. 

Homeland emergency response is an integral component of our homeland security strategy.  The fact that disasters and emergencies requiring the mobilization of active duty National Guard forces are generally unforeseeable adds weight to the argument that service men and women should not be penalized in their USERRA reemployment rights because they were required to answer the call to service.  USERRA must be amended to take into account the sacrifices of guardsmen and their families during times of crisis.  National Guard members who respond to such crises in State service should be entitled to the same protections as their federal counterparts.

Therefore, I propose that 38 U.S.C. § 4312(c) be amended to provide for a new subsection (6) that reads as follows:

(6) service in the National Guard under competent state military authority while in support of the homeland, in response to a natural disaster, in response to aid to civil authorities, or for any other reason that the governor of the state declares the need for a state activation of the National Guard is necessary.

USERRA must be amended so that the term “adjudication” in § 4324(c)(1) is defined as providing the same procedures available to appellants under 5 U.S.C. § 7701.

In its current incarnation, USERRA does not expressly outline the formal due process to which claimants are entitled when bringing a claim for relief of an alleged violation of the Act.  In Kirkendall v. Department of the Army, the Court of Appeals for the Federal Circuit concluded that every USERRA claimant has a right to a hearing and that he or she is entitled to the same procedures as an “appellant” under 5 U.S.C. § 7701(a). See, Kirkendall v. Department of the Army, 479 F.3d 380 (Fed. Cir. 2007).

5 U.S.C § 7701(a) expressly provides for basic due process formalities in other appeals brought before the MSPB.  USERRA should be amended so that both sections 4323 and 4324 unambiguously state the due process rights afforded to claimants. USERRA claimants must be granted the same procedural protections that the United States Code extends to other employees. Codification of the holding in Kirkendall will effectively extend the due process protections of 5 U.S.C. § 7701(a) to USERRA claimants and correct any enduring ambiguities.

Therefore, I propose that 38 U.S.C. § 4323(a) be amended to incorporate a new subsection (3) which reads as follows:

(3) Any employee, or applicant for employment, who submits any claim or action for relief pursuant to the rights outlined in this chapter [38 U.S.C. §§ 4301 et seq.] shall have the right:

(A) to a trial by Judge or Jury, for which a transcript will be kept; and
(B) to be represented by an attorney or other representative.

            In addition, I propose that 38 U.S.C. § 4324(c)(1) be amended to provide for a new subparagraph (A) which reads as follows:

(A) Any employee, or applicant for employment, who submits any claim or action for relief pursuant to the rights outlined in this chapter [38 U.S.C. §§ 4301 et seq.] shall have the right:

(i) to an in person hearing for which a transcript will be kept; and

(ii) to be represented by an attorney or other representative.

(iii) the employee shall receive official time off to prosecute his/her appeal           to include time to request and respond to Discovery Demands and/or     orders from the MSPB or Federal Circuit.

USERRA section 4324 must be amended to state unequivocally that there is no Statute of Limitations provision governing the time period in which to bring a claim under the Act.

Section 4323(i) clearly states that “[n]o Statute of Limitations shall apply to any proceeding under this chapter [38 USCS §§ 4301 et seq.].”  Sections 4301 and 4331 compel Congress to amend section 4324 to provide the same protection to Federal government employees.

The United States Courts of Appeals for the Federal Circuit has already held that no Statute of Limitations applies to cases brought under § 4324. See, Hernandez v. Department of the Air Force, 2007 U.S. App. Lexis 20280 (August 27, 2007).  Nonetheless, codification of this principle is the only way to ensure that future Federal Executive Agencies will not successfully overturn this ruling and reinstate the arbitrary distinction between Federal employees and all other employees for the purpose of USERRA Stat