Law Review 1178
DOJ Proposes USERRA Amendments
By Captain Samuel F. Wright, JAGC, USN (Ret.)
On September 20, 2011, Assistant Attorney General for Legislative Affairs Ronald Weich sent identical letters to Speaker of the House John A. Boehner and Vice President (President of the Senate) Joseph R. Biden, Jr. These letters propose amendments to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Servicemembers Civil Relief Act (SCRA). I endorse these proposals. In this article, I will discuss the proposed USERRA amendments.
Congress enacted USERRA in 1994, as a long-overdue rewrite of the Veterans’ Reemployment Rights Act (VRRA), which goes back to 1940. From the beginning, the reemployment statute has provided for free Department of Justice (DOJ) representation of persons claiming reemployment rights against private employers and state or local governments.
USERRA provides as follows concerning the role of DOJ in USERRA litigation:
A person who receives from the Secretary [of Labor] a notification pursuant to section 4322 (e) of this title of an unsuccessful effort to resolve a complaint relating to a State (as an employer) or a private employer may request that the Secretary refer the complaint to the Attorney General. Not later than 60 days after the Secretary receives such a request with respect to a complaint, the Secretary shall refer the complaint to the Attorney General. If the Attorney General is reasonably satisfied that the person on whose behalf the complaint is referred is entitled to the rights or benefits sought, the Attorney General may appear on behalf of, and act as attorney for, the person on whose behalf the complaint is submitted and commence an action for relief under this chapter for such person. In the case of such an action against a State (as an employer), the action shall be brought in the name of the United States as the plaintiff in the action.
38 U.S.C. 4323(a)(1).
Under USERRA, as under the VRRA, it is possible for the USERRA claimant to file suit against the employer directly, in his or her own name and with his or her own attorney, if the claimant did not file with the Department of Labor (DOL), or if the claimant did not request that DOL refer the case to DOJ, or if DOJ declined the request for representation. See 38 U.S.C. 4323(a)(3).
In prior decades, most reemployment rights cases that were filed were filed by U.S. Government attorneys, on behalf of veterans. In recent years, most cases are filed by private attorneys. Unlike the VRRA, USERRA provides for the court to award the successful USERRA plaintiff attorney fees. 38 U.S.C. 4323(h)(2).
As enacted in 1994, USERRA permitted an individual USERRA claimant to sue a state government, as employer, in federal court. Four years later, the United States Court of Appeals for the Seventh Circuit held that USERRA was unconstitutional, under the 11th Amendment to the United States Constitution, insofar as it permitted an individual to sue a state in federal court. See Velasquez v. Frapwell, 160 F.3d 389 (7th Cir. 1998).
Later in 1998, Congress amended USERRA to address the Velasquez problem. As amended, USERRA authorizes the Attorney General to initiate a lawsuit against a state in the name of the United States, as plaintiff. 38 U.S.C. 4323(b)(1).
Section 301 of the DOJ draft bill would provide for the Attorney General to bring any USERRA case in the name of the United States, against a private employer as well as a state government. The DOJ draft would preserve the right of the individual to bring the case in his or her own name, with his or her own attorney, against a private employer.
I support the concept of making the United States the named plaintiff, in any case brought by the Attorney General. Section 301(a)(2) of the DOJ draft authorizes suits against employers that engage in a pattern or practice of USERRA violations. If the Attorney General is to bring the suit, the Attorney General should seek a broad remedy benefiting all National Guard and Reserve personnel who are employed by that particular employer. When the suit is brought in the name of just one person, the relief that can be obtained is generally limited to relief for that one person, because he or she does not have standing to demand relief for others.
Section 302 of the DOJ draft authorizes the issuance and enforcement of civil investigative demands in USERRA investigations. I believe that authority would be useful, and I support this proposal.
These DOJ proposals would be useful, but the DOJ draft is certainly not a comprehensive list of USERRA reforms that are needed. Please see Law Review 1077 for such a list.
 Since 1940, the reemployment statute has applied to the Federal Government (as a civilian employer) and to private employers. In 1974, Congress amended the VRRA, expanding the applicability to include state and local governments as well.
 Under the VRRA, the request for representation was referred to the appropriate United States Attorney, rather than to the Attorney General in Washington. But in practice the procedure was similar. The request for representation was referred to the United States Attorney via the DOJ headquarters in Washington.
 The number of cases filed by DOJ is 12-25 per year. I believe that the number of cases filed privately is several times that, but reliable statistics are hard to come by. Perhaps a reader can assist—use Public Access to Court Electronic Records (PACER) to come up with the number of USERRA cases filed privately last year.
 The 7th Circuit is the federal appellate court that sits in Chicago and hears appeals from federal district courts in Illinois, Indiana, and Wisconsin.
 The individual can sue a state in state court, in accordance with the laws of the state. In several states, sovereign immunity is still the rule, and it is not possible to sue the state in state court. In such a situation, the only way to enforce USERRA is by a suit brought in federal court by the Attorney General, in the name of the United States. The 11th Amendment does not bar a suit against a state by the United States.
 Local governments do not have 11th Amendment immunity, and USERRA provides that local governments are treated as private employers for USERRA enforcement purposes. 38 U.S.C. 4323(i).