38 U.S.C. § 4323: Enforcement of rights with respect to a State or private employer

A person who receives from the Secretary 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. make a decision whether to appear on behalf of, and act as attorney for, the person on whose behalf the complaint is submitted; and notify such person in writing of such decision. has chosen not to apply to the Secretary for assistance under section 4322(a) of this title ; has chosen not to request that the Secretary refer the complaint to the Attorney General under paragraph (1); or has been refused representation by the Attorney General with respect to the complaint under such paragraph. 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. 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 jurisdiction in accordance with the laws of the State. 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 action. In the case of an action by the United States against a State (as an employer), the action may proceed in the United States district court for any district in which the State exercises any authority or carries out any function. 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. The court may require the employer to comply with the provisions of this chapter. 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. The court may require the employer to pay the person the amount referred to in subparagraph (B) and interest on such amount, calculated at a rate of 3 percent per year. 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 damages, if the court determines that the employer knowingly failed to comply with the provisions of this chapter. Any compensation awarded under subparagraph (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. In the case of an action commenced in the name of the United States for which the relief includes compensation awarded under subparagraph (B) or (C) of paragraph (1), such compensation shall be held in a special deposit account and shall be paid, on order of the Attorney General, 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 compensation shall be covered into the Treasury of the United States as miscellaneous receipts. A State shall be subject to the same remedies, including prejudgment interest, as may be imposed upon any private employer under this section. The court shall use, in any case in which the court determines it is appropriate, 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. of the provisions of this chapter; or of the provisions of this chapter is threatened or is imminent; the harm to the person outweighs the injury to the employer; a likelihood of success on the merits of such action; and awarding such relief is in the public interest. The court may not deny a motion for injunctive 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 unlawful termination or denial of employment at the conclusion of such action. An action under this chapter may be initiated only by a person claiming rights or benefits under this chapter under subsection (a) or by the United States under subsection (a)(1). In any action under this chapter, only an employer or a potential employer, as the case may be, shall be a necessary party respondent. No fees or court costs may be charged or taxed against any person claiming rights under this chapter. In any action or proceeding to enforce a provision of this chapter by a person under subsection (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 witness fees, and other litigation expenses. In this section, the term “private employer” includes a political subdivision of a State. Section 4323 of title 38 , United States Code, as amended by subsection (a), shall apply to actions commenced 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. 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 represented 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, substitute the United States as the plaintiff in the action pursuant to such section as amended by subsection (a).”