Page:United States Statutes at Large Volume 104 Part 3.djvu/266

 104 STAT. 1618 PUBLIC LAW 101-510—NOV. 5, 1990 "(E) An order of the Secretary under this section shall be made on the record after notice and opportunity for an agency hearing. In issuing an order, the Secretary shall follow procedures that are as informal as practicable, consistent with principles of fundamental fairness. At a minimum, the Secretary shall afford the complainant and the defense contractor an opportunity to submit in writing information and arguments in opposition to the conclusion of the report of the results of the investigation. "(F) The Secretary may not enter into a settlement agreement terminating a proceeding on a complaint without the participation and consent of the complainant. "(5) If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of regulations promulgated under subsection (b) has occurred, the Secretary may issue, separately or in combination, any of the following: "(A) An order that the defense contractor who committed such violation take affirmative action to abate the violation. "(B) An order that such contractor reinstate the complainant to the position held by such individual when discharged, together with the compensation (including back pay), employ- ment benefits, and other terms and conditions of his or her employment. "(C) An assessment against such contractor (at the request of the complainant) of a sum equal to the aggregate amount of all costs and expenses (including attorneys fees and expert witnesses' fees) reasonably incurred by the complainant for, or in connection with, bringing the complaint on which the order was issued, as determined by the Secretary. "(6) In determining whether a violation of regulations promulgated under subsection (b) has occurred, the Secretary shall use the standard of proof that is used by the Merit Systems Protection Board in proceedings under section 1221 of title 5, as described in paragraphs (1) and (2) of section 1221(e) of that title. "(d) REVIEW AND ENFORCEMENT.— (1) Any person adversely af- fected or aggrieved by an order issued under subsection (c)(5)(B) may obtain review of the order's conformance with this section and the regulations promulgated under this section in the United States court of appeals for the circuit in which the violation alleged in the order occurred. No petition seeking such review may be filed more than 60 days after issuance of the Secretary's order. Review shall conform to chapter 7 of title 5. "(2) An order of the Secretary with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in any criminal or other civil proceeding. "(3) Whenever a person has failed to comply with an order issued under subsection (c)(5)(B), the Secretary shall file an action for enforcement of such order in the United States district court for the district in which the violation was found to have occurred. In any action brought under this subsection, the court may grant appropriate relief, including injunctive relief, and compensatory and exemplary damages. "(4) Any nondiscretionary duty imposed by the regulations under this section shall be enforceable in a mandamus proceeding brought under section 1361 of title 28. "(e) DEFINITIONS.— In this section: "(1) The term 'appropriate Government official' includes—

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