Private right of action

Title I of Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 et seq.), as amended by section 103, is further amended by adding at the end the following: 116. Private right of action (a) Cause of Action Any parent, legal guardian, caregiver, or child who is aggrieved by an adverse State action alleged to have been taken by a covered entity, or any parent, legal guardian, or caregiver who is aggrieved by a violation of section 115(b) may bring a civil action seeking relief in any United States district court, regardless of whether the specific operation, division, facility, or program of the covered entity that was engaged in such adverse State action was itself funded, in whole or in part, by an award under this title. (b) Liability of a covered entity for the conduct of others For purposes of subsection (a), a covered entity described in section 111(a)(5)(A) waives any defense based on the absence of respondeat superior liability, and shall be vicariously liable under this section for any adverse State action, or any violation of the right protected under section 115(b), that is committed by any employee, contractor, or agent of such covered entity, without regard to whether such adverse State action or violation— (1) resulted from an official policy or custom of the covered entity; (2) was known to any supervisory official of the covered entity; or (3) was within the scope of such covered entity’s employment, contract, or agency. (c) Rebuttable presumption (1) In general For purposes of any action brought under this section, there is a rebuttable presumption that an adverse State action or a violation of the right protected under section 115(b) was because of the affirmation of a child’s sex if— (A) a case record, report, petition, recommendation, or other agency or court document includes the affirmation of the child’s sex as a basis for, contributing factor in, or concern related to the adverse State action; or (B) a recommendation, order, or agreement has been made that a child be removed from a parent, legal guardian, or caregiver and be placed in a home, institution, or other placement setting that— (i) provides, permits or encourages the child to undergo any sex-rejecting intervention, or (ii) without parental consent, uses pronouns or titles that do not correspond to the child’s sex. (2) Rebuttal A covered entity bears the burden of rebutting the presumption described in paragraph (1) by clear and convincing evidence that the affirmation of the child’s sex was not a factor in the adverse State action or violation of the right protected under section 115(b). (d) Nonapplication of exhaustion of Remedies The exhaustion of any State or administrative remedies is not required as a condition of filing an action described in this section. (e) Relief As a condition of accepting funds under this title, each of the remedies described in this subsection is available to a prevailing parent, legal guardian, caregiver, or child. In any such action, the court may award— (1) declaratory relief; (2) preliminary and permanent injunctive relief, including an order enjoining, vacating, or prohibiting the enforcement of any adverse State action or any violation of the right protected under section 115(b), notwithstanding section 2283 of title 28, United States Code, except where the covered entity demonstrates by clear and convincing evidence that such relief would create an imminent risk of serious physical harm to the child based on conduct independent of the adverse State action or violation; (3) compensatory damages; and (4) damages for emotional distress suffered by a parent, legal guardian, caregiver, or child. (f) Costs and attorney's fees In any action brought under this section, the court shall award the prevailing parent, legal guardian, caregiver, or child costs of litigation and attorney's fees. (g) Abrogation of qualified immunity In any action brought under this section against an employee, contractor, or agent of a covered entity, qualified immunity shall not be available as a defense. To satisfy the requirement that the law be clearly established at the time of the violation, it is sufficient that the conduct constituted an adverse State action or violated the right protected under section 115(b). The absence of an express policy, procedure, or protocol by the State or a covered entity described in section 111(a)(5)(A) shall not preclude a finding that the law was clearly established or that the employee, contractor, or agent of a covered entity knew or should have known that the conduct was unlawful. (h) Waiver of sovereign immunity (1) In general (A) State immunity By accepting funds under this title, a State and any covered entity described in section 111(a)(5)(A)(i) shall waive immunity under the Eleventh Amendment to the Constitution of the United States from suit in Federal court for any adverse State action or for any violation of the right protected under section 115(b). (B) Tribal immunity By accepting funds under this title, a covered entity described in section 111(a)(5)(A)(ii) shall waive immunity from suit in Federal court for any adverse State action or for any violation of the right protected under section 115(b). (2) Remedies available (A) State defendants In an action against a State or covered entity described in section 111(a)(5)(A)(i) for any adverse State action or for any violation of the right protected under section 115(b), remedies (including remedies both at law and in equity) are available to the same extent as such remedies are available in an action against any public or private entity other than a State. (B) Tribal defendants In an action against an Indian Tribe or Tribal organization for any adverse State action or for any violation of the right protected under section 115(b), remedies (including remedies both at law and in equity) are available to the same extent as such remedies are available in an action against any public or private entity other than an Indian Tribe or Tribal organization. (i) Statute of limitations (1) In general Except as provided in paragraph (3), an action under this section shall commence not later than 4 years after the date on which the cause of action accrues. (2) Accrual For purposes of paragraph (1), a cause of action accrues on the date a parent, legal guardian, caregiver, or child knew or reasonably should have known of the violation giving rise to the claim, or, in the case of an ongoing violation, on the date the violation ceases. (3) Tolling The limitations period under paragraph (1) shall be tolled— (A) with respect to a claim brought on behalf of a minor child until the later of— (i) the date the child attains the age of 18; or (ii) the date that is 4 years after the date the violation occurred; and (B) during the pendency of any State or Indian child welfare proceeding arising from the same facts as the Federal claim, and for the 2-year period following the final resolution of such proceeding. (j) Relationship to other laws (1) Non-preemption Nothing in this section shall be construed to preempt any State law that provides greater protection than the rights established under this section. (2) Other applicable laws The rights established under this section are in addition to, and not in lieu of, any rights available under the Constitution of the United States, section 1979 of the Revised Statutes (42 U.S.C. 1983), this Act, or any other Federal or State law. (3) Jurisdiction Federal courts shall have original jurisdiction over any civil action brought under this section. No action shall be dismissed, stayed or otherwise abated on the basis of— (A) the pendency of a State court proceeding; (B) any State court judgment or order; (C) any doctrine of equitable restraint, abstention, or comity, including any doctrine under which a court declines to exercise jurisdiction because of the pendency or potential pendency of a State judicial or administrative proceeding; or (D) the domestic relations exception in Federal jurisdiction, if the action seeks enforcement of a right established under this section, and does not seek the issuance of an original divorce, alimony or child custody decree in a domestic-relations proceeding between private parties. (4) Other relief The relief available under this section is in addition to, and not in lieu of, any remedy available to the Secretary under section 115..