U.S. Code » Title 38 » Part PART III— READJUSTMENT AND RELATED BENEFITS › Chapter CHAPTER 43— EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES › Subchapter SUBCHAPTER III— PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND INVESTIGATION

38 U.S.C. § 4324

Enforcement of rights with respect to Federal executive agencies

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(a)(1) A person who receives from the Secretary a notification pursuant to section 4322(e) may request that the Secretary refer the complaint for litigation before the Merit Systems Protection Board. Not later than 60 days after the date the Secretary receives such a request, the Secretary shall refer the complaint to the Office of Special Counsel established by section 1211 of title 5.(2)(A) If the Special Counsel is reasonably satisfied that the person on whose behalf a complaint is referred under paragraph (1) is entitled to the rights or benefits sought, the Special Counsel (upon the request of the person submitting the complaint) may appear on behalf of, and act as attorney for, the person and initiate an action regarding such complaint before the Merit Systems Protection Board.(B) Not later than 60 days after the date the Special Counsel receives a referral under paragraph (1), the Special Counsel shall—(i) make a decision whether to represent a person before the Merit Systems Protection Board under subparagraph (A); and(ii) notify such person in writing of such decision.(b) A person may submit a complaint against a Federal executive agency or the Office of Personnel Management under this subchapter directly to the Merit Systems Protection Board if that person—(1) has chosen not to apply to the Secretary for assistance under section 4322(a);(2) has received a notification from the Secretary under section 4322(e);(3) has chosen not to be represented before the Board by the Special Counsel pursuant to subsection (a)(2)(A); or(4) has received a notification of a decision from the Special Counsel under subsection (a)(2)(B) declining to initiate an action and represent the person before the Merit Systems Protection Board.(c)(1) The Merit Systems Protection Board shall adjudicate any complaint brought before the Board pursuant to subsection (a)(2)(A) or (b), without regard as to whether the complaint accrued before, on, or after October 13, 1994. A person who seeks a hearing or adjudication by submitting such a complaint under this paragraph may be represented at such hearing or adjudication in accordance with the rules of the Board.(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 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 suffered by such person by reason of such lack of compliance.(3) Any compensation received by a person pursuant to an order under paragraph (2) shall be in addition to any other right or benefit provided for by this chapter and shall not diminish any such right or benefit.(4) If the Board determines as a result of a hearing or adjudication conducted pursuant to a complaint submitted by a person directly to the Board pursuant to subsection (b) that such person is entitled to an order referred to in paragraph (2), the Board shall award such person reasonable attorney fees, expert witness fees, and other litigation expenses. The Board may, in its discretion, award reasonable attorney fees in a case settled before the issuance of an order if the person can demonstrate that significant attorney fees were incurred and that justice requires such an award.(d)(1) A person adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board under subsection (c) may petition the United States Court of Appeals for the Federal Circuit to review the final order or decision. Such petition and review shall be in accordance with the procedures set forth in section 7703 of title 5.(2) Such person may be represented in the Federal Circuit proceeding by the Special Counsel unless the person was not represented by the Special Counsel before the Merit Systems Protection Board regarding such order or decision.(3) In such Federal Circuit proceeding, the court shall award such person reasonable attorney fees, expert witness fees, and other litigation expenses if such person—(A) prevails in such Federal Circuit proceeding; and(B) is not represented by the Special Counsel in such Federal Circuit proceeding.(Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3166; amended Pub. L. 104–275, title III, § 311(11), Oct. 9, 1996, 110 Stat. 3336; Pub. L. 105–368, title II, § 213(a), Nov. 11, 1998, 112 Stat. 3331; Pub. L. 110–389, title III, § 311(d)(2), (e)(2), Oct. 10, 2008, 122 Stat. 4163; Pub. L. 111–275, title VII, § 703(a), Oct. 13, 2010, 124 Stat. 2888; Pub. L. 118–210, title II, § 221(e)(1), (2), Jan. 2, 2025, 138 Stat. 2779.)Editorial NotesPrior Provisions

A prior section 4324 was renumbered section 7624 of this title.

Amendments

2025—Subsec. (c)(4). Pub. L. 118–210, § 221(e)(1), substituted “shall” for “may, in its discretion,” and inserted at end “The Board may, in its discretion, award reasonable attorney fees in a case settled before the issuance of an order if the person can demonstrate that significant attorney fees were incurred and that justice requires such an award.”

Subsec. (d)(3). Pub. L. 118–210, § 221(e)(2), added par. (3).

2010—Subsec. (b)(4). Pub. L. 111–275 inserted before period at end “declining to initiate an action and represent the person before the Merit Systems Protection Board”.

2008—Subsec. (a)(1). Pub. L. 110–389, § 311(d)(2), substituted “Not later than 60 days after the date the Secretary receives such a request, the Secretary shall refer” for “The Secretary shall refer”.

Subsec. (a)(2)(B). Pub. L. 110–389, § 311(e)(2), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “If the Special Counsel declines to initiate an action and represent a person before the Merit Systems Protection Board under subparagraph (A), the Special Counsel shall notify such person of that decision.”

1998—Subsec. (c)(1). Pub. L. 105–368 inserted “, without regard as to whether the complaint accrued before, on, or after October 13, 1994” before period at end of first sentence.

1996—Subsec. (a)(1). Pub. L. 104–275, § 311(11)(A), struck out “of an unsuccessful effort to resolve a complaint relating to a Federal executive agency” after “notification pursuant to section 4322(e)”.

Subsec. (b). Pub. L. 104–275, § 311(11)(B)(i), inserted “or the Office of Personnel Management” after “Federal executive agency” in introductory provisions.

Subsec. (b)(1). Pub. L. 104–275, § 311(11)(B)(ii), substituted “under section 4322(a)” for “regarding a complaint under section 4322(c)”.

Subsec. (c)(2). Pub. L. 104–275, § 311(11)(C), inserted “or the Office of Personnel Management” after “Federal executive agency” and substituted “Office to comply” for “employee to comply”.

Statutory Notes and Related SubsidiariesEffective Date of 1998 Amendment

Pub. L. 105–368, title II, § 213(b), Nov. 11, 1998, 112 Stat. 3332, provided that: “The amendment made by subsection (a) [amending this section] shall apply to complaints filed with the Merit Systems Protection Board on or after October 13, 1994.”

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–275 effective Oct. 13, 1994, see section 313 of Pub. L. 104–275, set out as a note under section 4301 of this title.

Effective Date

Section effective with respect to reemployments initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, except that provisions necessary for implementation of section 4311 of this title are effective Oct. 13, 1994, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title.

Notes of Decisions
Cited in 147 cases (46 in the last 5 years), 1998–2026 · leading case: Kirkendall v. Dep't of the Army, 479 F.3d 830 (Fed. Cir. 2007).
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Kirkendall v. Dep't of the Army, 479 F.3d 830 (Fed. Cir. 2007). · cites it 9× “A person who seeks a hearing or adjudication by submitting such a complaint under this paragraph may be represented at such hearing or adjudication in accordance with the rules of the Board.”
Sonya L. Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480 (Fed. Cir. 1998). · cites it 4× “See 38 U.S.C. § 4324 . Pursuant to § 4324(b), a person who claims that a Federal executive agency has failed to comply with USERRA may submit a complaint directly to the Board if at least one of several listed conditions is met.”
Sheehan v. Dep't of the Navy, 240 F.3d 1009 (Fed. Cir. 2001). · cites it 2× “*1012 JURISDICTION The Board has jurisdiction of -the appellants’ USERRA claims under 38 U.S.C. § 4324 . See 5 C.F.R. § 1201.3 (a)(22) (“The Board has jurisdiction over appeals from agency actions when the appeals are authorized by law, rule, or regulation.”
Pittman v. Dep't of Just., 486 F.3d 1276 (Fed. Cir. 2007). · cites it 5× “The AJ noted, however, that the Board might have jurisdiction over Pittman’s separate USERRA claims under 38 U.S.C. § 4324 (b). Id. The AJ therefore addressed Pittman’s claims that the agency violated USERRA by failing to reemploy him following his military service and by…”
John E. Kirkendall v. Dep't of the Army, 412 F.3d 1273 (Fed. Cir. 2005). · cites it 7× “In refusing to grant hearings in USERRA cases, the board has argued that 38 U.S.C. § 4324 6 refers to USERRA claims as “complaints,” not as “appeals,” and therefore 5 U.”
Hernandez v. Dep't of the Air Force, 498 F.3d 1328 (Fed. Cir. 2007). · cites it 3× “However, because the AJ understood the board’s remedial authority under USERRA, 38 U.S.C. § 4324 (c), to be limited to events occurring after its enactment, October 13, 1994, he confined the subpoenas to documents from that date through 2004.”
Charles R. Fernandez v. Dep't of the Army, 234 F.3d 553 (Fed. Cir. 2000). · cites it 3× “3 (a)(22) (2000) 1 ; 38 U.S.C. § 4324 (1994), but that its “authority is limited to enforcing these rights [under the laws] as they existed at the time the claim ac *555 crued.”
Jacobsen v. Dep't of Just., 500 F.3d 1376 (Fed. Cir. 2007). · cites it 5× “Jacobsen appeals from a final opinion and order of the Merit Systems Protection Board (“Board”) affirming the denial of his motion for attorney fees submitted to the Board pursuant to 38 U.S.C. § 4324 (c)(4), the fee-shifting provision of the Uniformed Services Employment and…”
Vincent Curtis Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380 (Fed. Cir. 2004). “104 (relating to alleged improper employment practices), 38 U.S.C. § 4324 (2002) (The Uniformed Service Employment and Reemployment Act of 1994), 5 U.”
Pucilowski v. Dep't of Just., 498 F.3d 1341 (Fed. Cir. 2007). · cites it 2× “The board plainly has the authority under 38 U.S.C. § 4324 to remedy denial of military leave benefits.”
William E. Woodman v. Off. of Pers. Mgmt., 258 F.3d 1372 (Fed. Cir. 2001). · cites it 2× “Pursuant to 38 U.S.C. § 4324 (a)(2)(A) (1994), OSC is authorized to provide legal representation to a person seeking federal reemployment under USERRA if it determines that OPM erred in denying the person reemployment rights.”
Kelly Butterbaugh, Roseanne T. Faltin, John C. Marderness, Robert J. Bono v. Dep't of Just., 336 F.3d 1332 (Fed. Cir. 2003). “For purposes of this appeal, neither side contests the Board’s determination that Petitioners have alleged denial of a benefit of employment due to their performance of military duties, thereby alleging a USERRA violation by an executive agency actionable to the Board under 38…”
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