PRIA, Government Policy, Made Personal

Summary

You can ask the Secretary to send your complaint on to the Office of Special Counsel (OSC) so OSC can take the case to the Merit Systems Protection Board (MSPB). If you ask, the Secretary must send the case to OSC within 60 days. OSC can decide to represent you before the MSPB if it thinks you should get the rights or pay you asked for. OSC must decide and tell you in writing within 60 days of getting the referral. You can also file your complaint directly with the MSPB if you did not ask the Secretary for help, you already got the Secretary’s notice, you don’t want OSC to represent you, or OSC says it will not represent you. The MSPB will hear the case no matter whether the problem happened before, on, or after October 13, 1994. If the MSPB finds the agency or the Office of Personnel Management did not follow the rules, it will order them to fix the problem and pay any lost pay or benefits. Those payments do not take away other benefits you have. If you filed directly, the MSPB can make the agency pay reasonable lawyer fees, expert fees, and other costs. If you disagree with the MSPB’s final decision, you can ask the United States Court of Appeals for the Federal Circuit to review it under the procedures in section 7703 of title 5. If you win there and OSC did not represent you in that appeal, the court must award reasonable lawyer fees, expert fees, and other costs.

Title 38, §4324

Veterans' Benefits, Source: USLM XML via OLRC

(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.

Notes & Related Subsidiaries

Editorial Notes

Prior 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 Subsidiaries

Effective 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 AmendmentAmendment 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.

§4324 Enforcement of Rights with Respect to Federal Executive Agencies

Summary

Title 38, §4324

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Effective Date

Citations & Metadata