§ 4324. Enforcement of rights with respect to Federal executive agencies

1,245 words·~6 min read·/usc/title-38/section-4324

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(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.

(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.

(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.

(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.)

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