38 U.S.C. § 4324 — Enforcement of rights with respect to

Page 1013 TITLE 38—VETERANS’ BENEFITS § 4324 (a) shall be entitled to an injunction under para- graph (1) if such person demonstrates— (A) a violation— (i) of the provisions of this chapter; or (ii) of the provisions of this chapter is threatened or is imminent; (B) the harm to the person outweighs the in- jury to the employer; (C) a likelihood of success on the merits of such action; and (D) awarding such relief is in the public in- terest. (3) The court may not deny a motion for in- junctive relief on the basis that a party bringing an action to enforce a provision of this chapter may be awarded wages unearned due to an un- lawful termination or denial of employment at the conclusion of such action. (f) STANDING.—An action under this chapter may be initiated only by a person claiming rights or benefits under this chapter under sub- section (a) or by the United States under sub- section (a)(1). (g) RESPONDENT.—In any action under this chapter, only an employer or a potential em- ployer, as the case may be, shall be a necessary party respondent. (h) FEES, COURT COSTS.—(1) No fees or court costs may be charged or taxed against any per- son claiming rights under this chapter. (2) In any action or proceeding to enforce a provision of this chapter by a person under sub- section (a)(3) who obtained private counsel for such action or proceeding, the court shall award any such person who prevails in such action or proceeding reasonable attorney fees, expert wit- ness fees, and other litigation expenses. (i) DEFINITION.—In this section, the term ‘‘pri- vate employer’’ includes a political subdivision of a State. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3165; amended Pub. L. 104–275, title III, § 311(10), Oct. 9, 1996, 110 Stat. 3335; Pub. L. 105–368, title II, § 211(a), Nov. 11, 1998, 112 Stat. 3329; Pub. L. 110–389, title III, §§ 311(d)(1), (e)(1), (f)(3), 315, Oct. 10, 2008, 122 Stat. 4162–4164, 4167; Pub. L. 118–210, title II, § 221(c), (d), (e)(3), Jan. 2, 2025, 138 Stat. 2778, 2779.) Editorial Notes PRIOR PROVISIONS A prior section 4323 was renumbered section 7623 of this title. AMENDMENTS 2025—Subsec. (d)(1)(C), (D). Pub. L. 118–210, § 221(d), added subpars. (C) and (D) and struck out former sub- par. (C) which read as follows: ‘‘The court may require the employer to pay the person an amount equal to the amount referred to in subparagraph (B) as liquidated damages, if the court determines that the employer’s failure to comply with the provisions of this chapter was willful.’’ Subsec. (e). Pub. L. 118–210, § 221(c), designated exist- ing provisions as par. (1) and added pars. (2) and (3). Subsec. (h)(2). Pub. L. 118–210, § 221(e)(3), substituted ‘‘subsection (a)(3)’’ for ‘‘subsection (a)(2)’’ and ‘‘the court shall award any such person who prevails in such action or proceeding reasonable attorney fees’’ for ‘‘the court may award any such person who prevails in such action or proceeding reasonable attorney fees’’. 2008—Subsec. (a)(1). Pub. L. 110–389, § 311(d)(1), in- serted ‘‘Not later than 60 days after the Secretary re- ceives such a request with respect to a complaint, the Secretary shall refer the complaint to the Attorney General.’’ after ‘‘to the Attorney General.’’ Subsec. (a)(2), (3). Pub. L. 110–389, § 311(e)(1), added par. (2) and redesignated former par. (2) as (3). Subsec. (e). Pub. L. 110–389, § 315, substituted ‘‘shall use, in any case in which the court determines it is ap- propriate,’’ for ‘‘may use’’. Subsecs. (i), (j). Pub. L. 110–389, § 311(f)(3), redesig- nated subsec. (j) as (i) and struck out former subsec. (i) which read as follows: ‘‘INAPPLICABILITY OF STATE STATUTE OF LIMITATIONS.—No State statute of limita- tions shall apply to any proceeding under this chap- ter.’’ 1998—Pub. L. 105–368 amended section generally, sub- stituting present provisions for provisions which had: in subsec. (a), authorized reference of complaint to At- torney General and commencement of action for relief on behalf of person whose complaint was referred; in subsec. (b), described appropriate venues in cases where defendant is State or private employer; and in subsec. (c), set forth provisions relating to jurisdiction, abridgement of rights, court and attorney fees, equity power of court, standing, respondents, statute of limi- tations, and remedies. 1996—Subsec. (a)(1). Pub. L. 104–275, § 311(10)(A), struck out ‘‘of an unsuccessful effort to resolve a com- plaint’’ after ‘‘notification pursuant to section 4322(e)’’. Subsec. (a)(2)(A). Pub. L. 104–275, § 311(10)(B), sub- stituted ‘‘under section 4322(a)’’ for ‘‘regarding the complaint under section 4322(c)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENT Pub. L. 105–368, title II, § 211(b), Nov. 11, 1998, 112 Stat. 3330, provided that: ‘‘(1) Section 4323 of title 38, United States Code, as amended by subsection (a), shall apply to actions com- menced under chapter 43 of such title on or after the date of the enactment of this Act [Nov. 11, 1998], and shall apply to actions commenced under such chapter before the date of the enactment of this Act that are not final on the date of the enactment of this Act, without regard to when the cause of action accrued. ‘‘(2) In the case of any such action against a State (as an employer) in which a person, on the day before the date of the enactment of this Act [Nov. 11, 1998], is rep- resented by the Attorney General under section 4323(a)(1) of such title as in effect on such day, the court shall upon motion of the Attorney General, sub- stitute the United States as the plaintiff in the action pursuant to such section as amended by subsection (a).’’ 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 ini- tiated 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 sec- tion 4311 of this title are effective Oct. 13, 1994, see sec- tion 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 (a)(1) A person who receives from the Sec- retary a notification pursuant to section 4322(e) may request that the Secretary refer the com- plaint for litigation before the Merit Systems Protection Board. Not later than 60 days after Page 1014 TITLE 38—VETERANS’ BENEFITS § 4324 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 sat- isfied that the person on whose behalf a com- plaint is referred under paragraph (1) is entitled to the rights or benefits sought, the Special Counsel (upon the request of the person submit- ting 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 para- graph (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 de- cision. (b) A person may submit a complaint against a Federal executive agency or the Office of Per- sonnel Management under this subchapter di- rectly 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 Sec- retary 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 ac- crued before, on, or after October 13, 1994. A per- son who seeks a hearing or adjudication by sub- mitting such a complaint under this paragraph may be represented at such hearing or adjudica- tion in accordance with the rules of the Board. (2) If the Board determines that a Federal ex- ecutive agency or the Office of Personnel Man- agement has not complied with the provisions of this chapter relating to the employment or re- employment 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 pro- vided 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 per- son is entitled to an order referred to in para- graph (2), the Board shall award such person rea- sonable 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 at- torney fees were incurred and that justice re- quires 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 peti- tion the United States Court of Appeals for the Federal Circuit to review the final order or deci- sion. Such petition and review shall be in ac- cordance with the procedures set forth in sec- tion 7703 of title 5. (2) Such person may be represented in the Fed- eral Circuit proceeding by the Special Counsel unless the person was not represented by the Special Counsel before the Merit Systems Pro- tection Board regarding such order or decision. (3) In such Federal Circuit proceeding, the court shall award such person reasonable attor- ney fees, expert witness fees, and other litiga- tion expenses if such person— (A) prevails in such Federal Circuit pro- ceeding; 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 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), sub- stituted ‘‘shall’’ for ‘‘may, in its discretion,’’ and in- serted 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 pe- riod at end ‘‘declining to initiate an action and rep- resent the person before the Merit Systems Protection Board’’. 2008—Subsec. (a)(1). Pub. L. 110–389, § 311(d)(2), sub- stituted ‘‘Not later than 60 days after the date the Sec- retary 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 ini- tiate an action and represent a person before the Merit Systems Protection Board under subparagraph (A), the Special Counsel shall notify such person of that deci- sion.’’ 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 com- plaint relating to a Federal executive agency’’ after ‘‘notification pursuant to section 4322(e)’’. Page 1015 TITLE 38—VETERANS’ BENEFITS § 4326 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), sub- stituted ‘‘under section 4322(a)’’ for ‘‘regarding a com- plaint 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 sub- section (a) [amending this section] shall apply to com- plaints 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 ini- tiated 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 sec- tion 4311 of this title are effective Oct. 13, 1994, see sec- tion 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4325. Enforcement of rights with respect to cer- tain Federal agencies (a) This section applies to any person who al- leges that— (1) the reemployment of such person by an agency referred to in subsection (a) of section 4315 was not in accordance with procedures for the reemployment of such person under sub- section (b) of such section; or (2) the failure of such agency to reemploy the person under such section was otherwise wrongful. (b) Any person referred to in subsection (a) may submit a claim relating to an allegation re- ferred to in that subsection to the inspector gen- eral of the agency which is the subject of the al- legation. The inspector general shall investigate and resolve the allegation pursuant to proce- dures prescribed by the head of the agency. (c) In prescribing procedures for the investiga- tion and resolution of allegations under sub- section (b), the head of an agency shall ensure, to the maximum extent practicable, that the procedures are similar to the procedures for in- vestigating and resolving complaints utilized by the Secretary under section 4322(d). (d) This section may not be construed— (1) as prohibiting an employee of an agency referred to in subsection (a) from seeking in- formation from the Secretary regarding as- sistance in seeking reemployment from the agency under this chapter or information re- lating to the rights and obligations of employ- ees and Federal agencies under this chapter; or (2) as prohibiting such an agency from vol- untarily cooperating with or seeking assist- ance in or of clarification from the Secretary or the Director of the Office of Personnel Man- agement of any matter arising under this chapter. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3167; amended Pub. L. 104–275, title III, § 311(12), Oct. 9, 1996, 110 Stat. 3336.) Editorial Notes PRIOR PROVISIONS A prior section 4325 was renumbered section 7625 of this title. AMENDMENTS 1996—Subsec. (d)(1). Pub. L. 104–275 struck out ‘‘, alternative employment in the Federal Government under this chapter,’’ before ‘‘or information relating to the rights and obligations’’ and substituted ‘‘employees and’’ for ‘‘employee and’’. Statutory Notes and Related Subsidiaries 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 ini- tiated 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 sec- tion 4311 of this title are effective Oct. 13, 1994, see sec- tion 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4326. Conduct of investigation; subpoenas (a) In carrying out any investigation under this chapter, the Secretary’s duly authorized representatives shall, at all reasonable times, have reasonable access to and the right to inter- view persons with information relevant to the investigation and shall have reasonable access to, for purposes of examination, and the right to copy and receive, any documents of any person or employer that the Secretary considers rel- evant to the investigation. (b) In carrying out any investigation under this chapter, the Secretary may require by sub- poena the attendance and testimony of wit- nesses and the production of documents relating to any matter under investigation. In case of disobedience of the subpoena or contumacy and on request of the Secretary, the Attorney Gen- eral may apply to any district court of the United States in whose jurisdiction such disobe- dience or contumacy occurs for an order enforc- ing the subpoena. (c) Upon application, the district courts of the United States shall have jurisdiction to issue writs commanding any person or employer to comply with the subpoena of the Secretary or to comply with any order of the Secretary made pursuant to a lawful investigation under this chapter and the district courts shall have juris- diction to punish failure to obey a subpoena or other lawful order of the Secretary as a con- tempt of court. (d) Subsections (b) and (c) shall not apply to the legislative branch or the judicial branch of the United States. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3167; amended Pub. L. 104–275, title III, § 311(13), Oct. 9, 1996, 110 Stat. 3336.)