Military reemployment at a federal agency: MSPB and §4324

Your employer is federal: the lane is different

USERRA protects your civilian job when you serve in the military, whoever the employer is. But **how you enforce that right depends on whom you work for**, and there the statute forks: **§4323** is the lane for private and state or local employers, and **§4324** is the lane when the employer is **a federal executive agency or the Office of Personnel Management (OPM)**.

That distinction matters greatly in Puerto Rico, where thousands work for the federal government from the island (Fort Buchanan, the VA, the Postal Service, TSA, agencies with regional offices) and many of them also serve in the National Guard or the Reserve.

The biggest difference is the forum. Under §4323, if the case is not resolved, it goes to court. Under **§4324, the forum is the Merit Systems Protection Board, the MSPB**. It is not an ordinary court: it is the body that adjudicates federal civil service personnel cases.

And there is one more actor who does not appear in the private lane: the **Office of Special Counsel**, which under certain conditions may **appear and act as your attorney** before the MSPB, at no cost to you.

Two ways to reach the MSPB

Section 4324 gives you two routes, and choosing well at the start decides who represents you afterward.

**Route one: through the Secretary and the Special Counsel.** If you filed your complaint with the federal Secretary of Labor under §4322 and receive the §4322(e) notification (the one telling you the outcome of that effort) **you may ask the Secretary to refer your complaint for litigation before the MSPB**. The Secretary has **no more than sixty (60) days** from receiving that request to **refer the complaint to the Office of Special Counsel**.

That starts the second clock. If the Special Counsel is **reasonably satisfied** that the person is entitled to the rights or benefits sought, it **may (at your request) appear on your behalf, act as your attorney and initiate the action before the MSPB**. And it has **no more than sixty (60) days** from receiving the referral to **decide whether to represent you and notify you in writing**.

**Route two: straight to the MSPB.** Section 4324(b) lets you submit the complaint against the federal agency or OPM **directly to the MSPB** in four situations: if you **chose not to apply to the Secretary** for assistance under §4322(a); if you **received the Secretary's notification** under §4322(e); if you **chose not to be represented** by the Special Counsel; or if the Special Counsel **notified you it declines** to initiate the action and represent you.

The practical read: the direct route lets you move without waiting on anyone, but you go on your own. The Special Counsel route can give you free representation, but it costs up to one hundred twenty days across the two sixty-day terms. And as you will see below, since 2025 there is a weighty financial reason to look hard at that decision.

What the MSPB can order

Section 4324(c)(1) is deliberately broad: the MSPB **shall adjudicate any complaint** reaching it by either route, **regardless of whether the claim accrued before, on, or after October 13, 1994**, the date this section was added. And you **may be represented** at that hearing or adjudication under the Board's rules.

If the MSPB determines that **a federal executive agency or OPM has not complied** with the chapter's employment or reemployment provisions, **the Board shall enter an order** requiring compliance and **compensating you for any loss of wages or benefits** suffered by reason of that non-compliance.

And subsection (c)(3) closes a door people sometimes try to open: **any compensation received under that order shall be in addition to any other right or benefit provided by the chapter, and shall not diminish any such right or benefit**. It is not "either this or that".

The 2025 change: fees stopped being discretionary

This is the fresh part and the one almost nobody has updated. The amendment notes in the United States Code itself record that **Pub. L. 118-210, §221(e), of January 2, 2025**, touched §4324 twice.

First, in **(c)(4)**: it substituted **"shall"** for **"may, in its discretion,"**. Previously, when you won your case having gone **directly to the MSPB** under (b), the Board *could* award you fees if it saw fit. Now, if the Board determines you are entitled to the (c)(2) order, it **shall award reasonable attorney fees, expert witness fees, and other litigation expenses**. It went from a favor to an obligation.

The same amendment added a second sentence to (c)(4) for cases that never reach an order: the Board **may, in its discretion, award reasonable attorney fees in a case settled before the issuance of an order**, if the person shows they **incurred significant attorney fees** and that **justice requires such an award**. Settling no longer automatically means eating the fees.

Second, it added **(d)(3)**, which is entirely new. In the **Federal Circuit** proceeding, the court **shall award** reasonable attorney fees, expert witness fees and other litigation expenses if the person **(A) prevails** in that proceeding **and (B) is not represented by the Special Counsel** in it.

Note the logic of that (B) and how it connects to the decision discussed above: if the Special Counsel represents you for free, there are no private fees to reimburse. If you go with your own attorney and win, the law now requires that they be paid. That is the financial piece to put on the table before choosing a route.

If the MSPB rules against you: the Federal Circuit

Section 4324(d)(1) provides the exit: **a person adversely affected or aggrieved by a final order or decision of the MSPB** under subsection (c) **may petition the United States Court of Appeals for the Federal Circuit** to review that order or decision. The petition and review follow the procedures of **section 7703 of Title 5**.

On representation at that stage, (d)(2) sets a continuity condition: the person **may be represented by the Special Counsel** in the Federal Circuit proceeding **unless the person was not represented by the Special Counsel before the MSPB** regarding that order or decision. In other words, the Special Counsel does not appear fresh on appeal if it was not there below.

It is worth noting which court this is. Not the federal district court in Puerto Rico: it is the **Federal Circuit**, seated in Washington, D.C., the appellate forum for the federal civil service. That bars nothing, but it does change the conversation with your attorney about cost and logistics, and it is one more reason to understand the new (d)(3) on fees.