Congress significantly strengthened service-member protections this year with the passage of the Dole Act, a sweeping amendment to the Uniformed Services Employment and Reemployment Rights Act (USERRA). Among its most impactful changes, the Act makes attorney’s-fee awards mandatory when a claimant prevails in a USERRA action brought before the Merit Systems Protection Board (MSPB). This reform greatly enhances access to justice for service members and increases the compliance stakes for Federal agencies.
Under the amended 38 U.S.C. § 4324, when the MSPB determines—after a hearing or formal adjudication—that a claimant is entitled to relief, the Board shall award reasonable attorney’s fees, expert witness fees, and other litigation expenses. This removes the Board’s prior discretion and guarantees that a prevailing service member will not be financially burdened for exercising their statutory rights.
What Mandatory Fee Awards Mean in Practice
For service members, this change substantially reduces the financial barriers to bringing a USERRA claim. These cases often involve lost wages or benefits that, standing alone, might not justify lengthy litigation. But with fee-shifting now mandatory, a claimant who proves a violation will recover both their damages and the costs of pursuing the case. This levels the playing field and encourages service members to enforce their rights without fear of being outspent or intimidated by agency counsel.
For federal employers and government contractors, the implications are equally significant. Even if the underlying wage loss is modest, the mandatory fee provision means that the financial consequences of a violation can be substantial. Agencies can no longer rely on the possibility that a servicemember might walk away from a meritorious claim because the litigation cost exceeds the claim’s value. Instead, employers must evaluate USERRA disputes early, take them seriously, and consider potential attorney-fee exposure in all settlement discussions.
Discretionary Fee Awards Still Apply in Pre-Order Settlements
Although the Dole Act makes attorney’s fees mandatory following a Board decision, USERRA still provides a path for recovering fees when cases settle before a final order. Under § 4324(c)(3), the MSPB retains discretion to award reasonable attorney’s fees in pre-order settlements where:
- The servicemember incurred significant attorney’s fees; and
- Justice requires such an award.
This provision is an important safety net because many USERRA disputes resolve at the negotiation stage. If a claimant has meaningfully engaged in litigation—responding to agency filings, conducting discovery, or preparing for a hearing—they can still seek recovery of their legal fees as part of the settlement process.
Bottom Line
The Dole Act’s mandatory fee-shifting transforms USERRA litigation. It strengthens the enforcement framework for servicemembers and heightens the compliance and exposure risks for employers. For practitioners on both sides, attorney’s fees are now a central component of case valuation, negotiation strategy, and early dispute resolution.