The Merit Systems Protection Board recently rejected a former Department of Veteran’s Affairs nursing assistant’s bid to reopen his appeal challenging his termination. After the VA terminated the former assistant for attendance related reasons during his probationary period, the assistant appealed claiming his termination was discriminatory based on his status as a Gulf War Veteran. An administrative law judge rejected his first attempt at redress. After an appeal, the Board found the former nursing assistant made a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 and held another hearing.
The administrative judge at the second hearing found the former assistant failed to prove discrimination, and informed him that he could challenge the initial decision which would become final within 30 days, or that if he still disagreed, he could file an appeal with the U.S. Court of Appeals for the Federal Circuit within 30 days of the initial decision becoming a final decision.
Without challenging the initial decision with the MSPB, the former assistant decided to dispute the administrative judge’s findings in front of the U.S. Court of Appeals, which then affirmed the administrative judge without a hearing. Nearly four years later, the assistant filed an appeal with MSPB for the first time. Though the MSPB has authority to reopen appeals from final decisions, it only does so if issues are raised that were not before the Board when it issued the decision, and then only in unusual or extraordinary circumstances. Finding the former assistant merely asserted the same allegations, the MSPB rejected his bid to reopen his appeal.
The full text of the decision can be found online.