John E. Kirkendall v. Department of the Army

The majority today holds with respect to the VEOA appeal that when Congress said “in no event may any ... appeal be brought ... later than 15 days,” it did not really mean “in no event.” With respect to the USERRA claim the majority gives “appeal” a different meaning than the well established meaning of that term. I respectfully dissent.

In my view, the Board should be affirmed both on the VEOA claim and on the USERRA claim. Kirkendall has failed to bring his VEOA appeal within 15 days as required by 5 U.S.C. § 3330a(d)(l)(B), and (since the USERRA proceeding is not an appeal) he is not…