Andrew L. Tolliver v. James Deniro, Director of Veterans Administration Medical Center, Palo Alto, California

Andrew Tolliver was discharged from his job as a nursing assistant at a Veteran’s Administration (“VA”) hospital. He appeals the district court’s dismissal of his complaints on jurisdictional grounds. We vacate the order of dismissal and remand.

Tolliver challenged his discharge in a proceeding before the Merit Systems Protection Board (“MSPB”). He denied the job-related allegations that led to his discharge, and he asserted as a racial discrimination claim that he was treated disadvantageous^ because he was black. He sought reinstatement with back pay.

The presiding official of the MSPB held that the VA’s charges against Tolliver were unsupported and granted reinstatement with back pay. The presiding official rejected Tolliver’s racial discrimination claim. The decision became final on December 23, 1983.

Tolliver did not immediately appeal the adverse ruling on the racial discrimination claim. He filed a timely motion before the MSPB for attorneys’ fees under two sections of 5 U.S.C. § 7701 (1982): (g)(1), for actions where employment discrimination is not at issue and (g)(2), where employment discrimination is at issue. The presiding official denied the motion for fees on…