Lack of counsel hurts employees

Anyone who has ever seen "Dragnet" on TV knows that even the lowliest criminal is entitled to a court-appointed attorney. Unfortunately, federal employees who cannot afford attorneys are on their own when it comes to fighting for their rights. The results can be rough on a federal worker who doesn't have the legal smarts to take on the system, as a recent court case illustrated.

The case involved Kerness Mills, who was removed from his position as a pipe fitter at the Department of Veterans Affairs' facility in Cleveland on March 15, 1997. The case file contains no information as to why Mills was fired.

The removal notice sent to Mills stated he had 30 days to appeal his removal to the Merit Systems Protection Board. Mills filed an appeal with the MSPB on June 19, 1997, more than 60 days late. When the administrative judge assigned to the case told Mills to show cause for why his appeal should not be dismissed as untimely, Mills said he did not file sooner because he was in a rehabilitation program until June 27, 1997.

The judge rejected the explanation, ruling that Mills failed to furnish any medical evidence to support his allegation that he was incapacitated. In addition, the judge said Mills' participation in a grievance procedure in April 1997 contradicted his allegation that he was incapacitated. Consequently, the judge dismissed Mills' appeal. Mills then took his case to the Court of Appeals.

In its review, the court made it clear that the time limit for appealing to the MSPB can be waived only if the petitioner demonstrates good cause, and the MSPB decides what constitutes good cause (U.S. Court of Appeals for the Federal Circuit, 98-3281, Mills v. Merit Systems Protection Board, Dec. 15, 1998). The court said it could review the case only to determine whether the MSPB incorrectly dismissed Mills' appeal as untimely. It could not address the merits of Mills' removal.

The court also concluded that the MSPB did not abuse its discretion in dismissing his appeal as late. The court upheld the MSPB decision.

There are a number of things I don't like about this case. First, Mills didn't have an attorney. It remains unclear whether Mills was asked to submit evidence of being incapacitated or whether he was asked only to "show cause" for why his appeal should not be rejected. Without an attorney and without a great deal of knowledge about the legal system, it's not hard to picture someone who is ill ignoring a letter from the MSPB until he was able to pay attention to what the letter said.

If Mills was incapacitated, it should not be difficult for him to prove that, but there is no indication that the MSPB even asked for proof.

There is mention of Mills appearing at a grievance procedure in April. But what does that prove? Does it prove that Mills wasn't incapacitated? I really do not see the connection.

It also is unclear as to what kind of rehabilitation program Mills was in. Couldn't the appeals court have looked into this?

The disposition of this case illustrates that neither the MSPB nor the courts are going to help someone present evidence. That is up to the claimant. The MSPB and the court address only what is presented to them.

I guess I am bothered by the fact that there is no one to help a claimant. If you are charged with a crime and cannot afford a lawyer, one is assigned to you by the courts. But if you are a federal employee who is short on cash and legal smarts, you are really up against it.

--Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.


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