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A former federal employee hired an attorney for two cases. Unfortunately for the former fed, the attorney did not make any arguments on the case the court had the authority to review.

A recent case decided by the Federal Circuit falls into the “now we’ve seen it all department.” (Vaughns v. Office of Personnel Management, U.S.C.A.F.C. No. 05-3253 (non-precedent), 5/4/06)

Mr. Vaughns was fired by the Equal Employment Opportunity Commission (EEOC). He represented himself in two appeals before the Merit Systems Protection Board. In one, he challenged the removal. In another he sought reconsideration of the decision by the Office of Personnel Management denying him disability retirement because his application was untimely.

The Administrative Judge issued two decisions. In Docket No. DA-831E-04-0262-I-1, the AJ affirmed the OPM disallowance of Vaughns’ disability retirement. In Docket No. DA-0432-04-0261-I-1, the AJ dismissed Vaughns’ adverse action appeal as untimely filed. (Opinion, pp. 1-2).

At this juncture, Mr. Vaughns hired an attorney who filed petitions for review with the full Board. The attorney fared no better than Mr. Vaughns had. The Board denied the petitions and the AJ’s decisions thus became final MSPB decisions. (p. 2).

Vaughns’ attorney took the case to the appeals court. However, he filed a single petition and attached only the MSPB decision on Vaughns’ disability retirement application. Inexplicably, he submitted a brief addressing the other MSPB decision on Vaughns’ removal appeal.

Unfortunately for Mr. Vaughns, the court could not entertain his removal appeal: “Because Mr. Vaughns did not petition this court for review of the MSPB decision relating to his removal, and because the 60-day filing deadline has passed, it would be outside the bounds of our statutory authority to review the removal decision.” (pp. 2-3)

The court did consider the petition for review of the MSPB decision on his disability retirement, but, “[i]n the absence of briefing on the …claim, we can review at most for plain error on the record. We see none.” In short, Mr. Vaughns is out of court.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.