Rodney R. Stoughton learned the hard way that a federal employe who appears before the Merit Systems Protection Board is responsible for not only his own actions, but also his attorney's.
On Aug. 13, 1982, the Veterans Administration fired the loan administration officer for poor performance and gave him the standard warning that if he wanted to file an appeal with the merit board, he had to do it within 20 days.
Stoughton had hired Thomas J. Sehler, an attorney who worked in the same building as the board's regional office in Bailey's Crossroads, so he figured that filing the appeal would not be a problem. He notified Sehler, who already had received a $500 retainer from Stoughton.
Several weeks went by and Stoughton said he heard nothing from the board. So he said he telephoned Sehler, but was assured that his case was on track. When Stoughton still had not heard anything after two months, he called the board and discovered that it had never heard of him.
Stoughton immediately complained to Sehler, who promised to investigate.
The board eventually contacted Stoughton and told him that a hearing on his case would be held on May 27, 1983. At that hearing, Stoughton discovered that his appeal was in jeopardy because it had not been filed on time.
Sehler contended that he had filed the claim within 20 days, but the board said it had no record of the appeal until six months after Stoughton was fired.
According to board records, Sehler testified that he had hand-carried Stoughton's appeal to the board sometime in September 1982, but had not asked the board for a receipt.
When he learned that the board did not have a copy of the appeal, Sehler hand-carried a second appeal to the board sometime in December 1982, he said. Despite his first experience, Sehler said he failed to ask for a receipt.
When Sehler discovered that the board still had no record of either of the two earlier appeals, he sent a copy of the appeal to the board by certified mail.
The board received that copy in March, but said it was the first it had heard of Stoughton's case. It asked Sehler to explain in writing why he had waited six months to file the appeal and gave him until March 30 to respond. His explanation arrived at the board in mid-April and was postmarked April 11, records show.
Sehler blamed the board during the hearing, charging that it had lost his first two appeals. He said it would be unfair to dismiss Stoughton's case, because he and Stoughton had done their part.
The MSPB's hearing officer called Sehler's explanation "inherently incredible," however, and said there was no proof that he had attempted to contact the board before March 1983. Stoughton's case was dismissed.
Sehler appealed to the full board, but in January 1984 it also rejected the case. Sehler told Stoughton that it would cost at least $1,000 more to appeal the case through the courts.
Stoughton then hired the Washington law firm of Goldfarb, Singer & Austern to handle his case, but it advised him that there was only a 30 percent chance that he would win. Stoughton decided to go ahead, running up another $4,000 in legal fees.
Finally, on Oct. 31, the U.S. Court of Appeals for the Federal Circuit rejected Stoughton's arguments, saying that he was ultimately responsible for his own case.
"What really gets me is I never got to tell my side," Stoughton said. "I paid all these bills, but never told the court why I should get my job back."
When asked to comment on the case, Sehler said he was "insulted" by the hearing judge's comment on his explanation. He said the board was being unreasonable and again contended that the board had lost Stoughton's appeals. CHAIRMAN TO MOVE? . . .
MSPB employes are speculating that board Chairman Herbert E. Ellingwood will move to the Justice Department next year if White House Counselor Edwin Meese III is confirmed by the Senate as attorney general. The two men have been friends since childhood and Ellingwood worked with Meese at the White House before moving to the MSPB. GOT AN OPINION? . . .
The board is seeking comments on whether it has the authority to review why federal agencies revoke employe security clearances. Several federal employes, who lost their jobs primarily because their security clearances were revoked, have filed appeals, but the board is not sure whether it has jurisdiction over the issue. In a Dec. 13 Federal Register notice, the board also asked what it should do in such cases. Can it, for instance, order an agency to reinstate a security clearance? The deadline for comments is Jan. 12. -- Pete Earley