Taylor v. Merit Systems Protection Board ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHERYL TAYLOR,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3037
______________________
Petition for review of the Merit Systems Protection
Board in No. AT1221120255-W-1.
______________________
Decided: July 16, 2013
______________________
SHERYL TAYLOR, of Memphis, Tennessee, pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were BRYAN G. POLISUK, General Counsel and KEISHA
DAWN BELL, Deputy General Counsel.
______________________
Before PROST, CLEVENGER, and LINN, Circuit Judges.
PER CURIAM.
2 TAYLOR v. MSPB
Petitioner Sheryl Taylor seeks review of a final deci-
sion by the Merit Systems Protection Board (“Board”)
which dismissed her Individual Right of Action (“IRA”)
appeal for lack of jurisdiction. Taylor v. Dep’t of Treasury,
No. AT-1221-12-0255-W-1 (MSPB Oct. 11, 2012) (Final
Order); Taylor v. Dep’t of Treasury, No. AT-1221-12-0255
(MSPB Mar. 28, 2012) (Initial Decision). For the reasons
set forth below, we affirm.
I
Ms. Taylor was employed as a Computer Assistant by
the Internal Revenue Service, a component of the Treas-
ury Department (“the Agency”). Between 2010 and 2011,
she was the subject of several disciplinary actions which
resulted in her removal.
Specifically, on January 5, 2010, the Agency proposed
to suspend Ms. Taylor for a period of five days in response
to two alleged instances of absence without leave. The
Agency imposed that five-day suspension in March of
2010.
In February of 2011, the Agency proposed to suspend
Ms. Taylor for fifteen more days based upon five specifica-
tions of her alleged failure to follow managerial direc-
tions. Three days later, the Agency rescinded that
proposal and replaced it with a proposal to remove Ms.
Taylor on grounds that she had been absent without
leave, had failed to abide by established leave procedures,
and failed on numerous occasions to follow managerial
direction. On April 20, 2011, the Agency issued a final
decision removing Ms. Taylor, effective April 22, 2011.
Ms. Taylor filed an appeal with the Board seeking re-
view of her punishments and removal. The Board docket-
ed certain portions of her appeal as an IRA appeal
because she stated that her removal had been retaliation
for the fact that she had filed a number of actions against
the Agency such as a whistleblower complaint, a federal
lawsuit and a discrimination complaint with the Equal
Employment Opportunity Commission (“EEOC”). She
TAYLOR v. MSPB 3
also requested that the Board provide her with legal
counsel.
On February 29, 2012, Administrative Judge Jackson
issued a jurisdictional order warning Ms. Taylor that her
IRA appeal might be rejected for lack of jurisdiction
unless she filed a statement, accompanied by evidence,
identifying her allegedly protected disclosures and the
Agency actions which she felt were retaliatory. She was
also directed to show that she had exhausted administra-
tive remedies before the Office of Special Counsel (“OSC”)
prior to filing her appeal with the Board.
Ms. Taylor never submitted any of the information
requested by the jurisdictional order. She did, however,
file motions seeking the recusal of Administrative Judge
Jackson and the removal of the Agency’s counsel, as well
as a motion which reiterated her request that the Board
appoint her counsel.
On March 28, 2012, the Administrative Judge dis-
missed Ms. Taylor’s appeal for want of jurisdiction be-
cause Ms. Taylor had submitted no evidence showing that
she had exhausted her remedies before the OSC or that
she had made a disclosure protected by the Whistleblower
Protection Act. Ms. Taylor’s motions for recusal, removal,
and appointment of counsel were denied.
Ms. Taylor filed a petition for review by the Board,
which was denied on October 11, 2012, after the Board
determined that there was no new, previously unavailable
evidence and that the Administrative Judge had made no
error in law or regulation that affected the outcome of the
case.
Ms. Taylor timely appealed, and we have jurisdiction
under 5 U.S.C. § 7703(b)(1).
II
The sole issue raised by Ms. Taylor on appeal is
whether the Board wrongly denied her multiple requests
for appointment of counsel. She asserts that she is under
4 TAYLOR v. MSPB
medical care, that she “does not have the mental capacity
to litigate this complaint” without the assistance of coun-
sel, and that she has tried, but failed, to secure represen-
tation on a pro bono basis.
Ms. Taylor therefore believes that the Board abused
its discretion by failing to assign her federally-funded
counsel who could assist her with developing her claim.
We disagree. As an initial matter, Ms. Taylor has no
constitutional right to appointed counsel to assist with
her appeal of the Agency’s removal action. That right is
usually limited to criminal cases, and generally applies to
civil cases such as this only when an indigent party’s
liberty is potentially threatened. Pitts v. Shinseki, 700
F.3d 1279, 1283 (Fed. Cir. 2012); see also Lassiter v. Dep’t
of Soc. Servs., 452 U.S. 18, 26–27 (1981) (“[W]e . . . draw
from [the Court’s precedents] the presumption that an
indigent litigant has a right to appointed counsel only
when, if he loses, he may be deprived of his physical
liberty.”); Arnesen v. Principi, 300 F.3d 1353, 1360 (Fed.
Cir. 2002) (generally there is no right to appointed coun-
sel for indigent civil litigants absent a potential loss of
personal freedom); Lariscey v. United States, 861 F.2d
1267, 1270 (Fed. Cir. 1988) (“[T]he right to counsel is
highly circumscribed, and has been authorized in exceed-
ingly restricted circumstances,” such as when an indigent
party “may lose his/her personal freedom if the action is
lost”).
The Board and the Agency seldom encounter such
cases, and so it is unsurprising that neither has any
procedure in place for appointing federally-funded counsel
to represent pro se claimants. Nevertheless, on at least
one prior occasion, we have directed the Board to provide
some measure of assistance to a mentally incompetent pro
se claimant. In French v. Office of Personnel Manage-
ment, 810 F.2d 1118 (Fed. Cir. 1987), we held that it was
an abuse of discretion to dismiss as untimely a mentally
incompetent man’s pro se claim for disability retirement
benefits, and we remanded with instructions that the
TAYLOR v. MSPB 5
Office of Personnel Management (“OPM”) should take an
“active role” in helping Mr. French develop his claim. 810
F.2d 1118, 1120 (Fed. Cir. 1987) (holding that a mentally
incompetent pro se claimant should not “alone . . . be
charged with the task of establishing his case” for disabil-
ity benefits based upon mental incompetency).
The reasoning and result of French do not compel a
remand of Ms. Taylor’s case. We decided French based
largely upon our interpretation of 5 U.S.C. § 8337(b),
which specifically concerns disability benefits. That
statute permits the OPM to waive the 1 year statute of
limitations for filing a claim seeking disability benefits if
the claimant is mentally incapacitated:
This time limitation may be waived by the Office
for an employee or Member who at the date of
separation from service or within 1 year thereaf-
ter is mentally incompetent, if the application is
filed with the Office within 1 year from the date of
restoration of the employee or Member to compe-
tency or the appointment of a fiduciary, whichever
is earlier.
5 U.S.C § 8337(b); French, 810 F.2d at 1119–20 (analyzing
the statute’s applicability to Mr. French’s claim for disa-
bility benefits). We held that the OPM’s refusal to hear
Mr. French’s untimely claim was inconsistent with this
statutory mandate requiring “a high degree of care in
dealing with the [disability] claims of the incompetent.”
French, 810 F.2d at 1120.
The rationale underpinning our French decision is
therefore generally inapplicable outside the retirement
and disability benefit context, and to this end, the Board
has declined to extend French to removal actions. See
Marbrey v. Dep’t. of Justice, 45 M.S.P.R. 72, 75 (1990)
(declining to appoint counsel to assist former employee in
challenging his removal).
Moreover, even after French was remanded, Mr.
French was not appointed federally-funded counsel.
6 TAYLOR v. MSPB
Rather, the only relief that the Board offered to Mr.
French was “a list of available attorneys . . . who might
represent Mr. French pro bono from sources such as the
local bar association, the local Federal Executive Board,
and other local organizations which provide legal services
to the indigent.” French v. Office of Pers. Mgmt., 37
M.S.P.R. 496, 499 n.3. (1988). Ms. Taylor has apparently
already tried in vain to secure pro bono representation
from numerous lawyers and legal aid programs. It seems
unlikely that she would achieve any better results follow-
ing a remand, given that the Board could only refer her
back to those same resources.
Ms. Taylor directs our attention to Fogg v. Dep’t of
Justice, No. DC-0752-96-0101-I-2 (MSPB May 31, 1996)
(Initial Decision), which is another case involving a for-
mer employee who alleged that his removal was reprisal
for EEOC complaints that he had filed against his former
employer. Id. at 3. The Initial Decision in that case
makes passing mention of the appellant’s “newly court-
appointed counsel.” Id. at 11. Ms. Taylor argues that
Fogg thus refutes the Board’s presently-claimed inability
to appoint counsel in non-retirement cases.
Reviewing the record, however, it does not appear
that Mr. Fogg’s counsel actually was appointed by the
Board. Instead, Mr. Fogg’s counsel was appointed by the
District Court for the District of Columbia, in the context
of his co-pending EEOC case. See Order Directing Ap-
pointment of Pro Bono Counsel, Fogg v. Gonzales, 407
F.Supp.2d 79 (D.D.C. 2005) (No. 94-cv-2814) (appointing
counsel for Mr. Fogg pursuant to D.C. Local Civil Rules),
ECF No. 24. Indeed, unlike the Board, U.S. district
courts are statutorily authorized to appoint counsel for
EEOC complainants whenever justice demands. See
42 U.S.C § 2000e-5(f)(1) (“Upon application by the com-
plainant and in such circumstances as the court may
deem just, the court may appoint an attorney for such
complainant and may authorize the commencement of the
action without the payment of fees, costs, or security.”)
TAYLOR v. MSPB 7
Fogg therefore reaffirms rather than contradicts the
Board’s present position.
Finally, we note that Ms. Taylor has also filed numer-
ous motions asking this court to supply her with counsel
to assist with this appeal, all of which were denied. To
the extent that her briefing invites us to reconsider those
denials, we decline for reasons similar to those outlined
above—Ms. Taylor has no constitutional right to counsel
for her present appeal, and this court has no means by
which it could appoint counsel to represent her.
CONCLUSION
Because the Board did not abuse its discretion in de-
clining to appoint counsel for Ms. Taylor, the Board’s
decision is affirmed. Ms. Taylor’s pending motions are
denied.
AFFIRMED