527 F. App'x 970
Fed. Cir.2013Background
- Taylor, an IRS Computer Assistant, was subjected to multiple disciplinary actions between 2010 and 2011 resulting in removal from employment.
- In 2010, the Agency suspended Taylor for five days for two instances of absence without leave, with the suspension imposed in March 2010.
- In February 2011, the Agency proposed a fifteen-day suspension for noncompliance with directions; the agency then replaced this with a removal proposal based on absence, leave-procedure violations, and failure to follow managerial direction.
- On April 20, 2011, the Agency issued a final removal decision effective April 22, 2011.
- Taylor appealed to the Merit Systems Protection Board (MSPB), and portions were docketed as an Individual Right of Action (IRA) appeal alleging retaliatory removal for whistleblower-style disclosures and prior filings; she sought counsel from the Board.
- Administrative Judge warned Taylor on Feb. 29, 2012 to provide evidence of protected disclosures and OSC exhaustion; she failed to supply the requested information, and moved for recusal and for counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board abused its discretion in denying appointment of counsel | Taylor argues she requires counsel due to medical care and inability to litigate pro se | Board/Agency contend no constitutional right to counsel in civil removal appeals and insufficient grounds to appoint counsel | No abuse; no right to counsel in this civil removal context; denial affirmed |
Key Cases Cited
- Pitts v. Shinseki, 700 F.3d 1279 (Fed. Cir. 2012) (no constitutional right to appointed counsel in this context unless liberty threatened)
- Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (U.S. 1981) (indigent party’s right to counsel limited to cases with potential loss of liberty)
- Arnesen v. Principi, 300 F.3d 1353 (Fed. Cir. 2002) (no general right to appointed counsel for indigent civil litigants)
- Lariscey v. United States, 861 F.2d 1267 (Fed. Cir. 1988) (right to counsel highly circumscribed in civil matters)
- French v. Office of Personnel Management, 810 F.2d 1118 (Fed. Cir. 1987) (mentally incompetent pro se claimant may require agency to assist in claim development)