Shеryl TAYLOR, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 2013-3037.
United States Court of Appeals, Federal Circuit.
July 16, 2013.
Rehearing En Banc Denied Aug. 26, 2013.
Ms. Winsett argues that if the Board had waited to issue its decision until this court had ruled she could have submitted a portion of our оpinion as evidence showing that she and Mr. Jacks cohabited. The CAVC was correct to dismiss that argument. This court‘s 2008 opinion stated that, “according to family and friends,” Ms. Winsett and Mr. Jacks “cohabited” for some time following their divorce. Winsett, 283 Fed.Appx. at 798. But that referеnce to the record does not constitute a factual finding. The passage merely describes certain evidence; neither that passage nor anything else in this court‘s opinion constitutes a finding as to whether Mr. Winsett and Mr. Jacks cohabited.
Moreover, Ms. Winsett also has an alternative forum to adjudicate her underlying surviving spouse claim: the April 24, 2012, proceeding she has filed with the RO. She is free to present any new and material evidence on the surviving spouse issue that she would hаve presented had the RO heard those earlier claims. If she objects to the RO‘s determination, she may appeal to the Board and then to the CAVC, provided that she abides by the filing requirements that court has imposed. Relief by writ of mandamus is рlainly inappropriate under these circumstances.
III
In support of her various contentions, Ms. Winsett has made a number of accusations against DVA and judicial personnel. She accuses the DVA of fabricating records to suggest that she had appealed the 2009 RO decision to the Board, supposedly in an attempt to convince the CAVC to dismiss her mandamus petitions in light of this imaginary pending appeal. Ms. Winsett does not adequately support such a serious charge, and the CAVC did not rely on any alleged pending claim before the Board to deny her mandamus petitions.
Ms. Winsett also accuses the CAVC of holding ex parte communications with the DVA and otherwise impugns the integrity and impartiality of the members of that court. These unsupported accusations are frivolous. She further contends that the CAVC‘s decision not to assign her case to a three-judge panel deprived her of due process. That argument, too, is baseless. See Arnesen v. Principi, 300 F.3d 1353, 1360-61 (Fed.Cir.2002);
Finally, Ms. Winsett seeks review of the CAVC‘s sanctions order entered as a remedy for her abuse of process. That order was not even issued when Ms. Winsett filed the two mandamus petitions here at issue, so it is not properly before this court in these appeals.
AFFIRMED
Miсhael 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.
Petitioner Sheryl Taylor sеeks review of a final decision 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, 118 M.S.P.R. 550 (M.S.P.B. 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 Rеvenue Service, a component of the Treasury 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 specifications of her alleged failure to follow managerial directions. 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 rеmoving Ms. Taylor, effective April 22, 2011.
Ms. Taylor filed an appeal with the Board seeking review of her punishments and removal. The Board docketed 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 also
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 administrative 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 reiterаted her request that the Board appoint her counsel.
On March 28, 2012, the Administrative Judge dismissed Ms. Taylor‘s appeal for want of jurisdiction because Ms. Taylor had submitted no evidence showing that she had exhausted her remedies before the OSC or thаt 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
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 medical care, that she “does not have the mental capacity to litigate this complaint” without the assistance of counsel, and that she has tried, but failed, to secure representation 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 mаy be deprived of his physical liberty.“); Arnesen v. Principi, 300 F.3d 1353, 1360 (Fed.Cir.2002) (generally there is no right to appointed counsel 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 exceedingly rеstricted 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 fоr 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 mеntally incompe
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
This time limitation may be waived by the Office for an employеe or Member who at the date of separation from service or within 1 year thereafter 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 competency or the appointment of a fiduciary, whichever is earlier.
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. Rather, the only relief that the Board offered to Mr. French was “a list of аvailable 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 tо 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 following 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 former employee who alleged that his removal was reprisal for EEOC complaints that he had filed against his former еmployer. 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 Appointment of
Finally, we note that Ms. Taylor has also filed numerous motions asking this court to supply her with counsel to assist with this aрpeal, 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 declining to appoint counsel for Ms. Taylor, the Board‘s decision is affirmed. Ms. Taylor‘s pending motions are denied.
AFFIRMED.
Jack N. NICHOLS, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 2013-3027.
United States Court of Appeals, Federal Circuit.
July 16, 2013.