No Right To Counsel In MSPB Appeal

A fired Internal Revenue Service employee was not able to convince the appeals court that she was entitled to appointed legal counsel either before the Board or before the court in challenging her removal and that failing to appoint an attorney for her was abuse of discretion.

The appeals court has recently turned aside the argument that the Merit Systems Protection Board (MSPB) “abused its discretion” by failing to appoint an attorney to represent an appellant challenging her removal before the Board. (Taylor v. Merit Systems Protection Board (CAFC No. 2013-3037, 7/16/13, nonprecedential))

The IRS removed Sheryl Taylor from her Computer Assistant position for various reasons, including absence without leave, not following leave procedures, and failing to follow directions of various managers. She appealed to the MSPB and among other things requested that it appoint legal counsel to represent her. (Opinion pp. 2-3)

When the MSPB ruled against Ms. Taylor, she took her case to the appeals court and according to the court’s opinion she raised just one issue: “whether the Board wrongly denied her multiple requests for appointment of counsel.” (p. 3) Ms. Taylor argued that she did not have the capacity to litigate her case and therefore the MSPB was required to assign her a “federally-funded counsel who could assist her with developing her claim.” (p. 4)

The appeals court has a short answer to this argument: “We disagree.” (p. 4)

The court patiently explains that the constitutional right to counsel “is usually limited to criminal cases, and generally applies to civil cases…only when an indigent party’s liberty is potentially threatened.” (p. 4) Acknowledging there was in fact one case where the Federal Circuit directed the Board to provide “some measure of assistance to a mentally incompetent pro se claimant…” the court points out that it was a unique situation involving disability benefits and is “generally inapplicable outside the retirement and disability benefit context.” (p. 5)

The court notes that Ms. Taylor has also filed repeated motions asking it to appoint counsel for her, all of which the court has denied. In short, the court holds that “Ms. Taylor has no constitutional right to counsel for her present appeal…” (p. 7)

Taylor v. MSPB

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.