No Right to Appointed Counsel at MSPB

Wednesday, October 30, 2013

In Taylor v. MSPB, nonprecedential No. 2013-3037 (7/16/13), the U.S. Court of Appeals for the Federal Circuit ruled that federal employees do not have the right to appointed counsel in cases before the MSPB. In so ruling, the Federal Circuit reaffirmed a longstanding constitutional principle that appointed counsel are generally reserved solely for criminal cases, and civil cases where an indigent party’s liberty is potentially threatened.

Taylor was a computer assistant at the IRS. Between 2010 and 2011, she was subjected to a series of disciplinary actions, culminating in her removal from the agency. After her removal, Taylor filed an Individual Right of Action (IRA) appeal with the MSPB, claiming that her removal was, in part, due to retaliation for whistleblowing. At the same time, she requested that the MSPB provide her with legal counsel.

In February 2012, the administrative judge warned Taylor that her case might be rejected for lack of jurisdiction, as she was not meeting case deadlines. However, instead of complying with the deadlines set forth in the case, Taylor instead filed motions asking for the recusal of the AJ, the recusal of IRS’s attorney and reiterating her request that the MSPB appoint her counsel. Consequently, in March 2012, the AJ dismissed Taylor’s case.

Taylor appealed the dismissal to the Federal Circuit, arguing that the MSPB wrongly denied her requests for appointed counsel. As reasons why she needed appointed counsel, Taylor noted that she is under medical care, and did not have the mental capacity to litigate her case. She also pointed out that she had tried, but failed, to secure representation on a pro bono basis. The Federal Circuit denied Taylor’s claim, explaining that the right to appointed counsel is extremely limited and available generally only in criminal cases. The right may also be available in civil cases where a party’s personal freedom is at stake as well as retirement and disability benefit cases.

This case is a fresh reminder that for federal employees who wish to retain counsel must do so on their own and earlier is better. Particularly in MSPB cases, deadlines often come early after an AJ is assigned, and counsel should be helpful in successfully navigating case requirements.