NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

SUSAN L. GELB,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________ 

2023-1157

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-1221-21-0267-W-1.

______________________ 

Decided: May 17, 2023

______________________ 

SUSAN L. GELB, Alameda, CA, pro se. 

 MARIANA TERESA ACEVEDO, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by 

BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE 

ANNE NIOSI. 

 ______________________ 

Before LOURIE, DYK, and STOLL, Circuit Judges.

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2 GELB v. DVA

PER CURIAM.

Susan L. Gelb appeals the final decision of the Merit 

Systems Protection Board denying her request for corrective action under the Whistleblower Protection Act (WPA). 

Specifically, Ms. Gelb challenges the Administrative 

Judge’s decision finding that Ms. Gelb had not established 

good cause for her absence at the scheduled hearing and 

thus waived her right to a hearing. We hold that the administrative judge (AJ) abused his discretion in denying

Ms. Gelb a hearing because, although she was absent, her 

representative was present at the hearing. However, because Ms. Gelb has not met her burden of showing harmful 

error, we affirm the Board’s final decision. 

BACKGROUND

Ms. Gelb filed a complaint with the Office of Special 

Counsel (OSC), alleging retaliation under the WPA. After 

the OSC closed its investigation, Ms. Gelb appealed to the 

Board seeking corrective action. An AJ determined that 

Ms. Gelb had exhausted her claims and made nonfrivolous 

allegations of Board jurisdiction such that the appeal could 

proceed. 

Subsequently, on April 22, 2021, the AJ held a telephonic status conference. He indicated that a hearing 

would take place using the Zoom for Government (ZfG) videoconferencing platform. Ms. Gelb’s representative “expressed concern[s] regarding the appellant’s ability to 

access the necessary electronic equipment and internet 

connection to participate using ZfG.” SAppx. 52.1 Her representative asked whether an in-person appearance was 

possible, and the AJ explained that then-current COVID19 protocols precluded such appearances. The AJ ordered 

the “appellant . . . to determine whether she is able to 

1 Citations to “SAppx.” refer to the appendix attached to the appellee’s brief. 

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GELB v. DVA 3

successfully utilize the ZfG platform with equipment currently available to her.” Id. If Ms. Gelb was unable to utilize the ZfG platform, the AJ ordered that “she must notify 

the Board in writing by May 14, 2021, and set forth the 

specific reasons she [was] unable to use ZfG and any efforts 

she has made to overcome those issues.” Id. (emphasis in 

original). The AJ then issued an order setting a hearing 

for June 21, 2021 and stating that “[i]f the appellant fails 

to appear without good cause, the appeal will be decided 

without a hearing.” SAppx. 55. 

Ms. Gelb did not make a submission to the Board by 

the May 14, 2021 deadline. Instead, she asked—after the 

deadline, on four separate occasions—that the AJ allow her 

to appear via audio-only or in-person. See SAppx. 59

(May 24, 2021); ECF No. 9 at 49–522 (June 7, 2021); 

SAppx. 69, 72 (June 17, 2021); ECF No. 9 at 74–79

(June 19, 2021). Ms. Gelb explained that “she does not 

have the necessary personal hardware/equipment and 

wherewithal (to include a stable internet connection) to facilitate a videoconference.” ECF No. 9 at 76; see also id.

at 51–52. 

The AJ repeatedly denied Ms. Gelb’s requests. See

SAppx. 59–60 (June 1, 2021); SAppx. 66–67 (June 8, 2021); 

SAppx. 69, 72 (June 17, 2021). He explained that appellant had failed to make the requested submission by the 

May 14, 2021 deadline and thus found that “appellant has 

not shown good cause to participate in the hearing in person or by audio only.” SAppx. 60. 

The AJ continued to order “appellant to appear by 

video” and warned that failure to do so may result in sanctions under 5 C.F.R. § 1201.43. Id. Under 5 C.F.R. 

§ 1201.43(a), a judge may sanction a party for failure to 

2 Citations to “ECF No. 9” refer to the PDF page 

numbers on the appellant’s brief and attached appendix. 

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4 GELB v. DVA

comply with an order. Under subsection (e), a judge may 

cancel a scheduled hearing “for contumacious conduct or 

conduct prejudicial to the administration of justice.” Here, 

the AJ specified in his order that “an appropriate sanction 

for the appellant’s failure to appear by video would be to 

bar her from testifying.” SAppx. 72. 

The morning of June 21, 2021—the day of the hearing—the AJ told Ms. Gelb’s representative that Ms. Gelb

may use audio-only means to join the hearing. Hearing Audio Recording at 6:45–7:02 (“Now the administrative judge 

tells us [to] just have [Ms. Gelb] call in, when she’s already 

been advised she can’t do that. . . . That could have and 

should have actually been articulated by the administrative judge way before now.”). In other words, the AJ finally 

permitted Ms. Gelb to appear in the manner she had repeatedly requested. 

Ms. Gelb did not appear at the hearing through video 

or audio. She had made other plans for the day; specifically, Ms. Gelb’s representative noted that, believing she

would be unable to attend the hearing, Ms. Gelb decided 

not to take the day off work. Hearing Audio Recording

at 6:00–6:49. Importantly, Ms. Gelb’s representative said: 

I just want the record to just be really clear too that 

we are not waiving our right to a hearing and asking for a decision on the written record whatsoever 

in any way, shape, or form. The appellant is prepared to move forward today . . . [and] we just 

wanted to be real clear that we are prepared to 

move forward. She has a right to a hearing. . . . She 

does not waive her right to a hearing, and she is not 

asking for a decision on the written record at all 

and is prepared today to move forward without her. 

Hearing Audio Recording at 16:09–17:01. Ms. Gelb’s representative also asked that the hearing be rescheduled. 

SAppx. 42 n.2; Hearing Audio Recording at 13:40–14:48. 

The AJ decided that Ms. Gelb failed to show good cause for 

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GELB v. DVA 5

her absence, canceled the hearing, and notified parties that 

the record would close on July 6, 2021. See Hearing Audio 

Recording at 18:48–18:53 (“We will not be proceeding with 

the hearing absent the appellant’s presence.”). 

On July 5, 2021, Ms. Gelb, through her representative,

filed an Initial Response to AJ Close of Record. She argued 

that the AJ arbitrarily and capriciously canceled her hearing because she was present at the hearing through her 

representative. Separately, she stated that “there is not a 

genuine dispute as to any material fact in appellant’s reported disclosure(s) and contributing factor 

knowledge/timing test under WPA law.” ECF No. 9 at 85. 

Also, the response stated that since appellant was “denied 

her requested hearing, [her] representative will further 

elaborate on some evidence of current record, which would 

have only, essentially, required oral argument at [the] 

hearing, and [about] which appellant may not have called 

any witnesses.” ECF No. 9 at 87. Yet, Ms. Gelb also argued that by cancelling the hearing, she “was improperly 

denied the ability to have [her former supervisor]’s credibility assessed by the AJ at [the] hearing, [which] was 

harmful error.” ECF No. 9 at 92 n.10.

On September 24, 2021, the AJ issued his Initial Decision denying Ms. Gelb’s request for relief. Gelb v. Dep’t of 

Veterans Affs., No. SF-1221-21-0267-W-1, 2021 WL 

4439338 (M.S.P.B. Sept. 24, 2021) (Initial Decision), aff’d, 

2022 WL 4241205, at *1 (M.S.P.B. Sept. 14, 2022) (Final 

Decision). The AJ stated that “appellant’s representative 

failed to show good cause for the appellant’s nonappearance.” Initial Decision, 2021 WL 4439338. He addressed 

Ms. Gelb’s arguments in her close of record submission as 

“unavailing and decline[d] to reconsider [his] prior rulings.” Id. n.3. Also, he noted that “appellant states in her 

closing submission that the record is complete, that a hearing would have only required oral argument, and that she 

submits no new evidence or argument with her close of record submission.” Id. 

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6 GELB v. DVA

Ms. Gelb appealed. She argued that she had not 

waived her right to a hearing because, in part, nothing in 

the statute or law requires an appellant to personally attend a hearing if represented. She also explained that she 

required a hearing, among other reasons, for the “opportunity to develop testimonial evidence and record oral argument, at the very least, of . . . conflicting material facts 

of her protected disclosures to agency official(s),” including

to her supervisor. ECF No. 9 at 14–15. 

The Board denied Ms. Gelb’s petition for review and affirmed the initial decision. Final Decision, 2022 WL 

4241205, at *1. The panel explained that Ms. Gelb was not 

improperly deprived of her right to a hearing because an 

appellant may forfeit such right by inexcusably failing to 

attend. Id. (citing Callahan v. Dep’t of the Navy, 748 F.2d 

1556, 1559 (Fed. Cir. 1984)). As for representation, the 

Board explained that Sparks v. United States Postal Service, 32 M.S.P.R. 422, 425 (1987), a case in which an appellant’s attorney proceeded without the client, was 

distinguishable because Ms. Gelb’s representative asked to

reschedule the hearing. Id. at *2 n.2. Also, the Board reasoned that the AJ gave specific instructions for the appellant herself to appear by video and advised that failure to 

do so could result in sanctions under 5 C.F.R. § 1201.[43]3, 

which “may include cancellation of a hearing.” Id. 

In the alternative, the Board decided that even if the 

AJ erred in canceling the hearing, that is of “no legal consequence unless it is shown to have adversely affected a 

party’s substantive rights.” Id. at *2 (citing Karapinka 

v. Dep’t of Energy, 6 M.S.P.R. 124, 127 (1981)). The Board 

explained that “appellant explicitly conceded that no 

3 Although the Board cites to § 1201.54, we believe 

the Board meant to cite to § 1201.43. See, e.g., SAppx. 60 

(the AJ referencing § 1201.43); Final Decision, 2022 WL 

4241205, at *2, ¶ 4 (citing to § 1201.43). 

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GELB v. DVA 7

material facts were in dispute and that she would have presented only oral argument had the hearing taken place. 

Hence, the appellant has not shown that the cancellation 

of the hearing affected her substantive rights.” Id. (citing 

ECF No. 9 at 87). 

Ms. Gelb appeals. We have jurisdiction under 

28 U.S.C. § 1295(a)(9).

DISCUSSION

We may only set aside the Board’s decision if it is 

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulations having been 

followed; or (3) unsupported by substantial evidence.” 

5 U.S.C. § 7703(c). We review the failure to provide a hearing for an abuse of discretion. Spezzaferro v. F.A.A., 

807 F.2d 169, 174 (Fed. Cir. 1986). 

On appeal, Ms. Gelb argues that the AJ arbitrarily denied her statutory right to a hearing, representation, and a 

hearing transcript. See Appellant’s Br. 7–9. She argues 

that the AJ’s actions violated her due process rights. See 

id. at 9. 

We begin by addressing the issue of the right to a hearing, which in this case relates to the right to representation. In essence, Ms. Gelb argues that because her 

representative was present at the hearing, the representative should have been able to stand in her stead. Appellant’s Br. 6; Reply Br. 5–6. We agree.

Under 5 U.S.C. § 7701(a), an appellant has the right to 

a hearing and the right to be represented. An appellant 

can forfeit these rights. For example, in Callahan v. Department of Navy, 748 F.2d 1556, 1556 (Fed. Cir. 1984), we 

held that “when an employee is absent from a Board hearing without justification, the proper procedure is for the 

Board to consider the case on the agency’s investigatory 

record alone.” But there, the employee was unrepresented. 

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8 GELB v. DVA

See id. at 1556 n.1. In other words, the appellant indisputably failed to appear. That is not the case here.

Instead, this case is like Atilano v. McDonough, 

12 F.4th 1375 (Fed. Cir. 2021), where the appellant was 

present at a hearing before the Board of Veterans’ Appeals

through his representative. In Atilano, the applicable statutory provision stated that an “appellant” is afforded “an 

opportunity for a hearing.” Id. at 1380 (quoting 38 U.S.C. 

§ 7107(b)). Mr. Atilano failed to attend his hearing due to 

severe disabilities. Id. at 1377. His representative was 

present, but the Veterans Law Judge refused to hear expert testimony because of Mr. Atilano’s absence. Id. We 

reversed and held that the statute did not require the veteran to be present at the hearing when represented. Id.

at 1381–82. Relevant here, we explained that while the opportunity for a hearing is “afforded to the appellant,” nothing in the statutory language requires the appellant’s 

presence when he is represented. Id. at 1380. Simply put, 

Atilano recognized that “appellant”—as understood in the 

relevant statute—could mean the appellant’s representative. While we recognize that Atilano involves a different 

statute, we find its analysis instructive. 

Title 5 U.S.C. § 7701 similarly states that an “appellant shall have the right . . . to a hearing.” Although this 

is an opportunity afforded to the “employee,” nothing in the 

statute requires an appellant’s presence when she is represented. As in Atilano, we understand “appellant” in this 

context to include an appellant’s representative, rather 

than constraining it to mean solely the employee herself,

regardless of representation. 

MSPB caselaw supports such a reading. For example, 

in Sparks, the appellant’s representative was present at 

the hearing and the employee was not. 32 M.S.P.R. at 424. 

The AJ in Sparks informed the appellant’s representative 

that he could proceed with the hearing or request that a 

decision be made on the written record; the appellant’s 

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GELB v. DVA 9

representative chose to proceed with the hearing. Id. After 

the AJ’s initial decision, the employee petitioned for review, arguing that “the initial decision was unjust because 

he was hospitalized at the time of the hearing and could 

not be present.” Id. The Board disagreed, explaining that 

it is “well-established . . . that generally an appellant is responsible for the actions, or inactions, of his designated 

representative.” Id. at 425 (quotation omitted). The record 

there showed that the representative “was authorized to 

act as the appellant’s representative and that [the representative], therefore, had the legal authority to act in the 

appellant’s behalf.” Id. 

So too here. At the June 21, 2021, hearing, Ms. Gelb’s 

representative explained that the “appellant is prepared to 

move forward today,” without Ms. Gelb’s presence. Hearing Audio Recording at 16:09–16:33. The representative 

was authorized to act on her behalf. See ECF No. 9 at 83. 

Thus, the “appellant” was present at the hearing through 

the presence of her representative. The Board’s rationale 

for concluding otherwise is unavailing.4 

First, the Board tried to distinguish Sparks because 

here, “the appellant’s representative requested that the 

hearing be rescheduled.” See Final Decision, 2022 WL 

4241205, at *2 n.2. We are unpersuaded. The Board’s 

analysis is difficult to reconcile with the facts. An audio 

recording of the hearing shows that Ms. Gelb’s representative repeatedly said that appellant was ready to proceed 

4 The Government incorrectly contends that 

Ms. Gelb waived the issue of her right to representation by 

not raising it before the Board. Appellee’s Br. 18. But 

Ms. Gelb did raise the issue. See ECF No. 9 at 82–87 (raising the issue before the AJ); ECF No. 9 at 14–17 (raising 

the issue before the Board); see also Final Decision, 

2022 WL 4241205, at *2 n.2 (addressing Ms. Gelb’s argument). 

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10 GELB v. DVA

with the hearing. Hearing Audio Recording at 16:09–

16:33. That is what happened in Sparks. That Ms. Gelb’s 

representative was flexible and willing to alternatively reschedule the hearing should not vitiate Ms. Gelb’s right to 

a hearing and to representation. 

Second, the Board argued that the AJ “had explicitly 

ordered appellant herself to appear by video and advised 

her that failure to comply with the order could result in 

sanctions under 5 C.F.R. § 1201.[43] (which may include 

cancellation of a hearing).” Final Decision, 2022 WL 

4241205, at *2 n.2. 

Under 5 C.F.R. § 1201.43, a “judge may impose sanctions upon the parties as necessary to serve the ends of justice.” For example, under subsection (a), a judge may 

impose sanctions on a party who fails to comply with an

order. And under subsection (e), a judge “may cancel a 

scheduled hearing . . . for contumacious conduct or conduct 

prejudicial to the administration of justice.” See Jones 

v. Dep’t of Health & Hum. Servs., 703 F. App’x 977, 981 

(Fed. Cir. 2017) (non-precedential) (affirming the Board’s 

determination that appellant’s “rude and disrespectful conduct which regularly escalate[d] from advocacy to contumaciousness” warranted cancellation of a hearing). We have 

also recognized that a “right to a hearing should not be denied as a sanction absent extraordinary circumstances.” 

See Habtemariam v. Off. of Pers. Mgmt., 180 F. App’x. 968, 

970–71 (Fed. Cir. 2006) (non-precedential) (citing various 

MSPB cases showing that a single failure to comply with 

an order, or the failure to participate in two teleconferences, does not warrant the extreme sanction of a denial of 

a hearing). 

There are no extraordinary circumstances warranting 

a denial of a hearing here. Ms. Gelb missed one deadline 

before the hearing. And while the AJ specified that 

Ms. Gelb could face sanctions—specifically, that she would 

be unable to testify if she did not appear via ZfG 

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GELB v. DVA 11

videoconference—we decline to reach the conclusion that 

the AJ’s orders were directed to “Ms. Gelb” as opposed to 

“appellant.” Said otherwise, we do not read the AJ’s order—that “[i]f the appellant fails to appear without good 

cause, the appeal will be decided without a hearing,” 

SAppx. 55—as describing a narrower interpretation of “appellant” that would exclude an appellant’s representative. 

Here, Ms. Gelb complied with the order to appear at the 

hearing because her representative was present. To find 

that her behavior rose to the level of “contumacious conduct 

or conduct prejudicial to the administration of justice” is an 

abuse of discretion. Similarly, a finding that justice is 

served by forbidding Ms. Gelb’s representative from representing Ms. Gelb at a hearing is an abuse of discretion. 

In sum, we hold that the Board abused its discretion in 

denying Ms. Gelb a hearing. An appellant’s representative 

can attend a hearing on an appellant’s behalf.5 

Our analysis does not end here. We must decide 

whether the AJ’s denial of Ms. Gelb’s hearing was a due 

process violation—as Ms. Gelb argues, thus requiring an 

automatic remand—or a procedural error—as the Board’s 

analysis indicates, requiring a harmless error analysis. 

See Ward v. U.S. Postal Serv., 634 F.3d 1274, 1280–81

(Fed. Cir. 2011) (explaining how procedural due process violations require constitutionally correct removal procedures, whereas procedural errors require a harmless error 

analysis for deciding whether to reverse a decision). 

5 We do not address the issue of whether Ms. Gelb’s 

representative should have faced sanctions for attending 

the hearing using audio instead of videoconferencing. See

Hearing Audio Recording at 0:45–0:50; ECF No. 9 at 17. 

This issue was not raised, and it was not the expressed reason for cancelling the hearing. 

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12 GELB v. DVA

Due process requires notice and an opportunity to respond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 

546 (1985). The Supreme Court has explained that the “opportunity to present reasons, either in person or in writing, 

[for] why proposed action should not be taken is a fundamental due process requirement.” Id. Under 5 C.F.R. 

§ 1201.43(e), if a judge cancels a hearing, “the judge must 

set a reasonable time during which the record will be kept 

open for receipt of written submissions.” The AJ here set a 

reasonable time during which the record would remain

open, and Ms. Gelb provided a written submission. In 

other words, there was notice and an opportunity to respond. The AJ’s denial of Ms. Gelb’s hearing is therefore a 

procedural error, not a due process violation. 

Consequently, we apply the rule of harmless error. See 

28 U.S.C. § 2111. The party appealing an administrative 

decision bears the burden of establishing harmful error. 

See Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). The 

focus is whether the agency is likely to have reached a different conclusion in the absence of the procedural error. 

Ward, 634 F.3d at 1282; see 5 C.F.R. § 1201.56(c)(1). Said 

otherwise, we must decide whether Ms. Gelb has established that the outcome of her case would likely have been 

different if the AJ had conducted the hearing. We hold that 

she has not met her burden.

On appeal, Ms. Gelb argues that she was provided “NO 

opportunity, by hearing, to assess credibility of any witness(es).” Appellant’s Br. 8. She expands in her reply brief

that her representative “could have and would have proven 

all of the material facts presented in [her] Board Prehearing Submission.” Reply Br. 2–3. Additionally, she argues

that the government “does not dispute or refute the factual 

circumstances of [the] court record . . . that it was my [Veterans Affairs] supervisor (Spangler) that prepared my resignation form letter, and I signed under duress, all of which 

could have and would have been proven at [the] hearing by 

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GELB v. DVA 13

my representative who appeared on my behalf.” Reply Br. 7 

(emphasis added). We address each argument in turn.

First, Ms. Gelb has not explained how any specific witness testimony could have affected the outcome of her case. 

See Handy v. U.S. Postal Serv., 754 F.2d 335, 338 (Fed. Cir. 

1985) (“Having failed to show that in some way an oral reply would have possibly affected the agency’s decision, petitioner is not entitled to prevail.”); Diaz v. Dep’t of Air 

Force, 63 F.3d 1107, 1109 (Fed. Cir. 1995) (no harmful error where petitioner “did not argue or submit any evidence 

that showed that the agency’s procedural violation affected 

the outcome of the agency’s decision or was in any way 

harmful”). Also, Ms. Gelb previously stated that “appellant 

may not have called any witnesses” at the hearing. ECF 

No. 9 at 87. 

Second, and similarly, Ms. Gelb has not met her burden of explaining how proving “all of the material facts” 

would likely affect the outcome of her case. See Handy, 

754 F.2d at 338; Diaz, 63 F.3d at 1109. Specifically, 

Ms. Gelb has not identified which “material facts” would 

likely have changed the outcome of her case and how a 

hearing would have brought these facts in. 

Third, whether Ms. Gelb signed a resignation form letter under duress goes to the issue of whether her resignation was involuntary and thus constituted an adverse 

action. Initial Decision, 2021 WL 4439338. The Board examines involuntary action using an objective test considering the totality of circumstances. Id. In the Initial 

Response to the AJ’s order setting a date on which the record would be closed, Ms. Gelb explained that her belief that 

she had no choice but to resign or to be fired could be observed from her “exit interview e-mail of record . . . in 

which Spangler [her then-supervisor] went on to describe 

resignation circumstances that reasonably could be interpreted by the fact-finder as under duress (i.e., Gelb was crying and saying it was Spangler’s fault, etc., etc.).” ECF 

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14 GELB v. DVA

No. 9 at 93. The AJ relied on the evidence of record (which 

included the “exit interview e-mail of record”) and 

Ms. Gelb’s deposition testimony and was unable to find 

that Ms. Gelb’s resignation stemmed from improper 

agency acts or that she had no realistic alternative but to 

resign. Id. 

In sum, Ms. Gelb has not identified arguments, evidence, or witnesses that would have been presented at the 

hearing and would likely have altered the outcome of her 

case. We thus find that Ms. Gelb has not carried her burden of showing harmful error. As a result, the AJ’s abuse 

of discretion is not a reversible procedural error. 

Lastly, we turn to Ms. Gelb’s argument that she was 

improperly denied an opportunity to access the hearing’s 

transcript and audio file. Appellant’s Br. 3 n.3, 6, 8–9. 

Ms. Gelb did not raise these arguments before the Board. 

Indeed, Ms. Gelb’s representative cited the hearing audio 

file in the appeal to the Board. ECF No. 9 at 14. “A party 

in an MSPB proceeding must raise an issue before the administrative judge if the issue is to be preserved for review 

in this court.” Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 

668 (Fed. Cir. 1998). Because Ms. Gelb has not previously 

raised this issue, she has therefore waived it on appeal. 

We have considered Ms. Gelb’s remaining arguments 

and find them unpersuasive.6 

6 For example, Ms. Gelb stated that “MSPB Factual 

Findings Were Incorrect,” but failed to specify which factual findings by the Board were erroneous. Appellant’s 

Br. 4–8. Similarly, she raised an issue about the “proper 

relief and burdens of proof standard,” without explaining 

the allegedly erroneous relief or burden of proof used by the 

AJ or the Board. See Appellant’s Br. 9. For this court to 

reach the merits of an issue, the issue must be adequately 

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GELB v. DVA 15

CONCLUSION

For the above reasons, we affirm the Board’s final decision denying Ms. Gelb’s request for corrective action under the WPA. 

AFFIRMED

COSTS

No costs.

developed. Monsanto Co. v. Scruggs, 459 F.3d 1328, 1341 

(Fed. Cir. 2006). Undeveloped arguments are waived. Id. 

And while “pro se filings must be read liberally,” Harris 

v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013), such filings 

must still be clear enough to enable effective review, Groves 

v. Shinseki, 541 F. App’x 981, 985 (Fed. Cir. 2013) (nonprecedential). Ms. Gelb’s arguments about factual errors 

and proper relief and burdens of proof are insufficiently developed for our review and therefore waived. 

To the extent Ms. Gelb sought to incorporate arguments solely by reference to the appendix, those arguments 

are also waived. See Graphic Controls Corp. v. Utah Med. 

Prods., Inc., 149 F.3d 1382, 1385 (Fed. Cir. 1998) (“Under 

the Federal Rules of Appellate Procedure, arguments may 

not be properly raised by incorporating them by reference 

from the appendix rather than discussing them in the 

brief.”); Monsanto, 459 F.3d at 1335 (explaining that such 

arguments are waived). 

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