NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

SHERYL TAYLOR,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2013-3037

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT1221120255-W-1.

______________________ 

Decided: July 16, 2013

______________________ 

SHERYL TAYLOR, of Memphis, Tennessee, pro se. 

MICHAEL 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. 
2 TAYLOR v. MSPB

Petitioner Sheryl Taylor seeks 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 (MSPB 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 Revenue 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 Three days later, the Agency rescinded that 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 removing 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 
TAYLOR v. MSPB 3

also requested that the Board provide her with legal 

counsel. 

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 reiterated 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 that 

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 5 U.S.C. § 7703(b)(1). 

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 
4 TAYLOR v. MSPB

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 may 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 restricted 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 for 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 mentally incompetent pro 

se claimant. In French v. Office of Personnel Management, 810 F.2d 1118 (Fed. Cir. 1987), we held that it was 

an abuse of discretion to dismiss as untimely a mentally 

incompetent man’s pro se claim for disability retirement 

benefits, and we remanded with instructions that the 
TAYLOR v. MSPB 5

Office of Personnel Management (“OPM”) should take an 

“active role” in helping Mr. French develop his claim. 810 

F.2d 1118, 1120 (Fed. Cir. 1987) (holding that a mentally 

incompetent pro se claimant should not “alone . . . be 

charged with the task of establishing his case” for disability benefits based upon mental incompetency). 

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 5 U.S.C. § 8337(b), 

which specifically concerns disability benefits. That 

statute permits the OPM to waive the 1 year statute of 

limitations for filing a claim seeking disability benefits if 

the claimant is mentally incapacitated:

This time limitation may be waived by the Office 

for an employee 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.

5 U.S.C § 8337(b); French, 810 F.2d at 1119–20 (analyzing 

the statute’s applicability to Mr. French’s claim for disability benefits). We held that the OPM’s refusal to hear 

Mr. French’s untimely claim was inconsistent with this 

statutory mandate requiring “a high degree of care in 

dealing with the [disability] claims of the incompetent.” 

French, 810 F.2d at 1120. 

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. 
6 TAYLOR v. MSPB

Rather, the only relief that the Board offered to Mr. 

French was “a list of available 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 

to 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 

employer. Id. at 3. The Initial Decision in that case 

makes passing mention of the appellant’s “newly courtappointed 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 Pro Bono Counsel, Fogg v. Gonzales, 407 

F.Supp.2d 79 (D.D.C. 2005) (No. 94-cv-2814) (appointing 

counsel for Mr. Fogg pursuant to D.C. Local Civil Rules), 

ECF No. 24. Indeed, unlike the Board, U.S. district 

courts are statutorily authorized to appoint counsel for 

EEOC complainants whenever justice demands. See

42 U.S.C § 2000e-5(f)(1) (“Upon application by the complainant and in such circumstances as the court may 

deem just, the court may appoint an attorney for such 

complainant and may authorize the commencement of the 

action without the payment of fees, costs, or security.”) 
TAYLOR v. MSPB 7

Fogg therefore reaffirms rather than contradicts the 

Board’s present position. 

Finally, we note that Ms. Taylor has also filed numerous motions asking this court to supply her with counsel 

to assist with this appeal, 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