Gelb v. DVA ( 2023 )

Case: 23-1157 Document: 21 Page: 1 Filed: 05/17/2023
NOTE: This disposition is nonprecedential.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 Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE
ANNE NIOSI.
______________________
Before LOURIE, DYK, and STOLL, Circuit Judges.
Case: 23-1157 Document: 21 Page: 2 Filed: 05/17/2023
2 GELB v. DVA
PER CURIAM.
Susan L. Gelb appeals the final decision of the Merit
Systems Protection Board denying her request for correc-
tive 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 ad-
ministrative judge (AJ) abused his discretion in denying
Ms. Gelb a hearing because, although she was absent, her
representative was present at the hearing. However, be-
cause 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 tele-
phonic status conference. He indicated that a hearing
would take place using the Zoom for Government (ZfG) vid-
eoconferencing platform. Ms. Gelb’s representative “ex-
pressed concern[s] regarding the appellant’s ability to
access the necessary electronic equipment and internet
connection to participate using ZfG.” SAppx. 52. 1 Her rep-
resentative asked whether an in-person appearance was
possible, and the AJ explained that then-current COVID-
19 protocols precluded such appearances. The AJ ordered
the “appellant . . . to determine whether she is able to
1 Citations to “SAppx.” refer to the appendix at-
tached to the appellee’s brief.
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GELB v. DVA 3
successfully utilize the ZfG platform with equipment cur-
rently available to her.” Id. If Ms. Gelb was unable to uti-
lize 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 49–52 2 (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 fa-
cilitate 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 appel-
lant 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 per-
son 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 sanc-
tions 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 hear-
ing—the AJ told Ms. Gelb’s representative that Ms. Gelb
may use audio-only means to join the hearing. Hearing Au-
dio 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 administra-
tive judge way before now.”). In other words, the AJ finally
permitted Ms. Gelb to appear in the manner she had re-
peatedly requested.
Ms. Gelb did not appear at the hearing through video
or audio. She had made other plans for the day; specifi-
cally, 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 ask-
ing for a decision on the written record whatsoever
in any way, shape, or form. The appellant is pre-
pared 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 rep-
resentative 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
Case: 23-1157 Document: 21 Page: 5 Filed: 05/17/2023
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 hear-
ing 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 re-
ported 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 ar-
gued that by cancelling the hearing, she “was improperly
denied the ability to have [her former supervisor]’s credi-
bility 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 Deci-
sion 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 nonappear-
ance.” 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 rul-
ings.” Id. n.3. Also, he noted that “appellant states in her
closing submission that the record is complete, that a hear-
ing would have only required oral argument, and that she
submits no new evidence or argument with her close of rec-
ord submission.” Id.Case: 23-1157 Document: 21 Page: 6 Filed: 05/17/2023
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 at-
tend a hearing if represented. She also explained that she
required a hearing, among other reasons, for the “oppor-
tunity to develop testimonial evidence and record oral ar-
gument, 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 af-
firmed 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 Ser-
vice, 32 M.S.P.R. 422, 425 (1987), a case in which an appel-
lant’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 rea-
soned that the AJ gave specific instructions for the appel-
lant 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 con-
sequence 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 pre-
sented 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 other-
wise not in accordance with law; (2) obtained without pro-
cedures 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 hear-
ing 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 de-
nied 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 hear-
ing, which in this case relates to the right to representa-
tion. In essence, Ms. Gelb argues that because her
representative was present at the hearing, the representa-
tive should have been able to stand in her stead. Appel-
lant’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. De-
partment of Navy, 748 F.2d 1556, 1556 (Fed. Cir. 1984), we
held that “when an employee is absent from a Board hear-
ing 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 indisput-
ably 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 stat-
utory 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 ex-
pert testimony because of Mr. Atilano’s absence. Id. We
reversed and held that the statute did not require the vet-
eran to be present at the hearing when represented. Id.at 1381–82. Relevant here, we explained that while the op-
portunity for a hearing is “afforded to the appellant,” noth-
ing 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 representa-
tive. While we recognize that Atilano involves a different
statute, we find its analysis instructive.
Title 5 U.S.C. § 7701 similarly states that an “appel-
lant 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 repre-
sented. 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 re-
view, 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 re-
sponsible 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 repre-
sentative], 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. Hear-
ing 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 representa-
tive 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 (rais-
ing 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 argu-
ment).
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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 re-
schedule 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 sanc-
tions upon the parties as necessary to serve the ends of jus-
tice.” 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 con-
duct which regularly escalate[d] from advocacy to contuma-
ciousness” warranted cancellation of a hearing). We have
also recognized that a “right to a hearing should not be de-
nied 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 teleconfer-
ences, 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 or-
der—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 “ap-
pellant” 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 repre-
senting 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 vi-
olations require constitutionally correct removal proce-
dures, 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 rea-
son for cancelling the hearing.
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12 GELB v. DVA
Due process requires notice and an opportunity to re-
spond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
546 (1985). The Supreme Court has explained that the “op-
portunity to present reasons, either in person or in writing,
[for] why proposed action should not be taken is a funda-
mental 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 re-
spond. 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 dif-
ferent 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 estab-
lished 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 wit-
ness(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 Prehear-
ing 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 [Vet-
erans Affairs] supervisor (Spangler) that prepared my res-
ignation 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 wit-
ness 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 re-
ply would have possibly affected the agency’s decision, pe-
titioner is not entitled to prevail.”); Diaz v. Dep’t of Air
Force, 63 F.3d 1107, 1109 (Fed. Cir. 1995) (no harmful er-
ror 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 bur-
den 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 let-
ter under duress goes to the issue of whether her resigna-
tion was involuntary and thus constituted an adverse
action. Initial Decision, 2021 WL 4439338. The Board ex-
amines involuntary action using an objective test consider-
ing the totality of circumstances. Id. In the Initial
Response to the AJ’s order setting a date on which the rec-
ord would be closed, Ms. Gelb explained that her belief that
she had no choice but to resign or to be fired could be ob-
served from her “exit interview e-mail of record . . . in
which Spangler [her then-supervisor] went on to describe
resignation circumstances that reasonably could be inter-
preted by the fact-finder as under duress (i.e., Gelb was cry-
ing 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, evi-
dence, 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 bur-
den 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 ad-
ministrative 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 fac-
tual 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 de-
cision denying Ms. Gelb’s request for corrective action un-
der 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) (non-
precedential). Ms. Gelb’s arguments about factual errors
and proper relief and burdens of proof are insufficiently de-
veloped for our review and therefore waived.
To the extent Ms. Gelb sought to incorporate argu-
ments 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).