Kimberly Patrick v. Federal Deposit Insurance Corporation

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KIMBERLY PATRICK,
Petitioner
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
Respondent
______________________
2024-1962
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-12-0130-I-6.
______________________
Decided: March 11, 2026
______________________
K IMBERLY P ATRICK, Parlin, NJ, pro se.
T HOMAS J. ADAIR, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by T ARA K.
HOGAN, P ATRICIA M. MCCARTHY , BRETT SHUMATE.
______________________
Before REYNA, CLEVENGER , and CHEN, Circuit Judges.
P ER CURIAM .
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PATRICK v. FDIC 2
Kimberly Patrick appeals the final decision of the
Merit Systems Protection Board (“Board”) sustaining her
removal from her position with the Federal Deposit Insur-
ance Corporation (“FDIC”) on the charge of excessive ab-
sences.1 Patrick v. Federal Deposit Insurance Corporation,
No. NY-0752-12-0130-I-6, 2024 WL 1885525 (M.S.P.B.
Apr. 29, 2024) (“Final Order”). For the reasons stated be-
low, we affirm the Board’s decision.
I
Ms. Patrick was a Grade-12 Examiner at the FDIC
from 1998 until her removal in 2008. Her duties included
“participat[ing] in, and sometimes direct[ing], the exami-
nation of banks in order to determine their financial condi-
tion, evaluate their management, and ascertain their
compliance with applicable laws and regulations.” Final
Order at *1. The relationship between Ms. Patrick and the
FDIC first grew strained in 2002. Among other issues, be-
tween 2002 and 2007 Ms. Patrick expressed disagreement
with various FDIC procedures and policies, disclosed po-
tential wrongdoing, challenged management orders, al-
leged retaliation and filed a civil action against the FDIC
in 2007. See Doe v. FDIC, No. 07-CV-9435 BSJ RLE, 2012
WL 642117, at *1 (S.D.N.Y. Feb. 27, 2012), aff'd, 545 Fed.
1 Failure to report for duty for an extended period of
time constitutes excessive absences which is recognized as
a lawful ground for removal. See Kelley v. Dep’t of Veterans
Affairs, 73 F. App’x 438, 439 (Fed. Cir. 2003) (“Prolonged
absence with no foreseeable end can provide just cause for
removal because it constitutes a burden that no reasonable
employer can efficiently endure.”).
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PATRICK v. FDIC 3
Appx. 6 (2d Cir. 2013) (unpublished) (“Doe I”);2 see also Fi-
nal Order at *1.
After these various issues between Ms. Patrick and the
FDIC began, she started experiencing medical issues. Ms.
Patrick was placed on leave under the Family and Medical
Leave Act (“FMLA”) from December 12, 2007, through
March 5, 2008, after providing the FDIC with a note from
her physician indicating that she needed rest. While Ms.
Patrick was on FMLA leave, she requested the FDIC to
place her on leave without pay (“LWOP”) status for one
year. At the close of Ms. Patrick’s FMLA period, she was
approved for LWOP status through June 21, 2008. Lead-
ing up to the expiration of her LWOP status, she provided
the FDIC with updated medical information indicating
that her treatment was ongoing and she could not return
to work for at least another six months. In response, the
FDIC began investigating the likelihood that Ms. Patrick
would ever return to her position and solicited an opinion
from an occupational health consultant at the U.S. Depart-
ment of Health and Human Services on the matter. The
consultant informed the FDIC that after review of the cir-
cumstances he had no reason to presume she would ever be
able to return to her position at the FDIC.
On August 6, 2008, the FDIC sent Ms. Patrick a letter
informing her that her prolonged absence was adversely af-
fecting the agency’s New York City Field Office and could
no longer be tolerated. The letter stated that if Ms. Patrick
did not report for duty on August 18, 2008, the FDIC may
commence nondisciplinary adverse action to remove her
from the agency. Ms. Patrick replied to the letter stating,
among other things, that she did not anticipate returning
2 Ms. Patrick is named pseudonymously in all pro-
ceedings before the district court. However, because Ms.
Patrick cites to such proceedings in her publicly filed brief,
we will cite them as well.
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PATRICK v. FDIC 4
to work on August 18, 2008, and could not provide the
FDIC with a return date. On October 6, 2008, Ms. Patrick’s
supervisor recommended action be initiated to remove her
from her position and her removal was proposed on October
15th of that same year.
The FDIC proposed Ms. Patrick’s removal with one
charge of “excessive absences resulting in [her] inability to
perform [her] duties on a regular basis” and sixteen accom-
panying specifications (“Specifications”). Final Order at *1
(citation modified). The Specifications charged that Ms.
Patrick was absent from duty for the partial pay period cov-
ering March 5, 2008, through March 14, 2008 as well as
each full pay period from March 17, 2008 through October
3, 2008, totaling in 1,224 of granted LWOP hours. Ms. Pat-
rick responded alleging, in part, that the FDIC was retali-
ating against her due to her reporting of corruption and
illegal activity. On January 9, 2009, a decision was issued
sustaining the FDIC’s charge and removing Ms. Patrick’s
from her position effective January 16, 2009. The decision
also informed Ms. Patrick that she had the right to chal-
lenge her removal through various channels, including
through an appeal to the Board and through a civil action
under 12 U.S.C. § 1831j.
In January of 2011, while Doe I remained pending, Ms.
Patrick filed another civil action against the FDIC in the
Southern District of New York. Doe v. FDIC, No. 11 CIV.
307 BSJ RLE, 2012 WL 612461, at *1 (S.D.N.Y. Feb. 27,
2012) (“Doe II”). Although Ms. Patrick was informed by the
FDIC that she may file such a civil action, the agency
moved to have the case dismissed. Both Doe I and Doe II
were eventually dismissed for lack of jurisdiction. See Doe
I at *4; Doe II at *6.
Then, for the first time, Mrs. Patrick filed an appeal with
the Board on March 22, 2012, and shortly thereafter ap-
pealed the dismissal of Doe I to the United States Court of
Appeals for the Second Circuit. See Doe v. FDIC, 545 F.
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PATRICK v. FDIC 5
App’x 6, 9 (2d Cir. 2013). The FDIC moved to have Ms.
Patrick’s appeal with the Board dismissed without preju-
dice due to the ongoing civil action and a certain protective
order entered into by the parties during Doe I (“Protective
Order”) which remained in effect. Over Ms. Patrick’s ob-
jection, the Board dismissed her appeal without prejudice
due to the ongoing civil action. Ms. Patrick’s appeal with
the Board was re-filed and dismissed without prejudice
four more times between 2012 and 2017 due to the exist-
ence of the Protective Order and ongoing civil proceedings.3
Ms. Patrick thereafter refiled her appeal to the Board.
II
A
Over nine years after the effective date of Ms. Patrick’s
removal from the FDIC, the administrative judge (“AJ”) is-
sued an initial decision on the merits of her appeal on Oc-
tober 24, 2018 (“Initial Decision”). Patrick v. FDIC, No.
NY-0752-12-0130-I-6, 2018 WL 5389398 (M.S.P.B. Oct. 24,
2018) (“Initial Decision”). The AJ sustained the FDIC’s re-
moval charge and denied Ms. Patrick’s whistleblower de-
fense, but ultimately reversed Ms. Patrick’s removal based
on the finding of a due process violation, ordering the FDIC
to reinstate Ms. Patrick to her position and provide her
with back pay. Id.
The AJ generally sustained Specifications 1 through 16
and the FDIC’s charge of excessive absences.4 Id. She
3 The Second Circuit affirmed the district court’s dis-
missal of Doe I in 2013. Doe v. FDIC, 545 F. App’x 6, 9 (2d
Cir. 2013).
4 Because a charge of excessive absences based on
approved leave may not include leave under the FMLA, the
AJ found that the FDIC improperly included one day of
FMLA leave in Specification 1, but otherwise sustained the
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PATRICK v. FDIC 6
made this finding after determining that Ms. Patrick’s sit-
uation fell within the exception to the general rule that an
agency cannot take adverse action against an employee
based on the use of approved leave time. Id.; see Savage v.
Dep’t of the Army, 122 M.S.P.R. 612, 630 (M.S.P.B. 2015);
Fox v. Dep’t of the Army, 120 M.S.P.R. 529, 549 (M.S.P.B.
2014).
The AJ rejected Ms. Patrick’s whistleblower retaliation
defense because, while Ms. Patrick had made protected dis-
closures under 5 U.S.C. § 2302(b)(8), the record did not sup-
port a finding that such protected disclosures contributed
to her removal. Id.
Next, the AJ considered whether the FDIC violated Ms.
Patrick’s due process rights. Id. Ms. Patrick argued that
the deciding official based his determination on absences
not included in the Specifications, in contravention of her
due process rights. The AJ found that while Ms. Patrick’s
proposed removal was based on her absences from March
5, 2008, through October 3, 2008, the dates covered by the
Specifications, the deciding official based his decision on
Ms. Patrick’s absences from October 23, 2007 through Jan-
uary 9, 2009. Id. As such, the AJ found that the deciding
official considered absences before March 5, 2008, and after
October 3, 2008, which were not cited in the Specifications.
Id. The AJ assessed whether, under this court’s precedent
in Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999), Ms. Pat-
rick’s due process rights were violated for having “notice of
only certain charges or portions of the evidence and the de-
ciding official[‘s] consider[ation of] new and material evi-
dence.” Id. (citing Stone, 179 F.3d at 1376). In determining
that Ms. Patrick’s due process rights were violated, the AJ
remainder of the Specification. See Initial Decision (citing
McCauley v. Dep’t of the Interior, 116 M.S.P.R. 484, 489-90
(M.S.P.B. 2011)).
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PATRICK v. FDIC 7
found the additional absences to constitute new and mate-
rial information. Id.
Ms. Patrick’s removal was thus reversed and the FDIC
was ordered to reinstate Ms. Patrick to her position and
provide her with back pay. Id. The AJ additionally pro-
vided interim relief in the event either party petitioned for
review of the Initial Decision. Id.
B
The FDIC and Ms. Patrick both petitioned the Board
for review of the Initial Decision. Final Order, at *1. Ms.
Patrick also moved to dismiss the FDIC’s petition for its
failure to comply with the AJ’s interim relief order. Id. On
April 29, 2024, The Board issued a Final Order denying Ms.
Patrick’s motion to dismiss and petition for review, grant-
ing the FDIC’s petition for review, and reversing the Initial
Decision (“Final Order”). Id.
The Board first denied Ms. Patrick’s motion to dismiss.
Id. at *1-2. “Ordinarily, when an appellant challenges the
agency’s certification of compliance with an interim relief
order, the Board will issue an order affording the agency
the opportunity to submit evidence of compliance.” Id. at
*2 (citing 5 C.F.R. § 1201.116(b) (2012)). However, the
Board found it “unnecessary to issue such an order” in this
case because Ms. Patrick had already submitted copies of
correspondence with the FDIC into evidence that demon-
strated the agency’s compliance.5 Id.
5 In the correspondences, the agency ordered Ms.
Patrick to return to duty and described how the process of
her reinstatement would be handled, including that a
standard form 50 documenting the cancellation of her re-
moval from the FDIC was available via the agency’s secure
email system upon her return to duty. Final Order at *2.
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PATRICK v. FDIC 8
The Board then reversed the AJ’s due process determi-
nation, finding the additional absences did not constitute
new and material information. Id. at *2-3. The Board con-
sidered and weighed the three Stone factors to determine
whether such additional absences constitute new and ma-
terial information such that Ms. Patrick’s due process
rights were violated. Id. at *3 (quoting Stone, 179 F.3d at
1376-77). The factors are: (1) “whether the ex parte com-
munication merely introduces ‘cumulative’ information or
new information”; (2) “whether the employee knew of the
error and had a chance to respond to it”; and (3) “whether
the ex parte communications were of the type likely to re-
sult in undue pressure upon the deciding official to rule in
a particular manner.” Stone, 179 F.3d at 1377; Final Or-
der, at *3.
In considering the Stone factors the Board made the
following findings of fact. Regarding the earlier absences
which pre-date those in the Specification, the Board found
such information was not “new” because (1) both the notice
of proposed removal and the decision letter “described [Ms.
Patrick’s] absences from the time they began in 2007” be-
fore turning to a consideration of the absences actually
charged, and (2) Ms. Patrick herself “addressed her ab-
sences beginning in 2007 in her reply” to the notice of pro-
posed removal. Id. Regarding the later absences which
occurred after those charged in the Specification, the Board
found the deciding official’s brief reference in the decision
letter to Ms. Patrick having not returned to work “‘to date”
may have been “such that [Ms. Patrick] did not have an
opportunity to address those absences.” Id. However, the
Board found that such the additional absences were not
material to the deciding official’s determination as there
was “no suggestion” that the additional absences “w[ere]
likely to result in undue pressure upon him to rule in a par-
ticular manner.” Id. Finding the additional absences not
charged in the Specifications to be neither new nor
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PATRICK v. FDIC 9
material, the Board reversed the AJ’s finding of a due pro-
cess violation. Id.
The Board then determined that the FDIC had proved
its charge of excessive absences. Final Order at *4-5. Re-
garding Ms. Patrick’s whistleblower defense, the Board
agreed with the AJ that Ms. Patrick made protected disclo-
sures, but failed to prove her disclosures were a contrib-
uting factor in her removal. Id. at *5-6. The Board
additionally considered Ms. Patrick’s argument on appeal
that various grievances she had filed or attempted to file
were protected disclosures the AJ did not specifically con-
sider, but the Board ultimately found that even if such
grievances were protected activity, Ms. Patrick failed to es-
tablish a nexus between such grievances and her removal.
Id. at *6-7.
Having determined removal to be a reasonable penalty,
the Board reversed the AJ’s finding of a due process viola-
tion and sustained the FDIC’s removal of Ms. Patrick from
her position. Id. at *1, *8.
Ms. Patrick timely appealed to this court. We have ju-
risdiction to review the Board’s decision under 5 U.S.C.
§ 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
III
We may set aside the Board’s decision only if it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938) (citation modified).
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PATRICK v. FDIC 10
IV
Ms. Patrick alleges five errors in the Board’s Final Or-
der and five errors in the underlying proceedings. Having
carefully considered the arguments properly before us, we
conclude that none undermine the Board’s Final Order.
A
Ms. Patrick alleges the following as errors in the
Board’s Final Order: (1) denial of her motion to dismiss the
FDIC’s petition for failure to comply with the interim relief
order; (2) finding the FDIC proved its charge of excessive
absences; (3) finding no due process violation; (4) rejecting
her defenses of whistleblowing and retaliation for griev-
ance activity; and (5) determining removal to be a reason-
able penalty.
Ms. Patrick’s opening brief to this court presented a de-
veloped argument with regard to her first allegation of er-
ror and a more limited but sufficient argument with regard
to her third allegation of error. Appellant’s Br. 18-19. With
regard to her second, fourth and fifth allegations of error,
Ms. Patrick stated that due to “lack of materials” any “com-
ment” on those alleged errors would be “premature” in her
opening brief, leaving those arguments as identified but
wholly undeveloped. Id. The court twice granted Ms. Pat-
rick’s request for an extension of time in which to file her
reply brief, expecting possible development of the undevel-
oped arguments. In the end, Ms. Patrick failed to file a
timely reply brief,6 consequently leaving three of her
6 The court ordered Ms. Patrick to file her reply brief
on or before February 5, 2026. Her reply brief was served
by mail on February 9, 2026. The court received and filed
her reply brief on February 13, 2026. Ms. Patrick relies on
Federal Rule of Appellate Procedure 26(c) to establish
timely filing of her reply brief. In some circumstances Rule
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PATRICK v. FDIC 11
arguments identified but wholly undeveloped. Undevel-
oped arguments may be deemed waived, and thus not ad-
dressed by the court. See CardSoft v. Verifone, Inc., 769
F.3d 1114, 1119 (Fed. Cir. 2014) (“Arguments that are not
appropriately developed in a party’s briefing may be
deemed waived.”).
Removing the waived arguments, Ms. Patrick alleges
error with the Final Order in the Board’s (1) denial of her
motion to dismiss the FDIC’s petition for failure to comply
with the interim relief order, and (2) finding of no due pro-
cess violation. We reject both arguments.
First, Ms. Patrick urges that the Board abused its dis-
cretion by refusing to order the FDIC to submit evidence
showing compliance with the AJ’s interim relief order. We
disagree.
If an appellant challenges an agency’s certification of
compliance with an interim relief order “the Board will is-
sue an order affording the agency the opportunity to sub-
mit evidence of its compliance.” 5 C.F.R. § 1201.116(b)
(2012). However, even if an agency does not provide evi-
dence of compliance, the Board has discretion in deciding
whether to dismiss the petition for review.
Id. § 1201.116(e) (2012); see also Hoofman v. Dep’t of the
Army, 526 F. App’x 982, 985 (Fed. Cir. 2013) (explaining
“the relevant regulation provides [the Board] discretion to
dismiss or not dismiss.”). Here, the Board determined that
26(c) provides additional days for computation of time,
however such rule does not apply to deadlines set by court
order. See Fed. Cir. R. 26(a)(5); see also Violette v. P.A.
Days, Inc., 427 F.3d 1015, 1016 (6th Cir. 2005) (holding
Rule 6(a) “does not apply to situations where the court has
established a specific calendar day as a deadline”). Ms.
Patrick’s reliance on Federal Rule of Appellate Procedure
26(c) is thus misplaced.
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PATRICK v. FDIC 12
it was “unnecessary” to issue an order requiring the agency
to submit evidence of compliance because: (1) the FDIC
was, in part, “question[ing] the propriety of the interim re-
lief order”; (2) the FDIC “certified under oath that the
agency ha[d] fully complied” with the interim relief order;
and (3) Ms. Patrick “ha[d] herself submitted evidence
demonstrating that the agency [was] in compliance with
the administrative judge’s interim relief order.” Final Or-
der at *2 (citing 5 C.F.R. § 1201.116(b) (2012)).
Moreover, the Board’s finding that the FDIC complied
is supported by substantial evidence. Based on the evi-
dence provided by Ms. Patrick, the Board found that the
FDIC had complied with the interim relief order. Final Or-
der at *2. This constitutes substantial evidence and as
such we will not disturb the finding. If the Board had, as
Ms. Patrick urges it was required to, issued an order for
the FDIC to submit evidence of compliance, any evidence
the FDIC chose to provide would have been cumulative of
the evidence already provided by Ms. Patrick. Therefore, a
showing that prejudice flows from the Board’s failure to is-
sue such an order has also not been made. For these rea-
sons, Ms. Patrick fails to show abuse of discretion in the
Board’s failure to order the FDIC submit evidence of com-
pliance in this case.
Second, Ms. Patrick has not alleged error in the Board’s
due process analysis by failing to challenge the Board’s fac-
tual findings on newness and materiality. Due process re-
quires that, before a federal employee can be lawfully
removed from her position, she must be given notice both
of the charges against her and the agency’s evidence as well
as an opportunity to respond. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546, (1985). In Stone this Court
determined “ex parte communications that introduce new
and material information to the deciding official will vio-
late the due process guarantee of notice” and set forth
three, nonexclusive, factors to be considered when deter-
mining whether information is, in fact, “new and material”
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PATRICK v. FDIC 13
for such purposes. 179 F.3d at 1377. “In considering
whether information is ‘new and material’ such that it vio-
lates due process, we consider the facts and circumstances
of each case, and the test is an objective one.” Rueter v.
Dept. of Com., 63 F.4th 1357, 1365 (Fed. Cir. 2023) (citing
Stone, 179 F.3d at 1377). The Board objectively considered
the Stone factors and determined the additional absences
were neither new nor material. Final Order at *3 (quoting
Stone, 179 F.3d at 1377). Ms. Patrick does not challenge
any of the Board’s factual findings, including that Ms. Pat-
rick herself referenced the earlier absences in her reply to
the notice of proposed removal or that no evidence indi-
cated that any of those absences not noted in the Specifica-
tions influenced the deciding official. The Board applied
the correct legal framework, and Ms. Patrick has failed to
show error in the Board’s due process analysis.
B
Ms. Patrick additionally alleges the following as errors
generally in her proceedings before the agency: (1) the AJ’s
failure to rule on her allegation that the FDIC illegally ob-
structed proceedings under 18 U.S.C. § 1505; (2) the AJ’s
failure to rule on her inability to seek assistance of counsel;
(3) the AJ’s denial of Ms. Patrick’s motion to compel discov-
ery; (4) violation of 5 C.F.R. § 1201.53 by the AJ and the
Board in denying access by Ms. Patrick to the transcript
and/or recording of the November 6, 2017 hearing before
the AJ; and (5) the Board’s failure to order the FDIC sub-
mit evidence of compliance with the interim relief order.
These arguments lack merit.
First, Ms. Patrick is incorrect that the AJ’s failure to
rule on her allegations of illegal obstruction by the FDIC
under 18 U.S.C. § 1505 was erroneous. Neither the AJ nor
the Board have authority to adjudicate alleged violations
of a criminal statute, and Ms. Patrick fails to even allege
as much. See 5 U.S.C. § 1204 (defining the Board’s statu-
tory authority); see also King v. Merit Systems Protection
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PATRICK v. FDIC 14
Bd., 52 F.3d 345 (Fed. Cir. 1995) (“The MSPB has no juris-
diction over criminal cases.”).
Second, Ms. Patrick argues that certain restrictions of
the Protective Order frustrated her ability to be repre-
sented by counsel and led the Board to be in violation of 5
C.F.R. § 1201.3(a), which provides that a party before the
Board “may be represented in any matter related to the ap-
peal.” Ms. Patrick, through counsel in Doe I, consented to
the Protective Order, even if she later sought to modify it
or now regrets that decision. To the extent that her ability
to obtain counsel or freely prosecute her case before the
Board was constrained by the terms of the Protective Or-
der, those consequences result from Ms. Patrick’s consent
to the Protective Order and its terms, and not from any ac-
tion taken by the Board. Ms. Patrick’s 5 C.F.R. § 1201.3(a)
argument lacks merit.
Third, we need not determine whether the AJ’s failure
to compel discovery was an abuse of discretion because no
showing of prejudice has been made. See Curtin v. Office
of Pers. Mgmt., 846 F.3d 1373, 1378 (Fed. Cir. 1988) (“If an
abuse of discretion did occur with respect to the discovery
and evidentiary rulings…[Appellant] must prove that the
error caused substantial harm or prejudice to his rights
which could have affected the outcome of the case.”). Ms.
Patrick’s contention regarding her request to compel dis-
covery centers on her inability to obtain certain bank ex-
amination documents due to the Protective Order to which
she consented. While she contends that such evidence was
relevant to her whistleblower defense, the AJ and Board
determined that Ms. Patrick’s defense failed because she
failed to show a nexus between her protected activity and
removal. See Final Order at *5-7. Because Ms. Patrick
provides no information in her opening brief regarding how
such bank examination documents would have assisted her
in presenting a nexus argument, no showing of prejudice
has been made and consequently the argument lacks merit.
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PATRICK v. FDIC 15
Ms. Patrick’s fourth argument alleges a violation by
the AJ and the Board of 5 C.F.R. § 1201.53(c), which pro-
vides that “[c]opies of recordings or existing transcripts will
be provided upon request to parties free of charge.” The
regulation further provides that when written transcripts
are desired, but not preexisting “[a]ny party may request
that the court reporter prepare a full or partial transcript,
at the requesting party’s expense.” Id. § 1201.53(b). Ms.
Patrick alleges that the AJ and the Board had access to at
least the recording of the November 6, 2017, hearing before
the AJ7, and that the AJ and the Board made use of the
recording in their decisions. Ms. Patrick alleges that the
AJ and the Board did not assist her in gaining access to the
recording, and thus negatively impacted her pleadings to
the AJ and the Board. Ms. Patrick’s argument depends on
a legal obligation of the Board to provide a party with ei-
ther a hearing written transcript or recording. The cited
regulation provides such an obligation, but only upon a re-
quest being made by a party. Ms. Patrick does not allege
that she made such a request while her case was pending
before the Board. For that reason, she cannot allege error
by the Board under the cited regulation.
Lastly, Ms. Patrick’s fifth argument was discussed in
Section IV.A infra alongside her related and overlapping
argument that the Board erred in denying her motion to
dismiss. For the reasons set forth above, this argument is
rejected.
7 The record before this court shows that a recording
of the hearing exists and is deposited in the docket of the
case. The record also shows that a hearing transcript was
created but is not generally accessible on the docket.
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PATRICK v. FDIC 16
CONCLUSION
Having carefully reviewed Ms. Patrick’s arguments we
conclude that none undermine the Board’s final decision.
For the reasons stated above, we affirm.
AFFIRMED
COSTS
No costs.
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