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GARCIA v. DEPARTMENT OF HOMELAND SECURITY

No. 04-3442.

437 F.3d 1322 (2006)

Lourdes M. GARCIA, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent.

United States Court of Appeals, Federal Circuit.

February 10, 2006.

Attorney(s) appearing for the Case

Katherine A. McDonough, Baptiste & Wilder, P.C., of Washington, DC, argued for petitioner.

Todd M. Hughes, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. On the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Deborah A. Bynum, Assistant Director; and Steven J. Abelson, Attorney. Of counsel on the brief was Francesca Alvaro, Attorney, Associate Chief Counsel's Office, United States Customs and Border Protection, United States Department of Homeland Security, of Miami, Florida.

Joyce G. Friedman, Attorney, Office of the General Counsel, United States Merit Systems Protection Board, of Washington, DC, argued for amicus curiae Merit Systems Protection Board. With her on the brief were Neil A.G. McPhie, Chairman; Martha B. Schneider, General Counsel; and Rosa M. Koppel, Deputy General Counsel.

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, Circuit Judges, CLEVENGER, Senior Circuit Judge, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST, in which Chief Judge MICHEL and Circuit Judges MAYER, LOURIE, Senior Circuit Judge CLEVENGER, Circuit Judges RADER, SCHALL, BRYSON, GAJARSA, and LINN join.

Dissenting opinion filed by Circuit Judge DYK, in which Circuit Judge NEWMAN joins.

PROST, Circuit Judge.

Lourdes Garcia appeals the dismissal of her claim for constructive reduction in grade by the Merit Systems Protection Board (the "MSPB" or...

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