The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE V. WILDER, SR., DOCKET NUMBERS
Appellant, PH-844E-08-0524-I-6
PH-1221-08-0452-W-6
v.
OFFICE OF PERSONNEL
MANAGEMENT, DATE: September 21, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Lawrence V. Wilder, Sr., Wilmington, North Carolina, pro se.
James Williams, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his joined appeals without prejudice to refiling. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
∗
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 Pursuant to the appellant’s request, the administrative judge dismissed his
joined appeals without prejudice to subsequent refiling, for the second time, in
order to afford the appellant with a final opportunity to obtain representation in
this matter. Initial Appeal File (IAF), Tab 6, Initial Decision (ID) at 1. The
administrative judge also ordered the joined appeals automatically refiled
180 days from the date of his May 26, 2015 initial decision or on November 23,
2015. ID at 4 The administrative judge noted that, on February 15, 2014, the
appellant requested assistance with obtaining representation by counsel in his
disability retirement appeal, citing the procedures set forth in French v. Office of
Personnel Management, 37 M.S.P.R. 496, 499 (1988). ID at 1. The
administrative judge also noted that he granted the appellant’s request, contacted
all known practicing attorneys in the Board’s database within 75 miles of the
appellant’s residence, and provided him with a list of pro bono options. ID
at 1-4.
¶3 The appellant filed a petition for review of the initial decision arguing,
among other things, that the administrative judge lied and failed to help him
retain counsel. Petition for Review (PFR) File, Tab 1 at 2. The appellant also
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discusses his extensive history before the Board and other agencies. In addition,
he raises many other allegations, all of which we have reviewed, but we find that
they do not address the dismissal without prejudice in the underlying action. Id.
at 2-5.
¶4 A dismissal without prejudice is a procedural option left to the sound
discretion of the administrative judge. See Keene v. Department of the Interior,
47 M.S.P.R. 41, 44 (1991). On review, the appellant does not specifically assert
that the administrative judge erred in dismissing his appeal without prejudice to
refiling. Moreover, the appellant requested the dismissal without prejudice, and,
apparently, he still is having difficulty finding pro bono representation before the
automatic refiling of his joined appeals on November 23, 2015. IAF, Tab 5; PFR
File, Tab 1 at 2. We therefore find that the administrative judge did not abuse his
discretion by dismissing these appeals without prejudice to refiling, to afford the
appellant another opportunity to obtain representation in these joined matters.
See Goode v. Department of the Air Force, 91 M.S.P.R. 198, ¶ 5 (2002).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS IN
MSPB DOCKET NO. PH-844E-08-0524-I-6
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
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deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS IN
MSPB DOCKET NO. PH-1221-08-0452-W-6
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.