Opinion

Lawrence Wilder v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 24, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAWRENCE V. WILDER, SR., DOCKET NUMBERS

Appellant, PH-844E-08-0524-I-7

PH-1221-08-0452-W-7

OFFICE OF PERSONNEL

MANAGEMENT, DATE: May 24, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lawrence V. Wilder, Sr., Wilmington, North Carolina, pro se.

Ernest Hammond and Karla W. Yeakle, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed without prejudice his joined appeals that were automatically refiled by

the Board on November 25, 2015. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous a pplication 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 affec ted 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. 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.

¶2 In a disability retirement appeal, the Board has authority to request pro

bono representation for an appellant who asserts that he is incompetent. 2 French

v. Office of Personnel Management, 37 M.S.P.R. 496, 499 (1988). Here, the

appellant asserted his incompetence and asked the administrative judge for help

finding representation for his disability retirement appeal, MSPB Docket No.

PH-844E-08-0524-I-7, which the administrative judge joined with his appeal in

MSPB Docket No. PH-1221-08-0452-W-7. Initial Appeal File, Tab 5, Initial

Decision (ID) at 1-2; Petition for Review (PFR) File, Tab 2 at 1. The

administrative judge repeatedly provided the appellant with names and contact

information of available counsel and dismissed the joined appeals without

prejudice, subject to automatic refiling in 180 days, to afford the appellant

additional time to obtain counsel. ID at 2-4. In addition to continually providing

the appellant with names of pro bono representatives, the administrative judge

found an attorney willing to represent the appellant, but the appellant did not

want to work with that attorney because he was not located nearby. ID at 2-3.

It appears the appellant is raising similar or identical claims in these appeals that he

has made in approximately three dozen prior Board appeals.

¶3 Following the latest refiling of these appeals, the administrative judge

found that the appellant failed to demonstrate that he was restored to competency

or to designate a representative to proceed on his behalf. ID at 4. The

administrative judge found it readily apparent from the appellant’s pleadings that

he remained mentally unfit to pursue his appeals pro se. Id. The administrative

judge also noted that the appellant himself indica ted that he was ruled

incompetent in proceedings before the Superior Court of New Hanover County,

North Carolina. Id. The administrative judge found that all attempts to assist the

appellant in obtaining representation had been exhausted and that his only option

was to dismiss these appeals without prejudice, for a final time, pending the

appellant’s return to competency or his securing of representation to permit the

processing of his appeals to move forward. Id.

¶4 The appellant, acting pro se, filed a petition for review of the initial

decision, raising disturbing and unsubstantiated allegations against the

administrative judge and requesting his recusal. PFR File, Tab 1. The appellant

also raises additional claims in a narrative that demonstrates his continued

inability to represent himself, and he asks the Board to provide him with

additional attorney referrals. 3 Id. at 12.

¶5 A dismissal without prejudice is a procedural option committed to the sound

discretion of the administrative judge. See Keene v. Department of the Interior,

47 M.S.P.R. 41, 44 (1991). We find that the administrative judge correctly

followed the Board’s French procedures by dismissing these joined appeals

without prejudice until such time as the appellant becomes competent to proceed

or he obtains representation. ID at 5; see French, 37 M.S.P.R. at 499. It is

The appellant also sought review of the June 8, 2007 initial decision in MSPB Docket

No. PH-0353-07-0330-I-1. PFR File, Tab 2 at 1. However, the Clerk of the Board

notified the appellant that the case was closed—the Board having issued the final

decision on December 10, 2007—and the Board will not take any further action

concerning that appeal. Id.

undisputed that the appellant lacks the competence to pursue his appeals pro se

and he has not designated a representative. ID at 4; PFR File, Tab 1 at 12.

¶6 Moreover, although the appellant asks the Board to provide “new [French]

attorney referrals,” we agree with the administrative judge’s finding that all

attempts to assist the appellant in obtaining representation have been exhausted .

ID at 4; PFR File, Tab 1 at 12. Consequently, in accordance with the Board’s

procedures in French, the administrative judge properly dismissed the joined

appeals without prejudice until the circumstances are conducive to fair

adjudication. ID at 4; see French, 37 M.S.P.R. at 499. We therefore deny the

petition for review.

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a clai m of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court ‑appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in s ection

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, si gned into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.