Lawrence Wilder v. Office of Personnel Management ( 2022 )

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
v.
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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
2
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
¶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
3
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.
4
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
4
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.
5
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
6
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
7
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:
5
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.
8
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.