UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LAWRENCE V. WILDER, SR.,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBERS

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

PH-1221-08-0452-W-7

DATE: May 24, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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. 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. 2French

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 indicated 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 RIGHTS4

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 claim 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.5The 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, signed 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:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board