Opinion

Matthew Zakielar v. Department of Health and Human Services

Court: Merit Systems Protection Board
Filed: Feb 20, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MATTHEW A. ZAKIELARZ, DOCKET NUMBER

Appellant, DC-0752-18-0779-I-1

DEPARTMENT OF HEALTH AND DATE: February 20, 2024

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Leslie McAdoo Gordon , Esquire, Washington, D.C., for the appellant.

Suzanne Nicole Nardone , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his removal appeal without prejudice to refiling. For the reasons set

forth below, we DISMISS the petition for review as moot.

In his August 16, 2019 initial decision, the administrative judge dismissed

the appeal without prejudice to refiling for a period of up to 180 days. Zakielarz

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

v. Department of Health and Human Services, MSPB Docket No. DC-0752-18-

0779-I-1, Initial Appeal File, Tab 15, Initial Decision. The appellant filed a

timely petition for review of the initial decision on September 3, 2019. Petition

for Review (PFR) File, Tab 1. While the petition for review was pending, the

appeal was refiled and dismissed without prejudice three more times between

February 2020 and September 2021. Zakielarz v. Department of Health and

Human Services, MSPB Docket No. DC-0752-18-0779-I-4, Appeal File, Tab 8,

Initial Decision; Zakielarz v. Department of Health and Human Services, MSPB

Docket No. DC-0752-18-0779-I-3, Appeal File, Tab 13, Initial Decision. The

regional office automatically refiled the appeal a fourth time on November 8,

2021. Zakielarz v. Department of Health and Human Services, MSPB Docket

No. DC-0752-18-0779-I-5, Appeal File (I-5 AF), Tab 1. On April 8, 2022, the

administrative judge issued an initial decision dismissing the appeal as settled and

entered the settlement agreement into the record for enforcement purposes.

I-5 AF, Tab 21, Initial Decision (I-5 ID). That decision became the final decision

of the Board when neither party filed a petition for review before the May 13,

2022 filing deadline. I-5 ID at 2.

The only matter before the Board in this petition for review is whether the

first dismissal without prejudice was proper. The remedy for an improperly

granted dismissal without prejudice is remand to the regional office for further

adjudication of the appeal. See, e.g., Dey v. Nuclear Regulatory Commission,

106 M.S.P.R. 167, ¶¶ 9-11 (2007). However, the underlying appeal has been

refiled multiple times and ultimately dismissed as settled during the pendency of

this petition for review. Therefore, there is no meaningful relief the Board could

grant even if we determined that the first dismissal without prejudice should not

have been granted. See White v. International Boundary and Water Commission ,

59 M.S.P.R. 62, 64-65 (1993) (dismissing a petition for review as moot when the

Board could not grant effective relief). We therefore dismiss the petition for

review. See Villareal v. Department of the Treasury, 13 M.S.P.R. 82, 84 (1982)

(dismissing a petition for review as moot in light of the appellant’s decision not

to refile his appeal because a Board opinion on the initial decision would have no

effect on the parties in question).

This is the final order of the Merit Systems Protection Board in this appeal.

5 C.F.R. § 1201.113(c).

NOTICE OF APPEAL RIGHTS 2

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

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).

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.

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. 420 (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

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

section 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. 3 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