Matthew Zakielar v. Department of Health and Human Services ( 2024 )


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  •                       UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    MATTHEW A. ZAKIELARZ,                           DOCKET NUMBER
    Appellant,                         DC-0752-18-0779-I-1
    v.
    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    THIS FINAL ORDER IS NONPRECEDENTIAL 1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
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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)
    3
    (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).
    2
    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.
    4
    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
    5
    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
    6
    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
    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
    3
    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.
    7
    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:                        ______________________________
    Gina K. Grippando
    Clerk of the Board
    Washington, D.C.
    

Document Info

Docket Number: DC-0752-18-0779-I-1

Filed Date: 2/20/2024

Precedential Status: Non-Precedential

Modified Date: 2/21/2024