Case: 20-1782 Document: 28 Page: 1 Filed: 02/08/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT F. ZACHARIASIEWICZ,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-1782
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-18-0556-W-2.
______________________
Decided: February 8, 2021
______________________
ROBERT F. ZACHARIASIEWICZ, JR., Aldie, VA, pro se.
DEANNA SCHABACKER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before MOORE, REYNA, and STOLL, Circuit Judges.
Case: 20-1782 Document: 28 Page: 2 Filed: 02/08/2021
2 ZACHARIASIEWICZ v. MSPB
PER CURIAM.
Robert F. Zachariasiewicz petitions for review of the
Merit Systems Protection Board’s decision dismissing his
individual right of action appeal as untimely refiled with-
out good cause for delay. Mr. Zachariasiewicz argues that
a remand is necessary because the Board erred in its ruling
regarding the timeliness of his appeal. Because we con-
clude that the Board did not abuse its discretion in dismiss-
ing the appeal, we affirm the Board’s decision.
BACKGROUND
On May 24, 2018, Mr. Zachariasiewicz filed an appeal
with the Board alleging that the Department of Justice
Drug Enforcement Administration (DEA) failed to select
him for several promotions and subjected him to a hostile
work environment because of his whistleblowing disclo-
sures, sex, race, and prior equal employment opportunity
(EEO) activity. In October 2018, the Board issued an order
explaining that it lacked jurisdiction over Mr. Zacharia-
siewicz’s discrimination and EEO reprisal claims, but that
it had jurisdiction over his whistleblower reprisal claims.
In November 2018, Mr. Zachariasiewicz moved to stay the
Board proceedings while he litigated his discrimination
and retaliation claims in district court. S.A. 53–57. On
November 30, 2018, the Board granted Mr. Zacharia-
siewicz’s motion, dismissed the appeal without prejudice,
and instructed Mr. Zachariasiewicz to “refile his appeal no
sooner than 36 days and no later than 90 days after the
date of this decision.” S.A. 20–22.
On January 11, 2019, Mr. Zachariasiewicz filed suit in
the U.S. District Court for the Eastern District of Virginia
asserting, among other claims, that he was retaliated
against for whistleblowing disclosures and unlawfully de-
nied promotions. S.A. 50. On August 7, 2019, the district
court dismissed the case for lack of subject-matter jurisdic-
tion and failure to state a claim. Zachariasiewicz v. U.S.
Dep’t of Justice,
395 F. Supp. 3d 734, 738–41 (E.D. Va.
Case: 20-1782 Document: 28 Page: 3 Filed: 02/08/2021
ZACHARIASIEWICZ v. MSPB 3
2019). Over five months later, on January 29, 2020,
Mr. Zachariasiewicz filed a motion to reopen his Board ap-
peal. S.A. 48–52. On March 6, 2020, the Board dismissed
the appeal as untimely and determined that Mr. Zacharia-
siewicz “failed to demonstrate good cause for his delay in
refiling the appeal” after missing the filing deadline by
eleven months. S.A. 1, 10–11.
Mr. Zachariasiewicz appeals the Board’s decision. We
have jurisdiction pursuant to
5 U.S.C. § 7703(b)(1)(A) and
28 U.S.C. § 1295(a)(9).
DISCUSSION
“We review the Board’s good cause determination for
abuse of discretion.” Kerr v. Merit Sys. Prot. Bd.,
908 F.3d
1307, 1311 (Fed. Cir. 2018) (citing Herring v. Merit Sys.
Prot. Bd.,
778 F.3d 1011, 1013 (Fed. Cir. 2015)). “If a party
does not submit an appeal within the time set by statute,
regulation, or order of a judge, it will be dismissed as un-
timely filed unless a good reason for the delay is shown.”
5 C.F.R. § 1201.22(c). The appellant must show that he ex-
ercised diligence and ordinary prudence for his filing delay
to be excusable. Kerr, 908 F.3d at 1311. The Board consid-
ers several factors in determining whether good cause war-
rants waiving a refiling deadline: (1) the appellant’s pro se
status; (2) the timeliness of the initial appeal; (3) the ap-
pellant’s intent throughout the proceedings to file an ap-
peal; (4) the length of delay in refiling; (5) confusion
surrounding the refiling deadline; (6) the number of dis-
missals without prejudice; (7) the agency’s failure to object
to the dismissal without prejudice; (8) the lack of prejudice
to the agency in allowing the refiled appeal; (9) excusable
neglect, negligence, unavoidable casualty, and circum-
stances beyond the appellant’s control. See id. (citing Her-
ring, 778 F.3d at 1013–14); Gaddy v. Dep’t of the Navy,
100 M.S.P.R. 485, 489 (2005).
The Board expressly considered all of these factors and
ultimately concluded that Mr. Zachariasiewicz did not
Case: 20-1782 Document: 28 Page: 4 Filed: 02/08/2021
4 ZACHARIASIEWICZ v. MSPB
show good cause for his eleven-month delay in refiling.
S.A. 4–11. Specifically, the Board considered the fact that
Mr. Zachariasiewicz was represented by counsel, his initial
appeal was untimely, he was aware of the deadline to re-
file, he had previous appeals based on the same claims dis-
missed within the same year without prejudice, and the
DEA objected to dismissal without prejudice. S.A. 4–10.
The Board also reasonably determined that allowing the
refiled appeal would result in substantial prejudice to the
agency because the agency was prepared to proceed in De-
cember 2018. S.A. 7–10. Moreover, the Board found that
although Mr. Zachariasiewicz expressed his intent to re-
file, he missed the deadline for refiling by eleven months.
S.A. 5–6. We discern no abuse of discretion in the Board’s
determination that there was no good cause for waiving the
refiling deadline based on its weighing of these factors.
“[T]his court will not substitute its own judgment for that
of the Board” when reviewing the Board’s weighing of these
factors. Mendoza v. Merit Sys. Prot. Bd.,
966 F.2d 650, 653
(Fed. Cir. 1992) (en banc).
CONCLUSION
Accordingly, we affirm the decision of the Board.
AFFIRMED
COSTS
No costs.
