Victor R. Ziegler, Sr. v. Department of the Interior ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VICTOR R. ZIEGLER, SR, DOCKET NUMBER
Appellant, DE-3443-02-0301-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: December 27, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Victor R. Ziegler, Sr., Fort Thompson, South Dakota, pro se.
Teresa M. Garrity, Esquire, Bloomington, Minnesota, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision in
Ziegler v. Department of the Interior, MSPB Docket No. DE-3443-02-0301-I-1,
which dismissed his appeal for adjudicatory efficiency. 2 For the reasons set forth
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 administrativ e 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
We issue a separate final order concerning the appellant’s petition s for review
of the initial decisions in Ziegler v. Department of the Interior, MSPB Docket
2
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 In November 2001, the appellant filed appeals in which he alleged that the
agency constructively demoted him, effective February 16, 1999, and coerced his
resignation, effective April 4, 1999. Ziegler v. Department of the Interior, MSPB
Docket Nos. DE-0752-02-0050-I-1 (Ziegler 0050), DE-0762-02-0051-I-1
(Ziegler 0051). The administrative judge issued initial decisions dismissing both
appeals for lack of jurisdiction, Ziegler 0050, Initial Decision (Mar. 8, 2002);
Ziegler 0051, Initial Decision (Mar. 8, 2002), and the appellant petitioned for
review of both decisions. 3
¶3 Shortly thereafter, on May 23, 2002, the appellant filed the instant appeal,
seeking to reassert the same constructive demotion and involuntary resignation
claims. Initial Appeal File (IAF), Tab 1. With his appeal, he submitted a copy of
a final agency decision, dated April 16, 2002, in which the agency denied his
equal employment opportunity (EEO) complaint concerning the same matters and
notified him that the Board was the proper forum for an appeal of its decision.
Id. Because the petitions for review in Ziegler 0050 and Ziegler 0051 were still
pending, the administrative judge dismissed the appeal for adjudicatory
efficiency. IAF, Tab 6, Initial Decision (June 21, 2002). She further found that,
in light of her earlier finding that the Board lacked jurisdiction over the
appellant’s constructive demotion and involuntary resignation claims, the
Nos. DE‑ 3443‑ 06-0454-M-2, Initial Decision (Nov. 7, 2008), and DE-3443-06-0455-
M‑ 2, Initial Decision (Nov. 7, 2008).
3
On December 18, 2002, the Board issued a final order joining Ziegler 0050 and
Ziegler 0051 and denying both petitions for review. The U.S. Court of Appeal s for the
Federal Circuit affirmed that decision on July 11, 2003. Ziegler v. Department of the
Interior, 70 F. App’x 541 (Fed. Cir. 2003).
3
appellant’s EEO complaint was not a “mixed” complaint under Equal
Employment Opportunity Commission (EEOC) regulations, and the agency
should therefore issue a corrected notice of appeal rights, identifying the EEOC
as the forum in which to appeal its decision. Id. The administrative judge
indicated that her initial decision in this case would become the Board’s final
decision on July 26, 2002, unless a petition for review was filed by that date. Id.Neither party filed a petition for review before that deadline.
¶4 On April 4, 2007, the appellant filed a petition for enforceme nt, seeking to
enforce compliance with the administrative judge’s instruction to process the
EEO complaint in accordance with EEOC regulations. The administrative judge
dismissed the petition, finding that the Board lacked enforcement authority over
the matter, and the full Board denied the appellant’s petition for review.
Ziegler v. Department of the Interior, MSPB Docket No. DE-3443-02-0301-C-1,
Compliance Initial Decision (July 31, 2007), Final Order (Dec. 18, 2007). The
appellant filed an appeal with the U.S. Court of Appeals for the Federal Circuit ,
docketed as Fed. Cir. No. 2008-3161, and, on October 14, 2008, the court
affirmed the Board’s decision. Ziegler v. Merit Systems Protection Board,
296 F. App’x 930 (Fed. Cir. 2008).
¶5 In the meantime, in the course of a separate Board proceeding, the parties
entered into a global settlement agreement, in which the appellant agreed to
withdraw and release all claims against the agency. Ziegler v. Department of the
Interior, MSPB Docket No. DE-3443-06-0454-M-2, Remand File (0454 RF),
Tab 31 at 4-9; Ziegler v. Department of the Interior, MSPB Docket No. DE-3443-
06-0455-M-2, Remand File (0455 RF), Tab 27 at 4-9; see Ziegler v. Department
of the Interior, 116 M.S.P.R. 514, ¶ 2 (2011). Among other provisions, the
agreement included a waiver of any claims under the Age Discrimination in
Employment Act (ADEA) that arose or could have arisen prior to the effective
date of the agreement. 0454 RF, Tab 31 at 7; 0454 RF, Tab 27 at 7. The
agreement also included an explicit statement that, under the Older Workers
4
Benefits Protection Act (OWBPA), 29 U.S.C. § 626(f), the appellant was entitled
to at least 21 calendar days from his receipt of a draft to consider the terms of the
agreement, and 7 calendar days from the date of signing to revoke his decision to
enter into the agreement. 0454 RF, Tab 31 at 7; 0454 RF, Tab 27 at 7. The
appellant acknowledged that the 21-day period already had expired. 0454 RF,
Tab 31 at 7; ¶ 18; 0454 RF, Tab 27 at 7. On the advice of the Board’s Office of
General Counsel, the parties modified the agreement on October 30, 2008, to
strike a provision that would have stipulated to the dismissal of the Fed. Cir.
2008‑ 3161 case. 0454 RF, Tab 31 at 15-16; 0455 RF, Tab 27 at 15-16.
¶6 The appellant did not elect to revoke the agreement within 7 days after
signing it or the modification thereto. Accordingly, the administrative judge
dismissed the appeals as settled and entered the modified agreement into the
record for enforcement purposes. 0454 RF, Tab 32, Remand Initial Decision
(Nov. 7, 2008); 0455 RF, Tab 28, Remand Initial Decision (Nov. 7, 2008). In a
subsequent court proceeding, the appellant contended that the agency violated the
OWBPA when it bargained for and obtained the ADEA waiver, but the U.S.
District Court for the District of South Dakota found that the ADEA waiver
provision was compliant with the OWBPA. Ziegler v. Jewell, No. CIV. 12-4042,
2015 WL 1822874, at *5 (D.S.D. Apr. 21, 2015), aff’d, 637 F. App’x 246
(8th Cir. 2016), cert. denied, 2016 WL 4944632 (Oct. 31, 2016).
¶7 The appellant filed the instant petition for review on March 22, 2016.
Petition for Review (PFR) File, Tab 1. In accordance with the Clerk of the
Board’s instructions, he has since filed a motion to accept the filing as timely
and/or waive the time limit for good cause. PFR File, Tabs 2, 5. The agency has
filed a response, to which the appellant has replied. PFR File, Tabs 9-10.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
5
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date he received the initial decision. 5 C.F.R.
§ 1201.114(d). Here, the appellant has not alleged or established that he received
the initial decision more than 5 days after its issuance on June 21, 2002. PFR
File, Tab 5. Thus, his petition for review was untimely filed by more than
13 years.
¶9 The Board will excuse the late filing of a petition for review on a showing
of good cause for the delay. 5 C.F.R. § 1201.114(f). To establish good cause for
an untimely filing, a party must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. Alonzo v. Department of
the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant
has shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to his inability to timely file his petition. Moorman v. Department of
the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir.
1996) (Table).
¶10 In his motion to waive the filing deadline, the appellant asserts that the
agency did not comply with the OWBPA and the modification to the agreement
concerning Fed. Cir. 2008-3161, and that he filed “as soon as [he] believed” the
agency was in noncompliance. PFR File, Tab 5. However, he has not explained
how his allegations of noncompliance with the OWBPA and the modified
agreement would account for his delay in filing a petition for review of the initial
decision in this case, which involves different claims and predates the agreement
by more than 6 years. The appellant also appears to argue that he is entitled to
equitable tolling consistent with Kirkendall v. Department of the Army, 479 F.3d
830 (Fed. Cir. 2007), but the holding of that case is inapplicable here, as it
6
concerns filing deadlines for Veterans Employment Opportunities Act complaints
under 5 U.S.C. § 3330a, and does not relate to the timeliness of petitions for
review of initial decisions by the Board. See Kirkendall, 479 F.3d at 843-44.
Furthermore, the delay in this case is significant, and, while the appellant
does not have representation in these proceedings, we take notice that he
graduated from law school in 2004 and is a member of the District of Columbia
Bar. See Ziegler v. Jewell, 2015 WL 1822874, at *2. Under these circumstances,
we find the appellant has not shown good cause for the delay in filing
his petition.
¶11 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection B oard regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the underlying appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
7
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.