UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

VICTOR R. ZIEGLER, SR,

Appellant,

v. 

DEPARTMENT OF THE INTERIOR,

Agency. 

DOCKET NUMBER

DE-3443-02-0301-I-1

DATE: December 27, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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 We issue a separate final order concerning the appellant’s petitions for review 

of the initial decisions in Ziegler v. Department of the Interior, MSPB Docket 
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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 Appeals 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 enforcement, 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 Board 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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board