Victor R. Ziegler, Sr. v. Department of the Interior
Background
- In October 2008 Ziegler and the Department of the Interior executed a global settlement resolving his MSPB appeals; it included a waiver of ADEA claims and OWBPA timing notices (21 days to consider, 7-day revocation).
- Parties modified the agreement on October 30, 2008 to remove a stipulation about dismissing a Federal Circuit proceeding. Ziegler did not revoke within 7 days.
- An administrative judge dismissed the joined appeals as settled and entered the modified agreement into the record on November 7, 2008; those initial decisions became final December 12, 2008 absent timely petitions for review.
- Ziegler later challenged the OWBPA compliance in district court and lost; the district court decision was affirmed on appeal.
- Ziegler filed petitions for review of the 2008 MSPB initial decisions on March 22, 2016 (over 7 years late) and sought waiver of the filing deadline for good cause.
- The Board rejoined the appeals and dismissed Ziegler’s petitions for review as untimely, concluding he failed to show good cause for the 7‑year delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petitions for review | Ziegler implicitly argues later filings should be accepted and sought waiver/good-cause tolling | Agency argues petitions were filed well beyond 35-day deadline and not excused | Dismissed: petitions untimely (filed ~7 years late); no good cause shown |
| Good-cause to excuse delay | Ziegler contends OWBPA was not properly analyzed/enforced and cites equitable tolling principles | Agency contends Ziegler gave no adequate reason for failing to file timely; delay is excessive; he had legal training | Denied: Board applied Alonzo/Moorman factors, found no due diligence or excusable circumstances; pro se status insufficient (he is a lawyer) |
| Applicability of Kirkendall equitable-tolling authority | Ziegler cites Kirkendall to argue equitable tolling should apply | Agency/Board say Kirkendall concerns VEOA deadlines and is inapposite to MSPB petition timeliness | Rejected: Kirkendall inapplicable to MSPB petitions for review |
| Challenge to OWBPA compliance in settlement | Ziegler argues settlement and OWBPA compliance were improper, preventing timely petition | Agency points to executed agreement, OWBPA notices, and no revocation; settlement was accepted by AJ | Board notes Ziegler failed to explain why he could not have timely challenged OWBPA compliance; initial decisions remain final |
Key Cases Cited
- Alonzo v. Department of the Air Force, 4 M.S.P.R. 180 (1980) (standard for "good cause" requires showing due diligence or ordinary prudence)
- Moorman v. Department of the Army, 68 M.S.P.R. 60 (1995) (factors for evaluating good-cause/excusable delay)
- Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (equitable tolling for VEOA deadlines; held inapplicable here)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court generally cannot waive statutory filing deadlines)