Victor R. Ziegler, Sr. v. Department of the Interior
Background
- In October 2008 Ziegler and the Department of the Interior executed a global settlement that included a release of claims and an ADEA waiver, with OWBPA notice/revocation language (21‑day review notice and 7‑day revocation).
- Parties modified the agreement on October 30, 2008 to remove a stipulated dismissal of a Federal Circuit case.
- Ziegler did not revoke within the 7‑day period; administrative judge dismissed the joined appeals as settled and entered the modified agreement into the record on November 7, 2008.
- Initial decisions became final on December 12, 2008; no timely petitions for review were filed then.
- Ziegler later challenged OWBPA compliance in district court and lost; he filed petitions for review with the MSPB on March 22, 2016 (over 7 years late).
- The Board rejoined the appeals but dismissed Ziegler’s 2016 petitions for review as untimely and found he failed to show good cause to excuse the delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition for review | Ziegler challenged OWBPA compliance and alleged the AJ failed to perform an OWBPA analysis; sought waiver of time limit | Agency asserted petitions were untimely and should be dismissed | Petitions were untimely (filed >7 years late) and dismissed |
| Good cause to excuse late filing | Ziegler argued OWBPA defects, agency noncompliance, and equitable tolling (citing Kirkendall) | Agency argued no adequate excuse and that the Board’s deadline rules control | Board found no good cause: long delay, no reasonable excuse, and Ziegler (a law grad and bar member) did not show due diligence |
| Applicability of Kirkendall equitable‑tolling theory | Ziegler invoked Kirkendall to justify tolling | Agency argued Kirkendall is not on point (different statutory scheme) | Board held Kirkendall inapplicable to MSPB petition‑for‑review deadlines |
| Enforceability of the settlement as final Board decision | Ziegler sought to challenge validity of ADEA waiver after finality | Agency maintained settlement and dismissal were final | Board left initial decisions dismissing appeals as settled as final decisions of the Board |
Key Cases Cited
- Alonzo v. Department of the Air Force, 4 M.S.P.R. 180 (1980) (standard for showing good cause for untimely filing: due diligence/ordinary prudence)
- Moorman v. Department of the Army, 68 M.S.P.R. 60 (1995) (factors for evaluating good‑cause delay: length, excuse, diligence, pro se status, circumstances beyond control)
- Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (equitable‑tolling discussion in context of VEOA deadlines; Board found it inapplicable here)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court’s strict enforcement of statutory filing deadlines; lack of waiver authority)