Victor R. Ziegler, Sr. v. Department of the Interior
Background
- In June 2002 an administrative judge dismissed Ziegler’s appeal (filed May 23, 2002) for adjudicatory efficiency because substantially similar petitions for review in earlier appeals were pending. The initial decision issued June 21, 2002.
- Ziegler did not file a petition for review within the 35-day rule, and the initial decision became final in July 2002 after no timely petition was filed.
- Over subsequent years Ziegler pursued multiple related proceedings: a 2002 Board final order denying review of related cases (affirmed by the Federal Circuit in 2003), a 2007 enforcement petition (denied and affirmed on appeal), and a global settlement in separate proceedings including an ADEA waiver compliant with OWBPA (litigated and upheld in district court and appeals).
- On March 22, 2016, Ziegler filed a petition for review of the June 21, 2002 initial decision, more than 13 years late, and moved to accept or waive the deadline for good cause.
- The Board applied its timeliness rules (35 days; excusable only for good cause) and considered factors (length of delay, reasons, pro se status, appellant’s legal training and bar membership). It concluded Ziegler did not show good cause for the 13+ year delay.
- The Board dismissed the petition for review as untimely without good cause; the June 21, 2002 initial decision remains the Board’s final decision on dismissal of the underlying appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ziegler’s petition for review, filed in 2016 of a 2002 initial decision, was timely or excused for good cause/equitable tolling | Ziegler asserted agency noncompliance with OWBPA and with a settlement modification and claimed he filed as soon as he believed noncompliance existed; he also invoked equitable tolling analogies | Agency argued the petition was untimely by over 13 years and no circumstances established good cause to excuse the delay | Petition dismissed as untimely; Board found no good cause for the 13+ year delay and rejected equitable tolling argument as inapplicable here |
Key Cases Cited
- Alonzo v. Department of the Air Force, 4 M.S.P.R. 180 (Board 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 (Board 1995) (factors for evaluating good-cause delay: length, reasonableness, diligence, pro se status, and circumstances beyond control)
- Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (equitable tolling applied in context of VEOA filing deadlines; Court noted limits of that holding to VEOA context)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court’s strict adherence to statutory deadline for filing an appeal to the Federal Circuit)