                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
