                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                     2008-3161

                                VICTOR R. ZIEGLER,

                                                     Petitioner,

                                          v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                     Respondent.


      Victor R. Ziegler, of Ft. Thompson, South Dakota, pro se.

       Stephanie M. Conley, Acting Assistant General Counsel, Office of the General
Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her
on the brief were B. Chad Bungard, General Counsel.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2008-3161


                                 VICTOR R. ZIEGLER,

                                                           Petitioner,

                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                           Respondent.


   Petition for review of the Merit Systems Protection Board in DE3443020301-C-1.


                            _________________________

                            DECIDED: October 14, 2008
                            _________________________


Before SCHALL, CLEVENGER, and LINN, Circuit Judges.

PER CURIAM.

                                       DECISION

      Victor R. Ziegler petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) which dismissed his compliance petition for lack of

jurisdiction. Ziegler v. Dep’t of Interior, No. DE-3443-02-0301-C-1 (M.S.P.B. Dec. 18,

2007) (“Final Decision”). We affirm.
                                      DISCUSSION

                                            I.

      Mr. Ziegler is an employee of the Bureau of Indian Affairs, a component of the

Department of the Interior (“agency”).     He filed two Equal Employment Opportunity

(“EEO”) complaints with the agency asserting discrimination in connection with an

alleged constructive demotion and involuntary resignation. Subsequently, he filed two

appeals with the Board in connection with these matters. The administrative judge

(“AJ”) dismissed both appeals on March 8, 2002 for lack of jurisdiction, because Mr.

Ziegler had not proven constructive demotion or involuntary resignation; therefore, the

appeals did not present “mixed” cases. 1 See Ziegler v. Dep’t of Interior, No. DE-0752-

02-0050-I-1, 2002 MSPB LEXIS 1424, at *2–3, *17–18 (M.S.P.B. Mar. 8, 2002), aff’d 70

Fed. Appx. 542 (Fed. Cir. 2003) (non-precedential). Mr. Ziegler then filed a new appeal

attempting to reinstate the appeals. In a decision dated June 21, 2002, the AJ to whom

the new appeal was assigned dismissed for adjudicatory efficiency because Mr. Ziegler

had filed a petition for review with the full Board with respect to the March 8, 2002

dismissal, and the petition for review was still pending. Ziegler v. Dep’t of Interior, No.

DE-3443-02-0301-I-1 (M.S.P.B. June 21, 2002) (“June 21 Decision”). 2




      1
              “A mixed case complaint is a complaint of employment discrimination filed
with a federal agency based on race, color, religion, sex, national origin, age or
handicap related to or stemming from an action that can be appealed to the [Board].”
29 C.F.R. § 1614.302(a)(1) (2008). The Board does not have jurisdiction over pure
discrimination claims.
      2
              The Board joined the two appeals and denied review of the March 8, 2002
decision. This court affirmed the Board’s decision. Ziegler v. Dep’t of the Interior, 93
M.S.P.R. 308 (2002) (Table), aff’d, 70 Fed. Appx. 542 (Fed. Cir. 2003) (non-
precedential).


2008-3161                                   2
       In the new appeal eventually leading to the June 21, 2002 decision, Mr. Ziegler

asserted that after the AJ’s initial decision in March, the agency issued a final decision

on the discrimination claims dated April 16, 2002. Mr. Ziegler alleged that the agency

still took the position that his claims were “mixed” and that the Board was the proper

forum for any appeal. The agency’s final decision informed Mr. Ziegler that, because

his claim was “mixed,” he had no right of appeal to the Equal Employment Opportunity

Commission (“EEOC”). In the June 21 Decision, after explaining why Mr. Ziegler’s new

appeal should be dismissed, the AJ determined that the agency’s final decision should

have provided Mr. Ziegler with “appeal rights to the EEOC” because the EEO claim

presented an “unmixed” case. June 21 Decision, slip op. at 3. The AJ stated: “The

agency should issue the appellant an amended notice of his appeal rights in the final

decision on discrimination and all deadlines for filing should be tolled.” Id.

       On April 4, 2007, Mr. Ziegler filed a petition with the Board asking the Board to

enforce compliance with the AJ’s instructions to the agency in the June 21 Decision.

Mr. Ziegler asserted that the agency never sent the notice of appeal rights called for in

the June 21 Decision. The agency responded with documentation indicating that it had

complied with the AJ’s instructions. The agency also noted that Mr. Ziegler already had

appealed his alleged constructive demotion and involuntary resignation to the EEOC.

Mr. Ziegler countered that the agency had not in fact fully complied with the AJ’s

instructions.

       Reviewing the parties’ submissions and referring to the Board’s denial of the

petition for review of the March 8, 2002 initial decision dismissing Mr. Ziegler’s appeals

for lack of jurisdiction, the AJ stated: “Because the Board has issued a final order




2008-3161                                     3
holding that it lacks jurisdiction over the appellant’s claims of constructive demotion and

involuntary resignation, I conclude that the Board has no authority to rule on the

appellant’s petition for enforcement regarding this procedural matter.” Ziegler v. Dep’t

of Interior, No. DE-3443-02-0301-C-1, 2007 MSPB LEXIS 6494, at *3–4 (M.S.P.B. July

31, 2007) (“Initial Decision”).   The AJ therefore dismissed the appeal for lack of

jurisdiction.

       The Initial Decision became the final decision of the Board on December 18,

2007, when the Board denied Mr. Ziegler’s petition for review for failure to meet the

criteria for review set forth at 5 C.F.R. § 1201.115(d) (2008). Final Decision, slip op. at

1–2.

                                             II.

       We have jurisdiction over Mr. Ziegler’s appeal pursuant to 28 U.S.C. § 1295(a)(9)

(2006). Pursuant to 5 U.S.C. § 7703(c), we must affirm a decision of the Board unless

we find it to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.           See

Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

       We see no error in the decision of the Board in this case. While the Board has

authority to enforce its orders, see 5 U.S.C. § 1204(a)(2), that authority is limited to

enforcing orders in matters over which the Board has jurisdiction. See Worthington v.

United States, 168 F.3d 24, 27 (Fed. Cir. 1999) (stating that the Board has jurisdiction

over claims for back pay if it has jurisdiction over the underlying claim). In this case, it

was determined that the Board lacked jurisdiction over Mr. Ziegler’s claims of alleged




2008-3161                                    4
involuntary resignation and constructive demotion. Under these circumstances, the AJ

correctly ruled that the Board lacked jurisdiction to adjudicate a procedural issue relating

to those matters. As the AJ noted in the Initial Decision, if Mr. Ziegler is dissatisfied with

the agency’s processing of his discrimination complaint, his remedy is with the EEOC or

federal district court. See Toyama v. Merit Sys. Prot. Bd., 481 F.3d 1361, 1365 (Fed.

Cir. 2007) (“[P]ure discrimination complaints follow the general EEOC procedures . . . .

Those general procedures permit appeal of the agency's final decision only to the

EEOC's OFO or filing a civil action in district court.” (citing 29 C.F.R. § 1614.110(a)

(2008))).

       For the foregoing reasons, the final decision of the Board is affirmed.




2008-3161                                     5
