# Victor R Ziegler v. Department of the Interior

> Merit Systems Protection Board · August 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10511537

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 16, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10511537

## How later opinions describe it (automated extraction)

- stating that the “actually litigated” element is satisfied when the issue was properly raised by the pleadings, submitted for determination, and decided

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

VICTOR ZIEGLER, DOCKET NUMBER
Appellant, DE-3443-06-0454-C-4

v.

DEPARTMENT OF THE INTERIOR, DATE: August 16, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Victor R. Ziegler , Sioux Falls, South Dakota, pro se.

Okwede Okoh , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of a compliance initial
decision which dismissed his Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) appeal as settled. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 administrative 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

on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. We
AFFIRM the compliance initial decision as MODIFIED, still dismissing the
appeal for lack of jurisdiction, but doing so on the basis of collateral estoppel.

BACKGROUND
In August 2006, the appellant filed two Board appeals challenging, among
other things, his non-selection for promotion to a police chief position under
USERRA and the Veterans Employment Opportunities Act of 1998. Ziegler v.
Department of the Interior, MSPB Docket No. DE-3443-06-0454-I-1, Initial
Appeal File, Tab 1; Ziegler v. Department of the Interior, MSPB Docket No.
DE-3443-06-0455-I-1, Initial Appeal File, Tab 1. In October 2008, the parties
executed a settlement agreement providing that the appellant “waives, releases
and forever discharges the [a]gency . . . from any and all appeals, complaints,
claims, causes of action, or grievances, however designated, whether known or
unknown, pending or not now pending . . . including, but not limited to those
matters resolved specifically herein . . . up to and including the effective date of
[the settlement agreement].” Ziegler v. Department of the Interior, MSPB Docket
No. DE-3443-06-0454-M-2, Remand File, Tab 31 at 4-12, 15-16. As
consideration, the appellant received, among other things, a 1-year reinstatement
to the position from which he had been separated, extending his service past
3

his minimum retirement age of 50. Id. at 4-5; Ziegler v. Department of the
Interior, MSPB Docket No. DE-3443-06-0454-C-4, Compliance File (C-4 CF),
Tab 6 at 47; see 5 U.S.C. § 8336(c)(1).
The administrative judge dismissed the appeals as settled in an initial
decision and entered the agreement into the record for enforcement purposes.
Ziegler v. Department of the Interior, MSPB Docket No. DE-3443-06-0454-M-2,
Remand Initial Decision (Nov. 7, 2008); Ziegler v. Department of the Interior,
MSPB Docket No. DE-3443-06-0455-M-2, Remand Initial Decision (Nov. 7,
2008). The appellant filed petitions for review, which the Board dismissed as
untimely filed without good cause shown. Ziegler v. Department of the Interior,
MSPB Docket Nos. DE-3443-06-0454-M-2, DE-3443-06-0455-M-2, Final Order,
¶¶ 1, 6-9 (Dec. 27, 2016). In a subsequent decision regarding a separate appeal
the appellant filed in 2002, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) observed that the appellant did not challenge the dismissal of his
2006 appeals as settled. Ziegler v. Merit Systems Protection Board, 705 F. App’x
997, 1000 (Fed. Cir. 2017).
In June 2020, the appellant filed an appeal in which he reasserted his prior
USERRA claims, arguing that the 2008 settlement agreement was invalid.
Ziegler v. Department of the Interior, MSPB Docket No. DE-4324-21-0328-I-1,
Initial Appeal File, Tab 1. The appellant requested reinstatement of the claims he
raised in his 2006 USERRA appeal. Id. at 22-23.
The administrative judge dismissed the appellant’s USERRA claims for
lack of jurisdiction, finding that the claims, which were based on incidents
preceding the 2008 settlement agreement, had been released in that agreement.
Ziegler v. Department of the Interior, MSPB Docket Nos. DE-3443-06-0454-C-3,
DE-4324-21-0328-I-1, Compliance Initial Decision at 9-11 (Sept. 29, 2021). To
the extent the appellant was seeking to enforce the October 2008 settlement
agreement, the administrative judge denied his request. Id. at 5-9. He also
declined to void the agreement, noting that only the full Board could address that
4

argument. Id. at 2 n.2. The appellant elected not to seek full Board review of the
administrative judge’s decision, instead directly petitioning the Federal Circuit
for review. The Federal Circuit affirmed the initial decision. Ziegler v.
Department of the Interior, No. 2022-1182, 2022 WL 1435385 (Fed. Cir. May 6,
2022). In doing so, the Federal Circuit affirmed the administrative judge’s
conclusion that the appellant released his independent USERRA claims, finding
the settlement agreement “valid and enforceable.” Id. at *3-*4.
In November 2022, the appellant filed a pleading that he asserted was a
new USERRA appeal. C-4 CF, Tab 1. In support, he repeated his argument from
his 2020 appeal that his waiver of his USERRA rights in the 2008 settlement
agreement was invalid, and thus he was not barred from pursuing his USERRA
claims. Id. at 21-22. The regional office docketed the appellant’s pleading as a
petition for enforcement. C-4 CF, Tab 2 at 1. The appellant disagreed with this
designation, reasserting that he was filing a new USERRA appeal. C-4 CF, Tab 9
at 2.
The administrative judge issued a compliance initial decision dismissing
the case. C-4 CF, Tab 10, Compliance Initial Decision (C-4 CID) at 2, 8.
Regarding the appellant’s concerns that the regional office improperly construed
his November 2022 filing as a petition for enforcement, the administrative judge
acknowledged that the appellant was seeking to file a USERRA appeal
notwithstanding the October 2008 settlement agreement between himself and the
agency. C-4 CID at 1-2 & n.1. To the extent that the appellant was seeking to
pursue his USERRA claims, the administrative judge observed that the Federal
Circuit had previously affirmed the validity and enforceability of the October
2008 settlement agreement. C-4 CID at 2 (citing 2022 WL 1435385, at *4).
Further, he observed that an administrative judge cannot consider the validity of a
settlement agreement unless the appellant first files a petition for review of the
initial decision that dismissed the appeal as settled and the matter is remanded to
the administrative judge by the full Board. Id. at 5-7. Thus, he concluded that he
5

lacked jurisdiction over the appellant’s USERRA claims. Id. at 7-8. The
appellant has filed a petition for review largely repeating his claims in his
November 2022 pleading. Ziegler v. Department of the Interior, MSPB Docket
No. DE-3443-06-0454-C-4, Compliance Petition for Review (C-4 PFR) File,
Tab 1. The agency filed a response, to which the appellant replied. 2 Id.,
Tabs 3-4.

ANALYSIS

We modify the compliance initial decision to find that the appellant’s argument
that he did not release his USERRA claims is barred by collateral estoppel.
The administrative judge dismissed the appeal below for lack of
jurisdiction on the basis that only the full Board could review in the first instance
the validity of the October 2008 settlement agreement dismissing the appellant’s
2006 appeals as settled. C-4 CID at 5-8. On review, among other things, the
appellant repeats his challenges to the validity of the settlement agreement,
asserting that those challenges are now properly before the Board on petition for
review. C-4 PFR File, Tab 1. Although the appellant is correct to assert that the
central issue in this appeal—whether he released his USERRA claims in the
October 2008 settlement agreement—is now properly before us, we find that we
lack jurisdiction over his appeal because he is barred from relitigating that issue
under the doctrine of collateral estoppel. 3
The doctrine of collateral estoppel, or issue preclusion, bars re-litigation of
an issue when: (1) the issue is identical to that involved in the prior action;
2
Although the appellant claims in his reply that he was unable to read the agency’s
response to his petition for review in its entirety because it was served to the wrong
address and he was ultimately only able to view photographs of it, C-4 PFR File, Tab 4
at 1, the appellant’s reply substantively addresses the response and we discern no
prejudice stemming from the agency’s misdirected service.
3
It is proper to consider a complaint which unmistakably challenges the validity of a
settlement as a petition for review of the initial decision dismissing the appeal as
settled. Hazelton v. Department of Veterans Affairs, 112 M.S.P.R. 357, ¶ 9 (2009).
Because the doctrine of collateral estoppel bars the appellant’s claims at issue, his
petition for review is denied.
6

(2) the issue was actually litigated in the prior action; (3) the determination on the
issue in the prior action was necessary to the resulting judgment; and (4) the party
against whom issue preclusion is sought had a full and fair opportunity to litigate
the issue in the prior action, either as a party or as one whose interests were
otherwise represented in that action. Simmons v. Small Business Administration,
115 M.S.P.R. 647, ¶ 12 (2011). Although the appellant argued below that
collateral estoppel is not applicable, C-4 CF, Tab 1 at 5, we find that all four
elements are present here.
The appellant asserted below that his waiver of his USERRA claims in the
settlement agreement was invalid because the agreement did not provide him with
consideration exceeding what he was entitled to under USERRA, as required by
38 U.S.C. § 4302(b). C-4 CF, Tab 1 at 3. In relevant part, 38 U.S.C. § 4302(b)
provides that USERRA “supersedes any . . . contract, agreement . . . or other
matter that reduces, limits, or eliminates in any manner any right or benefit
provided by” USERRA. The appellant also argued that, because the release in the
2008 settlement agreement did not clearly and unambiguously cover USERRA
claims, he did not waive them. C-4 CF, Tab 1 at 3-4 (citing Wysocki v.
International Business Machine Corporation, 607 F.3d 1102, 1106-08 (6th Cir.
2010)). He further argued, among other things, that he signed the settlement
agreement under duress caused by various agency actions, and that he did not
understand or, due to his medical conditions, physically see or properly consider
the agreement before signing it. Id. at 4-5, 11-17.
But the appellant has litigated these claims before. On review in the
appellant’s 2020 appeal, the Federal Circuit decided these issues. Ziegler, 2022
WL 1435385, at *3-*4. The Federal Circuit concluded that the appellant received
sufficient consideration for his USERRA waiver and that his waiver was not the
result of coercion or duress. Id.; C-4 CF, Tab 1 at 3-5, 11-17; C-4 PFR File, Tab
1 at 1, 3-5, 18. Thus, the issue presented here, with the same supporting
arguments no less, was actually litigated in the appellant’s 2020 appeal. See
7

Banner v. United States, 238 F.3d 1348, 1354 (Fed. Cir. 2001) (stating that the
“actually litigated” element is satisfied when the issue was properly raised by the
pleadings, submitted for determination, and decided).
Further, the Federal Circuit’s determinations regarding the appellant’s
release of his USERRA claims were necessary to its affirmance of the Board’s
dismissal of those claims for lack of jurisdiction. Finally, the appellant had a full
and fair chance to litigate his 2020 appeal through the Federal Circuit. See
McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 19 (2005) (finding that an
appellant, as a party to a former appeal, had a full and fair opportunity to litigate
the now-precluded issues).
To any extent the appellant submitted new arguments or evidence in the
present appeal that he did not raise in his 2020 appeal, collateral estoppel still
applies because the appellant has not shown that such arguments or evidence were
unavailable when he litigated that appeal. 4 Simmons, 115 M.S.P.R. 647, ¶ 12
(stating that collateral estoppel barred an appellant’s claim of a settlement
agreement’s invalidity before the Board despite her having raised different
arguments to support the invalidity claim in district court because she did not
show or allege the evidence she cited in support of her claim before the Board
was unavailable during her district court action). Because the appellant’s
challenge to his release of his USERRA claims is barred by collateral estoppel,
we deny the petition for review. 5

4
Although the appellant relies on review, as he did below, on a 2021 Federal district
court case, Ward v. Shelby County, No. 2:20-CV-02407, 2021 WL 2638035 (W.D. Tenn.
June 25, 2021), vacated and remanded, 98 F.4th 688 (6th Cir. 2024); C-4 PFR File, Tab
1 at 10-12, 16-17; C-4 CF, Tab 1 at 3-4, the decision in the case was issued during the
pendency of the 2020 appeal and was thus available during that appeal and the
appellant’s petition for review to the Federal Circuit.
5
Because we deny the petition for review on collateral estoppel grounds, we do not
address the appellant’s nearly 14-year filing delay.
8

NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:

6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9

U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
10

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
11

disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12

Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10511537. Public record. Not legal advice.