NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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 Cir. 2003) (non-precedential).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