Ziegler v. Salazar et al
Filing
38
MEMORANDUM OPINION AND ORDER granting 31 Motion to Dismiss. Signed by U. S. District Judge Lawrence L. Piersol on 9/12/13. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
FILED
SEP 122013
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CIV. 12-4042
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Plaintiff,
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vs.
MEMORANDUM OPINION AND
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ORDER RE: MOTION TO DISMISS
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KEN SALAZAR, SECRETARY
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DEPARTMENT OF INTERIOR;
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PAT RAGSDALE, GOV. Official;
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CARL RENVILLE, GOV. official,
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Defendants.
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VICTOR R. ZIEGLER,
Plaintiff Victor R. Ziegler filed a pro se Amended Complaint. In this Amended Complaint
Plaintiff Victor Ziegler summarizes his claims as follows: "The plaintiff s claims and issues of his
amended complaint civ12-4042 are contained in the EEOC Office of Federal Operations' Dismissal
ofAppeal No: 0120010155 dated Aug 8th 2011: and also in the EEOC Office ofFederal Operations'
Denial of Plaintiffs Request For Reconsideration No: 0520110701." Doc. 13. Defendants have
moved to dismiss the Amended Complaint. Doc. 31. For the reasons set forth in this opinion, the
motion to dismiss is granted.
NATURE OF CLAIMS AND PROCEDURAL BACKGROUND
Plaintiff Ziegler claims that the Department ofInteriorlBureau ofIndian Affairs (Agency)
breached its October 2008 settlement agreement with him by failing to compensate him for the release
of his Age Discrimination in Employment Act (ADEA)/Older Worker's Benefit Protection Act
(OWBPA) claims. Ziegler further contends that the waiver of his ADEAlOWBPA claims in the
settlement agreement was not valid. PlaintiffZiegler also appears to challenge the Equal Employment
Opportunity Commission's (EEOC) decision ofDecember 7, 2011, and the EEOC Office ofFederal
Operations' (OFO) decision ofAugust 8, 2011, finding that he had not provided timely notice to the
top EEO officer concerning his claim of breach of the settlement agreement.
Plaintiff Ziegler has an extensive history of litigation which began when he resigned from a
chief of police position with the BIA on March 31, 1999. This Court has had before it two prior
cases involving Victor Ziegler: Ziegler v. Norton, et al., 4:03-cv-04197, and Ziegler v. Norton, et al.,
4 :04-cv-04098. This Court dismissed the first case and granted summary judgment for the Secretary
ofInterior in the second case. In Ziegler v. Kempthorne, 266 Fed.Appx. 505 (8th Cir. 2008), the
Eighth Circuit reversed in part holding that res judicata did not preclude Ziegler's claim that the
Secretary of the Interior violated the ADEA by constructively discharging him and failing to rehire
him, inasmuch as such claims were not part ofZiegler'S prior suit against the Secretary ofInterior,
which alleged age discrimination with regard to the decision not to select Ziegler for a criminal
investigator position. The Eighth Circuit affirmed judgment against Ziegler in his actions brought
under the Uniformed Services Employment and Reemployment Rights Act and the Veterans
Employment Opportunities Act, and noted that further development ofthe record was necessary to
determine timeliness of ADEA lawsuit. Id.
Ziegler had a hearing before the Merit Systems Protection Board on October 1,2008, at the
U.S. Attorney's Office in Sioux Falls, South Dakota. Ziegler, a law school graduate, represented
himself at the hearing.
At the culmination of this hearing, the parties engaged in settlement
discussions and ultimately entered into a global settlement. The October 15, 2008 Settlement
Agreement with the Department ofInteriorlBureau ofIndian Affairs states in paragraph 3 that the
Agreement:
will constitute a withdrawal with prejudice and release by Appellant of any and all
formal or informal complaints and appeals including, but not limited to, claims for
emotional pain and suffering, any and all claims known or unknown, appeals, charges,
or grievances against the Agency, its officials, employees, or agents, in their personal
or professional capacity, having arisen on or prior to the date of this Settlement
Agreement.
Paragraph 6 ofthe Settlement Agreement provided that the Agency pay Ziegler for 80 hours
of "regular pay" per pay period beginning effective April 1, 1999, to March 31, 2000, at an
approximately hourly rate of $21.49 as GS-l 0/Step7 based on a computation ofback pay under 5
C.F.R § 550.805. Paragraph 10 of the Settlement Agreement states that Ziegler understands and
agrees that the United States Office of Personnel Management, not the Agency, is the final decision
maker on all maters related to CSRS retirement.
Paragraph 23 of the Settlement Agreement states:
Appellant understands and agrees that if he believes the Agency has breached this
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Settlement Agreement and requests reinstatement ofthe above-captioned complaint
... then Appellant must return to the Agency within sixty (60) days therefrom any and
all benefits he ... received as a result of the Agency's implementation of this
Settlement Agreement.
Paragraph 25 of the Settlement Agreement states: "The Agency and [Ziegler] agree to enter this
Settlement Agreement into the record of the proceeding before the MSPB so that the MSPB may
enforce this Settlement Agreement." After the execution of the October 15, 2008 Settlement
Agreement counsel for the Merit Systems Protection Board ( MSPB) declined to sign the agreement
because of a concern that signing a stipulation for dismissal was not appropriate and could create a
potential conflict ofinterest in any future enforcement action. The parties then signed a modification
of the Settlement Agreement dated October 29,2008.
On December 7, 2009, Ziegler filed a petition with the Merit Systems Protection Board before
an administrative judge alleging that the Settlement Agreement had been breached. In that petition
Ziegler contended the Agency was in breach ofthe settlement agreement because it had not included
Administratively Uncontrollable Overtime in the calculation of his "high three" years of service and
because the Agency did not pay interest on ''the entire sum" called for in the Settlement Agreement.
In a decision dated April 6, 2010, the administrative judge observed:
[I]t appears that the parties are in agreement that the agency was obligated to pay
interest on the one-year back pay period specified in Paragraph 6 and that it did so.
[citation omitted] Under the plain language ofthe agreement [citation omitted] I can
find no other provision which can fairly be read as calling for the payment of money
by the agency, i.e., the Department ofthe Interior, to the appellant, on which interest
would be calculated.
2010 MSPB LEXIS 1613 at *7.
The administrative law Judge concluded that the Agency fulfilled its promise to pay back pay,
with interest, from April 1, 1999, to March 31, 2000. The administrative judge also observed that it
is the United States Office of Personnel Management, not the Department of the Interior which is
responsible for the administration and payment of retirement benefits under the Civil Service
Retirement System and that ifZiegler felt he had not received everything to which he was entitled in
retirement annuity payments, he needed to address the problem with the United States Office of
Personnel Management. 2010 MSPB LEXIS 1613 at *9-*10.
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With regard to Ziegler's claim that Department of Interior had breached the Settlement
Agreement by not including Administratively Uncontrollable Overtime, the administrative judge for
the Merit Systems Protection Board found no provision of the Settlement Agreement addressing
whether the Department ofInterior would or would not compute Administratively Uncontrollable
Overtime. The administrative judge thus concluded that Ziegler had not met the "extremely heavy
burden" of showing that the settlement agreement was meant to encompass matters not expressly
addressed in the Settlement Agreement and had therefore not established a breach regarding
Administratively Uncontrollable Overtime. 20 10 MSPB LEXIS 1613 at *12- *13. The administrative
judge denied Ziegler's petition for enforcement on April 6, 2010, and advised him of his right to
petition for Board review.
Ziegler then filed a petition for review with the Merit Systems Protection Board requesting
reconsideration 0 f the April 6, 2010 decision issued by the administrative judge. The petition was
denied on December 8, 2010, as the Merit Systems Protection Board concluded there was no new,
previously unavailable evidence and that the administrative judge made no error in law or regulation
that affected the outcome ofthe case. The Merit Systems Protection Board advised Ziegler that the
December 8, 2010 decision was the Board's final decision in this matter and 0 fhis right to review the
final decision to the United States Court ofAppeals for the Federal Circuit within 60 calendar days
of receipt of the final decision. 2010 MSPB LEXIS 7235. The Attorney for the Department of
Interior in the Merit Systems Protection Board action referenced above has submitted an affidavit in
which she states that she was never served with a notice of appeal to the United States Court of
Appeals for the Federal Circuit and is unaware of Ziegler filing any such appeal. Ziegler does not
appear to claim that he timely appealed from the Merit Systems Protection Board denial 0 fhis request
for reconsideration.
In early 2010, after the Agency was notified that Ziegler had resumed filing related actions
in various forums, on subjects that the Agency contended fell within the scope of the Settlement
Agreement and global waiver, the Agency counsel contacted Ziegler in writing and advised him that
the Agency considered these filings to be a breach ofthe Settlement Agreement and that the Agency
expected him to repay the money in accordance with paragraph 23 ofthe Settlement Agreement. The
Department ofthe Interior on June 21,2010, filed a petition for enforcement with the Merit Systems
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Protection Board because the Merit Systems Protection Board retained jurisdiction over the
Settlement Agreement.
The administrative judge granted the Agency petition for enforcement insofar as it sought a
ruling that Ziegler had breached the Settlement Agreement but denied the petition for enforcement
insofar as the Agency sought both rescission and enforcement. The administrative judge ruled that
the Agency must elect one remedy or the other. Ziegler appealed the administrative law judge's
decision to the Merit Systems Protection Board. The Merit Systems Protection Board in a decision
dated June 28, 2011, denied the Department of the Interior's petition to enforce the settlement
agreement finding that Ziegler did not breach the settlement agreement by challenging the validity of
the provisions waiving his rights and claims under the ADEA. The Merit Systems Protection Board
reasoned that an employee has the right to challenge the validity of an ADEA waiver agreement
before the EEOC under 29 C.F.R. § 1625.23(b).
When the Merit Systems Protection Board issued its decision dated June 28,2011, an appeal
by Ziegler contending that he was entitled to interest and administratively uncontrollable overtime
was pending before the EEOC.
On August 8, 2011, the EEOC dismissed the appeal.
The
Commission stated that Ziegler had failed to notifY the Agency's EEO Director about the breach
allegation as he was required to do pursuant to 29 C.F.R. § 1614.504(b), rendering the appeal
premature. Significantly, the Commission also stated that the matter was outside its jurisdiction since
the Settlement Agreement provided that the Merit Systems Protection Board enforce the Settlement
Agreement. Ziegler moved the EEOC to reconsider, but this request was denied on December 7,
2011. Ziegler was advised that there was no further right of administrative appeal and that he had
the right to file a civil action in an appropriate United States District Court within 90 days ofreceipt
of the decision. Ziegler filed this action on March 6,2012.
Defendants answered and filed a motion to dismiss. The motion to dismiss contends that this
action is barred by issue preclusion or claim preclusion. The motion to dismiss also contends that
Ziegler has failed to articulate a waiver of sovereign immunity to bring a cause of action against
Defendants Ragsdale and Renville. 1
IBoth parties raise a number of issues that the Court will not address because the doctrine
of res judicata is dispositive of the motion to dismiss.
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WHETHER ZIEGLER'S BREACH OF SETTLEMENT AGREEMENT CLAIMS ARE
BARRED BY RES JUDICATA?
Motion to Dismiss
Res judicata is an affirmative defense. "If an affirmative defense ... is apparent on the face
ofthe complaint ... that [defense] can provide the basis for dismissal under Rule 12(b)(6)." Noble Sys.
Corp. v. Alorica Cent., LLC, 543 F.3d 978, 983 (8th Cir. 2008). The Eighth Circuit has implicitly
endorsed the use of a motion to dismiss to raise res judicata. See
eH. Robinson Worldwide, Inc. v.
Lobrano, 695 F.3d 758,763-764 (8th eir. 2012). In considering a motion to dismiss, this Court
takes the factual allegations in the complaint as true and affords the non-moving party all reasonable
inferences from those allegations. Palmer v. Ill. Farmers Ins. Co., 666 F.3d 1081, 1083 (8th Cir.
2012). A district court reviewing a motion to dismiss for failure to state a claim may consider some
public records, materials that do not contradict the complaint, or materials that are necessarily
embraced by the pleadings in the case. Minnesota Majority v. Mansky, 708 F.3d 1051, 1056 (8th eir.
2013).
Res Judicata
The doctrine ofres judicata provides that a final judgment on the merits ofan action precludes
the parties or their privies from relitigating issues that were or could have been raised in that action.
Allen v. McCurry, 449 U.S. 90, 94 (1980). Under the doctrine ofres judicata, also known as claim
preclusion, a claim is precluded by a prior lawsuit when: "(1) the first suit resulted in a final judgment
on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involve the same
parties (or those in privity with them); and (4) both suits are based upon the same claims or causes
of action." Costner v. URS Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998). "[R]es judicata
and collateral estoppel relieve parties ofthe cost and vexation ofmultiple lawsuits, conserve judicial
resources, and, by preventing inconsistent decisions, encourage reliance on adjudication." Allen v.
McCurry, 449 U.S. at 94.
A final decision from the Merit Systems Protection Board can be the basis of a res judicata
determination. See Ford-Clifton v. Dep 't of Veterans Affairs, 661 F.3d 655 (Fed. Cir. 2011); Spears
v. Merit Systems Protection Bd., 766 F.2d 520 (Fed. eir. 1985). The petition Ziegler filed with the
Merit Systems Protection Board on December 7, 2009, alleging the breach of the Settlement
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Agreement with the Department of the Interior and Bureau of Indian Affairs resulted in a final
decision on the merits of the claims raised in this action. The April 6, 2010 decision from the
administrative judge became final when Ziegler did not appeal from the Merit Systems Protection
Board's denial ofhis request for reconsideration ofthe April 6, 2010 decision and that final decision
was rendered in a proper forum that was, in fact, agreed to by Ziegler in the Settlement Agreement.
The numerous Department ofInterior and Bureau ofIndian Affairs officials named by Ziegler in the
instant action are in privity with the Department ofthe Interior and Bureau ofIndian Affairs. Based
on these factors, Ziegler's action in this Court is precluded by res judicata and the motion to dismiss
is granted on that basis. Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (Doc. 31) is
granted.
"
Dated this lX-day of September, 2013.
BY THE COURT:
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ATTEST:
JOSEPH HAAS, CLERK
wrence L. Pierso I
nited States District Judge
,£.fI1/Yl2! ~
DEPUTY
BY:
(SEAL)
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