Ziegler v. Salazar et al
Filing
64
Amended MEMORANDUM OPINION AND ORDER re: Motion to Dismiss for Lack of Jurisdiction. Signed by U.S. District Judge Lawrence L. Piersol on 10/28/2014. (Chambers hand delivered copies of this order to Mr. Ziegler and AUSA.)(JLS)
FILED
UNITED STATES DISTRICT COURT
OCT 2 8 2014
DISTRICT OF SOUTH D A K O T A ,
.
~~
SOUTHERN DIVISION
******************************************~:*~E~**
*
*
CIV. 12-4042
*
Plaintiff,
*
vs.
AMENDED MEMORANDUM
*
OPINION AND ORDER RE:
*
SALLY JEWELL, SECRETARY
MOTION TO DISMISS
*
DEPARTMENT OF INTERIOR,
FOR LACK OF JURISDICTION
*
*
Defendant.
*
*
***************************************************
VICTOR R. ZIEGLER,
Defendants have moved to dismiss this case for lack ofjurisdiction (Doc. 49), and Plaintiff
Victor R. Ziegler has moved for alternative action (Doc. 56). A jurisdiction motion can be raised at
any time so the motion has been considered. Defendants Ragsdale and Renville were dismissed
without objection at the commencement oftrial.
This case is properly before this Court. The present case does not concern the enforcement
ofa payment or some other condition ofthe Settlement Agreement entered into by Victor Ziegler and
the Department ofthe Interior on October 15, 2008. Instead, this lawsuit, which was filed after the
EEOC issued its right to sue letter on December 7, 2011, deals with the question of whether the
Settlement Agreement is enforceable to dismiss two ADEA claims of Mr. Ziegler's.
One ofthose claims is Ziegler /l, that being a claim ''that defendant violated the ADEA by
constructively discharging him in April, 1999 and failing to rehire him in June 1999." Ziegler v.
Kempthorne, 266 Fed.Appx. 505 (8th Cir. 2008) (per curiam). That claim was dismissed with
prejudice in paragraph 11 ofthe Settlement Agreement. A Stipulation for Dismissal with Prejudice
in Civ. 04-4098 was signed by Victor Ziegler and Defendants' representatives on October 15, 2008,
and a Judgment dismissing the case with prejudice was entered by this Court on November 10, 2008.
The other ADEA claim which was dismissed with prejUdice in paragraph 12 ofthe Settlement
Agreement is Ziegler v. Merit System Protection Board, Fed. Cir. No 2008-3161. That claim
involved alleged involuntary resignation and constructive demotion.
But the Modification of
Settlement Agreement signed by Victor Ziegler on October 29,2008 and others on October 27,2008
and October 30,2008 removed Paragraph 12 from the Settlement Agreement. (Defendant's Exhtbit
101).
For purposes ofthe trial on October 28,2014, the parties should be aware that as was pointed
out by the Eighth Circuit in Ziegler v. Kempthorne:
We note, however, that the district court record raises the question whether the
instant lawsuit was timely filed: it is undisputed that the decision denying the
underlying consolidated Equal Employment Opportunity complaint was issued in
September 2003, and that the instant lawsuit was not filed until June 2004. See 29
C.F.R. § 1614.407(c) (federal sector complainant should file civil action in
appropriate district court within 90 days of receipt ofCornrnissioner's final decision
on appeal). Further development of the record is necessary to determine timeliness.
Ziegler v. Kempthorne.
The parties should also be aware that under 29 U.S.C. § 626(f)(3), ''the party asserting the
validity ofa waiver shall have the burden ofproving in a court ofcompetent jurisdiction that a waiver
was knowing and voluntary pursuant to paragraph (1) or (2)."
The parties should also be aware that 29U.S.C. § 626(f)(1)(F), (0) and (H) are not applicable
to this case. However, the requirements of subparagraphs (A) through (E) of paragraph (I) of29
U.S.C. § 626(f) must be met and it must also be shown that at a minimum Victor Ziegler was given
a reasonable period of time within which to consider the terms of the Settlement Agreement. 29
U.S.C. § 626(f)(2). Accordingly,
IT IS HEREBY ORDERED that Defendants' motion to dismiss for lack of
f'1;
jurisdiction (Doc. 49) is denied, and Plaintiff's motion for alternative action (Doc. 56)
is denied.
Dated this Zt-aay of October, 2014.
ATTEST:
JOSEPH HAAS, CLERK
awrence L. Piersol
nited States District Judge
BY:~DeputY
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?