United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3409
                        ___________________________

                                  Victor Ziegler, Sr.

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

 Ken Salazar, Secretary Department of Interior; Pat Ragsdale, Gov. Official; Carl
                            Renville, Gov. Official

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                               Submitted: June 6, 2014
                                Filed: June 16, 2014
                                   [Unpublished]
                                   ____________

Before BYE, COLLOTON, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

       Victor R. Ziegler, Sr. appeals the dismissal with prejudice of his complaint
against the Department of Interior (agency), in which he alleged claims related to a
settlement agreement. After de novo review, this court concludes the district court
properly dismissed Ziegler’s claims that the agency breached the settlement
agreement by failing to pay him the correct amount of settlement award money based
on overtime and interest calculations. Those claims were barred by res judicata, as
they had been previously litigated in Ziegler v. Department of Interior, 2010 M.S.P.B.
LEXIS 1613 (Apr. 6, 2010), petition for review denied, 116 M.S.P.R. 84 (Dec. 8,
2010) (Ziegler I). See Yankton Sioux Tribe v. U.S. Dep’t of Health & Human Servs.,
533 F.3d 634
, 639 (8th Cir. 2008) (standard of review; elements of res judicata
doctrine); Gibson v. U.S. Postal Serv., 
380 F.3d 886
, 889 (5th Cir. 2004) (Merit
Systems Protection Board decisions receive res judicata effect).

       Res judicata does not bar Ziegler’s claim that the agency violated the
requirements for obtaining a waiver of his rights under the Age Discrimination in
Employment Act (ADEA). See 29 U.S.C. § 626(f) (requirements for obtaining waiver
of ADEA rights or claims). This invalid-ADEA-waiver claim presents a different
cause of action than the claims litigated in Ziegler I. The claim that the agency
violated statutory requirements when it bargained for and obtained Ziegler’s ADEA
waiver arose out of a different nucleus of operative facts, and seeks redress for a
different act of wrongdoing than the Ziegler I claims that the agency subsequently
breached the settlement agreement by not paying the correct settlement amount. See
Daley v. Marriott Int’l, Inc., 
415 F.3d 889
, 896 (8th Cir. 2005) (under res judicata,
same-cause-of-action element turns on whether claims arose out of same nucleus of
operative facts, or whether wrong for which redress is sought is same in both actions).
Ziegler’s invalid-ADEA-waiver claim is also not barred by collateral estoppel, as the
merit of that claim has not been litigated previously or determined in the
administrative adjudications. See Ginters v. Frazier, 
614 F.3d 822
, 826 (8th Cir.
2010) (elements of collateral estoppel doctrine).

       This court reverses the dismissal of Ziegler’s claim that his ADEA waiver was
obtained in violation of 29 U.S.C. § 626(f), and remands for further proceedings on
this claim. In all other respects, the judgment is affirmed.
                        ______________________________

                                         -2-


Case Information

Case Name: Victor R. Ziegler, Sr. v. Ken Salazar

Court: ca8

Year: 2014-06-16