       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                HENRY E. GOSSAGE,
                    Petitioner,

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent.
             ______________________

                      2012-3217
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF3330110227-I-1.
                ______________________

                 Decided: May 13, 2013
                ______________________

   HENRY E. GOSSAGE, of Lacey, Washington, pro se.

   MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
was KEISHA DAWN BELL, Acting General Counsel.
               ______________________
2                                   HENRY GOSSAGE   v. MSPB
Before LOURIE and PLAGER, Circuit Judges, and BENSON *,
                    District Judge.
PER CURIAM
    Henry E. Gossage pro se petitions for review of the fi-
nal decision of the Merit Systems Protection Board
(“MSPB”) dismissing his appeal under the Veteran’s
Employment and Opportunities Act (VEOA) as untimely.
Gossage v. Dep’t of Labor, No. SF-3330-11-0227-I-1
(M.S.P.B. Aug. 10, 2012). Because the MSPB correctly
dismissed Mr. Gossage’s appeal, we affirm.
                      BACKGROUND
    In September 2000, Mr. Gossage applied for an indus-
trial hygienist position with the Occupational Safety &
Health Administration (OSHA). Mr. Gossage had pre-
ferred status as a veteran, but he also had a prior felony
conviction. OSHA indicated to the Office of Personnel
Management (OPM) that it would like to remove Mr.
Gossage from consideration due to his felony conviction.
OPM notified Mr. Gossage of the development and pro-
vided him an opportunity to respond. It then issued a
suitability decision that rated Mr. Gossage ineligible for
the hygienist position, canceled his eligibilities, and
debarred him. In June 2001, Mr. Gossage appealed
OPM’s suitability decision to the MSPB.
    Separate from his suitability appeal with the MSPB,
Mr. Gossage filed a claim under the VEOA and Uniformed
Services Employment and Reemployment Rights Act
(USERRA) with the Department of Labor’s Veterans’
Employment and Training Service. On July 18, 2001, The
Department of Labor informed Mr. Gossage that his



    *   Honorable Dee V. Benson, United States District
Court for the District of Utah, sitting by designation.
 HENRY GOSSAGE   v. MSPB                                3
VEOA claim did not have merit and that it was closing his
case.
     Mr. Gossage turned his attention back to his suitabil-
ity appeal, which spawned various legal proceedings over
a period of years. Of particular import to this case, the
MSPB referenced 5 U.S.C.A. § 3330a(e)(2) in one of its
decisions and told Mr. Gossage that he may file his VEOA
appeal after the decision in the suitability appeal became
final. Gossage v. Office of Pers. Mgmt., SE-0731-01-0261-
I-5, 5 n.1 (M.S.P.B. July 8, 2008); RA 83 n.1. The MSPB
then issued a final order in the suitability litigation on
March 24, 2009. In the final order, the MSPB reminded
Mr. Gossage that “[t]he appellant may now file appeals
under the [VEOA] and [USERRA] (codified at 38. U.S.C.
§§ 4301–4333), which he delayed pending resolution of
this appeal.” Gossage v. Office of Pers. Mgmt., SE-0731-
01-0261-I-5, 2 (M.S.P.B. Mar. 24, 2009); RA 95.
     Mr. Gossage filed his VEOA appeal with the MSPB on
December 29, 2010—over one year after the MSPB’s final
order and eight years after the Department of Labor
rejected his VEOA claim. An administrative judge from
MSPB issued an initial decision dismissing the appeal as
untimely for exceeding the 15-day deadline for filing an
appeal after receipt of written notification from the De-
partment of Labor. The administrative judge also con-
cluded that equitable tolling did not apply. Mr. Gossage
filed a petition for review, and the MSPB issued a final
order confirming the administrative judge’s decision to
dismiss his appeal as untimely. This petition for review
followed. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
                       DISCUSSION
    The scope of our review is limited. We only set aside
Board decisions that are “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
4                                    HENRY GOSSAGE   v. MSPB
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c). Mr.
Gossage bears the burden of proof regarding the timeli-
ness of his appeal. 5 C.F.R. § 1201.56(a)(2).
     On appeal, Mr. Gossage requests that we apply equi-
table tolling to his case as set forth in Kirkendall v. Dep’t
of Army, 479 F.3d 830 (Fed. Cir. 2007). To support his
equitable tolling request, Mr. Gossage points to “OPM’s
lengthy litigation” (Pet’r’s. Br. 1), arguing that the suita-
bility litigation delayed or tolled his VEOA appeal. In
response, the Government contends that any delays that
occurred in the suitability case do not explain why Mr.
Gossage waited over a year after his suitability case was
resolved to file his VEOA appeal.
    The Government is correct. Equitable tolling general-
ly applies when the complainant has “actively pursued his
judicial remedies by filing a defective pleading during the
statutory period, or where the complainant has been
induced or tricked by his adversary's misconduct into
allowing the filing deadline to pass.” Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990). The Department
of Labor rejected Mr. Gossage’s claim in July of 2001, thus
starting the clock on the 15-day deadline. 5 U.S.C. §
3330a(d)(1)(B). Even assuming that Mr. Gossage is
entitled to tolling for his 8-year delay up until March 24,
2009, 1 the MSPB explicitly reminded him on that date


    1    We need not rule on the 8-year delay since it does
not change our conclusion.       However, we note that
5 U.S.C.A. § 3330a(e)(2)—which was the section the
MSPB referenced when it told Mr. Gossage that he could
file his VEOA appeal after his suitability appeal became
final—does not discuss tolling; it provides a prohibition—
“A preference eligible may not pursue redress for an
alleged violation described in subsection (a) under this
section at the same time the preference eligible pursues
 HENRY GOSSAGE   v. MSPB                                  5
that he should file his VEOA appeal. Even after his case
became final, Mr. Gossage failed to act for over a year. He
has not established that OPM tricked or induced him to
do so either through the suitability litigation or otherwise.
     Mr. Gossage also argues that the Government with-
held certain documents from him and the court. In par-
ticular, Mr. Gossage points to a Request for Suitability
Determination that he obtained through a Freedom of
Information Act request. Because of this alleged new
evidence, Mr. Gossage contends that the Government
pursued unwarranted litigation knowing that he had been
reinstated and his debarment rescinded in 2004. In
response, the Government contends that Mr. Gossage
failed to demonstrate why any of the alleged new evidence
is material and warrants equitable tolling.
    Mr. Gossage had the burden before the Board to prove
the materiality and unavailability of any new evidence
that he sought to introduce. See Brenneman v. Office of
Pers. Mgmt., 439 F.3d 1325 (Fed. Cir. 2006) (stating that
“a party submitting new evidence in connection with a
petition for review must satisfy the burden of showing
that the evidence is material and that it could not have
been obtained earlier with the exercise of due diligence”).
We are unable to locate in Mr. Gossage’s proceedings
before the Board where he addressed the Request for
Suitability Determination and met his required burden.
We also do not consider new evidence for the first time on
appeal. Therefore, Mr. Gossage has waived this issue.
   We have considered each of Mr. Gossage’s remaining
arguments, and we conclude that the facts of this case do



redress for such violation under any other law, rule, or
regulation.”
6                               HENRY GOSSAGE   v. MSPB
not warrant equitable tolling or any other requested
relief.
                   AFFIRMED 2
                       COSTS
    No Costs.




    2  In view of the disposition of this case, Mr.
Gossage’s motions dated March 14, 2013 and April 14,
2013 are hereby denied.
