         NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                  ______________________

               RAKHMATULLA ASATOV,
                    Petitioner,

                             v.

          DEPARTMENT OF THE AIR FORCE,
                    Respondent.
               ______________________

                        2013-3028
                  ______________________

   Petition for review of the Merit Systems Protection
Board in No. PH3330120120-I-1.
                ______________________

                 Decided: August 13, 2013
                  ______________________

      RAKHMATULLA ASATOV, of Plainville, Connecticut, pro
se.

     BARBARA E. THOMAS, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and STEVEN J. GILLINGHAM, Assistant Director.
                 ______________________

      Before RADER, Chief Judge, CLEVENGER, and MOORE,
                     Circuit Judges.
2                                      ASATOV   v. AIR FORCE

PER CURIAM.
    Rakhmatulla Asatov appeals from the final decision of
the Merit Systems Protection Board (Board). Because the
Board did not err in denying Mr. Asatov’s claim under the
Veterans Employment and Opportunities Act, 5 U.S.C.
§§ 3330a-c (VOEA), we affirm.
                      BACKGROUND
    Mr. Asatov served in the United States Army from
2003 until 2010. Thereafter, Mr. Asatov applied for a
position as a human resources (HR) specialist with the
Connecticut Air National Guard. The position was classi-
fied as “dual status,” meaning that it could only be held
by a member of the National Guard. See 32 U.S.C.
§ 709(b); 10 U.S.C. § 10216(a).
    One month later, Mr. Asatov learned that he was not
selected for the position. Almost three months later, Mr.
Asatov emailed VETS, a Department of Labor (DOL)
component tasked with investigating certain employment
claims brought by veterans, explaining that he believed
that his veterans’ preference rights had been improperly
disregarded in the selection process for the HR specialist
position. A VETS employee responded two days later and
explained that veterans’ preference is not applicable to
dual status technical positions.
     Mr. Asatov then filed an appeal with the Board as-
serting that the Connecticut National Guard had violated
VEOA by failing to apply veterans’ preference laws during
the selection process. While his appeal was pending, Mr.
Asatov received certified mail from the Office of the
Assistant Secretary for VETS explaining that his VOEA
complaint was untimely because it was not submitted
within sixty days of the alleged violation. VETS ex-
plained that the reasons for late submission of his com-
plaint were insufficient to waive the statutory sixty day
filing requirement and, thus, his case was being closed.
VETS also informed Mr. Asatov that he had a right to
appeal the determination to the Board.
ASATOV   v. AIR FORCE                                      3

    The administrative judge (AJ) assigned to Mr. Asa-
tov’s appeal denied his claim, and Mr. Asatov appealed
the AJ’s decision to the full Board. The Board denied his
petition on two grounds. First, the Board found that the
legislative history of 32 U.S.C. § 709 showed that the
veterans’ provisions in Title 5 were not intended to be
applied to National Guard technician appointments.
Second, the Board denied Mr. Asatov’s claim must be-
cause he failed to meet the time limit for filing a com-
plaint with DOL set forth at 5 U.S.C. § 3330a(a)(2)(A).
   Mr. Asatov appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
                        DISCUSSION
    Our scope of review of a Board decision is limited. We
must affirm the Board’s decision unless it is “(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.” 5 U.S.C.
§ 7703(c).
    The VEOA grants preferences to veterans who seek
federal employment. 5 U.S.C. § 3330a. If the employing
agency rejects the veteran’s request for preference em-
ployment, the VOEA vests the veteran with the right to
challenge that rejection before the Board. To present a
claim to DOL, the veteran must file a complaint within
sixty days after the date of the alleged injury to the
veteran’s preference rights. 5 U.S.C. § 3330a(a)(2)(A).
The sixty day filing deadline is subject to equitable toll-
ing, and failure to file a complaint with the DOL within
that sixty day period does not foreclose the Board from
exercising jurisdiction to review the appeal. See Kirken-
dall v. Dep’t of the Army, 479 F.3d 830, 835-44 (Fed. Cir.
2007) (en banc). We review the Board’s decision not to
waive its filing deadline for an abuse of discretion. See
Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed.
Cir. 1992).
4                                      ASATOV   v. AIR FORCE

    The parties dispute whether DOL waived the sixty
day filing deadline for Mr. Asatov’s claim. Mr. Asatov
argues the DOL accepted his email as a complaint and
that the email response he received two days later estab-
lished that DOL waived the sixty day filing deadline. The
government counters that DOL did not waive the sixty
day statutory filing requirement. Moreover, the govern-
ment argues that equitable tolling is not appropriate in
Mr. Asatov’s case.
    We agree with the government that the Board did not
err in finding Mr. Asatov’s complaint untimely and that
DOL did not excuse his failure to file a timely complaint.
The email from the DOL to Mr. Asatov bore none of the
earmarks of a formal resolution of a complaint. It did not
assign a case number, did not inform Mr. Asatov of appeal
options, and did not address either the timeliness of Mr.
Asatov’s claims or his argument for equitable tolling. By
contrast, the formal letter that VETS sent to Mr. Asatov
one month later associated his claim with a case number,
was sent by certified mail on VETS letterhead, and in-
formed him of his right to file a Board appeal if he was
dissatisfied with DOL’s response. The letter also express-
ly declined to waive the untimeliness of Mr. Asatov’s
complaint. As such, the Board reasonably found that Mr.
Asatov’s complaint was untimely and that DOL did not
excuse the untimeliness. We also agree with the govern-
ment that the Board did not abuse its discretion in declin-
ing to allow for equitable tolling in this case.
    Because we affirm the Board’s decision that Mr. Asa-
tov’s complaint was not timely filed, we need not consider
the other arguments raised in this appeal.
                      AFFIRMED
                          COSTS
    No costs.
