                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIAM CASTRO,                                 DOCKET NUMBER
                  Appellant,                         AT-3443-16-0071-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: May 25, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           William Castro, Douglasville, Georgia, pro se.

           Joel R. Alvarey, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his request for corrective action under the Veterans Employment
     Opportunities Act of 1998 (VEOA) on the grounds that the appellant did not
     timely file his VEOA complaint with the Department of Labor (DOL) and failed


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     to establish that the deadline for filing such a complaint should be equitably
     tolled.   Generally, we grant petitions such as this one only when:       the initial
     decision contains erroneous findings of material fact; the initial decision is based
     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review.     Therefore, we DENY the petition for review and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         In January 2015, the appellant, a preference eligible, applied for the
     position of Community Relations Officer, GS-14, pursuant to Announcement
     Number CIS-PJN-1297888-ICS.         Initial Appeal File (IAF), Tab 10 at 10, 12.
     Although the appellant’s name was referred to the selecting official, the agency
     notified him on June 23, 2015, that he had not been selected for the position. Id.
     at 14; IAF, Tab 14 at 7.    According to the appellant, he contacted the equal
     employment opportunity (EEO) office on June 24, 2015, and thereafter initiated
     an EEO complaint alleging that his nonselection was the result of discrimination
     based on his age and Department of Veterans Affairs disability rating of 30% or
     more. IAF, Tab 10 at 5. After an unsuccessful mediation, the appellant filed a
     formal EEO complaint on August 11, 2015. IAF, Tab 13 at 15-17.
                                                                                          3

¶3         On an unknown date, the appellant filed a complaint with the Veterans’
     Employment and Training Service division of DOL alleging that his nonselection
     constituted a violation of VEOA . IAF, Tab 10 at 8, 13. On October 14, 2015, he
     wrote to DOL requesting a waiver of the 60-day time limit to file a complaint
     with DOL of an alleged VEOA violation. Id. at 13. In support of his request, the
     appellant explained that he was “completely unaware that [DOL] processed
     complaints of infractions against hiring Veterans” and that, although he had asked
     representatives from several different agencies about where he could file a VEOA
     claim, most were unable to assist him. Id. By letter dated October 19, 2015,
     DOL advised the appellant that it had closed his complaint because it was not
     filed within the statutory deadline of 60 days from the date of the alleged
     violation and because he had failed to show “adequate cause” for the untimely
     filing. Id. at 8.
¶4         On October 20, 2015, the appellant filed an appeal with the Board alleging
     that the agency had discriminated against him and disregarded VEOA in failing to
     select him for the Community Relations Officer position.          IAF, Tab 1.      The
     administrative judge notified the appellant of the exhaustion and timeliness
     requirements under VEOA—specifically, that he must have filed a complaint with
     DOL within 60 days of the agency’s alleged violation and exhausted that process
     before the Board could take jurisdiction over his VEOA claim—and ordered him
     to file evidence and argument in support of his claim. IAF, Tab 3. The appellant
     responded, submitting, among other things, DOL’s letter stating that the appellant
     had failed to meet the statutory deadline. IAF, Tab 10 at 8. By a show cause
     order dated December 22, 2015, the administrative judge ordered the appellant to
     file evidence and argument showing that his complaint to DOL was timely filed
     or that the doctrine of equitable tolling should be applied to excuse his untimely
     filing. IAF, Tab 16. The appellant did not respond.
¶5         On    February 1, 2016, without     holding     the   requested   hearing,   the
     administrative judge denied the appellant’s request for corrective action under
                                                                                               4

     VEOA, finding that, although he exhausted his administrative remedy with DOL,
     his DOL complaint was untimely filed and he failed to establish that the deadline
     should be equitably tolled.        IAF, Tab 17, Initial Decision (ID) at 1, 4-6.         On
     February 9, 2016, the appellant submitted his response to the show cause order,
     explaining that he had attempted to timely respond to the show cause order by
     filing his response through the Board’s e-Appeal system, but that he later
     discovered that it had not gone through. Petition for Review (PFR) File, Tab 2
     at 4-5. The appellant requested that the Board excuse his error and consider his
     response to the show cause order. See id. The Clerk of the Board docketed the
     appellant’s submission as a petition for review of the initial decision. PFR File,
     Tab 3; see PFR File, Tab 1.         The agency has not responded to the appellant’s
     petition for review.
¶6            To establish Board jurisdiction over a VEOA appeal, an appellant must,
     among other things, show that he exhausted his remedy with DOL.                     5 U.S.C.
     § 3330a; Gingery v. Office of Personnel Management, 119 M.S.P.R. 43, ¶ 13
     (2012). A complaint filed with DOL alleging a violation of veterans’ preference
     rights     must    be   filed   within   60 days    after   the   date   of   the    alleged
     violation. 5 U.S.C. § 3330a(a)(2)(A).        Here, it is undisputed that the alleged
     veterans’ preference violation occurred on June 23, 2015, when the appellant was
     notified that he was not selected for the Community Relations Officer position.
     PFR File, Tab 2 at 5; IAF, Tab 14 at 7.            Accordingly, the appellant had until
     Monday, August 24, 2015, to file a complaint with DOL. See 5 U.S.C. § 3330a.
     Although the record does not contain a copy of the appellant’s DOL complaint,
     the appellant acknowledges that he did not file the DOL complaint until October
     8, 2015—more than 100 days after the alleged violation occurred.                PFR File,
     Tab 2 at 5.       Thus, we agree with the administrative judge’s finding that the
     appellant’s administrative complaint with DOL was untimely filed. ID at 4.
¶7            The 60-day filing deadline set forth at 5 U.S.C. § 3330a(a)(2)(A) is subject
     to equitable tolling, however, and an employee’s failure to file a complaint with
                                                                                               5

     DOL within that 60-day period does not summarily foreclose the Board from
     exercising jurisdiction to review the appeal.              Hayes v. Department of the
     Army, 111 M.S.P.R. 41, ¶ 10 (2009).          Even so, Federal courts have typically
     extended equitable relief only sparingly, such as when the complainant had
     actively pursued his judicial remedies by filing a defective pleading during the
     statutory period, or when the complainant had been “induced or tricked by his
     adversary’s misconduct into allowing the filing deadline to pass.”               Id. (citing
     Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)).
¶8            On review, the appellant asks the Board to apply equitable tolling to excuse
     his untimely filing with DOL because the time limit for filing a VEOA complaint
     with DOL was unclear and the “roles each agency implements during the
     complaint process adds to the confusion that often results in untimely filings.” 2
     PFR File, Tab 2 at 5. The appellant also asserts that the EEO mediation added to
     his confusion because the agency did not tell him that he could proceed with a
     formal complaint or provide him with the appropriate forms until after the failed
     mediation in August 2015. Id. Confusion regarding filing deadlines, however,
     is not the type of situation that falls within the limited scope of cases to which
     equitable     tolling   is   applicable.   See   Gingery,         119 M.S.P.R.   43,   ¶ 18;
     Hayes, 111 M.S.P.R. 41, ¶¶ 10-11.          Because there is no indication that the
     appellant filed a defective pleading within the statutory period or that he was
     tricked or induced by an agency representative or official into allowing the DOL
     filing     deadline     to   pass,   equitable   tolling     is     inappropriate.      See
     Gingery, 119 M.S.P.R. 43, ¶ 18.



     2
       The Board generally will not consider an argument raised for the first time in a
     petition for review absent a showing that it is based on new and material evidence not
     previously available despite the party’s due diligence. Banks v. Department of the
     Air Force, 4 M.S.P.R. 268, 271 (1980). Because the appellant claims confusion or
     difficulties with the e-Appeal system, under the circumstances of this appeal, we will
     consider the arguments regarding equitable tolling raised for the first time on review.
                                                                                    6

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).     You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional        information      is         available      at    the         court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono        for    information   regarding   pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.                                                                          The
                                                                                  7

Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
