       NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                  REGINALD HILL,
                     Petitioner,
                          v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
              __________________________

                      2012-3024
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. AT3330110408-I-1.
              ___________________________

                Decided: May 14, 2012
             ___________________________

   REGINALD HILL, of West Palm Beach, Florida, pro se.

   KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
              __________________________
HILL   v. MSPB                                            2


Before RADER, Chief Judge, LINN, and O’MALLEY, Circuit
                       Judges.
PER CURIAM
    Reginald Hill appeals the Merit Systems Protection
Board’s (“Board”) decision affirming the administrative
judge’s (“AJ”) dismissal of his claim for relief under the
Veterans Employment Opportunities Act (“VEOA”) for
lack of jurisdiction. We affirm the Board’s decision be-
cause Mr. Hill failed to exhaust the administrative rem-
edy required by 5 U.S.C. § 3330a(a)(2)(A).
                       BACKGROUND
    Mr. Hill is an Accounts Receivable Technician and has
been employed by the Veterans Affairs Medical Center,
West Palm Beach division, since 2004. During that
period, Mr. Hill has applied—and not been selected—for
numerous vacancies within the United States govern-
ment. On February 8, 2011, Mr. Hill filed an appeal with
the Board alleging that his failure to be selected for these
vacancies constituted a violation of the VEOA. Mr. Hill
argued to the Board, in part, 1 that the agency “willfully
obstructed Appellant’s right to compete for employment
dating back from 2004 to present….The last violation
occurring on September 13, 2010, when the Appellant was
advised that vacancy announcement number ES-10-98 for
the position of Prosthetics Representative, GS-7; target 9
or GS-9 was cancelled.” RA-18-19.
    As this appeal sought administrative redress under
the VEOA, the AJ issued an order explaining the re-
quirements for establishing the Board’s jurisdiction over a
claim under the VEOA. The order directed Mr. Hill to
provide evidence and argument to establish the Board’s

   1   A separate whistleblower appeal was also opened
under MSPB Docket Number AT1221- 11-0409-W-l.
3                                               HILL   v. MSPB


jurisdiction. In his response, Mr. Hill recognized his need
to exhaust his administrative remedies with the DOL in
order to establish jurisdiction, but stated that he did not
file a complaint with the DOL because he received a letter
dated May 19, 2009, indicating that Announcement No.
08-269 (Prosthetic Representative Intern) was cancelled. 2
Instead, Mr. Hill argued that “he filed an EEO 3 under the
agency,” and appeared to assert that this filing satisfied
his obligation to exhaust his administrative remedy with
the DOL.
    On March 10, 2011, the Department of Veterans Af-
fairs filed a motion to dismiss, arguing that “the appellant
admits in his response that he has not exhausted the
Department of Labor’s remedy. Accordingly, this appeal
should be dismissed as a matter of law.” Mr. Hill opposed
the agency’s motion, again conceding that no complaint
was filed with the DOL, but alleging that equitable tolling
excused that failure. Specifically, Mr. Hill contented that
he did not file a complaint because he was notified that
Announcement No. 08-269 was cancelled, and that he
“discovered much later that the position had been filed
with (Patricia Fields) through ‘trickery’ by the Human
Resources Department in allowing the filing time to pass
by the content of the rejection letter dated May 19, 2009.”
4




    2   The petitioner also referenced other vacant posi-
tions for which he was allegedly denied the opportunity to
compete, but does not assert that any complaints relating
to those positions were filed with the DOL.
    3   Mr. Hill filed an Equal Employment Opportunity
(“EEO”) complaint against the Department of Veterans
Affairs on September 30, 2010. RA-21
    4   The Agency notes in its motion to dismiss that
Announcement No. 10-98 was cancelled because it was
posted in error. Mr. Hill did not challenge that assertion
HILL   v. MSPB                                              4


    In an Initial Decision dated March 14, 2011, the AJ
dismissed Mr. Hill’s appeal for lack of jurisdiction. The
AJ concluded that Mr. Hill failed to exhaust his adminis-
trative remedy under 5 U.S.C. § 3330a(a)(2) and that the
Board, therefore, lacked jurisdiction to address Mr. Hill’s
VEOA claim. The AJ also acknowledged Mr. Hill’s claim
of “trickery,” but found that “[i]n light of the appellant’s
admission he did not file[] a written complaint with DOL,”
Mr. Hill had failed to establish the Board’s jurisdiction
over his VEOA appeal. Mr. Hill filed a petition for review
on March 19, 2011 in which he argued that the AJ did not
fully address his argument of “trickery” and that the
dismissal was based only on Announcement No. 10-98 and
not Announcement No. 08-269. The agency responded
that Mr. Hill failed to demonstrate that new and material
evidence was available or that the AJ misapplied the law.
    On September 30, 2011, the Board issued a Final Or-
der affirming and modifying the Initial Decision. While
the Board acknowledged that Mr. Hill may have a non-
frivolous claim that he was not selected for a position
unfairly, it “fail[ed] to see how the agency’s cancellation of
the vacancy announcement for the Prosthetics Represen-
tative Intern position and subsequent selection of a non-
preference eligible to fill the position can properly be
characterized as tricking the appellant into allowing the
deadline for filing a VEOA complaint with DOL to pass.”
The Board found, therefore, equitable tolling would be
inappropriate here and that Mr. Hill did not exhaust his
administrative remedy by filing a VEOA complaint with
the DOL, and affirmed the AJ’s dismissal for lack of
jurisdiction. Mr. Hill filed a timely appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).


in response, and focused his opposition only on An-
nouncement No. 08-269.
5                                              HILL   v. MSPB


                       DISCUSSION
    We review a determination of the Board’s jurisdiction
de novo. See Stoyanov v. Dep’t of Navy, 474 F.3d 1377,
1379 (Fed. Cir. 2007). The Board’s jurisdiction is limited
to actions made appealable to it by law, rule, or regula-
tion. 5 U.S.C. § 7701(a). As the petitioner, Mr. Hill bears
the burden of proving by preponderant evidence that the
Board has jurisdiction. 5 C.F.R. § 1201.56(a)(2). To
establish Board jurisdiction over an appeal brought under
the VEOA, an appellant must (1) show that he exhausted
his remedies with the DOL and (2) make nonfrivolous
allegations that (i) he is preference eligible within the
meaning of the VEOA, (ii) the action(s) at issue took place
on or after the October 30, 1998 enactment date of the
VEOA, and (iii) the agency violated his rights under a
statute or regulation relating to veteran’s preference. See
5 U.S.C. §§ 3330a; 5 C.F.R. § 1208.2(b); Lazaro v. Dep't of
Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012).
    The parties dispute whether Mr. Hill exhausted his
remedies with the DOL, and whether equitable tolling of
the 60 day statute of limitations is available to Mr. Hill.
Under the VEOA, as an administrative remedy, a prefer-
ence-eligible veteran may file a complaint with the DOL
alleging that an agency has violated that individual's
rights under a statute or regulation relating to veterans’
preference. 5 U.S.C. § 3330a(a)(1)(A). Any such com-
plaint must be filed within 60 days of the date of the
alleged violation. Id. § 3330a(a)(2)(A). If DOL does not
resolve the complaint within 60 days of its filing, the
veteran may appeal the violation to the Board after first
providing written notification to DOL that the veteran
intends to appeal. Id. § 3330a(d). No appeal to the Board
may be taken under the VEOA before that administrative
remedy is exhausted. See e.g., Downs v. Dep't of Veterans
Affairs, 110 M.S.P.R. 139, 143 (2008).
HILL    v. MSPB                                            6


     The record is clear that Mr. Hill failed to file any
complaint with the DOL prior to appealing to the Board
under the VEOA. This fact alone is fatal to the jurisdic-
tional question at issue here. Absent exhaustion of the
administrative remedy—filing of a complaint with the
DOL—the Board simply has no jurisdiction to hear Mr.
Hill’s appeal. Mr. Hill argues that equitable tolling
should apply, but without a filed complaint with the DOL
there is no date to be tolled. Had Mr. Hill filed an un-
timely DOL complaint, the Board may have heard his
appeal, and could have examined whether equitable
tolling of the statute of limitations was appropriate. See
Washington v. Dep't of Veterans Affairs, 2012 MSPB
LEXIS 1044 (M.S.P.B. Feb. 23, 2012) citing Garcia v.
Dep’t of Agricul., 110 M.S.P.R. 371, 376, 380 (2009). But
equitable tolling cannot apply to a non-existent com-
plaint. 5
     While we have recognized that the 60-day period for
filing with DOL is subject to equitable tolling, moreover,
we find that, even if Mr. Hill had filed an untimely com-
plaint with the DOL, equitable tolling is unavailable in
this matter. See Kirkendall v. Dep’t of the Army, 479 F.3d
830, 844 (Fed. Cir.) (en banc), cert. denied, 552 U.S. 948
(2007)). As the Supreme Court has explained, “Federal
courts have typically extended equitable relief only spar-
ingly…allow[ing] equitable tolling in situations where the
claimant has actively pursued his judicial remedies by

    5   Mr. Hill has argued that he filed “an EEO under
the agency,” but this filing is not sufficient to exhaust his
administrative remedy through the DOL. To the extent
Mr. Hill was attempting to appeal a decision—or lack
thereof—of the Equal Employment Opportunity Commis-
sion, the Partial Acceptance of EEO Complaint Case No.
2001-0548-2010104554, dated December 15, 2010, clearly
informed Mr. Hill of the appropriate procedure and appel-
late rights. RA-21-28.
7                                               HILL   v. MSPB


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). We review the Board’s decision not to waive its
regulatory filing deadline for an abuse of discretion. See
Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed.
Cir. 1992) (stating that waiver of the regulatory time limit
for filing an appeal to the Board “is a matter committed to
the Board's discretion and this court will not substitute
its own judgment for that of the Board”).
    In its Final Order, the Board determined that the ap-
plication of equitable tolling would be inappropriate here.
The Board considered Mr. Hill’s argument that “the
agency tricked him into allowing the deadline for filing a
complaint with DOL to pass by canceling a vacancy
announcement for a Prosthetics Representative Intern
position on May 19, 2009, and subsequently appointing a
non-preference eligible to fill that position,” and found
this argument lacked merit. RA-8.
    We see no abuse of discretion in the Board’s finding.
Even assuming that the cancellation of Announcement
No. 08-269 was the reason that Mr. Hill did not timely file
a complaint with the DOL, Mr. Hill has made no showing
that any misconduct occurred nor has he provided any
explanation for his lack of diligence in filing a complaint
with the DOL subsequent to discovering the alleged
misconduct. Mr. Hill’s apparent contention that he ex-
hausted his administrative remedy via filing an EEO
complaint is similarly without merit; a mistaken belief as
to the significance of that filing cannot form the basis of
equitable tolling. Indeed, Mr. Hill was informed of the
proper procedure for exhausting his administrative rem-
edy subsequent to his filing of an EEO complaint. The
U.S. Office of Special Counsel specifically notified Mr. Hill
HILL   v. MSPB                                            8


on November 19, 2010 that he must file a complaint with
the DOL to pursue any VEOA claim for a violation of a
veterans’ preference requirement. Yet there is no indica-
tion that Mr. Hill diligently pursued a claim with the
DOL even from that date forward, meaning that any
equitable tolling that could have applied to these facts has
long since expired.
   For the foregoing reasons, the Board’s dismissal of
Mr. Hill’s appeal is affirmed.
                       AFFIRMED
                          COSTS
   Each party shall bear its own costs.
