NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit
2009-3087 JAMES E. SLATE, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

James E. Slate , of Mt. Airy, Nort h Carolina, pro se. Shari A. Rose , Trial Attorney, Commercial Litigati on Branch, Civil Division, United States Department of Justice, of Washington, DC, for res pondent. With her on the brief were Michael F. Hertz , Deputy Assistant Attorney General, Jeanne E. Davidson , Director, and Steven J. Gillingham , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential 

## United States Court of Appeals for the Federal Circuit

2009-3087 JAMES E. SLATE, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.
Petition for review of the Merit Systems Protection Board in DC3330080612-I-2

______ ____________________ DECIDED: August 10, 2009

______ ____________________ Before LOURIE, CLEVENGER and SCHALL, Circuit Judges

. PER CURIAM.

James E. Slate seeks review of the final decision of the Merit Systems Protection Board (board) dismissing his claim for relief under the Veterans Employment Opportunities Act of 1998 (VEOA). Slate v. U.S. Postal Serv. , 110 M.S.P.R. 306 (Table) (M.S.P.B. 2008). We affirm

. I Mr. Slate is a former Postal Service letter carrier who was removed from employment by the agency on A ugust 4, 2000, for improper conduct and failure to follow instructions. Mr. Slate challenged his removal through arbitration and by a suit filed withthe board. The board proceeding was dismi ssed without prejudice so Mr. Slate could proceed with arbitration. Mr. Slate lost hi s challenge through arbitr ation, and, effective June 25, 2001, was removed from the employ ment rolls by the agency. Thereafter, Mr. Slate reinstated his board suit. In due course, the board heard his challenge to the removal and ruled against him. The board's final decision sustaining his removal is dated May 10, 2004. On May 28, 2008, Mr. Slate filed a comp laint with the Departm ent of Labor (DOL) alleging violation of his VEOA rights. In par ticular, Mr. Slate argued that he should not have been removed from the agency's employment rolls until the board finally sustained his removal on May 10, 2004. The consequenc es of the allegedly incorrect earlier removal from the employment rolls denied Mr. Slate additional years of service that would have allegedly qualified him for retirem ent benefits. Understanding the alleged VEOA violation to have been removal from the employment rolls on August 4, 2000, the DOL dismissed Mr. Slate's VEOA claim as unt imely. The VEOA r equired Mr. Slate to have filed his complaint with the DOL within sixty days of the all eged VEOA violation. Mr. Slate appealed the DOL's dism issal to the board. Under Kirkendall v. Department of the Army , 479 F.3d 830, 835-44 (Fed. Cir . 2007) (en banc), cert. denied , 128 S. Ct. 375 (2007), the doctrine of equitabl e tolling applies to the sixty-day filing window at the DOL. The adm inistrative judge assigned to Mr. Slate's appeal notified Mr. Slate of the sixty-day f iling requirement and informed him that the requirement could be waived for a good-cause showing that equi table tolling should forgive Mr. Slate's untimely filing at the DO L. Mr. Slate replied that "[a]gency trickery or misconduct in part caused the appellant's delay in appealing."

2009-3087 2On August 13, 2008, the administrative judge issued her in itial decision. In it, she explained that Mr. Slate ha d failed to show good cause to invoke equitable tolling to forgive his late filing of his VEOA complain t. With regard to t he allegation that the agency, by trickery or misconduct, was responsib le for Mr. Slate's untimely filing, the decision explained that Mr. Slate had alleged no facts which, if proven, would have sustained his unsubstantiated co ntention that the agency was to blame for his untimely complaint to the DOL. Accordingly, the initial decision dismissed Mr. Slate's VEOA claim for untimeliness and failure to show entitlement to equitable tolling. The initial decision became the board's final decision when the board denied Mr. Slate's petition for review on October 29, 2008. Mr. Slate ti mely sought review in this court, and we have jurisdiction under 28 U.S.C. § 1295(a)(9).
II We review a final decision of the board to determine if it is "arbitrary, capricious an abuse of discretion, or otherwise not in accordance with law, rule or regulation; or unsupported by subst antial evidence." Robinson v. Dep't of Homeland Sec. , 498 F.3d 1361, 1364 (Fed. Cir. 2007) (citing 5 U.S.C. § 770 3(c)). Further, the board's findings of fact must be supported by substantial evidence. O'Keefe v. U.S. Postal Serv. , 318 F.3d 1310, 1314 (Fed. Cir. 2002). The only issue in this appe al is whether the board e rred in concluding that Mr. Slate had not made a case for equitable toll ing of the sixty-day filing provision. Without support for his bare assertion that t he agency was responsible for his delay, the board did not abuse its discreti on in denying Mr. Slate the benef its of equitable tolling. Without those benefits, Mr. Slate's VEOA complaint was unt imely and thus correctly

2009-3087 32009-3087 4 dismissed. The board did not err in denying Mr. Slate's request for corrective action under VEOA. COSTS No costs.