NOTE: This disposition is nonprecedential.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 final 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 industrial hygienist position with the Occupational Safety & 

Health Administration (OSHA). Mr. Gossage had preferred 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 provided 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 suitability 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 Department of Labor. The administrative judge also concluded 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) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Mr. 

Gossage bears the burden of proof regarding the timeliness of his appeal. 5 C.F.R. § 1201.56(a)(2).

On appeal, Mr. Gossage requests that we apply equitable 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 suitability 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 generally 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 withheld certain documents from him and the court. In particular, 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. 

AFFIRMED2

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.