N OTE : This disposition is nonprecedential.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

______________________

H ENRY E. G OSSAGE , of Lacey, Washington, pro se.

M ICHAEL A. C ARNEY , General Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief

was K EISHA D AWN B ELL , Acting General Counsel.

______________________HENRY GOSSAGE v. MSPB 2

Before L OURIE and P LAGER
, Circuit Judges

, and B ENSON *

, District Judge.

P ER C URIAM
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

.
B ACKGROUND
In September 2000, Mr. Gossage applied for an indu strial hygienist position with the Occupationa l Safety & Health Administration (OSHA). Mr. Gossage had pr eferred 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 pr ovided him an opportunity to resp ond. It then issued a suitability decision that rated Mr. Gossage ineligible for the hygienist positio n , 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 an d 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 suitabi lity 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 t hat he may file his VEOA appeal after the decision in the suitability appeal be came 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

. T he MSPB
then issued a final order in the suitability litigation o n March 24, 2009 . In the final order, the MSPB reminded Mr. Gossage that “[t]he appellant may no w 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 D epartment of Labor

. The administrative judge also co ncluded that equitable tolling did not apply

. Mr. Gossage filed a petition for review, and the MSPB is sued a final order confirming the administrative judge’s decision to
dismiss his appeal as untimely. This petition for review followed. We have jurisdiction pu rsuant to 28 U.S.C. § 1295(a)(9).

D ISCUSSION
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,HENRY GOSSAGE v. MSPB 4

rule, or regulation having been followed; or (3) unsuppor ted by substantial evidence.” 5 U.S.C. § 7703(c). Mr. Gossage bears the burden of proof regarding the timel iness of his appeal. 5 C.F.R. § 1201.56(a)(2).

On appeal

, Mr. Gossage re quests that we apply equ itable 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 su it ability litigation delayed or tolled his VEOA appeal

. In response, t he G overnment 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 G overnment is correct. E quitable tolling genera lly 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
induc ed 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

- da y 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 th e 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 sectio n 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 pursuesHENRY GOSSAGE v. MSPB 5

that he should file his VEOA appeal

. Even after his case became fin al, Mr. Gossage failed to act for over a year

. He has not establish ed that OPM tricked or induced him to
do so either t hrough the suitability litigation or otherwise

. Mr. Gossage also argues that the Government wit hheld certain documents from him and the court. In pa rticular, 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 liti gation knowing that he had been
reinstated and his debarment rescinded in 2004

. In response, the G overnment contends that Mr. Gossage fail ed to demonstrate why any of the alleged new evidence is material and warrants equita ble tolling.

Mr. Gossage had the burden before the Board to prove the mate riality 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 ”).
W e are unable to locate in Mr. Gossage’s proceedings before the Board where he ad dressed 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. ”HENRY GOSSAGE v. MSPB 6

not warrant equitable tolling or any other requested relief.

AFFIRMED 2

C O STS

No Costs.

2 In view of the disposition of this case, Mr. Gossage’s motions dated March 1 4 , 2013 and April 1 4

, 2013 are hereby denied.