UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CHARLES F. WASKEVICH, JR.,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

PH-3330-17-0236-I-1

DATE: June 29, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Charles F. Waskevich, Jr., Millburn, New Jersey, pro se.

Ariya McGrew, Esquire, New York, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed for lack of jurisdiction his appeal seeking corrective action under the 

Veterans Employment Opportunities Act of 1998 (VEOA). We DENY the 

petition for review and, for the reasons discussed below, we VACATE the initial 

decision and DISMISS the appeal as untimely filed. 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 On December 24, 2016, the appellant filed a VEOA complaint with the 

Department of Labor (DOL). Initial Appeal File (IAF), Tab 1 at 4, 10-12. In a 

letter dated February 24, 2017, a DOL investigator informed the appellant that 

DOL would take no further action to investigate or attempt to resolve his VEOA 

complaint and that his case was being closed as of that date. Id. at 13. On

April 4, 2017, the appellant filed this Board appeal seeking corrective action 

under VEOA, and he requested a hearing. Id. at 1-6.

¶3 The administrative judge apprised the appellant of the elements and burdens 

of proving jurisdiction, exhaustion, and timeliness regarding a VEOA appeal, and 

he ordered the parties to respond on those issues. IAF, Tab 8. Regarding the 

timeliness of the Board appeal, the administrative judge informed the appellant 

that a VEOA appeal must be filed with the Board no later than 15 calendar days 

after the date on which he received written notice from the Secretary of Labor 

that DOL had not resolved his complaint. Id. at 5. The administrative judge 

further explained that VEOA filing deadlines may not be waived for good cause, 

but they are subject to equitable tolling. Id. at 6. He ordered the appellant to file 

a statement with supporting documentation on the timeliness issue, including 

whether the filing deadlines should be equitably tolled. Id. at 7. The parties 

responded. IAF, Tabs 9-10, 12, 14-15.

¶4 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 18, Initial 

Decision (ID) at 1, 7. The administrative judge acknowledged the agency’s 

argument that the appeal is untimely, but he did not make a timeliness finding. 

ID at 2 n.2.

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has failed a response, PFR File, Tab 3, to which the 

appellant has replied, PFR File, Tab 4.
3

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 For the following reasons, we vacate the initial decision dismissing the 

appeal for lack of jurisdiction and we dismiss the appeal as untimely filed. See 

Rosell v. Department of Defense, 100 M.S.P.R. 594, ¶ 5 (2005) (explaining that 

the Board generally may dismiss an appeal on timeliness grounds when the record 

is sufficiently developed on that issue and when Board jurisdiction remains 

unresolved), aff’d, 191 F. App’x 954 (Fed. Cir. 2006). An appellant has the 

burden of proving by preponderant evidence the timeliness of his Board appeal. 

5 C.F.R. § 1201.57(c)(2). Pursuant to 5 U.S.C. § 3330a(d)(1)(B), a complainant 

must file a VEOA appeal with the Board within 15 days after he receives written 

notification from DOL that his VEOA complaint has not been resolved. See 

Gingery v. Department of the Treasury, 110 M.S.P.R. 83, ¶ 23 (2008). Failure to 

meet this 15-day statutory filing deadline will result in the dismissal of the VEOA 

appeal on timeliness grounds unless the appellant can establish a basis for 

equitable tolling. Id., ¶¶ 24-25 (remanding the VEOA appeal for the 

administrative judge to provide the parties an opportunity to address whether the 

15-day filing deadline should be equitably tolled); see also Williamson v. 

U.S. Postal Service, 106 M.S.P.R. 502, ¶ 6 (2007) (explaining that the 15-day 

filing deadline cannot be waived and that the Board must dismiss an appeal filed 

beyond that deadline, but also that the deadline is subject to equitable tolling). 

The U.S. Supreme Court explained in Irwin v. Department of Veterans Affairs, 

498 U.S. 89, 96 (1990), that Federal courts have “typically extended equitable 

relief only sparingly” and that the Court had allowed equitable tolling when the 

complainant “has actively pursued his judicial remedies by filing a defective 

pleading during the statutory period” or when he has been “induced or tricked by 

his adversary’s misconduct into allowing the filing deadline to pass.” See 

Gingery, 110 M.S.P.R. 83, ¶ 24.

¶7 As an initial matter, we find that the appellant has received clear notice of 

the precise timeliness issue in this appeal and a full and fair opportunity to 
4

litigate it. See Wright v. Department of Transportation, 99 M.S.P.R. 112, 

¶¶ 12-13 (2005) (finding that the appellant was entitled to clear notice of the 

precise timeliness issue in the appeal and a full and fair opportunity to litigate it). 

The administrative judge informed the appellant of the 15-day deadline for filing 

a VEOA appeal with the Board, that the deadline is subject to equitable tolling, 

and of the circumstances under which the Board may apply equitable tolling. 

IAF, Tab 8 at 5-6. Further, the parties’ responses to the jurisdictional order show 

that the appellant understands that there is a question regarding the timeliness of 

his Board appeal that depends on whether he received sufficient written notice

from DOL to trigger the start of the 15-day filing period on February 24, 2017, or 

on March 21, 2017. IAF, Tabs 9-10, 12, 14-15; see Vitale v. Department of 

Veterans Affairs, 107 M.S.P.R. 501, ¶ 10 (2007) (stating that, before dismissing 

an appeal as untimely filed, the administrative judge is required to inform the 

appellant of the date that a document triggering the right to appeal is presumed to 

have been received); see also Melendez v. Department of Homeland Security, 

112 M.S.P.R. 51, ¶ 9 (2009) (explaining that an administrative judge’s failure to 

provide an appellant with proper notice regarding a timeliness issue can be cured 

by the agency’s pleadings or the initial decision). 

¶8 After reviewing the parties’ evidence and argument on the timeliness issue, 

we find that the appellant has failed to prove that he timely filed his VEOA

appeal within the 15-day statutory deadline.2 The agency’s evidence shows that 

the DOL investigator sent the appellant an email on February 24, 2017, which 

informed him that his case had been closed on that date, attached copies of the 

closing letters addressed to him and to the agency, and asked him for his mailing 

address to send him the original letters. IAF, Tab 12 at 5. The appellant 

responded to this evidence by arguing that the closing letters attached to the email 

were draft, unsigned copies that had not yet been issued. IAF, Tab 14 at 5. He 

 

2

The parties’ submissions on review do not address the dispositive timeliness issue . 

PFR File, Tabs 1, 3-4.
5

further argued and provided evidence that he received a signed, issued closing

letter on March 21, 2017. Id. at 4-6. However, he does not dispute that he 

received the February 24, 2017 email and its attachments. Even assuming, 

without finding, that the appellant’s assertions are true, we find that the 

February 24, 2017 email constitutes sufficient written notice to trigger the start of 

the 15-day filing period because the email clearly informed him that his case had 

been closed. See 5 U.S.C. § 3330a(c)(2), (d)(1)(B); see also Shaver v. 

Department of the Air Force, 106 M.S.P.R. 601, ¶ 4 n.2 (2007) (stating that the 

15-day deadline to file a Board appeal does not begin to run until the complainant 

receives notice, in writing, that DOL’s efforts to investigate and resolve the 

complaint did not result in resolution of the complaint). Thus, the appellant 

untimely filed his Board appeal on April 4, 2017, beyond the 15-day statutory 

deadline. See 5 C.F.R. § 1201.14(m). Moreover, we find that the appellant has 

not established any of the limited bases for equitably tolling the deadline. See 

Gingery, 110 M.S.P.R. 83, ¶ 24. To the extent the appellant mistakenly believed 

that the 15-day filing deadline would not begin to run until he received a signed 

original closing letter, we find that this does not provide a basis for applying 

equitable tolling in this matter. Accordingly, we dismiss this appeal as untimely 

filed.

NOTICE OF APPEAL RIGHTS

3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

 

3

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
6

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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 
7

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 
8

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction.4The court of appeals must receive your 

 

4

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
9

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board