UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILLIAM CASTRO,

Appellant,

v. 

DEPARTMENT OF HOMELAND 

SECURITY,

Agency. 

DOCKET NUMBER

AT-3443-16-0071-I-1

DATE: May 25, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

William Castro, Douglasville, Georgia, pro se. 

Joel R. Alvarey, Esquire, Washington, D.C., for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his request for corrective action under the Veterans Employment 

Opportunities Act of 1998 (VEOA) on the grounds that the appellant did not 

timely file his VEOA complaint with the Department of Labor (DOL) and failed 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

to establish that the deadline for filing such a complaint should be equitably 

tolled. Generally, we grant petitions such as this one only when: the initial 

decision contains erroneous findings of material fact; the initial decision is based 

on an erroneous interpretation of statute or regulation or the erroneous application 

of the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

the petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In January 2015, the appellant, a preference eligible, applied for the 

position of Community Relations Officer, GS-14, pursuant to Announcement 

Number CIS-PJN-1297888-ICS. Initial Appeal File (IAF), Tab 10 at 10, 12. 

Although the appellant’s name was referred to the selecting official, the agency 

notified him on June 23, 2015, that he had not been selected for the position. Id.

at 14; IAF, Tab 14 at 7. According to the appellant, he contacted the equal 

employment opportunity (EEO) office on June 24, 2015, and thereafter initiated 

an EEO complaint alleging that his nonselection was the result of discrimination 

based on his age and Department of Veterans Affairs disability rating of 30% or 

more. IAF, Tab 10 at 5. After an unsuccessful mediation, the appellant filed a 

formal EEO complaint on August 11, 2015. IAF, Tab 13 at 15-17. 
3

¶3 On an unknown date, the appellant filed a complaint with the Veterans’ 

Employment and Training Service division of DOL alleging that his nonselection 

constituted a violation of VEOA. IAF, Tab 10 at 8, 13. On October 14, 2015, he 

wrote to DOL requesting a waiver of the 60-day time limit to file a complaint 

with DOL of an alleged VEOA violation. Id. at 13. In support of his request, the

appellant explained that he was “completely unaware that [DOL] processed 

complaints of infractions against hiring Veterans” and that, although he had asked 

representatives from several different agencies about where he could file a VEOA 

claim, most were unable to assist him. Id. By letter dated October 19, 2015, 

DOL advised the appellant that it had closed his complaint because it was not 

filed within the statutory deadline of 60 days from the date of the alleged 

violation and because he had failed to show “adequate cause” for the untimely 

filing. Id. at 8.

¶4 On October 20, 2015, the appellant filed an appeal with the Board alleging 

that the agency had discriminated against him and disregarded VEOA in failing to 

select him for the Community Relations Officer position. IAF, Tab 1. The 

administrative judge notified the appellant of the exhaustion and timeliness 

requirements under VEOA—specifically, that he must have filed a complaint with 

DOL within 60 days of the agency’s alleged violation and exhausted that process

before the Board could take jurisdiction over his VEOA claim—and ordered him 

to file evidence and argument in support of his claim. IAF, Tab 3. The appellant 

responded, submitting, among other things, DOL’s letter stating that the appellant 

had failed to meet the statutory deadline. IAF, Tab 10 at 8. By a show cause 

order dated December 22, 2015, the administrative judge ordered the appellant to 

file evidence and argument showing that his complaint to DOL was timely filed 

or that the doctrine of equitable tolling should be applied to excuse his untimely 

filing. IAF, Tab 16. The appellant did not respond. 

¶5 On February 1, 2016, without holding the requested hearing, the 

administrative judge denied the appellant’s request for corrective action under 
4

VEOA, finding that, although he exhausted his administrative remedy with DOL,

his DOL complaint was untimely filed and he failed to establish that the deadline 

should be equitably tolled. IAF, Tab 17, Initial Decision (ID) at 1, 4-6. On 

February 9, 2016, the appellant submitted his response to the show cause order, 

explaining that he had attempted to timely respond to the show cause order by 

filing his response through the Board’s e-Appeal system, but that he later 

discovered that it had not gone through. Petition for Review (PFR) File, Tab 2

at 4-5. The appellant requested that the Board excuse his error and consider his 

response to the show cause order. See id. The Clerk of the Board docketed the 

appellant’s submission as a petition for review of the initial decision. PFR File,

Tab 3; see PFR File, Tab 1. The agency has not responded to the appellant’s 

petition for review. 

¶6 To establish Board jurisdiction over a VEOA appeal, an appellant must, 

among other things, show that he exhausted his remedy with DOL. 5 U.S.C. 

§ 3330a; Gingery v. Office of Personnel Management, 119 M.S.P.R. 43, ¶ 13 

(2012). A complaint filed with DOL alleging a violation of veterans’ preference

rights must be filed within 60 days after the date of the alleged 

violation. 5 U.S.C. § 3330a(a)(2)(A). Here, it is undisputed that the alleged

veterans’ preference violation occurred on June 23, 2015, when the appellant was 

notified that he was not selected for the Community Relations Officer position. 

PFR File, Tab 2 at 5; IAF, Tab 14 at 7. Accordingly, the appellant had until 

Monday, August 24, 2015, to file a complaint with DOL. See 5 U.S.C. § 3330a. 

Although the record does not contain a copy of the appellant’s DOL complaint,

the appellant acknowledges that he did not file the DOL complaint until October 

8, 2015—more than 100 days after the alleged violation occurred. PFR File,

Tab 2 at 5. Thus, we agree with the administrative judge’s finding that the 

appellant’s administrative complaint with DOL was untimely filed. ID at 4. 

¶7 The 60-day filing deadline set forth at 5 U.S.C. § 3330a(a)(2)(A) is subject 

to equitable tolling, however, and an employee’s failure to file a complaint with 
5

DOL within that 60-day period does not summarily foreclose the Board from 

exercising jurisdiction to review the appeal. Hayes v. Department of the 

Army, 111 M.S.P.R. 41, ¶ 10 (2009). Even so, Federal courts have typically 

extended equitable relief only sparingly, such as when the complainant had 

actively pursued his judicial remedies by filing a defective pleading during the 

statutory period, or when the complainant had been “induced or tricked by his 

adversary’s misconduct into allowing the filing deadline to pass.” Id. (citing 

Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). 

¶8 On review, the appellant asks the Board to apply equitable tolling to excuse 

his untimely filing with DOL because the time limit for filing a VEOA complaint 

with DOL was unclear and the “roles each agency implements during the 

complaint process adds to the confusion that often results in untimely filings.”2

 

PFR File, Tab 2 at 5. The appellant also asserts that the EEO mediation added to 

his confusion because the agency did not tell him that he could proceed with a 

formal complaint or provide him with the appropriate forms until after the failed 

mediation in August 2015. Id. Confusion regarding filing deadlines, however,

is not the type of situation that falls within the limited scope of cases to which 

equitable tolling is applicable. See Gingery, 119 M.S.P.R. 43, ¶ 18; 

Hayes, 111 M.S.P.R. 41, ¶¶ 10-11. Because there is no indication that the 

appellant filed a defective pleading within the statutory period or that he was 

tricked or induced by an agency representative or official into allowing the DOL 

filing deadline to pass, equitable tolling is inappropriate. See

Gingery, 119 M.S.P.R. 43, ¶ 18. 

 2 The Board generally will not consider an argument raised for the first time in a 

petition for review absent a showing that it is based on new and material evidence not 

previously available despite the party’s due diligence. Banks v. Department of the 

Air Force, 4 M.S.P.R. 268, 271 (1980). Because the appellant claims confusion or 

difficulties with the e-Appeal system, under the circumstances of this appeal, we will 

consider the arguments regarding equitable tolling raised for the first time on review. 
6

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the 

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information 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, 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
7

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board