Case: 12-3194 Document: 13 Page: 1 Filed: 12/27/2012
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DAVID JACKSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3194
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DE0752120031-I-1.
__________________________
Before NEWMAN, PROST and WALLACH, Circuit Judges.
PER CURIAM.
ORDER
The court considers the merits of David Jackson’s pe-
tition. Jackson seeks review of the final decision of the
Merit Systems Protection Board (Board) that denied his
request to reopen his 1994 withdrawal of his constructive
suspension appeal and subsequent voluntary resignation
from the Department of Veterans Affairs (DVA) on the
ground that his appeal was untimely.
In the initial decision, Jackson contested two matters:
a period of alleged constructive suspension or enforced
Case: 12-3194 Document: 13 Page: 2 Filed: 12/27/2012
DAVID JACKSON V. MSPB 2
leave from April 4, 1994, until July 13, 1994 and an
alleged involuntary resignation on July 13, 1994, from his
Ward Clerk position with DVA. The 1994 Board decision
dismissed Jackson’s appeal from the alleged constructive
suspension as voluntarily withdrawn and the official
record from that appeal included a signed statement from
Jackson indicating that he voluntarily resigned his posi-
tion with DVA. Approximately 17 years later, Jackson
hand-delivered an appeal to the Board. The administra-
tive judge found that Jackson did not present “sufficient
evidence to establish good cause to waive the untimely
filing of a second appeal from the alleged period of con-
structive suspension” because “he has not explained why
he waited the extremely long period of seventeen years to
file the instant appeal.” Jackson then petitioned for
review which was denied by the Board.
This petition followed.
This court’s review of a decision of the Board is lim-
ited by statute. Under 5 U.S.C. § 7703(c), this court is
bound by a decision of the Board unless we find it arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; obtained without procedures
required by law; or unsupported by substantial evidence.
See, e.g. Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1321
(Fed. Cir. 1999). Under 5 C.F.R. § 1201.56(a)(2), the
petitioner has the burden of proof as to the timeliness of
an appeal. “Whether the regulatory time limit for an
appeal should be waived based upon a showing of good
cause is a matter committed to the Board’s discretion and
this court will not substitute its own judgment for that of
the Board.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d
650, 653 (Fed. Cir. 1992) (en banc).
In denying Jackson’s petition for review, the Board
noted that although he alleged that in 1994 DVA placed
Case: 12-3194 Document: 13 Page: 3 Filed: 12/27/2012
3 DAVID JACKSON V. MSPB
him on leave pending a psychiatric evaluation indicating
that he could return to his position, he did not present
“any evidence, medical or otherwise, that would show that
he was incompetent to file his appeal during the past 17
years” and therefore his “alleged incompetence does not
provide a basis to show good cause for the delay.”
There is no question that Jackson’s appeal was not
timely filed, and that he offered no grounds sufficient to
require the Board to overlook his delay. We therefore
cannot say that the Board abused its discretion in con-
cluding that Jackson failed to show good cause for the 17
year delay in filing his appeal. Accordingly, the Board's
decision must be affirmed.
Accordingly,
IT IS ORDERED THAT:
(1) The Board’s decision is summarily affirmed.
(2) All other motions are denied as moot.
(3) Each side shall bear its own costs.
FOR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
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