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           NOTE: This order is nonprecedential.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 suspension as voluntarily withdrawn and the official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
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 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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