Case: 12-3207    Document: 12    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           NOTE: This order is nonprecedential.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.
                __________________________

                        2012-3207
                __________________________

      Petition for review of the Merit Systems Protection
           Board in case no. DE0752120031-I-1.
                __________________________

                   DAVID JACKSON,
                      Petitioner,
                            v.
      MERIT SYSTEMS PROTECTION BOARD,
                 Respondent.
                __________________________

                        2012-3208
                __________________________

      Petition for review of the Merit Systems Protection
           Board in case no. DE0752120031-I-1.
Case: 12-3207    Document: 12     Page: 2    Filed: 12/27/2012




 DAVID JACKSON V. MSPB                                     2




   Before NEWMAN, PROST and WALLACH, Circuit Judges.
 PER CURIAM.
                         ORDER
      The court considers the merits of David Jackson’s pe-
 titions.
     In the initial Merit Systems Protection Board (Board)
 decision in 1994, Jackson contested two matters: a period
 of alleged constructive suspension or enforced leave from
 April 4, 1994, until July 13, 1994 and an alleged involun-
 tary resignation on July 13, 1994, from his Ward Clerk
 position with the Department of Veterans Affairs (DVA).
 The 1994 Board decision dismissed Jackson’s appeal from
 the alleged constructive suspension as voluntarily with-
 drawn and the official record from that appeal included a
 signed statement from Jackson indicating that he volun-
 tarily resigned his position with the DVA. Approximately
 17 years later, Jackson hand-delivered an appeal to the
 Board. The administrative 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 constructive 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.
      Jackson filed an action in the United States District
 Court for the District of Colorado, challenging the Board’s
 dismissal of his untimely appeal. Appeal no. 2012-3207 is
 that transferred matter. Appeal no. 2012-3208 is Jack-
 son’s appeal of the transfer order. We affirm both. Jack-
 son directly petitioned this court for review of the Board’s
 order in appeal no. 2012-3194, and by separate order we
 affirm the Board’s dismissal in that case.
Case: 12-3207    Document: 12     Page: 3   Filed: 12/27/2012




 3                                    DAVID JACKSON V. MSPB



     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 the DVA
 placed 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 incompe-
 tence does not provide a basis to show good cause for the
 delay.”

      In his informal brief, Jackson presents arguments re-
 garding factual disagreements with the 1994 decision
 which are not for review here. He presents no arguments
 regarding the extremely long delay in filing his appeal.
 There is no question that Jackson’s appeal was not timely
 filed, and he offered no ground sufficient to require the
 Board to overlook his delay. We therefore cannot say that
 the Board abused its discretion in concluding that Jack-
 son failed to show good cause for the 17 year delay in
Case: 12-3207         Document: 12    Page: 4    Filed: 12/27/2012




 DAVID JACKSON V. MSPB                                         4


 filing his appeal. Accordingly, the Board's decision must
 be affirmed.

     The district court properly transferred the matter to
 this court, because this court has exclusive jurisdiction. 5
 U.S.C. § 7703(b). Thus, the transfer order is also af-
 firmed.

       Accordingly,
       IT IS ORDERED THAT:
    (1) The Board’s decision and the transfer order are
 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

 s26
 cc: U.S. District Court, D. Col.
