NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

BILLY R. JACKSON, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2012-3098 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in MSPB Docket No. DC315H030217-I-1. 

____________________________ 

Decided: October 9, 2012 

____________________________ 

BILLY R. JACKSON, of Glen Burnie, Maryland, pro se. 

SARA B. REARDEN, Attorney, Office of General Counsel, Merit Systems Protection Board, of Washington, DC, 

for respondent. With her on the brief were JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

__________________________ 
JACKSON v. MSPB 2

Before LOURIE and REYNA, Circuit Judges, and KRIEGER*, 

District Judge. 

PER CURIAM. 

Billy R. Jackson appeals from the final decision of the 

Merit Systems Protection Board (“the Board”) dismissing 

his petition for review as untimely filed. See Jackson v. 

Dep’t of Army, No. DC315H030217-I-1 (M.S.P.B. Mar. 7, 

2003) (“Initial Decision”); Jackson v. Dep’t of Army, No. 

DC315H030217-I-11 (M.S.P.B. Dec. 16, 2011) (“Final 

Order”). Because the Board did not abuse its discretion, 

we affirm. 

BACKGROUND

Jackson was employed as a Police Officer by the 

Army. In late 2002, during a probationary period, the 

Army removed him from his position. Jackson appealed 

his removal to the Board. In March, 2003, the administrative judge (“AJ”) assigned to the appeal issued an 

Initial Decision dismissing Jackson’s appeal for lack of 

jurisdiction. Initial Decision, at 2–3. In particular, the 

AJ concluded that Jackson failed to show that his appeal 

fell within the Board’s limited jurisdiction to review 

employee removals made during a probationary period. 

Jackson did not timely file a petition for review by the full 

Board and the Initial Decision became the final decision 

of the Board. He then failed to appeal to this court. 

Eight years later, in 2011, Jackson petitioned the full 

Board to review the Initial Decision. The Board dismissed Jackson’s petition, finding that Jackson failed to 

establish good cause for the late filing. Final Order, at 2–

3. First, the Board found that Jackson’s medical evidence 

 * Honorable Marcia S. Krieger, District Judge, 

United States District Court for the District of Colorado, 

sitting by designation. 
3 JACKSON v. MSPB

showed that he underwent medical treatment a few 

months before the Initial Decision issued, not during the 

eight-year delay period, and thus it did not support a 

finding of good cause. Second, the Board found that the 

record showed that the Initial Decision was mailed to the 

address that Jackson provided the Board and was thus 

presumptively delivered to Jackson. In any event, the 

Board concluded that even if Jackson did not receive the 

decision, he failed to explain why he waited more than 

eight years to contact the Board, the AJ, or the regional 

office to check on the status of his appeal. After concluding that Jackson failed to establish good cause for the late 

filing, the Board dismissed Jackson’s petition as untimely 

filed. 

Jackson appealed to this court. We have jurisdiction 

pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. 

§ 1295(a)(9). 

DISCUSSION

The scope of our review in an appeal from a Board decision is limited. We can only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) 

obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v. 

Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). 

The Board’s decision is supported by substantial evidence 

“if it is supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 

(Ct. Cl. 1981) (internal quotation marks omitted). 

Board regulations provide that a petition for review of 

an initial decision must be filed within 35 days after 

issuance of the initial decision or, if the petitioner shows 
JACKSON v. MSPB 4

that he received the initial decision more than five days 

after its issuance, within 30 days of receipt of the initial 

decision. 5 C.F.R. § 1201.114(d). The Board can waive the 

time limit if the petitioner shows good cause for the delay. 

Id. § 1201.114(e). To establish good cause, the petitioner 

must demonstrate that he exercised due diligence or 

ordinary prudence under the circumstances. Phillips v. 

U.S. Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982). 

Whether a regulatory time limit should be excused for 

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). 

Jackson argues that he never received the Initial Decision. To support his argument, he points to a phone call 

in 2011 in which he was told by a Board employee that his 

case records were still at the Board’s office and that those 

records indicated that the Board had not rendered a 

decision. In addition, Jackson points to his medical 

treatment from November, 2002 to January, 2003. Thus, 

argues Jackson, the Board’s dismissal of his petition for 

review should be reversed. 

The government responds that the Board did not 

abuse its discretion in dismissing Jackson’s petition as 

untimely filed. It argues that the evidence shows that the 

Initial Decision was mailed to Jackson’s address and that, 

even if the decision was not mailed to his address, Jackson did not exercise due diligence because he did not 

contact the Board for more than eight years after the 

decision issued. Finally, it argues that Jackson failed to 

show that his medical condition and treatment, which 

occurred prior to the issuance of the Initial Decision, 

affected his ability to file a timely petition for review. 
5 JACKSON v. MSPB

We agree that the Board did not abuse its discretion 

in dismissing Jackson’s petition. First, the signed certificate of service on the Initial Decision states that the 

decision was sent by regular mail to Jackson at the address he provided the Board. That address is the same 

address that Jackson, in this appeal, provided both the 

Board and this court. Moreover, it was within the Board’s 

discretion to find that even if Jackson did not receive the 

Initial Decision, he still failed to exercise ordinary prudence during the eight-year span between when the 

Initial Decision was mailed and when Jackson filed his 

petition for full Board review. There is no evidence that 

Jackson inquired about the status of his appeal prior to 

2011, even under Jackson’s recollection of events. Finally, 

while evidence of a medical condition can excuse an 

untimely filing, Pyles v. Merit Sys. Prot. Bd., 45 F.3d 411, 

415 (Fed. Cir. 1995), Jackson failed to show that his 

medical condition or his treatment prior to the issuance of 

the Initial Decision provided good cause for the over eightyear delay in filing his petition for full Board review. In 

sum, Jackson has failed to show that the Board abused its 

discretion in denying his petition. 

We have considered Jackson’s remaining arguments 

and conclude that they are without merit. For the foregoing reasons, the decision of the Board is 

AFFIRMED 

COSTS

No costs.