NOTE: This order is nonprecedential.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. 

O R D E R 

The court considers the merits of David Jackson’s petition. 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: 1 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suspension as voluntarily withdrawn and the official 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 position with 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. 

This petition followed. 

This court’s review of a decision of the Board is limited by statute. Under 5 U.S.C. § 7703(c), this court is 

bound by a decision of the Board unless we find it arbitrary, 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 concluding 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 

s26 

Case: 12-3194 Document: 13 Page: 3 Filed: 12/27/2012