Jackson v. Merit Systems Protection Board

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NOTE: This order is nonprecedential.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.