Simmons v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SANDRA E. SIMMONS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3142
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0432-13-1309-I-1.
______________________
Decided: February 6, 2015
______________________
SANDRA E. SIMMONS, Washington, DC, pro se.
SARA B. REARDEN, Office of the General Counsel, Mer-
it Systems Protection Board, Washington, DC, for re-
spondent. Also represented by BRYAN G. POLISUK.
______________________
Before DYK, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
2 SIMMONS v. MSPB
Sandra E. Simmons appeals from the decision of the
Merit Systems Protection Board dismissing her appeal as
untimely filed. We affirm.
BACKGROUND
In a March 1, 2013 Notice of Removal, the Depart-
ment of Health and Human Services (“the Agency”)
removed Ms. Simmons from her position as a clerical
assistant effective March 8, 2013. The Notice to Ms.
Simmons notified her of her appeal rights to the Board
and explained that she must file any appeal no later than
30 days after the effective date or 30 days after her re-
ceipt of the Notice, whichever was later. Ms. Simmons
filed an appeal to the Board by facsimile at the end of
July 2013, nearly four months after the deadline. The
Agency moved to dismiss the appeal as untimely filed.
The administrative judge (“AJ”) issued a show cause order
instructing Ms. Simmons to show either that the appeal
was timely filed or that good cause existed for waiving the
time limit.
In response to the show cause order, Ms. Simmons
submitted an affidavit explaining that she originally
attempted to file her appeal on March 5, 2013 using the
Board’s electronic system and had received a confirmation
number. R.A. 17. However, she stated that she received
an e-mail from the Board later that morning explaining
that the appeal had not yet been submitted and detailing
instructions for completing the process. R.A. 19 (“You
have drafted an appeal to the [Board]. Your appeal has
not yet been submitted.”). Ms. Simmons explained that
“[t]he tech people opened up a case,” and that she subse-
quently “went online and re-submitted the appeal.”
R.A. 17. Ms. Simmons further explained that on
March 26 she received an e-mail from the Board’s tech-
nical support team explaining that the “incident . . . has
been resolved.” R.A. 17, 20. Ms. Simmons stated that
SIMMONS v. MSPB 3
based on this statement, she understood her appeal to
have been timely filed. In May and June, Ms. Simmons
contacted the Board to determine the status of her appeal,
and in July, Ms. Simmons faxed her appeal to the Board.
R.A. 17. Ms. Simmons argued that she timely filed her
appeal in March or that good cause existed for her delay
because the March 26 e-mail led her to reasonably believe
that the appeal was timely filed.
The AJ issued an Initial Decision dismissing the ap-
peal as untimely filed. Simmons v. Dep’t of Health &
Human Servs., No. DC-0432-13-1309-I-1 (M.S.P.B.
Apr. 17, 2014) (“Initial Decision”). The AJ found that the
Notice of Removal informed Ms. Simmons of her appeal
rights and responsibility, but that despite the notice, Ms.
Simmons did not file her appeal until July when she faxed
it to the Board. Id. at 4-5. The AJ also determined that
no good cause existed for the delay. In particular, the AJ
found it was not reasonable for Ms. Simmons to believe,
based on the March 26 e-mail, that the appeal had been
submitted because in addition to the portion of the
March 26 e-mail informing Ms. Simmons that her “inci-
dent . . . has been resolved,” the e-mail also explicitly
informed her that, “[w]e show that you have started your
initial appeal, but you have not yet submitted it,” and
then provided her with instructions for submitting the
appeal. Id. at 3-6; see R.A. 20. The AJ also found that
Ms. Simmons did not diligently pursue her appeal be-
cause she waited until July to fax it to the Board. Initial
Decision at 5. The AJ also determined that Ms. Simmons
was represented by an attorney and that the delay of
nearly four months was “significant,” both factors weigh-
ing against finding good cause. Id. at 4. Ms. Simmons
did not petition the Board to review the Initial Decision
and it became the Board’s final decision. This appeal
followed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
4 SIMMONS v. MSPB
DISCUSSION
On appeal, Ms. Simmons does not challenge the
Board’s finding that her appeal was untimely. In any
event, substantial evidence supports the Board’s finding
that Ms. Simmons did not file her appeal until she sub-
mitted it via fax in July, nearly four months after the
filing deadline. Thus, the only issue on appeal is the
Board’s decision not to waive the time limit.
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c) (2012). The Board’s determination of
whether to waive the time limit based on a showing of
good cause “is a matter committed to the Board’s discre-
tion 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 determin-
ing whether good cause exists for waiving the deadline,
the Board considers factors such as whether the appellant
was pro se, the length of the delay, the reasonableness of
the excuse provided by the appellant, whether the appel-
lant exercised due diligence, and whether the appellant
presented evidence of the existence of circumstances
beyond her control that affected her ability to comply with
the time limits. See, e.g., Walls v. Merit Sys. Prot. Bd., 29
F.3d 1578, 1582-83 (Fed. Cir. 1994); Alonzo v. Dep’t of Air
Force, 4 M.S.P.R. 180, 184 (1980).
We hold that the Board’s refusal to waive the time
limit for Ms. Simmons to file her appeal was not arbi-
trary, capricious, or an abuse of discretion. The Board
correctly determined that Ms. Simmons’ representation by
an attorney and the significant length of delay weighed
against waiving the time limit. Moreover, the evidence of
SIMMONS v. MSPB 5
record supports the Board’s findings that Ms. Simmons’
excuse for delayed filing was not reasonable and that she
did not exercise due diligence in filing. As the Board
found, the March 26 e-mail—like the March 5 e-mail—
made clear to Ms. Simmons that “you have started your
initial appeal, but you have not yet submitted it.”
R.A. 20. It then provided Ms. Simmons with instructions
for completing the appeal and provided a number for her
to contact if she was still experiencing issues. Id. Yet Ms.
Simmons took no further action until July. As the Board
concluded, the March 5 and 26 e-mails “speak for them-
selves. It was not reasonable for [Ms. Simmons] to inter-
pret them to mean her appeal had been properly filed as
of March 2013 and to require no further action on her
part.” Initial Decision at 5.
Ms. Simmons argues for the first time on appeal that
good cause exists for waiving the time limit because she
received “improper legal advice” from her attorney who
“failed to provide her with ethical and true services.”
Petitioner’s Br. at 2. Even if this argument were properly
before us, it does not excuse Ms. Simmons’ untimely
appeal. An appellant cannot escape the consequences of
her untimely appeal even if it was based on following the
improper advice of her attorney. Rowe v. Merit Sys. Prot.
Bd., 802 F.2d 434, 437-38 (Fed. Cir. 1986). And any delay
caused by Ms. Simmons’ representative “will not consti-
tute good cause except where the representative thwarts
[her] diligent efforts to prosecute [her] appeal.” Green v.
Dep’t of Air Force, 83 M.S.P.R. 333, 334 (1999). Nothing
in the record suggests that Ms. Simmons’ attorney
thwarted her efforts to file a timely appeal, and therefore
Ms. Simmons cannot rely on any alleged conduct of her
attorney to show the required good cause.
6 SIMMONS v. MSPB
CONCLUSION
Because the Board did not abuse its discretion in re-
fusing to waive the time limit for Ms. Simmons to file her
appeal, we affirm.
AFFIRMED
COSTS
No Costs.