NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBIN WEISS,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2014-3105

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-315H-10-0671-B-1.

______________________ 

Decided: February 10, 2015

______________________ 

ROBIN WEISS, Kensington, MD, pro se.

SARA B. REARDEN, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by MICHAEL ANTON CARNEY,

BRYAN G. POLISUK. 

______________________ 

Before WALLACH, TARANTO, and HUGHES, Circuit Judges.
2 WEISS v. MSPB

PER CURIAM. 

After untimely submitting her petition for review of 

the Merit Systems Protection Board’s initial decision, 

Robin Weiss asked the Board to waive its timely filing 

requirement for good cause. The Board denied 

Ms. Weiss’s request, finding that she had not shown that

her alleged medical illness and technical issues prevented 

her from timely filing. Because the Board’s decision was 

not an abuse of discretion, we affirm. 

I 

On June 4, 2010, the Department of the Interior terminated Ms. Weiss’s probationary appointment as a Land 

Law Assistant with the Department’s Bureau of Land 

Management in Springfield, Virginia. Ms. Weiss appealed the Department’s termination with the Merit 

Systems Protection Board, alleging discrimination on the 

basis of age, marital status, race, religion, national origin; 

and alleging retaliation for her participation in filing a 

complaint with the Equal Employment Opportunity 

Commission. 

On February 3, 2011, the Administrative Judge issued an initial decision finding that the Board did not 

have jurisdiction over Ms. Weiss’s claims because she was 

terminated during her probationary period, she failed to 

make a non-frivolous allegation of political or marital 

status discrimination, and she failed to show that she 

exhausted the administrative remedies available for 

Whistleblower Protection Act claims. Ms. Weiss appealed 

this decision. The Board affirmed the dismissal of the 

discrimination claims, but vacated the dismissal of the 

Whistleblower Protection Act claims for failure to exhaust 

her administrative remedies. The Board ordered the 

Administrative Judge to fully inform the parties of the 

jurisdictional requirements in an individual-right-ofaction Whistleblower Protection Act appeal. 
WEISS v. MSPB 3

On November 21, 2012, the Administrative Judge issued an initial decision finding that Ms. Weiss had not 

proven by a preponderance of the evidence that the Department retaliated against her due to disclosures protected under the Whistleblower’s Protection Act. 

Accordingly, the Administrative Judge denied Ms. Weiss’s 

request for corrective action. 

On December 19, 2012, Ms. Weiss requested an extension of time to file her petition for review of the Administrative Judge’s November 21, 2012 decision. The Board 

granted Ms. Weiss’s request and extended the deadline 

from December 26, 2012 to January 7, 2013. 

Ms. Weiss filed her petition for review on January 8, 

2013. On January 15, 2013, the Board—apparently 

unaware that it had extended Ms. Weiss’s deadline to 

January 7, 2013—notified Ms. Weiss that her petition 

appeared to be untimely because it was not filed by December 26, 2012. The Board’s notification letter stated 

that a petition for review that appears to be untimely 

must be filed with a motion (1) to accept the filing as 

timely, and/or (2) to waive the time limit for good cause. 

The notification letter also stated that any such motion 

Ms. Weiss may wish to file must be filed by January 30, 

2013. 

On July 22, 2013—over six months later—Ms. Weiss 

filed a “motion to accept filing as timely or to ask the 

Board to waive or set aside the time limit.” Resp’t’s App. 

44–59. This motion claimed that Ms. Weiss’s petition was 

untimely due to “technical issues regarding e-filing and 

other circumstances[.]” Id. 

On December 27, 2013, the Board issued an order, explaining that its January 15, 2013 notification letter 

misstated the petition for review’s deadline as December 

26, 2012 instead of January 7, 2013. Due to this error, 

the Board granted Ms. Weiss an additional opportunity 

through January 6, 2014, to submit additional evidence 
4 WEISS v. MSPB

and argument supporting her motion for leave to waive 

the timely filing requirement. 

On January 7, 2014, one day after the deadline, 

Ms. Weiss submitted another motion to waive the Board’s 

time limit. In this motion, Ms. Weiss claimed that her 

petition was untimely because she was ill. She made no 

mention of the technical issues she alleged in her July 22, 

2013 motion. 

On February 28, 2014, the Board issued a final order 

dismissing Ms. Weiss’s petition as untimely filed. The 

Board noted that although her deadline had been extended to January 7, 2013, Ms. Weiss did not file her petition 

until January 8, 2013. The Board acknowledged that 

Ms. Weiss was pro se and that the 1-day delay was minimal, but found that she had failed to show good cause for 

the delay. Ms. Weiss appeals.

II

A petition for review of an administrative judge’s decision must be filed with the Board within 35 days. 5 

C.F.R. § 1201.114(e). The Board has discretion to waive 

this requirement if a party requests such waiver and 

shows good cause. 5 C.F.R. §§ 1201.12 and 1201.114(f), 

(g). Petitioners seeking a waiver must file “[a] specific 

and detailed description of the circumstances causing the 

late filing, accompanied by supporting documentation or 

other evidence.” Ford-Clifton v. Dep’t of Veterans Affairs, 

661 F.3d 655, 659 (Fed. Cir. 2011) (citation omitted). 

Although the length of delay is a factor the Board must 

consider in its analysis of whether to waive the timely 

filing requirement, it is not the only factor to be considered. Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 

(Fed. Cir. 1994) (explaining that other factors properly 

considered by the Board include: the appellant’s notice of 

the time limit, the existence of circumstances beyond the 

appellant’s control, the appellant’s negligence, any excusable neglect, unavoidable casualty or misfortune, and the 
WEISS v. MSPB 5

extent and nature of prejudice to the agency) (citation 

omitted). 

“[W]hether 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). Accordingly, an appellant 

bears a “heavy burden” to overturn the Board’s determination that good cause has not been shown for an untimely filing. Turman-Kent v. Merit Sys. Prot. Bd., 657 F.3d 

1280, 1282 (Fed. Cir. 2011) (internal quotation omitted). 

Further, we must affirm the Board’s underlying factual 

determinations unless they are not supported by substantial evidence. 5 U.S.C. § 7703(c). 

Ms. Weiss argues that we should reverse the Board 

because her failure to timely file a petition was due to 

medical illness and technical issues with the Board’s efiling system. Because substantial evidence supports the 

Board’s findings on each of these arguments, we must 

affirm.

Substantial evidence supports the Board’s finding 

that Ms. Weiss did not show that her medical illness 

prevented her from timely filing during the entire delay 

period. The only evidence Ms. Weiss provided was a 

statement from an acquaintance that Ms. Weiss was sick 

with the flu from “about December 2012/January 2013.” 

Resp’t’s App. 3 (citing Pet. For Review File, Tab 26 at 4). 

This does not show that Ms. Weiss was sick throughout 

the entire period of delay. See Ford-Clifton, 661 F.3d at 

659 (affirming the Board’s denial of a motion to waive the 

timely filing requirement because the petition did not 

“affirmatively identify medical evidence that addresses 

the entire period of delay and explain how the illness 

prevented a timely filing”). Additionally, Ms. Weiss does 

not explain why her illness was sufficiently serious to 
6 WEISS v. MSPB

prevent her from timely filing. Ms. Weiss was well 

enough to file a motion to extend her initial deadline 

during the period she claims to have had the flu, and she 

has not alleged or provided any evidence suggesting that 

her illness intensified after her initial extension request. 

Additionally, Ms. Weiss offered no evidence supporting her allegation that she encountered technical issues 

with the Board’s e-filing system. She did not state when 

she had the alleged issue, what the alleged issue was, or 

explain why that alleged issue prevented her from timely 

filing. 

We have considered Ms. Weiss’s other arguments and 

find them unpersuasive. Accordingly, we conclude that 

the Board’s factual findings were supported by substantial evidence, and, based on these findings, conclude that 

the Board did not abuse its discretion in denying

Ms. Weiss’s motion to waive the timely filing requirement. 

AFFIRMED

No costs.