N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ SANDRA E. SIMMONS, Petitioner

v.

MERIT SYSTEMS PROTEC TION 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

______________________
S ANDRA E. S IMMONS , Washington, DC, pro se.

S ARA B. R EARDEN , Office of the General Counsel, Me rit Systems Protection Board, Washington, DC

, for r espondent. Also represented by B RYAN G. P OLISUK

.

______________________
Before D YK , M OORE , and O’M ALLEY , Circuit Judges.

P ER C URIAM

.SIMMONS v. MSPB 2

Sandra E. Simmons appeals from the decision of the Merit Systems Protection Board dismissing her appeal as untimely filed. We affirm

. B ACKGROUND In a March 1, 2013 Notice of Removal, t he Depar tment 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 receipt 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

. T he 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 t o 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 subs equently “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 tec hnical s upport team explaining that the “incident . . . has been resolved.” R.A. 17, 20. Ms. Simmons stated thatSIMMONS v. MSPB 3

based on this statement, she understood her appeal to have be en timely filed. In May and June, Ms. Simmons contacted the Board to determine the status of her ap peal, 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 tha t the appeal was timely filed.

The AJ issued an I nitial D ecision dismissing the a ppeal 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 “ inc ident . . . has bee n 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 f ound that Ms. Simmons did not diligently pursue her appeal because 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 “s ignificant,” both factors weig hing 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).SIMMONS v. MSPB 4

D ISCUSSION 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 su bmitted 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 ot herwise not in accordance with law; (2) obtained without proc edures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2012)

. T he 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 discr etion 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 determi ning 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 appe llant 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. Simmon s to file her appeal was not arb itrary, 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 ofSIMMONS v. MSPB 5

record supports the Board’s finding s 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 you r 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 the mselves. It was not reasonable for [Ms. Simmons] to inte rpret 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 fi rst 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 bef ore 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). A nd a ny delay caused by Ms. Simmons ’ representative “will not const itute 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.SIMMONS v. MSPB 6

C ONCLUSION
Because the Board did not abuse its discretion in r efusing to waive the time limit for Ms. Simmons to file her appeal, we affirm

. AFFIRMED

C OSTS
No Costs.