NOTE: This disposition is nonprecedential.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, Merit Systems Protection Board, Washington, DC, for respondent. 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 Department 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. 

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 subsequently “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 technical 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 appeal 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 “incident . . . 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 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 “significant,” both factors weighing 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 submitted 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 procedures 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 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 determining 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 appellant 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 arbitrary, 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 themselves. It was not reasonable for [Ms. Simmons] to interpret 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 constitute 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 refusing to waive the time limit for Ms. Simmons to file her 

appeal, we affirm. 

AFFIRMED

COSTS

No Costs.