NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                   BETSY FADEN,
                     Petitioner,

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
             ______________________

                      2013-3167
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. NY-0752-12-0231-I-1.
                ______________________

              Decided: January 16, 2014
               ______________________

   BETSY FADEN, of Montrose, New York, pro se.

   LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
was BRYAN G. POLISUK, General Counsel.
               ______________________

 Before RADER, Chief Judge, LOURIE, and MOORE, Circuit
                        Judges.
2                                             FADEN   v. MSPB



PER CURIAM.
     Betsy Faden appeals from the decision of the Merit
Systems Protection Board (Board) dismissing her appeal
as untimely without a showing of good cause for delay in
filing. Faden v. Dep’t of Veterans Affairs, NY-0752-12-
0231-I-1 (M.S.P.B. July 2, 2013) (Final Order). Because
we hold that substantial evidence supports the Board’s
findings and the Board did not abuse its discretion or
otherwise err, we affirm.
                       BACKGROUND
    The Department of Veterans Affairs removed Ms.
Faden from her position at the agency in April 2012. Ms.
Faden, represented by counsel, submitted an appeal of the
removal decision via the Board’s electronic filing (e-filing)
system seven calendar days after the May 29, 2012 dead-
line. Because the appeal was untimely filed and Ms.
Faden had not requested an extension, the Administra-
tive Judge (AJ) ordered Ms. Faden to show good cause for
the delay.
     In response, Ms. Faden and her attorney, Mr. Antho-
ny M. Giordano, submitted affidavits regarding the chain
of events that underlie this appeal. Mr. Giordano stated
that on May 23, 2012, with Ms. Faden present, he at-
tempted to e-file the appeal, and it “appeared accepted.”
J.A. 38 ¶ 6. On May 24, the Board automatically sent an
email to Mr. Giordano with the subject line, “Your appeal
has not been submitted,” which explained how to com-
plete the process. J.A. 40. Mr. Giordano later claimed
that he did not “notice or respond” to this email, but
acknowledged reviewing a second, identical email on May
25. J.A. 38 ¶ 9, 41. He stated that he tried to access the
e-filing system, but “it appeared the system was down.”

26, he received a third copy of the same
email, tried to access the e-filing system around May 27,
but again it “appeared the system was down.” J.A. 38 ¶
10, 42. Mr. Giordano claims he “assumed” that “[o]nce the
FADEN   v. MSPB                                          3



system returned,” it would accept the appeal without
further action on his part. J.A. 38 ¶ 11.
    The morning of May 29—the filing deadline—Ms.
Faden emailed Mr. Giordano to report that the e-filing
system was functioning. She also wrote that it did not
appear that Mr. Giordano had e-filed the submission, and
asked whether she should take action. In the mid-
afternoon, Mr. Giordano replied that Ms. Faden should
“[s]ubmit it by mail then.” J.A. 59. Neither Ms. Faden
nor Mr. Giordano mailed (or otherwise sent) any materi-
als. Less than one hour later, however, Ms. Faden sent
Mr. Giordano an email attaching the document that he
had tried to e-file, and asked him to review it. She stated
that “[e]ither you or I need to finalize” the submission,
and asked “[w]hat else do I need to do?” 

did not respond. He later explained that he had been out
of office from May 30 until June 3. Seven days after the
deadline lapsed, Ms. Faden e-filed the appeal by herself.
     The AJ dismissed the appeal, finding that Ms. Faden
had not proved good cause for the delay by a preponder-
ance of the evidence. The Board adopted the AJ’s decision
and denied Ms. Faden’s petition for review. First, the
Board found that, because Mr. Giordano had undisputedly
received three reminders that his e-filing was unsuccess-
ful, he could not reasonably have believed otherwise.
Second, the Board found that Ms. Faden was not reasona-
bly diligent in ensuring timely filing despite technical
issues. The Board acknowledged that its e-filing system
was not functioning “on May 24 from 8:18 a.m. to 8:38
a.m.” and “4:00 p.m. on May 27 until 4:30 a.m. on May
29.” Final Order, at *5. It nonetheless found that “there
was nothing to prevent the appellant from successfully [e-
filing] . . . on May 23, May 24, May 25, or May 26, or at
any time after 4:30 a.m. on May 29.” 

also
stated that Ms. Faden or Mr. Giordano could have mailed
or faxed the appeal at any time, and could have requested
help with the e-filing system.
4                                              FADEN   v. MSPB



   Ms. Faden appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
                        DISCUSSION
    “Delay is excusable where, under the circumstances, a
petitioner exercises diligence or ordinary prudence. The
burden is on the petitioner to demonstrate excusable
delay.” Mendoza v. Merit Sys. Prot. Bd., 

,
653 (Fed. Cir. 1992) (en banc). “[W]aiver of the time limit
for appealing is a matter committed to the Board’s discre-
tion and this court will not substitute its own judgment
for that of the Board.” Rowe v. Merit Sys. Prot. Bd., 

, 437 (Fed. Cir. 1986). Accordingly, we may
reverse the Board’s decision only if it is arbitrary, an
abuse of discretion, or otherwise not in accordance with
the law. Id.; 5 U.S.C. § 7703(c)(1)–(3).
    Ms. Faden argues that the Board refused to accept the
evidence and affidavits that she and Mr. Giordano sub-
mitted. She argues that these materials establish good
cause for the delay in filing.
    The government responds that the Board considered
the full record and appropriately concluded that Ms.
Faden had not shown excusable delay. It argues that Ms.
Faden did not establish circumstances beyond her control
that prevented a timely filing. The government argues
that Ms. Faden ignored her attorney’s direction to mail
her appeal due to e-filing difficulties. It argues there is no
dispute that Ms. Faden could have e-filed her appeal at
any time other than the documented system down time,
or otherwise filed it at any time.
    We cannot conclude under the circumstances of this
case that the Board’s decision not to waive the filing
deadline was an abuse of discretion. “It is well settled
that a person is bound by the consequences of his repre-
sentative’s conduct, which includes both his acts and
omissions.” 

. A petitioner “cannot
FADEN   v. MSPB                                           5



escape the consequences of the lateness of his appeal that
was filed . . . after the deadline, even though [petitioner]
himself acted in good faith in relying on the advice and
actions of his attorney.” 

    Substantial evidence supports the Board’s finding
that Mr. Giordano could not reasonably have believed he
had successfully completed the e-filing. Mr. Giordano
undisputedly reviewed notices from the Board stating
that the e-filing was incomplete. Each notice explained
that, “[y]ou may receive up to 3 reminders, after the third
no more reminders will be sent.” J.A. 40–42. These
notices squarely contradict Mr. Giordano’s assertion that,
because he “received no further notice,” after the third
one, he “assumed that meant [the e-filing] went through.”
J.A. 38 ¶ 12. This record certainly supports the Board’s
conclusion that Mr. Giordano’s excuses for his inaction
were unreasonable.
     Substantial evidence also supports the Board’s finding
that Ms. Faden, herself, was insufficiently diligent in
ensuring timeliness. The Board found, and Ms. Faden
does not dispute, that nothing prevented her or her attor-
ney from mailing or faxing her appeal at any time during
the relevant period. While Ms. Faden did alert Mr.
Giordano that the e-filing was incomplete, she did not
follow his instruction to mail the submission.
    Ms. Faden’s situation is sympathetic, but the Board
did not abuse its discretion in concluding that she did not
establish that she could not have submitted her appeal on
time. We therefore affirm the Board’s denial of Ms.
Faden’s petition for review.
                       CONCLUSION
   We have considered Ms. Faden’s remaining argu-
ments and do not find them persuasive.
                       AFFIRMED
6                                          FADEN   v. MSPB



                          COSTS
    Each party shall bear its own costs.