The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 4, 2025 Decided March 17, 2026
No. 24-5223
SAMARA L. A. SIMMONS,
APPELLANT
v.
MARCO RUBIO, SECRETARY, U.S. DEPARTMENT OF STATE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-03011)
Stuart H. Deming argued the cause and filed the briefs for
appellant.
Jeremy S. Simon, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeanine Ferris
Pirro, U.S. Attorney, and Johnny H. Walker III , Assistant U.S.
Attorney.
Before: RAO and WALKER, Circuit Judges, and ROGERS,
Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
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ROGERS, Senior Circuit Judge: The principal issue in this
appeal is whether the district court erred as a matter of law in
dismissing as time-barred counts I through IV of the complaint
challenging orders of the Foreign Service Grievance Board.
For the following reasons, this court holds that the dismissals
were error and therefore affirms in part and reverses in part.
I.
Appellant Samara Simmons has served as a foreign service
officer at the Department of State since September 2013.
During that time, according to the complaint, Statewide
Bonding., Inc. v. U.S. Dep’t of Homeland Sec., 980 F.3d 109,
114 (D.C. Cir. 2020), she has experienced mistreatment.
Compl. ¶¶ 37-74. In a second administrative grievance of July
3, 2018, Simmons alleged that her 2016 employee evaluation
review (“EER”) contained false and prejudicial statements and
delayed her eligibility for tenure in the Foreign Service. Id.
¶ 79. She sought, among other relief, redaction of certain
statements in the EER, with “substitution of different, more
accurate language,” and an extension of time to seek tenure. Id.
¶¶ 14, 79. The Department denied the grievance on October
22, 2018, and Simmons appealed to the Foreign Service
Grievance Board. Id. ¶ 80.
By Order of December 13, 2019, the Board granted the
Department’s motion to dismiss the grievance appeal “on the
condition” that the Department issue the revised EER within
10 days and extend time for Simmons to pursue reconstituted
Commissioning and Tenure Board reviews. Id. ¶ 82. The
Department, after unsuccessfully moving to dismiss the
grievance appeal with prejudice based on res judicata and/or
administrative collateral estoppel, id. ¶ 80, had filed a second
motion to dismiss on the ground that it was “providing
[Simmons] the appropriate remedies based on the claims
3
raised,” Dep’t Mem. at 1 (Sept. 25, 2019). The Department
stated it was “removing the language at issue from the EER,
extending [Simmons’] Limited Career Appointment (LCA)
and convening a reconstituted Commissioning and Tenure
Board (CTB) to account for the one and only CTB that
reviewed the original EER.” Id. The Board found that
Simmons had accepted the relief proposed by the Department
but claimed she was entitled to additional redactions and
specific statements in the EER. Order at 7-8 (Dec. 13, 2019).
A series of motions followed that resulted in four orders
(italicized below) that Simmons challenged in the district court.
On January 10, 2020, Simmons filed a petition for
attorney’s fees as the “prevailing party.” The Department
moved for reconsideration of the Board’s Order to clarify that
the provided relief was voluntary. See Compl. ¶ 83. Arguing
the Board lacked jurisdiction, and therefore was precluded
“from taking further action relating to the substantive claims
presented beyond dismissal,” the Department requested the
Board “rescind[] its directives to the Department to take certain
actions and order[] the grievance appeal dismissed without
further condition.” Dep’t Mem. at 1-2 (Feb. 20, 2020). On
April 22, 2020, the Board granted reconsideration “to correct
clear errors” and issued an amended order stating that it was
“not hereby directing the Department to take the actions it has
offered to take” and Simmons’ “requests for relief will become
moot once the relief has been completely provided as offered.”
Order at 9, 12 (Apr. 22, 2020). Further, the Board stated that
Simmons could file “a motion to reassess the status of this
grievance appeal” if the Department failed “to complete any of
its offers of relief.” Id. at 13. Simmons could also file a revised
petition for attorney’s fees within 20 days. Id.
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On July 23, 2020, the Board denied Simmons’ renewed
petition for attorney’s fees, filed on May 12, 2020. Order at
13-14 (July 23, 2020). Simmons was not a “prevailing party,”
the Board explained, because the Board had not directed the
Department to provide relief and instead “essentially stayed
this litigation until the Department decides whether to provide
what it has offered and, if it chooses, delivers on that promise”
and moot the case. Id. at 9, 12 (citing as to attorney’s fees
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health
& Hum. Res., 532 U.S. 598, 603 (2001)).
On September 16, 2022, the Board denied Simmons’
motion of October 26, 2021, to reassess the status of the
grievance appeal, which asserted that the Department had not
provided all promised relief. Order at 19 (Sept. 16, 2022);
Compl. ¶ 95. The Board concluded that the Department had
“provided all the relief it offered” and stated that “the case is
now closed.” Order at 19 (Sept. 16, 2022).
On April 12, 2023, the Board denied Simmons’ motion of
December 14, 2022, for reconsideration, reiterating that “the
case is now closed” and adding that “[t]he parties are enjoined
from filing any motions, or otherwise-captioned filings.”
Order at 15 (April 12, 2023).
Simmons filed a five-count complaint in the district court
on October 10, 2023.1 She alleged that the Board’s denials of
1
The complaint alleged that the Board erred by: Count I, granting
the Department’s motion for reconsideration on April 22, 2020,
clarifying that no relief was being directed. Count II, denying her
revised petition for attorney’s fees on July 23, 2020. Count III,
denying her motions to reassess the status of the grievance appeal on
September 16, 2022, and for reconsideration on April 12, 2023.
Count IV, denying those two motions without considering the unjust
circumstances. Count V, denying her an opportunity to file a
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her motions were arbitrary, capricious, an abuse of discretion,
or otherwise contrary to law, and requested reversal of the
denial of attorney’s fees and costs as well as the opportunity to
seek attorney’s fees and costs, and reversal of the Board
decisions that failed to correct procedural errors in considering
her for promotion and bidding opportunities. She sought
declaratory and injunctive relief for violations of the Foreign
Service Act, 22 U.S.C. § 3901, et seq., the Procedural Due
Process Clause of the Fifth Amendment of the Constitution,
and the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 701, et seq. The Department moved to dismiss the complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), on the ground some claims were time-barred or the
court lacked jurisdiction.
The district court granted the Department’s motion to
dismiss the complaint, without prejudice. Simmons v. Blinken,
No. 23-cv-3011, 2024 WL 3741409, at *5 (D.D.C. Aug. 9,
2024). Applying principles of equitable tolling, the court ruled
that the challenges in counts I through IV of Simmons’
complaint were time-barred. Id. at *3-4. The Foreign Service
Act’s 180-day limitation period began running on September
16, 2022, when the Board closed the administrative case, and,
the court concluded, it was only paused during the pendency of
Simmons’ motion for reconsideration, which was filed on
December 14, 2022, and denied on April 12, 2023. Id.
Consequently, because the limitations period ran for 88 days,
between September 16 and December 14, 2022, Simmons’
challenges were untimely when the limitations period ran for
another 180 days, between the Board’s April 12 denial of
reconsideration and October 10, when Simmons filed her
complaint. Id. at *4. The court also concluded that it lacked
renewed petition for attorney’s fees based on the April 12, 2023,
injunction barring further filings.
6
jurisdiction to consider Simmons’ challenge in counts III and
IV to the denial of her motion for reconsideration because it
found there was no clear indication the Board intended to
reopen the case on April 12, 2023. Id. Finally, the court
dismissed count V’s challenge to the Board’s injunction
barring further filings for lack of jurisdiction; Simmons lacked
a right to submit further filings under the Board’s rules, which
preclude filing multiple motions for reconsideration and
untimely motions without prior approval or exceptional
circumstances, which she had not pled. Id. at *5.
II.
On appeal, Simmons contends that the district court erred
as a matter of law in dismissing as time-barred in counts I-IV
challenging the Board Orders of April 22, 2020 (granting the
Department’s motion for reconsideration), July 23, 2020
(denying attorney’s fees), and September 16, 2022 (denying the
motion to reassess her grievance appeal), and in dismissing as
unreviewable count V’s challenge to the injunction barring
further filings. Appellant Br. at 11-13. Simmons does not
appeal the dismissal of her challenge to the April 12, 2023,
Order (denying her motion for reconsideration). Id. at 21-22.
This court reviews “de novo a district court’s dismissal [of
claims] for lack of jurisdiction.” Statewide Bonding, 980 F.3d
at 114. The court also reviews “de novo the merits of a motion
to dismiss for failure to state a claim upon which relief can be
granted,” assuming “the truth of the plaintiff’s well-pleaded
factual allegations in the complaint.” Id.; Trudeau v. FTC, 456
F.3d 178, 183 (D.C. Cir. 2006). “In determining whether a
complaint states a claim, the court may consider the facts
alleged in the complaint, documents attached thereto or
incorporated therein and matters of which it may take judicial
notice.” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059
7
(D.C. Cir. 2007) (quoting Stewart v. Nat’l Educ. Ass’n, 471
F.3d 169, 173 (D.C. Cir. 2006)).
A.
The Foreign Service Act provides that an “aggrieved party
may obtain judicial review of a final action of the Secretary [of
State] or the [Foreign Service Grievance] Board on any
grievance in the district courts of the United States in
accordance with the standards set forth in [the APA], if the
request for judicial review is filed not later than 180 days after
the final action of the Secretary or the Board.” 22 U.S.C.
§ 4140(a). Simmons filed her complaint on October 10, 2023,
which was 180 days after the Board denied her motion for
reconsideration on April 12, 2023 (excluding October 9, 2023,
which was Columbus Day, a federal holiday, FED. R. CIV. P.
6(a)(1), (6)). She contends that counts I to IV challenging the
Orders of April 22, 2020, July 23, 2020, and September 16,
2022, were timely filed because the statute of limitations reset
on April 12, 2023. Appellant Br. at 15-21. The government
maintains these challenges are time-barred because the statute
of limitations began to run following the September 16, 2022,
Order and was only paused during the period in which the
Board evaluated Simmons’ December 14, 2022, motion for
reconsideration. Appellee Br. at 15-25.
In Outland v. Civil Aeronautics Board, 284 F.2d 224 (D.C.
Cir. 1960), this court considered the effect of a motion for
rehearing on the finality of agency action. The court
determined that “[w]here a motion for rehearing is in fact filed
there is no final action until the rehearing is denied,” because
reconsideration brings the “possibility that the order
complained of will be modified in a way which renders judicial
review unnecessary.” Id. at 227-28. Ordinarily, then, “when a
motion for rehearing is made, the time for filing a petition for
8
judicial review does not begin to run until the motion for
rehearing is acted upon by the Board.” Id. at 228 (emphasis
added).
In Interstate Commerce Commission v. Brotherhood of
Locomotive Engineers, 482 U.S. 270, 285 (1995), the Supreme
Court cited Outland with approval. There, the Hobbs Act, 28
U.S.C. § 2344, provided a 60-day period in which to seek
judicial review of the Interstate Commerce Commission’s
(“ICC”) order of May 18, 1983. The Supreme Court held that
the December 16, 1983, petition for judicial review was timely
because the ICC order only became final on October 25, 1983,
when the ICC denied reconsideration, and less than 60 days had
passed since then. Id. at 277, 284-85. The Court cited Outland
and other cases for the proposition that petitions for
reconsideration render “the orders under reconsideration
nonfinal.” Id. at 285. In other words, the Court adopted the
same conclusion as in Outland: the denial of a petition for
reconsideration reset the statute of limitations for seeking
judicial review, and a petition for judicial review under the
Hobbs Act filed within 60 days of the reconsideration order
was timely. See id. at 284-85. The Court described its holding
in Stone v. Immigration and Naturalization Service, 514 U.S.
386, 392 (1995), as providing that under the APA and the
Hobbs Act, the “timely filing of a motion to reconsider renders
the underlying order nonfinal for purposes of judicial review.”
The government maintains that Outland has been
overruled by Artis v. District of Columbia, 583 U.S. 71 (2018).
Appellee Br. at 21. This overlooks a key distinction. In the
district court, Simmons argued that filing a motion for
reconsideration rendered nonfinal the underlying agency order
and “tolled” the 180-day period. Opp’n to Mot. to Dismiss at
27-29. According to the government, the Board’s denial of
Simmons’ motion for reconsideration did not reset the statute
9
of limitations because the Supreme Court in Artis had
construed “tolling” to refer to a pause of the limitations period,
not a reset. Appellee Br. at 15. In Artis, 583 U.S. at 74, the
Court was construing a different statute, 28 U.S.C. § 1367(d),
regarding the limitations period for state law claims refiled in
state court after being dismissed in federal court, and was not
presented with the question whether a motion for
reconsideration in an APA case renders the underlying agency
order nonfinal and resets the statute of limitations. Artis leaves
undisturbed the relevant distinction, which the Supreme Court
restated in Nutraceutical Corp. v. Lambert, 586 U.S. 188
(2019):
A timely motion for reconsideration filed within a
window to appeal does not toll anything; it “renders
an otherwise final decision of a district court not final”
for purposes of appeal. In other words, it affects the
antecedent issue of when the [statute of limitations]
limit begins to run, not the availability of tolling.
Id. at 197 (quoting United States v. Ibarra, 502 U.S. 1, 4 n.2 &
6 (1991)).
The government’s focus on “tolling” is therefore
misplaced, and Ibarra does not support the district court’s
dismissal of counts I-IV as untimely. Cf. Simmons, 2024 WL
3741409, at *3 (citing Ibarra, 502 U.S. 1, 4 n.2). Simmons’
motion for reconsideration of denial of her motion to reassess
the status of the grievance appeal rendered the denial nonfinal
for purposes of judicial review, and a new limitations period
began to run on April 12, 2023.
The government’s position that Simmons forfeited the
finality argument by failing to advance it in the district court,
Appellee’s Br. at 19 (citing Chichakli v. Tillerson, 882 F.3d
10
229, 234 (D.C. Cir. 2018)), is not well taken. In opposing the
government’s motion to dismiss, Simmons cited a series of
cases on finality, including Locomotive Engineers, and quoted
Stone for the proposition that ordinarily “the timely filing of a
motion to reconsider renders the underlying order nonfinal for
purposes of judicial review.” Opp’n to Mot. to Dismiss at 28
(quoting Stone, 514 U.S. at 392). The issue was properly teed-
up for the district court.
Therefore, Simmons’ APA claims in counts I-IV
challenging the Board’s Orders were timely filed. On
December 14, 2022, Simmons filed a motion, for
reconsideration of the September 16, 2022, Order, denying her
motion to reassess the dismissal of the grievance appeal, within
the 90-day period the Board permits. See Board Policies and
Procedures § 7.7. The timely motion for reconsideration
rendered the September 16, 2022, Order “nonfinal for purposes
of judicial review.” Stone, 514 U.S. at 392. The 180-day
limitations period under the Foreign Service Act began to run
upon the Board’s denial of reconsideration on April 12, 2023.
See Outland, 284 F.2d at 228. Simmons filed her complaint
October 10, 2023, just within the 180-day limitations period of
22 U.S.C. § 4140(a), excluding Columbus Day, FED. R. CIV. P.
6(a)(1), (6).
III.
Simmons also challenges the dismissal of count V of the
complaint, arguing that the Board’s rules gave her the right to
file a second petition for attorney’s fees following the
September 16, 2022, Order closing the case, or alternatively to
seek permission to file a second motion for reconsideration
following the April 12, 2023, Order denying reconsideration.
Appellant Br. at 27-31. The district court dismissed count V
because “administrative orders are not reviewable unless and
11
until they impose an obligation, deny a right or fix some legal
relationship as a consummation of the administrative process,”
and Simmons had not shown she has been denied a right under
the Board’s rules by being prohibited from submitting further
filings. Simmons, 2024 WL 3741409, at *5 (quoting Chicago
& Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103,
112-13 (1948)). Although the district court relied on the
reviewability standard for administrative orders addressed in
Chicago & Southern Air Lines, 333 U.S. at 112-13, id., this
court may properly affirm the dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6), for failure to state a claim
upon which relief can be granted, Trudeau, 456 F.3d at 187-89.
Under the Board’s regulations, a “prevailing employee”
may file a petition for attorney’s fees “within 30 days of the
Board’s Decision or Order.” Board Policies and Procedures §
7.8. Simmons claims Section 7.8 supplied her with “the right
to file a petition” for attorney’s fees following the September
16, 2022, Order denying her motion to reassess the status of the
grievance appeal and closing the case. Appellant Br. at 27-28.
But the Board had explained that “she simply does not establish
that she is a prevailing party under any understanding of the
Buckhannon principles.” Order at 13 (July 23, 2020). Even
assuming Simmons could be deemed a “prevailing employee”
following the September 2022 Order, which ruled against her,
she failed to file a new petition for attorney’s fees “within 30
days of the Board’s Decision or Order” as Section 7.8 requires.
Simmons suggests that a petition would be timely even if filed
outside the 30-day window provided by the Board regulations,
pointing to precedent construing Federal Rules of Civil
Procedure 50(b), 52(b), and 59. Appellant Br. at 29-30 (citing
Radtke v. Caschetta, 822 F.3d 571, 574 (D.C. Cir. 2016)). Yet
Simmons offers nothing to show that the Board has adopted
that precedent generally, much less in construing Section 7.8.
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Simmons’ position that the Board’s regulations afforded
her the right to seek permission to file a second motion for
reconsideration, following the Board’s April 12, 2023, Order
denying her motion for reconsideration, also fails. Simmons
points to no requirement to support her interpretation. The
relevant regulation provides: “A party may not file more than
one Motion for Reconsideration of any Decision or Order
unless that party has obtained prior permission of the Board to
file a subsequent Motion for Reconsideration of that Decision
or Order, which will be granted only in exceptional
circumstances.” Board Policies and Procedures § 7.7. Absent
a regulatory requirement, the Board’s “denial of successive
requests for reconsideration of the same decision” is
unreviewable because such docket control is committed to
agency discretion by law. Egan v. U.S. Agency for Int’l Dev.,
381 F.3d 1, 5 (D.C. Cir. 2004) (citation omitted).
Simmons further maintains that the injunction violated the
APA because the Board provided “no explanation” for its
issuance, which she characterizes as a “diverge[nce] from an
established practice or policy.” Appellant Br. at 24 (citing
Public Service Co. of Indiana v. FERC, 584 F.2d 1084, 1088
(D.C. Cir. 1978); then citing Boston Edison Co. v. FPC, 557
F.2d 845 (D.C. Cir. 1977), and Greater Boston Television
Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970)). That contention
is belied by the record. Simmons did not plausibly allege in
her complaint that the injunction diverged from the Board’s
regulations or that the Board was required to explain the
injunction when the Board had previously explained in denying
her prior petition for attorney’s fees and her motion for
reconsideration of closure of the case that she was not a
prevailing party under Buckhannon. The Board’s reasoning
was effectively “self-explanatory” under the circumstances.
Tourus Recs., Inc. v. Drug Enf’t Admin., 259 F.3d 731, 737
(D.C. Cir. 2001) (quoting 5 U.S.C. § 555(e)).
13
Simmons’ separate procedural due process argument fares
no better. Appellant Br. at 26. “For a property interest to be
constitutionally protected by procedural due process, a person
must ‘have a legitimate claim of entitlement to it,’ beyond ‘an
abstract need or desire.’” Langeman v. Garland, 88 F.4th 289,
295 (D.C. Cir. 2023) (quoting Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 577 (1972)). That claim must arise from
“an independent source such as state law,” and “the
independent source must place ‘substantive limitations on
official discretion’” by “contain[ing] explicitly mandatory
language.” Id. (quoting Roth, 408 U.S. at 577; then quoting
Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 36
(D.C. Cir. 1997); and then quoting Tarpeh-Doe v. United
States, 904 F.2d 719, 723 (D.C. Cir. 1990)). Simmons fails to
show that the Board’s regulations include mandatory terms in
her favor related to attorney’s fees or reconsideration. The
court therefore affirms the dismissal of count V pursuant to
Federal Rule of Civil Procedure 12(b)(6), for failure to state a
claim. Trudeau, 456 F.3d at 187.
Accordingly, the court affirms the decision of the district
court except it reverses as described the dismissals of counts I
through IV of the complaint regarding the Board Orders of
April 22, 2020; July 23, 2020; and September 16, 2022, and
remands for further consideration by the district court.