UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENISE R. COOPER, DOCKET NUMBER
Appellant, AT-3443-16-0421-I-1
v.
DEPARTMENT OF VETERANS DATE: September 29, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lindsey Wagner, Esquire, Jupiter, Florida, for the appellant.
Richard Johns, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant is a Senior Researcher, GS-0400-15, with the Veterans Health
Administration. Initial Appeal File (IAF), Tab 1. On March 30, 2016, she filed
an appeal of the agency’s decision to reduce her term appointment from an ending
date of March 31, 2019, to an ending date of March 31, 2017. Id. She elected to
register as an e-filer and indicated that she did not want a hearing. Id.
¶3 On April 7, 2016, the administrative judge issued an acknowledgment order,
which was served on the parties electronically. IAF, Tab 2. In that order, the
administrative judge advised the appellant that her appeal did not appear to be
within the Board’s jurisdiction, but that she might be able to establish jurisdiction
if she alleged that the agency’s action was: (1) taken in retaliation for protected
disclosures under 5 U.S.C. § 2302(b)(8), or other activities protected under the
Whistleblower Protection Act; (2) the product of discrimination based on
uniformed service; or (3) in violation of her veterans’ preference rights. IAF,
Tab 2. The administrative judge directed the appellant to file evidence and
argument establishing that the Board had jurisdiction over her appeal within
15 days of the date of the order. Id.
3
¶4 The appellant did not respond to the order, and, on April 29, 2016, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 6, Initial Decision. The appellant filed a petition for
review, to which the agency has responded. Petition for Review (PFR) File,
Tabs 3, 5.
ANALYSIS
¶5 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). On review, the appellant
contends that the agency’s decision to shorten her term appointment constitutes a
performance-based removal appealable under 5 U.S.C. § 4303(e). PFR File, Tab
3 at 5. However, the appellant has not as yet been separated, and the date of her
separation is not itself an appealable matter. See Langford v. Department of the
Treasury, 73 M.S.P.R. 129, 140 (1997) (finding that the timing of the agency’s
decision to proceed with the appellant’s removal when it did was not an action
within the Board’s jurisdiction). Moreover, the appellant has not articulated any
other basis for finding jurisdiction over her appeal. 2
¶6 The appellant further alleges that she did not receive the acknowledgment
order until May 11, 2016, after the initial decision already had been issued, and
that she thereby was deprived of a fair opportunity to present her case. PFR File,
Tab 3 at 5. However, the Board’s e-filing regulations provide that Board
documents served electronically on registered e-filers are deemed received on the
date of electronic submission. 5 C.F.R. § 1201.14(m)(2). When a regulation
“deems” something to have been done, the event is considered to have occurred
whether or not it actually did. Rivera v. Social Security Administration,
2
On her appeal form, the appellant indicated that she did not have veterans’ preference
and that she had not filed a complaint with the Office of Special Counsel or the
Department of Labor. IAF, Tab 1.
4
111 M.S.P.R. 581, ¶ 5 (2009). Moreover, e-filers are responsible for monitoring
case activity at the Repository at e-Appeal Online to ensure that they have
received all case-related documents. 5 C.F.R. § 1201.14(j)(3) If, in fact, the
appellant did not become aware of the acknowledgment order until May 11, 2016,
we find that this reflects a lack of due diligence on her part and that she was not
deprived of a fair opportunity to file a timely response below. In any event, as
discussed above, we find that the appellant’s arguments on review do not
establish the Board’s jurisdiction over her appeal. As a result, we affirm the
initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
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Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.