UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DENISE R. COOPER,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-3443-16-0421-I-1

DATE: September 29, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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. 
5

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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board