                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
                                                                                  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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
