Denise R. Cooper v. Department of Veterans Affairs
Background
- Appellant is a GS-15 Senior Researcher at the Veterans Health Administration whose term appointment end date was administratively shortened from March 31, 2019 to March 31, 2017. She filed an appeal with the MSPB on March 30, 2016 and elected e-filing without requesting a hearing.
- The administrative judge issued an acknowledgment order (served electronically) noting the Board’s jurisdiction did not appear established and identifying potential bases for jurisdiction: whistleblower retaliation (5 U.S.C. § 2302(b)(8)), discrimination based on uniformed service, or violation of veterans’ preference rights; the judge gave 15 days to submit jurisdictional evidence.
- The appellant did not respond to the acknowledgment order. The judge dismissed the appeal for lack of jurisdiction on April 29, 2016.
- The appellant filed a petition for review arguing the action was effectively a performance-based removal appealable under 5 U.S.C. § 4303(e) and claiming she did not receive the acknowledgment order until after the initial decision.
- The Board denied review: it found no appealable removal occurred (appellant not yet separated) and no other jurisdictional basis was established; it also held electronic service rules deemed documents received and that the appellant failed to monitor the e-filing repository.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has jurisdiction over the agency’s shortening of a term appointment | Cooper: the shortening is a performance-based removal appealable under 5 U.S.C. § 4303(e) | Agency: shortening the term date, without an actual separation, is not an appealable removal; no other jurisdictional basis alleged | Held: No jurisdiction — appellant not yet separated and timing of appointment end date is not appealable |
| Whether appellant was deprived of a fair opportunity to respond due to late receipt of the acknowledgment order | Cooper: she did not receive the order until after the initial decision, so lacked opportunity to respond | Agency/Board: electronic service rules deem documents received on submission; e-filers must monitor the repository | Held: Electronic service deemed received; appellant failed to exercise due diligence; no deprivation of fair opportunity |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (Board’s jurisdiction is limited to matters conferred by law)
- Langford v. Department of the Treasury, 73 M.S.P.R. 129 (1997) (timing of agency’s decision to proceed with removal is not an action within the Board’s jurisdiction)
- Rivera v. Social Security Administration, 111 M.S.P.R. 581 (2009) (electronic-service rules that "deem" service effective govern receipt)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (courts normally cannot waive statutory filing deadline for appeals)