Kaplan v. MSPB

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHLEEN MARY KAPLAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3091
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-14-0708-I-1.
______________________
Decided: January 7, 2016
______________________
KATHLEEN MARY KAPLAN, Arlington, VA, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before LOURIE, O’MALLEY, and STOLL, Circuit Judges.
PER CURIAM.
2 KAPLAN v. MSPB
Kathleen Kaplan (“Kaplan”) seeks review of the Merit
Systems Protection Board (“the Board”) decision dismiss-
ing her appeal for lack of jurisdiction. Kaplan v. Dep’t of
the Air Force, No. DC-0752-14-0708-I-1, 2014 MSPB
LEXIS 8955 (M.S.P.B. Dec. 29, 2014) (“Final Decision”).
For the reasons explained below, we affirm.
BACKGROUND
Kaplan is currently employed as a Principal Comput-
er Scientist, DR-1550-IV, with the Department of the Air
Force (“the agency”) Office of Scientific Research in Ar-
lington, Virginia. Kaplan v. Dep’t of the Air Force, No.
DC-0752-14-0708-I-1, 2014 MSPB LEXIS 4826, at *1
(M.S.P.B. July 18, 2014) (“Initial Decision”). Kaplan was
subsequently selected to participate in the agency’s Civil-
ian Developmental Education (“CDE”) RAND Fellowship
program (“RAND Fellowship”). Id.
By letter dated April 30, 2014, the agency removed
Kaplan’s designation to attend the RAND Fellowship. Id.
That letter explained that Kaplan’s prior misconduct and
reprimand “constitute[d] just cause for removing you from
such CDE.” Respondent’s Appendix (“RA”) 33.
Kaplan timely appealed to the Board, arguing that
the agency took a personnel action against her in viola-
tion of 5 U.S.C. § 2302(b)(9)(A) when it removed her “from
all CDE for all time and forevermore.” Final Decision,
2014 MSPB LEXIS 8955, at *3. Specifically, Kaplan
alleged that the agency removed her “in retaliation for her
submission of pleadings to the U.S. District Court for the
Eastern District of Virginia and the U.S. Court of Federal
Claims.” Id.On June 11, 2014, the agency moved to dismiss
Kaplan’s appeal for lack of jurisdiction, arguing that it did
not take an action against her that is appealable to the
Board. Initial Decision, 2014 MSPB LEXIS 4826, at *2.
In its motion, the agency explained that: (1) Kaplan has
KAPLAN v. MSPB 3
been in the competitive service since 2005, and remains
employed as a Principal Computer Scientist with the
agency; (2) Kaplan’s previously granted RAND Fellowship
was canceled due to misconduct; and (3) an agency deci-
sion “to grant or not to grant an educational opportunity
is not reviewable by the Board.” Id. To the extent
Kaplan’s claims could be construed to allege whistleblow-
ing or other protected activity, the agency argued that the
Board lacked jurisdiction over “any potential individual
right of action (IRA) appeal, because she has not sought
corrective action from the Special Counsel.” Id. at *3.
Kaplan timely responded, arguing that the Board had
jurisdiction over her appeal because the agency removed
her from the RAND Fellowship program. Final Decision,
2014 MSPB LEXIS 8955, at *3. According to Kaplan, her
removal was appealable as an adverse action under 5
C.F.R. § 1201.3(a)(1), and as a suitability action under 5
C.F.R. § 1201.3(a)(9). Id. Kaplan also reiterated that the
agency took a personnel action against her when it re-
moved her from the CDE program in retaliation for pro-
tected activity, but clarified that she was not alleging
whistleblower retaliation or retaliation for equal employ-
ment opportunity activity. Id. at *3-4, & n.2.
On July 18, 2014, the administrative judge (“AJ”)
issued an initial decision dismissing Kaplan’s appeal for
lack of jurisdiction. The AJ found it “uncontroverted” that
the agency removed Kaplan’s designation to attend the
RAND Fellowship, but did not terminate her employment
or remove her from her Principal Computer Scientist
position. Initial Decision, 2014 MSPB LEXIS 4826, at *8.
Because the agency merely terminated an educational
opportunity for Kaplan, the AJ concluded that the Board
lacked jurisdiction. Id. The AJ also considered and
rejected Kaplan’s argument that the agency’s action was a
“suitability action” within the Board’s jurisdiction. Id. at
*9. Specifically, the AJ found no negative suitability
determination to appeal because neither the agency nor
4 KAPLAN v. MSPB
the Office of Personnel Management (“OPM”) “took any
action that canceled her eligibility for a particular posi-
tion, removed her, canceled her reinstatement or debarred
her from a Federal position.” Id. (citing 5 C.F.R.
§ 1201.3(a)(9)). Finally, the AJ explained that, to the
extent Kaplan is attempting to file an IRA claim of retali-
ation for engaging in protected activity, she must first
seek corrective action from the Office of Special Counsel,
and exhaust her administrative remedies. Id. at *9-10.
Because Kaplan failed to make a nonfrivolous allegation
of Board jurisdiction, the AJ dismissed her appeal without
a hearing. Id. at *10.
Kaplan filed a petition for review, requesting that the
Board reconsider the AJ’s initial decision. Specifically,
Kaplan argued that: (1) the AJ erred in finding that the
agency terminated an “educational opportunity” rather
than a “particular position”; and (2) the Board has juris-
diction over the agency’s removal of her designation to
attend the RAND Fellowship program as a “determina-
tion of non-suitability.” Final Decision, 2014 MSPB
LEXIS 8955, at *8.
On December 29, 2014, the Board issued a final deci-
sion denying Kaplan’s petition for review. In its decision,
the Board first explained that it has jurisdiction over
adverse action appeals, which includes, in relevant part,
removals or terminations of employment after completion
of probationary or other initial service period. Id. at *8.
Next, the Board found it undisputed that the agency
removed Kaplan from the RAND Fellowship program,
which is one of several educational programs the agency
offers for civilians. Id. at *9. Because the agency did not
remove Kaplan from her position or terminate her em-
ployment, the Board found that Kaplan alleged no facts
which, if proven, include an adverse action within the
Board’s jurisdiction. Id.KAPLAN v. MSPB 5
The Board further found that Kaplan failed to allege
facts that could support a finding of jurisdiction over the
agency’s action as a “negative suitability determination.”
Id. The Board explained that a suitability determination
involves a decision by OPM or an agency with delegated
authority that a person is suitable or not suitable for a
covered position in the federal government or federal
agency. Id. (citing 5 C.F.R. § 731.202(b)). The Board
concluded that Kaplan’s allegation that the agency re-
moved her from the RAND Fellowship program and
“deemed her permanently ineligible for all future CDE
programs, even if proven, does not establish jurisdiction
over her appeal as a negative suitability determination or
an appealable adverse action.” Id. at *10. Accordingly,
the Board denied Kaplan’s petition for review. 1
Kaplan timely appealed to this court, and we have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(9).
1 Kaplan submitted, for the first time on appeal to
the Board, an internal agency memorandum dated Au-
gust 11, 2011, showing that “‘outplacement from central-
ized [CDE]’ was exempt from the implementation of a
hiring freeze because of its funding source.” Final Deci-
sion, 2014 MSPB LEXIS 8955, at *10. According to
Kaplan, this document showed that the agency’s decision
to revoke her designation to participate in the RAND
Fellowship program and all other CDEs was within the
Board’s jurisdiction. Id. Because Kaplan failed to show
that the information contained in the memorandum was
previously unavailable despite due diligence before the
record closed, the Board concluded that it need not con-
sider it. Id. at *10-11 (citing Grassell v. Dep’t of Transp.,
40 M.S.P.R. 554, 564 (1989)). Even considering the sub-
mission, however, the Board found no basis for concluding
that Kaplan made a nonfrivolous allegation of jurisdic-
tion. Id. at *11.
6 KAPLAN v. MSPB
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s
decision unless it is “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); Fields v. Dep’t
of Justice, 452 F.3d 1297, 1301 (Fed. Cir. 2006). Whether
the Board has jurisdiction to adjudicate an appeal is a
question of law, which we review de novo. Parrott v.
Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
The petitioner bears the burden of establishing the
Board’s jurisdiction by a preponderance of the evidence. 5
C.F.R. § 1201.56(b)(2)(i) (2015). 2 To be entitled to a
jurisdictional hearing, a claimant must make a nonfrivo-
lous allegation that the Board has jurisdiction over her
appeal. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
1344 (Fed. Cir. 2006) (en banc). “Nonfrivolous allegations
of Board jurisdiction are allegations of fact which, if
proven, could establish a prima facie case that the Board
has jurisdiction over the matter in issue.” Ferdon v.
United States Postal Serv., 60 M.S.P.R. 325, 329 (1994)
(citation omitted).
The Board’s jurisdiction is not plenary, but is limited
to those matters over which it has been given jurisdiction
by law, rule, or regulation. Johnston v. Merit Sys. Prot.
Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). As noted, Kaplan
argued before the Board that her removal from the RAND
Fellowship program was appealable both as an “adverse
action” under 5 C.F.R. § 1201.3(a)(1), and as a “suitability
2 Prior to March 30, 2015, the applicable regulation
was set forth at 5 C.F.R. § 1201.56(a)(2)(i).
KAPLAN v. MSPB 7
action” under 5 C.F.R. § 1201.3(a)(9). We address each
potential basis for Board jurisdiction in turn.
By statute, the Board has jurisdiction over appeals of
adverse actions, including: (1) removals; (2) suspensions
for more than fourteen days; (3) reductions in grade;
(4) reductions in pay; and (5) furloughs of thirty days or
less. 5 U.S.C. § 7512(1)-(5). The applicable regulations
likewise indicate, in relevant part, that the Board is
authorized to hear an adverse action appeal involving
removals, which are “terminations of employment after
completion of probationary or other initial service period.”
5 C.F.R. § 1201.3(a)(1).
Here, Kaplan has not made a nonfrivolous allegation
that the agency engaged in an adverse action that falls
within the Board’s jurisdiction. Indeed, the Board found
it undisputed that the agency did not remove Kaplan from
her position as a Principal Computer Scientist or termi-
nate her employment. Final Decision, 2014 MSPB LEXIS
8955, at *9. There are no allegations that Kaplan was
suspended, furloughed, or suffered a reduction in grade or
pay. Instead, the agency merely removed Kaplan’s eligi-
bility to participate in the RAND Fellowship program,
which is an educational program. Id. We agree with the
Board that the agency’s termination of Kaplan’s ability to
participate in an educational program does not fall within
the scope of the Board’s jurisdiction over adverse actions.
Id.; see 5 C.F.R. § 1201.3(a)(1).
Kaplan’s briefing to this court focuses solely on her
belief that the Board had jurisdiction over her appeal as a
suitability action pursuant to 5 C.F.R. § 1201.3(a)(9). We
disagree. A “suitability action” is an “[a]ction based on
suitability determinations, which relate to an individual’s
character or conduct that may have an impact on the
integrity or efficiency of the service.” 5 C.F.R.
§ 1201.3(a)(9). “Suitability actions include the cancella-
8 KAPLAN v. MSPB
tion of eligibility, removal, cancellation or reinstatement
eligibility, and debarment.” Id.As the Board explained, a “[s]uitability determination
means a decision by OPM [the Office of Personnel Man-
agement] or an agency with delegated authority that a
person is suitable or is not suitable for employment in
covered positions in the Federal Government or a specific
Federal agency.” Final Decision, 2014 MSPB LEXIS
8955, at *9 (quoting 5 C.F.R. § 731.101). A “covered
position” is “a position in the competitive service, a posi-
tion in the excepted service where the incumbent can be
noncompetitively converted to the competitive service,
and a career appointment to a position in the Senior
Executive Service.” 5 C.F.R. § 731.101(b).
Kaplan’s primary argument on appeal is that the
Board admitted that it had jurisdiction when it used the
word “position” to describe the RAND Fellowship. She
then asserts that the RAND Fellowship program is a
“covered position” because it required a Top Secret securi-
ty clearance, and because the agency vetted her personnel
records before selecting her to participate in the program.
Each of these arguments is without merit.
First, although the Board used the term “position,”
the record is clear that the RAND Fellowship is an educa-
tional program, not a position separate and apart from
Kaplan’s career position as a Principal Computer Scien-
tist. Indeed, when read in context, the sentence in the
Board’s decision upon which Kaplan relies actually con-
tradicts her argument. That sentence states, in its entire-
ty: “[i]t is undisputed that the agency effectively removed
the appellant from the RAND Fellowship position, which
is one of the educational programs offered for civilians by
the agency.” Final Decision, 2014 MSPB LEXIS 8955, at
*9. The next sentence states that it is also “undisputed
that the agency did not remove the appellant from her
Principal Computer Scientist position or terminate her
KAPLAN v. MSPB 9
employment.” Id. Accordingly, the mere fact that the
Board used the word “position” is insufficient to give rise
to Board jurisdiction.
Second, as noted, a suitability determination involves
a finding that an individual is suitable or not suitable for
employment in a “covered position.” 5 C.F.R.
§ 731.101(b). Because the RAND Fellowship is an educa-
tional program—not a “covered position” as that term is
defined in 5 C.F.R. § 731.101(b)—the agency did not make
a suitability determination when it removed Kaplan from
it. That the Fellowship required a Top Secret security
clearance and the agency reviewed Kaplan’s personnel
record prior to selecting her to participate has no bearing
on whether the program qualifies as a “covered position.”
Nor is there any evidence that the agency or OPM took
any action that cancelled Kaplan’s eligibility for a particu-
lar position, removed her, cancelled her reinstatement, or
debarred her from a federal position. See 5 C.F.R.
§ 1201.3(a)(9). Indeed, the record reveals that Kaplan
occupied the position of Principal Computer Scientist
before, during, and after her designation to attend the
RAND Fellowship. We therefore agree with the Board
that Kaplan’s removal from the RAND Fellowship pro-
gram was not appealable to the Board as either an ad-
verse action or as a suitability determination.
CONCLUSION
Kaplan failed to raise a nonfrivolous allegation of
Board jurisdiction over the agency’s decision to terminate
her participation in the RAND Fellowship program.
Accordingly, we affirm the Board’s decision dismissing her
appeal for lack of jurisdiction.
AFFIRMED