                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KATHLEEN MARY KAPLAN,                           DOCKET NUMBER
                 Appellant,                          DC-0752-14-0708-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: December 29, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kathleen Mary Kaplan, Arlington, Virginia, pro se.

           Michael P. Thiefels, Joint Base Andrews, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
     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. See 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, and based on the following points and authorities, 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).
¶2        The appellant is a current agency employee who filed an appeal of the
     agency’s decision to remove her designation to attend the Civilian Developmental
     Education (CDE) RAND Fellowship program. Initial Appeal file (IAF), Tab 1 at
     1, 5, 14. The appellant alleged, in pertinent part, that the agency took a personnel
     action against her in violation of 5 U.S.C. § 2302(b)(9)(A) by removing her “from
     all CDE for all time and forevermore,” 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. at 4-5.
¶3        The agency filed a motion to dismiss the appeal for lack of jurisdiction,
     asserting that the agency’s decision to cancel the appellant’s previously granted
     RAND fellowship was not reviewable by the Board. 2 IAF, Tab 4 at 7.               The
     appellant opposed the agency’s motion arguing that the Board had jurisdiction
     over her appeal because the agency removed her from the RAND fellowship


     2
       The agency also argued that the Board had no jurisdiction over the appellant’s
     allegations of whistleblower retaliation and retaliation for equal employment
     opportunity activity; however, the appellant denied making these allegations. IAF, Tab
     4 at 7-8, Tab 5 at 4-6.
                                                                                       3

     position, which she alleged was appealable as an adverse action and as a
     suitability action under 5 C.F.R. § 1201.3(1) and (9). IAF, Tab 5 at 11-12. The
     appellant also reiterated her argument that the agency took a personnel action
     against her by removing her from the CDE program in retaliation for her
     protected activity under 5 U.S.C. § 2302(b)(9)(A). IAF, Tab 5 at 6.
¶4        Without holding the hearing requested by the appellant, the administrative
     judge dismissed the appeal based upon her finding that the appellant failed to
     make a nonfrivolous allegation of jurisdiction over her appeal. IAF, Tab 9, Initial
     Decision (ID) at 7. The administrative judge found that the record clearly showed
     that the agency did not terminate the appellant’s employment or remove her from
     her position as a Principal Computer Scientist and that the agency terminated an
     educational opportunity for the appellant, which is not an action within the
     Board’s jurisdiction.   ID at 5.   The administrative judge also considered and
     rejected the appellant’s allegation that the agency’s action, in rendering her
     “permanently ineligible for any future Resident Education,” constituted an
     appealable “suitability action” under 5 C.F.R. § 1201.3(9). ID at 6; IAF, Tab 1.
     The administrative judge found that there was no negative suitability
     determination to appeal because neither the agency nor OPM took any action that
     canceled her eligibility for a particular position, removed her, canceled her
     reinstatement, or debarred her from a federal position. ID at 6.
¶5        The administrative judge also found that, if the appellant were attempting to
     file an individual right of action (IRA) appeal alleging that the agency’s action
     was in retaliation for her protected activity, she must first seek corrective action
     from the Office of Special Counsel (OSC) and exhaust her administrative
     remedies before she could file an IRA appeal with the Board. ID at 6. Finally,
     the administrative judge found that the Board had no jurisdiction to consider the
     appellant’s claims under 5 U.S.C. § 7701(c)(2) alleging that the agency
     committed harmful error in deciding to remove the appellant from CDE, or based
     its decision on a prohibited personnel practice described in 5 U.S.C. § 2302(b), or
                                                                                          4

     whether the decision was not in accordance with the law. ID at 6. The appellant
     has filed a petition for review, and the agency has responded in opposition to her
     petition. Petition for Review (PFR) File, Tabs 2, 4. The appellant has replied to
     the agency’s response. 3 PFR File, Tab 5.
¶6         The appellant has the burden of proof on the issue of jurisdiction.          See
     5 C.F.R. § 1201.56(a)(2)(i). Where an appellant makes a nonfrivolous allegation
     that the Board has jurisdiction over an appeal, the appellant is entitled to a
     hearing on the jurisdictional question.       See Ferdon v. U.S. Postal Service,
     60 M.S.P.R. 325, 329 (1994). 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 at issue. See id. To meet the nonfrivolous
     standard, an appellant need only plead allegations of fact that, if proven, could
     show jurisdiction, though mere pro forma allegations are insufficient to satisfy
     the nonfrivolous standard. Id. In determining whether the appellant has made a
     nonfrivolous allegation of jurisdiction entitling her to a hearing, an administrative
     judge may consider an agency’s documentary submissions. Id. But, to the extent
     that the agency’s evidence constitutes mere factual contradiction of the
     appellant’s otherwise adequate prima facie showing of jurisdiction, the
     administrative judge may not weigh evidence and resolve conflicting assertions of
     the parties and the agency’s evidence may not be dispositive. Id.
¶7         The appellant’s primary argument on review is that the administrative judge
     made a material and erroneous finding of fact that the agency terminated “an

     3
       After the record closed on review, the appellant filed a motion to submit additional
     evidence, which she describes as a September 18, 2014 letter from the Disciplinary
     Counsel of the Supreme Court of Ohio ordering an agency attorney to withdraw from
     representing the agency in the appellant’s Board appeal due to a conflict of interest.
     See PFR File, Tab 7 at 2; see also 5 C.F.R. § 1201.114(a)(5). Because the appellant has
     not shown that the September 18, 2014 letter is material to the jurisdictional issue
     before the Board on review, we deny her request to submit this additional evidence.
     See 5 C.F.R. §§ 1201.114(k), 1201.115(d).
                                                                                       5

     ‘educational opportunity’ and not a ‘particular position,’” which she argues
     resulted in the erroneous legal conclusion that the Board has no jurisdiction to
     review the agency’s action. PFR File, Tab 2 at 9, 13 n.6. The appellant also
     reasserts her allegation that the Board has jurisdiction over the agency’s removal
     of her designation to attend the CDE RAND Fellowship position and all future
     CDE opportunities as a “determination of non-suitability.” PFR File, Tab 2 at
     7-13; IAF, Tab 5 at 11-12. However, we find that she has failed to demonstrate
     any material error in the administrative judge’s findings.
¶8        The Board has jurisdiction over appeals of adverse actions, which include
     removals or terminations of employment after completion of probationary or
     other initial service period, involuntary resignations or retirements, reductions in
     grade or pay, suspensions for more than 14 days, or furloughs for 30 days or less
     for cause that will promote the efficiency of the service.           See 5 U.S.C.
     §§ 7511-7514; 5 C.F.R. §§ 752.401, 1201.3(a)(1).         It 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.
     PFR File, Tab 4 at 5; IAF, Tab 1 at 14, Tab 4 at 15-16. It is also undisputed that
     the agency did not remove the appellant from her Principal Computer Scientist
     position or terminate her employment. See ID at 5. We therefore find that the
     appellant has not alleged facts, which if proven, include an adverse action within
     the Board’s jurisdiction.   See 5 U.S.C. §§ 7511-7514; 5 C.F.R. §§ 752.401,
     1201.3(a)(1).
¶9        Nor has the appellant alleged facts that could support a finding jurisdiction
     over the agency’s action as a negative suitability determination. A “[s]uitability
     determination means a decision by [the Office of Personnel Management] 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,” based on the specific factors set forth in 5 C.F.R. § 731.202(b). See
     5 C.F.R. § 731.101. A “[c]overed position means a position in the competitive
                                                                                       6

      service, a position 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. We find that
      the appellant’s allegation that the agency removed her from the RAND
      Fellowship position 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. IAF, Tab 1 at
      7, Tab 4 at 18.
¶10         We note that, for the first time on review, the appellant submits an internal
      agency memorandum dated August 11, 2011, showing that “outplacement from
      centralized [CDE]” was exempt from the implementation of a hiring freeze
      because of its funding source.     Id. at 20, 22.   The appellant argues that this
      memorandum constitutes new and material proof that the agency’s decision to
      remove her RAND Fellowship position and all CDE is within the Board’s
      jurisdiction. Id. at 8-13, 19. However, to constitute new and material evidence,
      the information contained in the documents, not just the documents themselves,
      must have been unavailable despite due diligence when the record closed.
      Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989). The
      appellant has not made that showing here.        Moreover, even considering this
      evidence, we find no basis for finding that the appellant made a nonfrivolous
      allegation of jurisdiction over her appeal. See Russo v. Veterans Administration,
      3 M.S.P.R. 345, 349 (1980) (the Board will not grant a petition for review based
      on new evidence absent a showing that it is of sufficient weight to warrant an
      outcome different from that of the initial decision).
¶11         On review, the appellant also challenges the merits of the agency’s decision
      to cancel her fellowship, arguing that the agency violated the prohibition against
      “double jeopardy” by punishing her twice for the same offense. PFR File, Tab 2
      at 16-18. In addition, she reasserts the affirmative defenses she raised on appeal
      below alleging that the agency’s action was not in accordance with law, based on
                                                                                     7

a prohibited personnel practice described in 5 U.S.C. § 2302(b)(9)(A), and
constituted harmful error.    PFR File, Tab 2 at 17; IAF, Tab 5 at 5, 14; see
5 U.S.C. § 7701(c)(2). Because the appellant has not shown that the underlying
action is within the Board’s jurisdiction, the Board has no authority to consider
the appellant’s remaining arguments concerning the merits of the agency’s action
or her alleged affirmative defenses. 4      PFR File, Tab 2 at 17; see Wren v.
Department of the Army, 2 M.S.P.R. 1, 2 (1980) (prohibited personnel practices
under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction).
We therefore deny the petition for review.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States 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.
4
  In her petition for review, the appellant does not dispute the administrative judge’s
finding that the Board does not have jurisdiction over the alleged claims as an IRA
appeal. See ID at 6.
                                                                                8

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.
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
