Canceling Employee Fellowship is Not Appealable

A Department of Air Force researcher appealed when her agency cancelled her RAND Fellowship, arguing it was in retaliation for her involvement in a federal court case. See how the Board and the appeals court reacted.

This case presents a unique question whether pulling back the appointment to a fellowship program can add up to an action appealable to the Merit Systems Protection Board (MSPB). (Kaplan v. Merit Systems Protection Board (CAFC No. 2015-3091 (nonprecedential), 1/7/16)

The court’s opinion explains that Kaplan is a Principal Computer Scientist with the Air Force Office of Scientific Research in Virginia. The agency picked her to be part of the Civilian Developmental Education RAND Fellowship program, apparently a prestigious thing. However, based on “Kaplan’s prior misconduct and reprimand,” the agency told her it was removing her from the program. (p. 2)

Kaplan argued to the MSPB on appeal that this amounted to an adverse personnel action or an adverse suitability decision, and that it was retaliation for her involvement in a federal court case. She was specific in saying she was not arguing whistleblower retaliation or an EEO complaint. The agency moved to dismiss, arguing that taking someone off the list to participate in a fellowship program—a decision to grant or deny an educational opportunity– is not appealable.

The Board agreed with the agency. Since there were no facts adding up to an adverse action within the jurisdiction of the Board, it would not consider her case.

Kaplan went to the federal appeals court and got the same result: “…the agency merely removed Kaplan’s eligibility to participate in the RAND Fellowship program, which is an educational program…” an action over which the Board has no jurisdiction. (p. 7) The court also agreed with the Board that there was no appealable suitability action at play either.

Kaplan v. MSPB (2015-3091)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.