Ricci v. Merit Sys. Prot. Bd.

• Decision Date: 19 March 2020
• Docket Number: 2019-1626
• Citation: 953 F.3d 753
• Parties: Helen Z. RICCI, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

953 F.3d 753

Helen Z. RICCI, Petitioner

v.MERIT SYSTEMS PROTECTION BOARD, Respondent

2019-1626

United States Court of Appeals, Federal Circuit.

Decided: March 19, 2020

Sarah Elise Hainbach, Georgetown University Law Center, Washington, DC, argued for petitioner. Also represented by Aderson Francois.

Jeffrey Gauger, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by Katherine Michelle Smith, Tristan Leavitt.

Before O’Malley, Mayer, and Wallach, Circuit Judges.

Mayer, Circuit Judge.

Helen Z. Ricci appeals the final decision of the Merit Systems Protection Board ("board") dismissing her appeal for lack of jurisdiction. See Ricci v. Dep’t of Homeland Sec. , No. DC-0731-18-0837-I-1, 2018 MSPB LEXIS 4526 (Nov. 28, 2018) ("Board Decision "). Because the board correctly determined that it lacked authority to review the revocation of a tentative offer of federal employment, we affirm.

I. BACKGROUND

In January 2017, Immigration and Customs Enforcement ("ICE"), a division of the Department of Homeland Security ("DHS"), notified Ricci that she had been "tentatively" selected for the position of Criminal Investigator. A. 2. The agency informed her, however, that she would be required to undergo and satisfactorily complete a background investigation before receiving a final offer of employment. A. 2, 39.

ICE subsequently sent Ricci a "Notice of Proposed Action," informing her that her background investigation had revealed "[d]erogatory information ... which [was] serious enough to warrant a proposal that [she] be found unsuitable for the [Criminal Investigator] position, and possibly denied examination for, and appointment to, all positions with DHS/ICE for a period of not more than three years." A. 13. ICE alleged that Ricci had engaged in numerous acts of misconduct when she was employed with the Boston Police Department ("BPD"). A. 13. In support, it noted that the BPD had sustained multiple charges against Ricci, including "Negligent Duty/Unreasonable Judgment," "Violations of Directives/Orders," "Untruthfulness," "Failure to Report Law Violations," and "Association with Criminals." A. 13–15.

Although Ricci responded to ICE’s notice letter, the agency nevertheless rescinded its tentative offer of employment for the Criminal Investigator position. A. 18. The agency stated that Ricci had been "found unsuitable for the position of Criminal Investigator ... because of Misconduct in Employment," asserting that her "conduct indicate[d] a potential for behavior that could adversely impact [her] employment performance, as well as the ability of ICE to fully and effectively carry out its law enforcement mission." A. 17.

Ricci then filed an appeal with the board, alleging that ICE had subjected her to a negative suitability determination. A. 21. She asserted that ICE’s "claim of ‘Misconduct in Employment’ [was] based upon bad intelligence" and that the agency was "continuing the ... discrimination" engaged in by the BPD. A. 23.

On September 27, 2018, an administrative judge of the board issued a show-cause order, directing Ricci to file evidence and argument showing that the board had jurisdiction over her appeal. A. 30–34. The administrative judge explained that the board generally lacks jurisdiction over an individual’s non-selection for a specific position, even if that non-selection is based upon the suitability criteria set out in 5 C.F.R. § 731.202. A. 31. In response, Ricci asserted that the board should assume jurisdiction over her appeal because "[ICE’s] actions effectively constitute[d] a suitability action of debarment." A. 41.

In an initial decision dated November 28, 2018, the administrative judge dismissed Ricci’s appeal for lack of jurisdiction. She concluded that although the agency’s decision to withdraw Ricci’s tentative offer of employment for the Criminal Investigator position was based upon suitability criteria, ICE’s action was properly viewed as a non-selection for a specific vacant position rather than a debarment from future agency employment. See Board Decision , 2018 MSPB LEXIS 4526, at *4–6. According to the administrative judge, although ICE decided not to extend a final offer of employment for the position of Criminal Investigator, it did not take any "broader action" against Ricci, such as "debarring her from future agency employment." Id. at *5.

Because neither party filed a petition for review with the full board, the administrative judge’s initial decision became the final decision of the board on January 2, 2019. A. 5. Ricci then filed a timely appeal with this court. We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A).¹

II. DISCUSSION

A. Standard of Review

The scope of our review in an appeal from a decision of the board is circumscribed by statute. Id . § 7703(c); Rocha v. Merit Sys. Prot. Bd ., 688 F.3d 1307, 1310 (Fed. Cir. 2012). We must affirm a board 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. See Johnston v. Merit Sys. Prot. Bd ., 518 F.3d 905, 909 (Fed. Cir. 2008). The petitioner has the burden of establishing, by a preponderance of the evidence, that the board has jurisdiction over an appeal. 5 C.F.R. § 1201.56(b)(2)(A) ; Stoyanov v. Dep’t of Navy , 474 F.3d 1377, 1379 (Fed. Cir. 2007).

B. Board Jurisdiction

The board’s jurisdiction "is limited to actions designated as appealable to [it] ‘under any law, rule, or regulation.’ " Prewitt v. Merit Sys. Prot. Bd. , 133 F.3d 885, 886 (Fed. Cir. 1998) (quoting 5 U.S.C. § 7701(a) ). By statute, the board has jurisdiction over appeals of certain adverse personnel 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). In general, however, the board has no authority to review "[a]n agency’s failure to select an applicant for a vacant position."

Prewitt , 133 F.3d at 886 ; see also Reddick v. F.D.I.C. , 809 F.3d 1253, 1256 (Fed. Cir. 2016) ("It is well-established that the failure to appoint is not an adverse action.").² Accordingly, "claims of unlawful conduct in the selection process ordinarily must be brought before other forums." Prewitt , 133 F.3d at 886.

Ricci acknowledges that an unsuccessful candidate for a federal civil service position generally has no right to appeal his or her non-selection to the board. See Br. of Petitioner 10. She contends, however, that the board had jurisdiction over her appeal pursuant to 5 C.F.R. § 731.501(a), an Office of Personnel Management ("OPM") regulation that affords a right to appeal from a "suitability action." See Br. of Petitioner 6, 8–13.

We disagree. OPM, or an agency acting under delegated authority, makes "suitability determinations" based upon the specific factors listed in 5 C.F.R. § 731.202(b). See id . § 731.101(a). In particular, suitability determinations are premised "on the presence or absence of one or more ... specific factors (charges)," such as "[m]isconduct or negligence in employment," "[c]riminal or dishonest conduct," or "[m]aterial, intentional false statement, or deception or fraud in examination or appointment." Id . § 731.202 (a), (b). Such suitability determinations seek to ascertain whether "a person’s character or conduct ... may have an impact on the integrity or efficiency of the service." Id. § 731.101(a).

Importantly, however, OPM regulations make clear that not every "suitability determination" gives rise to an appealable "suitability action." See id . § 731.501(a) (stating that the board has jurisdiction over a "suitability action"). In this regard, the regulations state that the non-selection for a specific position—even if that non-selection is based on the suitability criteria set out in 5 C.F.R. § 731.202(b) —does not constitute a "suitability action" that is appealable to the board. Id. § 731.203(b) ("A non-selection, or cancellation of eligibility for a specific position based on an objection to an eligible or pass over of a preference eligible ... is not a suitability action even if it is based on reasons set forth in [ 5 C.F.R.] § 731.202"). To the contrary, the right to appeal pursuant to OPM regulations arises only when, as a result of a negative suitability determination, an individual faces removal, cancellation of eligibility, cancellation of reinstatement eligibility, or debarment. Id . § 731.203(a); see also id . § 731.501(a). Accordingly, although ICE found Ricci "unsuitable for the position of Criminal Investigator ... because of Misconduct in Employment," A. 17, its decision to rescind its tentative offer of employment for that position was not a "suitability action" that could be appealed to the board.

C. Debarment

Ricci attempts to invoke board jurisdiction by arguing that while ICE did not label its action a "debarment," she was nonetheless subjected to an appealable suitability action because ICE "effectively" debarred her. Br. of Petitioner 8. In support, she notes that ICE’s December 2017 Notice of Proposed Action, A. 13, "warned" her that she could potentially be debarred. Br. of Petitioner 8. She contends, moreover, that the agency’s allegations of misconduct against her, although "unfounded" and "untrue," id. at 6, were serious enough to support a debarment action and that ICE’s final decision letter, which rescinded her tentative offer of employment for the Criminal Investigator position, A. 17–18, failed to "clarify that [she] could still be considered for other DHS employment," Br. of Petitioner 8. In Ricci’s view, ICE subjected her...