Case: 19-1626 Document: 48 Page: 1 Filed: 03/19/2020

United States Court of Appeals for the Federal Circuit ______________________

HELEN Z. RICCI, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2019-1626 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-0731-18-0837-I-1. ______________________

Decided: March 19, 2020 ______________________

SARAH ELISE HAINBACH, Georgetown University Law Center, Washington, DC, argued for petitioner. Also rep- resented 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. Case: 19-1626 Document: 48 Page: 2 Filed: 03/19/2020

2 RICCI v. MSPB

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 revoca- tion of a tentative offer of federal employment, we affirm. I. BACKGROUND In January 2017, Immigration and Customs Enforce- ment (“ICE”), a division of the Department of Homeland Security (“DHS”), notified Ricci that she had been “tenta- tively” 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 back- ground investigation before receiving a final offer of em- ployment. A. 2, 39. ICE subsequently sent Ricci a “Notice of Proposed Ac- tion,” informing her that her background investigation had revealed “[d]erogatory information . . . which [was] serious enough to warrant a proposal that [she] be found unsuita- ble 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 Po- lice Department (“BPD”). A. 13. In support, it noted that the BPD had sustained multiple charges against Ricci, in- cluding “Negligent Duty/Unreasonable Judgment,” “Viola- tions 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 employ- ment 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 Case: 19-1626 Document: 48 Page: 3 Filed: 03/19/2020

RICCI v. MSPB 3

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 determina- tion. 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” en- gaged 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 evi- dence and argument showing that the board had jurisdic- tion 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 suitabil- ity action of debarment.” A. 41. In an initial decision dated November 28, 2018, the ad- ministrative judge dismissed Ricci’s appeal for lack of ju- risdiction. She concluded that although the agency’s decision to withdraw Ricci’s tentative offer of employment for the Criminal Investigator position was based upon suit- ability criteria, ICE’s action was properly viewed as a non- selection for a specific vacant position rather than a debar- ment from future agency employment. See Board Decision, 2018 MSPB LEXIS 4526, at *4–6. According to the admin- istrative judge, although ICE decided not to extend a final offer of employment for the position of Criminal Investiga- tor, it did not take any “broader action” against Ricci, such as “debarring her from future agency employment.” Id. at *5. Case: 19-1626 Document: 48 Page: 4 Filed: 03/19/2020

4 RICCI v. MSPB

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 proce- dures required by law, rule, or regulation having been fol- lowed; 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 re- view de novo. See Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). The petitioner has the bur- den of establishing, by a preponderance of the evidence, that the board has jurisdiction over an appeal. 5 C.F.R.

1 Although this court is empowered to review board decisions on civil-service claims, 5 U.S.C. § 7703(b)(1)(A), we lack jurisdiction over “mixed cases,” where a federal em- ployee asserts both civil-service claims and claims under the federal anti-discrimination laws, id. §§ 7702(e), 7703(b)(2). See Perry v. Merit Sys. Prot. Bd., –– U.S. ––, 137 S. Ct. 1975, 1985 (2017). Here, because Ricci has waived her claim of unlawful discrimination, see Oral Arg. at 1:42–2:06, her appeal falls within the scope of our appel- late jurisdiction. See Toyama v. Merit Sys. Prot. Bd., 481 F.3d 1361, 1365 (Fed. Cir. 2007). Case: 19-1626 Document: 48 Page: 5 Filed: 03/19/2020

RICCI v. MSPB 5

§ 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 desig- nated as appealable to [it] ‘under any law, rule, or regula- tion.’” 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) re- ductions 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 ap- plicant for a vacant position.” Prewitt, 133 F.3d at 886; see also Reddick v. FDIC, 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 con- duct in the selection process ordinarily must be brought be- fore 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 ap- peal his or her non-selection to the board. See Br. of Peti- tioner 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”)

2 There are certain limited exceptions to the general rule that an applicant’s non-selection for a vacant position is not appealable to the board. See Prewitt, 133 F.3d at 886. For example, the board has jurisdiction to consider an ap- plicant’s claim that he or she was denied an appointment in reprisal for a disclosure protected under 5 U.S.C. § 2302(b)(8). See id. § 1221(a); Prewitt, 133 F.3d at 886. Here, however, there is no allegation that Ricci’s non-selec- tion was the result of a protected disclosure. Case: 19-1626 Document: 48 Page: 6 Filed: 03/19/2020

6 RICCI v. MSPB

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 dele- gated 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 negli- gence 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) (stat- ing that the board has jurisdiction over a “suitability ac- tion”). 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-selec- tion, or cancellation of eligibility for a specific position based on an objection to an eligible or pass over of a prefer- ence eligible . . . is not a suitability action even if it is based on reasons set forth in [5 C.F.R.] § 731.202”). To the con- trary, the right to appeal pursuant to OPM regulations arises only when, as a result of a negative suitability deter- mination, an individual faces removal, cancellation of eli- gibility, cancellation of reinstatement eligibility, or debarment. Id. § 731.203(a); see also id. § 731.501(a). Ac- cordingly, although ICE found Ricci “unsuitable for the po- sition of Criminal Investigator . . . because of Misconduct in Employment,” A. 17, its decision to rescind its tentative Case: 19-1626 Document: 48 Page: 7 Filed: 03/19/2020

RICCI v. MSPB 7

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 ac- tion because ICE “effectively” debarred her. Br. of Peti- tioner 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 con- tends, moreover, that the agency’s allegations of miscon- duct 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 to a “de facto” debarment because its actions impugned her “character, specifically her honesty and trustworthiness,” id. at 10, and since the agency has a “protocol of retaining and sharing background investigation results for five years,” id. at 12 (footnote omit- ted), she will likely be foreclosed from obtaining a position in federal law enforcement before she “age[s] out” of eligi- bility for such employment, id. at 6; see also id. at 8–12. This argument is unavailing. First, although, as noted previously, a debarment is an appealable suitability action, see 5 C.F.R. § 731.203(a)(4), OPM regulations specify that a “debarment” occurs when, after evaluating the suitability criteria listed in 5 C.F.R. § 731.202(b), “an agency finds an applicant or appointee unsuitable” and “for a period of not more than 3 years from the date of the unfavorable suita- bility determination, den[ies] that person examination for, and appointment to, either all, or specific covered, positions within that agency.” Id. § 731.205(a). Here, although ICE, in its final action letter, informed Ricci that it had decided Case: 19-1626 Document: 48 Page: 8 Filed: 03/19/2020

8 RICCI v. MSPB

to rescind its tentative offer of employment for the Crimi- nal Investigator position, it did not state that she had been debarred or was ineligible for other positions within DHS. A. 17–18; see Board Decision, 2018 MSPB LEXIS 4526, at *5 (explaining that while ICE “made a determination not to extend a final offer of employment with regard to one job,” it “did not state or even suggest that it took any broader action regarding [Ricci’s] Federal employment eli- gibility, such as cancelling eligibility for existing competi- tive registers or debarring her from future agency employment”). Second, OPM has made clear that its revised suitabil- ity regulations afford the board no authority to review a “de facto” or “constructive” debarment. 3 See Suitability, 73 Fed. Reg. 20149, 20150–53 (OPM Final Rule, Apr. 15, 2018) (“Final Rule”). Prior to 2008, the board had on occa- sion exerted jurisdiction over “constructive” suitability ac- tions. See, e.g., Saleem v. Dep’t of the Treasury, 88 M.S.P.R.

3 OPM “is an independent establishment in the ex- ecutive branch,” 5 U.S.C. § 1101, and the Director of OPM has authority “to prescribe regulations and to ensure com- pliance with the civil service laws, rules, and regulations,” id. § 1104(b)(3); see Archuleta v. Hopper, 786 F.3d 1340, 1347 (Fed. Cir. 2015) (examining “the relationship between OPM and the [b]oard, including their respective roles in the civil service system”). On appeal, Ricci does not argue that OPM lacked authority to issue its revised suitability regu- lations or that those regulations are otherwise invalid. See, e.g., Archuleta, 786 F.3d at 1351 n.5 (“To the extent OPM’s regulations . . . are inconsistent with the [b]oard’s statu- tory obligation to adjudicate appeals . . . they are invalid.”). Those arguments are therefore waived. See, e.g., SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) (“Our law is well established that ar- guments not raised in the opening brief are waived.”). Case: 19-1626 Document: 48 Page: 9 Filed: 03/19/2020

RICCI v. MSPB 9

151, 154–56 (2001); Edwards v. Dep’t of Justice, 87 M.S.P.R. 518, 521–24 (2001). In Edwards, for example, the board concluded that, un- der certain circumstances, an agency’s decision not to se- lect an applicant for a position based upon suitability criteria could be viewed as a “constructive” suitability ac- tion appealable to the board. 87 M.S.P.R. at 523. Effective June 16, 2008, however, OPM issued revised regulations, which were designed to “clarify the scope of authority for the [board] to review actions taken under the [suitability] regulations.” Final Rule, 73 Fed. Reg. at 20149. In partic- ular, the revised regulations were intended to eliminate confusion regarding the distinction between a “suitability determination” and an appealable “suitability action.” See id. at 20150 (“One (suitability actions) concerns the type of actions taken, such as debarment or removal, once a person is determined to be unsuitable and the other (suitability determinations) concerns the process of initially deciding whether a person is suitable.”). OPM specifically rejected Edwards’ holding that the board can exercise jurisdiction over “constructive” suitability actions, 87 M.S.P.R. at 523, stating that it was premised upon an “incorrect reading of the authority that OPM conferred upon the [b]oard.” Final Rule, 73 Fed. Reg. at 20152. OPM emphasized, moreover, that the board has no ju- risdiction over appeals involving the non-selection for a specific position, even if that non-selection is based on “fit- ness or character.” Id. at 20150; see also id. at 20151 (“In other words, non-selection for a position is not an appeala- ble suitability action.”). Accordingly, OPM has explicitly rejected Ricci’s argument that the board is empowered to adjudicate a “constructive” or “de facto” debarment. See id. at 20151 (rejecting the argument that giving an agency dis- cretion to determine whether a particular personnel action should be “label[ed]” a suitability action “elevates form over substance” (internal quotation marks omitted)); see also Upshaw v. Consumer Prod. Safety Comm’n, 111 M.S.P.R. Case: 19-1626 Document: 48 Page: 10 Filed: 03/19/2020

10 RICCI v. MSPB

236, 239–40 (2009) (explaining that OPM’s revised suita- bility regulations eliminated the concept of a “constructive” suitability action and “specif[ied] that a non-selection for a specific position is not a suitability action even if it is based on reasons set forth at 5 C.F.R. § 731.202”). Third, even assuming arguendo that the results of Ricci’s background investigation, coupled with ICE’s deter- mination that she was “unsuitable” to serve in the position of Criminal Investigator, A. 17, will make it difficult for her to obtain other federal law enforcement positions, this is insufficient to trigger board jurisdiction. Regardless of the impact that the non-selection for a specific position may have on an applicant’s ability to secure future federal em- ployment, the board, as discussed previously, is only vested with authority to review actions designated as “appealable to [it] under any law, rule, or regulation.” 5 U.S.C. § 7701(a); see Monasteri v. Merit Sys. Prot. Bd., 232 F.3d 1376, 1378 (Fed. Cir. 2000) (emphasizing that the board’s jurisdiction “is not plenary”). Ricci identifies no law, rule, or regulation affording the board jurisdiction to review ICE’s decision to rescind her tentative offer of employment. D. Alleged Rulemaking Finally, we reject Ricci’s argument that the board’s “in- terpretation of ‘debarment’ as excluding de facto debar- ment” violates the Administrative Procedure Act (“APA”) because it “is a substantive rule that should have been promulgated through notice and comment procedures.” Br. of Petitioner 16; see Preminger v. Sec’y of Veterans Affairs, 632 F.3d 1345, 1350 (Fed. Cir. 2011) (“An agency’s failure to comply with notice-and-comment procedures, when re- quired, is grounds for invalidating a rule.” (footnote omit- ted)). Here, the board did not engage in “rulemaking,” but instead applied OPM suitability regulations when adjudi- cating the case presented to it. See Ashford Univ., LLC v. Sec’y of Veterans Affairs, No. 2018-1213, 2020 WL 1017621, at *5 (Fed. Cir. Mar. 3, 2020) (concluding that “an agency’s Case: 19-1626 Document: 48 Page: 11 Filed: 03/19/2020

RICCI v. MSPB 11

Cure Letter [was] part of an adjudication” for purposes of the APA because it was “individualized,” “[d]id not apply to any [other] entity,” and did not provide “generalized guid- ance”); see also Neustar, Inc. v. FCC, 857 F.3d 886, 893 (D.C. Cir. 2017) (“Rulemaking scenarios generally involve broad applications of more general principles rather than case-specific individual determinations.”). Importantly, moreover, most board adjudications, in- cluding this one, are specifically excluded from APA cover- age. See 5 U.S.C. § 554(a)(2) (exempting adjudications involving “the selection or tenure of an employee,” other than adjudications involving certain administrative law judges). The Civil Service Reform Act, Pub. L. No. 95-454, 92 Stat. 1111 (1978) (“CSRA”), “provides a comprehensive personnel system with extensive prescriptions for the pro- tections and remedies available to federal employees.” Reddick, 809 F.3d at 1255; see United States v. Fausto, 484 U.S. 439, 443 (1988). Because the CSRA, as a general rule, establishes the “exclusive . . . remedial regime for federal employment and personnel complaints,” Nyunt v. Chair- man, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C. Cir. 2009), “[f]ederal employees may not circumvent the Act’s requirements and limitations by resorting to the catchall APA to challenge agency employment actions,” Grosdidier v. Chairman, Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009). III. CONCLUSION We have considered Ricci’s remaining arguments but do not find them persuasive. 4 Accordingly, the final

4 On January 30, 2020, this court granted Sarah Elise Hainbach, a student at Georgetown University Law Center, leave to appear and present oral argument on Ricci’s behalf under the supervision of Aderson Francois. We commend Hainbach for her articulate oral advocacy. Case: 19-1626 Document: 48 Page: 12 Filed: 03/19/2020

12 RICCI v. MSPB

decision of the Merit Systems Protection Board dismissing Ricci’s appeal for lack of jurisdiction is affirmed. AFFIRMED