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.
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 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
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 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.
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 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).
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 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.
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 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
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 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
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 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.”).
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 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.
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 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
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 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.
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 12                                           RICCI v. MSPB




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