Ricci v. Merit Systems Protection Board

Docket: 19-1626

Opinion Date: March 19, 2020

Judge: Haldane Robert Mayer

Areas of Law: Government & Administrative Law, Labor & Employment Law

Immigration and Customs Enforcement (ICE) notified Ricci that she had been “tentatively” selected for a Criminal Investigator position; she was required to satisfactorily complete a background investigation before receiving a final offer of employment. ICE subsequently sent Ricci a “Notice of Proposed Action,” stating that her background investigation had revealed information serious enough to warrant that she be found unsuitable for the position and possibly denied examination for all ICE positions for up to three years. ICE alleged that Ricci had engaged in numerous acts of misconduct while employed with the Boston Police Department. Ricci filed an appeal with the Merit Systems Protection Board, claiming that ICE’s claim was based upon bad intelligence and that ICE was “continuing the . . . discrimination.” 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. Ricci asserted that ICE’s actions "effectively constitute[d] a suitability action of debarment.” The Federal Circuit affirmed the AJ's dismissal for lack of jurisdiction. ICE’s action was a non-selection for a specific vacant position. ICE did not take any “broader action” against Ricci, such as “debarring her from future agency employment.” Regardless of the impact on an applicant’s ability to secure future federal employment, the board may only review actions designated as appealable.