Agency Decision to Revoke Tentative Job Offer Not Appealable

Does the MSPB have jurisdiction over an appeal from an applicant who was made a “tentative” job offer that was revoked by the agency because of a background check?

The case is Ricci v Merit Systems Protection Board (CAFC No. 2019-1626, 3/19/20). The facts are taken from the court’s opinion.

Immigration and Customs Enforcement (ICE) tentatively picked Ms. Ricci for a Criminal Investigator position. However, the agency told her she would be subject of a background investigation and she would have to successfully pass that before receiving a final offer of employment. That investigation turned up serious derogatory information and ICE rescinded the job offer. In its notice to Ricci, the agency indicated that the investigation disclosed misconduct when she was with the Boston Police Department (BPD). The BPD had charged Ricci with various serious infractions, which the investigation report detailed, such as “untruthfulness,” “failure to report law violations,” and “association with criminals,” to name a few. (p. 2) ICE not only withdrew its offer but warned Ricci she could be debarred from working with ICE or for its parent agency, the Department of Homeland Security, for three years. There is nothing indicating ICE actually moved to debar Ms. Ricci as it had warned her they could.

Ricci appealed the revocation of job offer to the Merit Systems Protection Board (Board) arguing that ICE had made a negative suitability determination based on “bad” information. (p. 3)

The Board’s administrative judge issued an order questioning whether the Board had jurisdiction over her appeal. The AJ stated that the Board typically has no jurisdiction over a non-selection for a position, even if that non-selection is based on suitability criteria. Ricci responded that ICE’s actions added up to a debarment from employment; therefore, the Board should take jurisdiction. 

The AJ did not agree and dismissed her appeal for lack of jurisdiction. The AJ held that ICE’s action amounted to a non-selection rather than a debarment, notwithstanding that it was based on suitability type information. Further, while ICE rescinded its offer of employment, it did not take “broader action” that amounted to debarment from future employment. (p. 3)

Ricci took her case to the federal appeals court. While admitting that non-selection for a particular position is not typically appealable, Ricci argued to the court that the Board should have taken jurisdiction over her appeal based on the fact that she was challenging a suitability decision. The court disagreed. The analysis is pretty straight forward.  As the court noted, Office of Personnel Management (OPM) regulations clearly provide that “non-selection for a specific position—even if that non-selection is based on the suitability criteria…does not constitute a ‘suitability action’ that is appealable to the board.” (p. 6) The court ruled that ICE’s decision to “rescind its tentative offer of employment…was not a ‘suitability action’ that could be appealed to the board.” (pp. 6-7)

However, as the court notes, a suitability determination that leads to debarment is appealable to the board. Ricci therefore argued that ICE’s action was an effective or defacto debarment. The court was not persuaded. Yes, ICE warned her in its notice that she could be debarred. But the agency did not actually debar Ricci. It revoked its job offer. Nothing more. Further, OPM made clear in its suitability regulations that the Board has no authority to review a “defacto” or “constructive” debarment. (p. 8) Finally, OPM regulations also made clear that there is no appeal from a non-selection decision even though based on suitability considerations such as fitness of character. (p. 9)

Ms. Ricci lost her Board and court appeal.

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.