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 ...
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