[00:00:00] Speaker 03: The final argued case before the court today is Ricci versus Merit Systems Protection Board, case number 191626. [00:00:45] Speaker 03: Ms. [00:00:45] Speaker 03: Heinebach, you have three minutes for rebuttal. [00:00:49] Speaker 01: Yes, Your Honor. [00:00:52] Speaker 03: Okay, you may proceed. [00:00:53] Speaker 01: Your Honor, and may it please the Court, my name is Sarah Heinebach. [00:00:59] Speaker 01: I represent the Petitioner, Ms. [00:01:01] Speaker 01: Helen Z. Ritchie. [00:01:02] Speaker 02: On page Roman numeral six of the Red Grief, [00:01:06] Speaker 02: The MSPB notes that before the MSPB, Ms. [00:01:13] Speaker 02: Ritchie argued that ICE had continued the Boston PD's, quote, discrimination and retaliation. [00:01:23] Speaker 02: But Ms. [00:01:24] Speaker 02: Ritchie's Federal Circuit Rule 15C filing doesn't indicate she's raising a discrimination. [00:01:32] Speaker 01: Your Honor, that's correct. [00:01:33] Speaker 02: Don't interrupt me. [00:01:35] Speaker 02: And as far as I can tell, you haven't raised the issue in your briefing. [00:01:39] Speaker 02: Has Ms. [00:01:40] Speaker 02: Ritchie abandoned her discrimination claims? [00:01:44] Speaker 01: Ms. [00:01:45] Speaker 01: Ritchie does not raise her discrimination claims against DHS. [00:01:49] Speaker 01: The 15C form is correct that she only raises a... Is she affirmatively waiving them? [00:01:58] Speaker 01: Your Honor, she does not raise any discrimination claim against DHS. [00:02:01] Speaker 02: The question was, has she abandoned them? [00:02:03] Speaker 02: Are they waived? [00:02:04] Speaker 01: Yes, they're waived, Your Honor. [00:02:08] Speaker 02: On pages 8 to 9 of the blue brain, you argue that because Ms. [00:02:14] Speaker 02: Ritchie's notice NOPA warned that she might be debarred and her purported misconduct was serious enough to merit debarment, that when the DHS sustained the NOPA in its final decision, [00:02:31] Speaker 02: quote, without clarification to the contrary, ellipsis, the DHS effectively disbarred Ms. [00:02:39] Speaker 02: Richey. [00:02:41] Speaker 02: But at page 17 of the appendix, DHS doesn't sustain the NOPA rather than the NOPA's charge in all specifications. [00:02:53] Speaker 02: Doesn't that impact your argument? [00:02:58] Speaker 01: Your Honor, page 17 of the appendix is the letter from Mr. Schwink, which does sustain and finalize, we interpret to sustain and finalize the charge against Ms. [00:03:07] Speaker 01: Ritchie. [00:03:10] Speaker 01: The letter from Mr. Schwink says that Ms. [00:03:12] Speaker 01: Ritchie would be found unsuitable for employment in the agency and that her employment would interfere with the ability of the agency to effectively carry out its law enforcement mission. [00:03:24] Speaker 03: But doesn't that letter support the conclusion that it was just that particular position that she was being found unsuitable for? [00:03:32] Speaker 01: The letter does include the language this position, however, that language is not determinative. [00:03:39] Speaker 01: It's our position that the agency may not limit the jurisdiction of this court to review its appealable actions by throwing in the language [00:03:49] Speaker 01: this position or not including the word. [00:03:51] Speaker 02: What makes you think they're trying to limit the jurisdiction of the court? [00:03:55] Speaker 02: What they're saying is this position. [00:03:59] Speaker 01: As you know, Your Honor, an agency may reject an applicant in one of two ways. [00:04:03] Speaker 01: First, the agency may reject the applicant by finding that she is simply not the right person for the position. [00:04:08] Speaker 01: This is a non-appealable non-selection. [00:04:10] Speaker 01: Second, the agency may find the applicant unsuitable for employment throughout the agency. [00:04:16] Speaker 01: This is an appealable suitability action. [00:04:18] Speaker 02: Right. [00:04:19] Speaker 02: Where did they say throughout the agency? [00:04:23] Speaker 01: In the Notice of Proposed Action, which is a document that is only sent in the context of a suitability action, not in a non-appealable non-selection, the NOPA is on page appendix 13 of our brief, and it says that [00:04:45] Speaker 01: You have been, derogatory information was revealed, this is the second paragraph, which is serious enough to warrant a proposal that you be found unsuitable for the above-reference position. [00:04:56] Speaker 02: Above-reference position. [00:04:57] Speaker 01: And if you go on to the next line, Your Honor, and appointment to all positions with DHS ICE for a period of not more than three years. [00:05:06] Speaker 01: They point to the position she applied for, but say she would also be found unsuitable for all positions within the agency. [00:05:12] Speaker 01: And neither the letter from Mr. Schwink or the letter from Ms. [00:05:15] Speaker 01: Spruill, they both rescind the employment offer. [00:05:19] Speaker 01: And neither one of them says, now you are welcome to apply for positions within the agency. [00:05:23] Speaker 01: In fact, they were. [00:05:23] Speaker 03: Did she ever try to apply? [00:05:24] Speaker 01: Your Honor, no, she did not try to apply for positions within the agency. [00:05:29] Speaker 01: She followed the directions of the notice of proposed action. [00:05:33] Speaker 02: On page 16 of the blue brief, you argue that, quote, MSPs [00:05:42] Speaker 02: MSPB's interpretation of debarment as excluding de facto debarment is rulemaking under the APA. [00:05:52] Speaker 02: Why are you arguing rulemaking? [00:05:54] Speaker 02: What authority do you have? [00:05:56] Speaker 02: Why didn't you argue regulatory interpretation? [00:06:00] Speaker 01: Your Honor, an agency engages in rulemaking when it [00:06:05] Speaker 01: creates a rule that creates substantive obligations, compliance obligations, for a broad class of people under bi-metallic and disabled American veterans. [00:06:16] Speaker 01: And Coalition for Common Sense supposed to say that the most important thing in determining whether an action is a substantive rulemaking or merely a rule or simply interpretive is whether the action has a binding effect on private parties. [00:06:28] Speaker 02: Do you have an authority for that? [00:06:32] Speaker 02: Like case authority? [00:06:34] Speaker 03: I mean, is the MSPB even an agency? [00:06:38] Speaker 01: Yes. [00:06:40] Speaker 01: My understanding is the MSPB is an agency set up by the executive branch. [00:06:45] Speaker 02: You see at page 17 in the red brief, the MSPB says under 5 USC 554A2, most cases heard by the MSPB, including this case, they say, are excluded from APA coverage. [00:07:01] Speaker 01: Yes. [00:07:03] Speaker 01: But under regulation section 7703, an employee or applicant adversely affected or grieved by an MSPB final order or decision may obtain judicial review. [00:07:14] Speaker 01: It is clear. [00:07:14] Speaker 03: Because it's an adjudication body. [00:07:16] Speaker 03: It's not an agency, right? [00:07:18] Speaker 01: Yes. [00:07:20] Speaker 03: Well, you just gave away the argument. [00:07:25] Speaker 03: Well, at least that one argument. [00:07:27] Speaker 03: What about the fact that OPM actually issued a regulation doing away with constructive suitability determinations? [00:07:34] Speaker 03: I mean, you know, maybe you think OPM's regulation is wrong or its regulatory authority was ignored by what you say was a de facto constructive suitability determination, but doesn't that pose a problem for you that there is a regulation on the books? [00:07:54] Speaker 01: In reading the 2008 regulations from OPM, we see that OPM does not mention de facto or constructive debarment, but we don't interpret the failure to mention as a prohibition of the existence of de facto or constructive debarment. [00:08:11] Speaker 01: In fact, a commenter before the revision suggested that the OPM require agencies to label their actions. [00:08:18] Speaker 01: The OPM rejected this suggestion. [00:08:22] Speaker 01: and does not require that agencies label their actions as either debarment or non-appealable non-selections. [00:08:29] Speaker 03: Didn't the ICE letter that you've been referring to that talked about the three-year unsuitability, didn't it say that her conduct could be grounds for a debarment proceeding? [00:08:42] Speaker 03: Not that she was actually being debarred? [00:08:48] Speaker 01: Your Honor, the letter also refers back to the notice of proposed action, which also said she could be found unsuitable for employment. [00:08:58] Speaker 01: Nothing in either letter negates the inference that she would be found unsuitable if she were to apply again. [00:09:05] Speaker 02: How is that an inference? [00:09:13] Speaker 01: The agencies followed all the steps that are laid out in the OPM regulations to find an applicant unsuitable. [00:09:19] Speaker 01: The agency sent Ms. [00:09:21] Speaker 01: Ritchie a notice of proposed action, which is only sent in an unsuitability action. [00:09:27] Speaker 01: You've already discussed the language of the notice of proposed action, and it sent not one but two letters of rescission sustaining and finalizing the charges in the notice of proposed action. [00:09:40] Speaker 01: DHS may argue that [00:09:42] Speaker 01: in artful language will not transform a non-appealable non-selection into an appealable debarment action. [00:09:50] Speaker 01: But in the other cases where the court has found in artful language, such as Gantt and Rodriguez, neither applicant received a NOSA-proposed action. [00:10:00] Speaker 01: We find that the fact of the NOSA-proposed action is key and shows that Ms. [00:10:04] Speaker 01: Ritchie was indeed debarred. [00:10:08] Speaker 01: In fact, in Rodriguez, the agency said to Ms. [00:10:10] Speaker 01: Ritchie, [00:10:11] Speaker 01: or excuse me, said to Mr. Rodriguez that he had the right to appeal, but then offered him a job. [00:10:18] Speaker 01: The court in that case found that Mr. Rodriguez had not been debarred because of being offered a job. [00:10:23] Speaker 02: Well, let me ask you this. [00:10:24] Speaker 02: Was there a proposal that Ms. [00:10:30] Speaker 02: Ritchie be debarred? [00:10:32] Speaker 02: Because that's the language in Appendix 13. [00:10:37] Speaker 02: It may be serious enough to warrant a proposal. [00:10:41] Speaker 02: Was there a proposal? [00:10:45] Speaker 01: The two letters from Mr. Schwink and Ms. [00:10:47] Speaker 01: Spruill sustain the suggestion of a proposal in the NOPA. [00:10:53] Speaker 01: A suggestion of a proposal? [00:10:57] Speaker 01: They confirm the finding that she could be found unsuitable. [00:11:02] Speaker 01: Nothing suggests that she has the right to apply for a job, nor that she would be chosen for that job. [00:11:08] Speaker 03: So as I understand, you're saying your position is that it is the triggering event of the Notice of Proposed Action that you say makes this different and somehow pulls it out from the OPM regulations? [00:11:24] Speaker 01: The Notice of Proposed Action and the letters after follow the OPM regulations. [00:11:29] Speaker 01: The OPM regulations explicitly say that agencies when they wish to engage in an unsuitability action should send a no superimposed action and then give the applicant a chance to respond, which our client did, and then send a letter sustaining the findings of the no superimposed action. [00:11:48] Speaker 01: This is what occurred. [00:11:49] Speaker 01: So reading the letter, the communication from DHS with the regulations shows us that Ms. [00:11:56] Speaker 01: Ritchie was debarred whether the agency [00:11:58] Speaker 01: wants to call it a debarment or not. [00:12:01] Speaker 03: OK, but she never got any formal notice that she was debarred, right? [00:12:06] Speaker 01: We interpret the notice of proposed action in the letters to be that formal notice. [00:12:11] Speaker 02: OK. [00:12:11] Speaker 02: Let's discuss your pre-oral argument motions. [00:12:15] Speaker 02: You were ordered to file notices of appearance within seven days of January 21st, but failed to do it. [00:12:21] Speaker 02: Why? [00:12:25] Speaker 01: Your Honor, I can address that during rebuttal. [00:12:27] Speaker 01: If that's okay. [00:12:29] Speaker 03: You can go ahead right now. [00:12:31] Speaker 03: We'll let you. [00:12:31] Speaker 03: I'll restore your rebuttal time. [00:12:36] Speaker 01: I don't know the reason for the delay, but I would confer with my co-hensel and check during rebuttal if that is okay with your honor. [00:12:46] Speaker 03: I think the point here is that being allowed to argue as a student, and I give you credit, you don't seem very nervous and you're very articulate, [00:12:58] Speaker 03: One of the most important things is following the rules of the court and knowing the rules of the court. [00:13:03] Speaker 03: And there just seemed to be a lot of rules that were ignored along the way. [00:13:07] Speaker 03: And it wasn't just that last one. [00:13:11] Speaker 01: Your Honor, I apologize and will do my best. [00:13:16] Speaker 01: Moving back to, can I reserve the rest of my time for rebuttal? [00:13:18] Speaker 03: Yes, you can. [00:13:19] Speaker 03: If you weren't a student, the court wouldn't have been as nice to let you enter a late notice. [00:13:36] Speaker 00: May it please the court? [00:13:38] Speaker 03: And I do want to thank the government for not objecting to the student argument and even any delay in it. [00:13:47] Speaker 03: Because I think it's valuable. [00:13:49] Speaker 00: Yes. [00:13:50] Speaker 00: OK. [00:13:54] Speaker 00: So in the Folio case, this court said that MSPB review of suitability is within the constraints of, and that's in quotes, within the constraints of OPM suitability regulations. [00:14:07] Speaker 00: And that's a very succinct but descriptive phrase of the interaction between OPM regulations and MSPB review, because there's no statutory right to challenge a suitability determination. [00:14:22] Speaker 00: And so in 2008, OPM made clear that they believe MSPB was acting outside of the strictures of its rules, and we wrote the rules [00:14:35] Speaker 00: And one of the things it did was it added 5 CFR 731.203b, which we believe is dispositive of this case. [00:14:43] Speaker 00: And that provision provides that a non-selection for a specific position is not a suitability action, even if it's based on suitability reasons. [00:14:53] Speaker 03: Yeah, but here's the problem is that the regulation does tell you how to do it if you want to do a debarment or a suitability determination, one of which is the notice of proposed action. [00:15:04] Speaker 03: and then a finding that the proposed action deems the person unsuitable. [00:15:09] Speaker 03: I mean, would that normally have occurred if the only determination was you're not being hired for this job? [00:15:17] Speaker 03: It does seem like they went through the formalities, even if they have some language that seems to say, well, there's still another piece of formality left. [00:15:28] Speaker 03: But why go through all those formalities if you're just rejecting them for a particular job? [00:15:32] Speaker 00: I agree. [00:15:33] Speaker 00: They went through the suitability process. [00:15:36] Speaker 00: They could have imposed a debarment. [00:15:40] Speaker 00: They gave the correct notice that was required on the regulations. [00:15:43] Speaker 00: So they could have implemented a debarment. [00:15:46] Speaker 00: They chose not to. [00:15:48] Speaker 00: And that was within their discretion to choose not to. [00:15:51] Speaker 00: So Ms. [00:15:53] Speaker 00: Ritchie is not prohibited from reapplying. [00:15:56] Speaker 00: She's not prohibited from applying for any DHS jobs. [00:15:59] Speaker 00: And she's not even prohibited from reapplying for this [00:16:02] Speaker 03: DHS job So I don't think you completely answer my question if if a normal applicant comes in applies for a job and they're deemed not Suitable for that position is there normally a notice of proposed action that goes along with that not necessarily I want to make sure I answer your question, but one thing that must happen is if they are [00:16:26] Speaker 00: If they're selected from the certificate, if they're being considered from the certificate, and this investigation begins, there must be, under the OPM regulations, a determination one way or the other about suitability. [00:16:39] Speaker 00: So that's the difference between a suitability determination and a suitability action. [00:16:43] Speaker 00: There must be a determination. [00:16:45] Speaker 03: You must make a conclusion. [00:16:46] Speaker 03: But the problem is that it's the notice of proposed action that throws me. [00:16:50] Speaker 03: That doesn't normally happen in an employment hiring context, right? [00:16:56] Speaker 00: I think you're right. [00:16:58] Speaker 03: So why did they do it here if they weren't going for debarment? [00:17:01] Speaker 00: Well, it indicates to me that they were considering debarment as a possible outcome. [00:17:07] Speaker 00: Because if they were considering debarment and they had not given her the notice of proposed action, it would have been procedurally defective. [00:17:16] Speaker 00: So by going through the process, they left open the possibility that she could be debarred. [00:17:23] Speaker 00: In the end, after [00:17:24] Speaker 03: Receiving her responses to the notice they chose not to do so well that seems just a little bit odd to me because the letter that actually went out said This would be a basis for debarment. [00:17:38] Speaker 03: I mean how much farther did they have to go? [00:17:40] Speaker 03: I mean nobody who's it going to look at it for the next hiring is Is going to say oh, yeah, we're going to hire this person right? [00:17:50] Speaker 00: Well, I think the notice should have put her on notice that this is something we're considering, debarment. [00:17:57] Speaker 00: So I think that was actually correct. [00:18:00] Speaker 03: But the letter, at the end of the day, did reach a conclusion that this would be a basis for debarment. [00:18:06] Speaker 00: It did. [00:18:06] Speaker 00: Well, it reached a conclusion that she had been determined unsuitable under the regulations. [00:18:11] Speaker 00: But it did not announce any action against her, including it did not debar her. [00:18:16] Speaker 00: There's no prohibition on. [00:18:18] Speaker 00: the petitioner reapplying or applying for any other job that she wants to apply for. [00:18:23] Speaker 03: Are you aware of anybody else who's ever gone through a process like this and then later applied to ICE and was able to get a position? [00:18:35] Speaker 00: I'm not personally aware of that occurring. [00:18:42] Speaker 00: Based on this record, we don't know. [00:18:43] Speaker 00: Petitioner's counsel just stated that. [00:18:46] Speaker 00: She does not apply for any of the jobs. [00:18:48] Speaker 00: So based on this record, we don't know what would happen if she did apply. [00:18:53] Speaker 00: Petitioners correct that these investigations can, they're Privacy Act protected, but they can be considered in the future for positions that are at the same risk level. [00:19:06] Speaker 00: Unless it's a higher risk level position, they could reuse this investigation. [00:19:11] Speaker 00: So. [00:19:12] Speaker 03: Do you agree with [00:19:14] Speaker 03: Your friend on the other side who says that these things are kept on record for three to five years so that while there might not be a formal debarment. [00:19:23] Speaker 03: I mean, in other words, that perhaps the MSPB's original view of constructive debarment made some sense in those circumstances. [00:19:35] Speaker 00: Well, I would say that the petitioner is correct that they don't have to start a new investigation every time there's [00:19:42] Speaker 00: an application from someone. [00:19:44] Speaker 00: They can go back and look at the old investigation. [00:19:47] Speaker 00: However, each time the applicant needs to fill out new forms, a new SF-86, if anything's changed, she can indicate that. [00:19:56] Speaker 00: In this case, petitioner indicates that she has multiple lawsuits pending against her former employer. [00:20:04] Speaker 00: So litigation can change things, and to the extent that [00:20:08] Speaker 00: She prevails in one of those lawsuits. [00:20:10] Speaker 00: That would be something worth noting if she reapplied. [00:20:12] Speaker 00: So in that respect, maybe that might even be part of the agency's thinking on not debarring her, is that things can change, and there are these pending lawsuits out there. [00:20:25] Speaker 03: Do you agree with me that the MSPB is not an agency for purposes of the APA? [00:20:31] Speaker 00: That's correct. [00:20:33] Speaker 00: Just for clarity, there's an exception that when it comes to administrative law judges, when they're reviewed, that's an APA process. [00:20:40] Speaker 00: Right. [00:20:41] Speaker 00: Other than that, the MSPB is not an APA agency. [00:20:45] Speaker 00: So MSPB hearings are not APA hearings. [00:20:49] Speaker 03: OK. [00:20:51] Speaker 00: And if the court has no other questions, we'll rest on it. [00:20:55] Speaker 00: Thank you. [00:20:55] Speaker 00: Thank you. [00:21:06] Speaker 01: Your Honors, first I want to apologize again for our mistake. [00:21:12] Speaker 01: Professor Addison Francois takes full responsibility and says it was because we interpreted the filing of the response to the notice of oral argument plus our motion for leave as sufficient notice to appear. [00:21:25] Speaker 01: Moving back to the APA claim, as we discussed, Your Honors do not need to make this- Let me interject there. [00:21:33] Speaker 02: I knew that, of course. [00:21:36] Speaker 02: I ask that question because you're counsel. [00:21:39] Speaker 02: And as counsel, when for the rest of the 50 years or 60 years you practice, it's on you. [00:21:45] Speaker 03: 60 years. [00:21:48] Speaker 01: It's a long time. [00:21:51] Speaker 01: I want to move back to the discussion of constructive debarment. [00:21:55] Speaker 01: As you mentioned in talking with my colleague on the other side, what matters is whether or not the agency calls the action of debarment, Ms. [00:22:05] Speaker 01: Ritchie, [00:22:05] Speaker 01: does not seem to be able to apply to other jobs. [00:22:09] Speaker 01: This court has considered the issue of constructive agency action before. [00:22:12] Speaker 01: In Upshaw, the court found that the court could infer from the written record that the rescission of the offer of employment could have been a constructive suitability determination. [00:22:22] Speaker 01: As you know, a suitability determination is different today than a suitability action under the revised OPM regulations. [00:22:29] Speaker 01: But Upshaw was applying the old law before the revision, [00:22:34] Speaker 01: And so a finding of inferred suitability determination then could lead us to the conclusion that inferred suitability action could occur today. [00:22:43] Speaker 01: And this idea was furthered in Solis in 2017, where an employee was terminated during his probationary period. [00:22:54] Speaker 01: When he appealed the termination, the court found that he had not raised a constructive debarment argument sufficiently. [00:23:01] Speaker 01: But had he raised it, it could have been available to him. [00:23:04] Speaker 01: The court had a choice in the Solis case of completely negating the existence of constructive suitability, as the agency would have us do today. [00:23:13] Speaker 01: But instead, it just found that Mr. Solis had not raised it sufficiently. [00:23:17] Speaker 01: The real question here is whether or not an agency may limit the board's and the court's jurisdiction. [00:23:25] Speaker 01: Agencies can make their own employment decisions. [00:23:27] Speaker 01: But they may not decide to mask one sort of employment decision, which is appealable as one that is not appealable, in order to avoid the review that the applicants are entitled to under the law. [00:23:41] Speaker 01: Thank you. [00:23:42] Speaker 02: Thank you. [00:23:42] Speaker 02: I have a rhetorical question, which is, why would you ever quit practicing law when you can have this much fun? [00:23:51] Speaker 03: All right, the cases will be submitted. [00:23:52] Speaker 03: This court is adjourned. [00:23:54] Speaker 03: All right.