       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 FERNANDO SOLIS,
                     Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                 Respondent

    DEPARTMENT OF HOMELAND SECURITY,
                 Intervenor
           ______________________

                      2016-1726
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DA-3443-14-0065-B-1.
                ______________________

                Decided: July 12, 2017
                ______________________

    DARRIN WAYNE GIBBONS, Gibbons Law Firm PLC,
Richmond, VA, argued for petitioner.

    JEFFREY GAUGER, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, argued for
respondent. Also represented by BRYAN G. POLISUK,
KATHERINE M. SMITH.
2                                             SOLIS   v. MSPB



    MARIANA TERESA ACEVEDO, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for intervenor. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., ALLISON KIDD-MILLER.
                ______________________

    Before LOURIE, REYNA, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
     Fernando Solis appeals the Merit Systems Protection
Board’s (Board) conclusion that it lacked jurisdiction to
review U.S. Customs and Border Protection’s (CBP) non-
selection of Mr. Solis for positions as a Customs and
Border Protection Officer (CBPO) and a Border Patrol
Agent (BPA). Solis v. Dep’t of Homeland Sec., No. DA-
3443-14-0065-B-1, 2016 WL 308675 (M.S.P.B. Jan. 21,
2016). Although CBP extended tentative offers for these
law enforcement positions to Mr. Solis, it rescinded these
tentative offers when he failed a polygraph examination.
J.A. 2. Generally, an unsuccessful candidate for a Federal
civil service position has no right to appeal to the Board
his non-selection. However, where a hiring agency under-
takes a “suitability action” that could broadly preclude
hiring the candidate for any position at the agency, the
candidate may appeal that action to the Board. Mr. Solis
argued below that he was subjected to an appealable
“suitability action,” as defined in 5 C.F.R. § 731.203. CBP
disagreed, contending that its non-selection of Mr. Solis
for these two positions was simply an “objection to an
eligible” under 5 C.F.R. § 332.406, which is not appeala-
ble.
    After conducting a jurisdictional hearing that includ-
ed testimony from Mr. Solis and several CBP officials, the
Board concluded Mr. Solis’s non-selection did not amount
to a suitability action. Because substantial evidence
supports the Board’s fact finding, we agree with the Board
SOLIS   v. MSPB                                            3



that it lacked jurisdiction to review CBP’s non-selection of
Mr. Solis for the two positions at issue, and therefore
affirm the Board’s denial of Mr. Solis’s petition for review.
                       BACKGROUND
     In July 2008, Mr. Solis was appointed by CBP to a
BPA position. In June 2010, however, CBP terminated
his appointment before the end of his two-year probation-
ary period, after he was arrested for driving while intoxi-
cated. Mr. Solis reapplied for essentially the same BPA
position the following month in July 2010, and CBP
tentatively selected Mr. Solis for that position in March
2011. Mr. Solis underwent additional pre-employment
screening measures, including a polygraph examination
in August 2012, but he failed the polygraph examination
based on his answers to questions related to past drug
use. CBP then withdrew his tentative selection due to
“criminal or dishonest conduct” based on his failed poly-
graph examination. Meanwhile, CBP had also tentatively
selected Mr. Solis in 2012 for a CBPO position, but CBP
also withdrew that tentative selection in light of the same
failed polygraph examination.
     Mr. Solis appealed his non-selections for those two po-
sitions to the Board, arguing that CBP subjected him to a
Board-reviewable “suitability action.” His case under-
went two rounds of review before an Administrative
Judge (AJ) and the Board. In the first round before the
AJ, the AJ dismissed Mr. Solis’s appeal for lack of juris-
diction, but the Board remanded to the AJ for a jurisdic-
tional hearing to resolve factual ambiguities in the
documentary evidence concerning CBP’s actions in with-
drawing the tentative selections.
    In the second round before the AJ, the AJ heard tes-
timony from Mr. Solis and four CBP witnesses. Mr. Solis
testified that he was previously employed as a BPA, but
was removed in 2010. Soon after his removal, he reap-
plied with CBP for the BPA and CBPO positions. Mr.
4                                              SOLIS   v. MSPB



Solis further testified that his tentative selections for the
BPA and CBPO positions were withdrawn, however, after
Mr. Solis failed the August 2012 polygraph examination.
    The four CBP witnesses included two witnesses from
the Applicant Operations Branch for the Personnel Secu-
rity Division for Internal Affairs (PSD), Brian Staples and
Terry Brown, and two non-PSD witnesses, John
Schwartz, a former Director of the Credibility Assessment
Division, and Wendy Rohleder, a Supervisory Human
Resources Specialist. These witnesses testified that CBP
processed each of Mr. Solis’s applications as a “nonselec-
tion based on an objection to an eligible” pursuant to 5
C.F.R. § 332.406 (“Objections to eligibles”).
    Mr. Staples and Mr. Brown testified that PSD issued
a December 3, 2012 internal memorandum to the Human
Resources office relating to Mr. Solis’s pending applica-
tions for employment with CBP. Neither Mr. Staples nor
Mr. Brown could explain why the memorandum used the
term “unfavorable suitability determination” or why it
referenced “all” CBP employment. They each explained
that the memorandum was based on a “template” used at
the time to notify human resources of a failed polygraph.
Mr. Staples explained that his office—the Personnel
Security Division—was responsible for taking suitability
actions but it had not taken one against Mr. Solis, as that
would require a different procedure, which could involve a
Notice of Proposed Action and an opportunity to mitigate
any serious derogatory information. He explained that
the Credibility Assessment Division administered poly-
graphs, and PSD transmitted the results of a failed poly-
graph to human resources personnel.
    Mr. Schwartz testified that the Anti-Border Corrup-
tion Act of 2010, 6 U.S.C. § 221, made polygraph exami-
nations mandatory for all law enforcement positions, and
CBP uses the same polygraph for three years rather than
administer a new one each time an applicant applies for
SOLIS   v. MSPB                                          5



another position. Ms. Rohleder testified that when CBP’s
Human Resources office received PSD’s December 3, 2012
memorandum, it processed each of Mr. Solis’s applications
as an objection to an eligible and sent to Mr. Solis a
separate withdrawal letter for each position. She con-
firmed that PSD, not the Human Resources office, was
responsible for taking suitability actions.
    The AJ found that CBP’s withdrawals of the two ten-
tative job offers were not suitability actions within the
Board’s jurisdiction to review. The AJ instead concluded
that the CBP’s actions were each better understood as an
“objection to an eligible,” which per the regulations, are
not actions that an applicant may appeal to the Board.
     The Board recognized that the December 3, 2012 PSD
memorandum has a subject line of “Unfavorable Suitabil-
ity Determination,” in reference to “All CBP Federal
Employment.” But PSD’s memorandum also specifically
stated the information regarding “[c]riminal or dishonest
conduct” “is provided for [Human Resources’] action in
processing an Objection to an Eligible.” The memoran-
dum further underscored that Mr. Solis “is not entitled to
MSPB appeal rights.” The Board found that the “text of
that memorandum suggest[ed] that a suitability determi-
nation had not yet been made, but could be, if necessary.”
J.A. 4. It found that the memorandum was “internally
inconsistent,” but that “such inartful references to suita-
bility do not transform [Mr. Solis’s] nonselection into an
appealable suitability action.” J.A. 4–5. The Board
credited the testimony of the CBP witnesses, and ulti-
mately agreed with the AJ that CBP did not take a suita-
bility action, but it instead processed each of Mr. Solis’s
applications as an objection to an eligible. 1



   1  Because the Board found that Mr. Solis did not
meet his jurisdictional burden, it did not address his
6                                              SOLIS   v. MSPB



     In Mr. Solis’s appeal, he accepts that the Board lacks
jurisdiction to review a non-selection of an applicant for a
specific position, i.e., an objection to an eligible, but he
contends that CBP found him unsuitable for all federal
employment under 5 C.F.R. § 731.202, and, in his view,
CBP did not merely choose to not select Mr. Solis for two
positions. He also argues that the Board lacked substan-
tial evidence to support its findings because the AJ’s
initial decision did not identify all material issues of fact
and law and resolve issues of credibility.
    We have jurisdiction under 28 U.S.C. § 1295(a)(9).
                        DISCUSSION
                             I.
    “Our review of a decision of the [B]oard is circum-
scribed by statute.” Hicks v. Merit Sys. Prot. Bd., 819
F.3d 1318, 1319 (Fed. Cir. 2016). “We must affirm the
Board’s decision unless it is (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” Wrocklage v.
Dep’t of Homeland Sec., 769 F.3d 1363, 1366 (Fed. Cir.
2014).
    “Whether the Board has jurisdiction to adjudicate an
appeal is a question of law that we review de novo.”
Stoyanov v. Dep’t of Navy, 474 F.3d 1377, 1379 (Fed. Cir.
2007). The petitioner “has the burden of establishing the
Board’s jurisdiction by a preponderance of the evidence.”
Id. “[W]e are bound by the AJ’s factual determinations
unless those findings are not supported by substantial



arguments on whether he should have been subjected to a
pre-employment background investigation or polygraph
examination given his prior federal employment.
SOLIS   v. MSPB                                            7



evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as
adequate.” Wrocklage, 769 F.3d at 1366.
                             II.
    The Board found that Mr. Solis’s non-selections for
the two CBP positions were not appealable “suitability
actions” under 5 C.F.R. § 731.203. It instead found that
Mr. Solis’s non-selection for each position was based on an
“objection to an eligible” under 5 C.F.R. § 332.406, which
is not appealable to the Board. Mr. Solis contends that
his case should be considered a “suitability action” rather
than an “objection to an eligible.”
     As an initial matter, “[t]he Board’s jurisdiction is not
plenary; rather, it is limited to actions designated as
appealable to the Board ‘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)). “An agency’s
failure to select an applicant for a vacant position is
generally not appealable to the Board.” Id. “Thus, claims
of unlawful conduct in the selection process ordinarily
must be brought before other forums.” Id. Mr. Solis
contends that the general rule that the Board lacks juris-
diction over a claim of non-selection does not apply,
however, because under 5 C.F.R. § 731.501(a), the Office
of Personnel Management has granted jurisdiction to the
Board to review cases in which an agency takes a “suita-
bility action” against an applicant. 5 C.F.R. § 731.501(a).
    A “suitability action” is an “[a]ction based on suitabil-
ity determinations,” 5 C.F.R. § 1201.3, taken by an au-
thorized agency against an individual, which can include
removal, debarment, cancellation of eligibility, or cancel-
lation of reinstatement eligibility, § 731.203. An agency
can take a “suitability action” against an individual if it
finds that the individual is “unsuitable” for employment
based on the “[c]riteria for making suitability determina-
8                                                SOLIS   v. MSPB



tions,” set forth in § 731.202(b), which include “[c]riminal
or dishonest conduct.” § 731.203(c). A “suitability deter-
mination” “relate[s] to an individual’s character or con-
duct that may have an impact on the integrity or
efficiency of the service.” § 1201.3. When an agency
“takes a suitability action against a person, that person
may appeal the action to the [Board].” § 731.501(a).
    The “suitability action” regulation itself—5 C.F.R.
§ 731.203—draws a clear distinction, however, between a
“suitability action” and an “objection to an eligible.”
Specifically, § 731.203(b) provides that “[a] non-selection,
or cancellation of eligibility for a specific position based on
an objection to an eligible . . . under 5 C.F.R. [§] 332.406 is
not a suitability action even if it is based on reasons set
forth in § 731.202.”
     The regulation entitled “Objection to eligibles”—5
C.F.R. § 332.406—provides that “[a]n agency is not re-
quired to consider an individual for a position” and may
make an “objection” against an individual for that posi-
tion if that objection “is based on a proper and adequate
reason,” § 332.406(b). One proper reason for an agency’s
objection to an eligible is the “[c]riteria for making suita-
bility determinations” under § 731.202(b). § 332.406(b);
see also § 731.203(b) (explaining that an objection to an
eligible may be “based on reasons set forth in § 731.202”).
Finally, an agency’s “objection to an eligible” is “not
appeal[able] to the [Board],” “irrespective of the reason for
the decision.” § 332.406(g).
    These regulations thus create a somewhat confusing
arrangement in which the same “suitability determina-
tion” criteria can be a sufficient basis for a hiring agency
to render either a “suitability action” (which can broadly
bar an applicant from applying to any and all positions at
the agency) or an “objection to an eligible” (which applies
to an applicant for solely the specific, applied-for position).
Compare § 731.203(a), with § 332.406(b). For an appli-
SOLIS   v. MSPB                                           9



cant who wishes to appeal his non-selection, which of
these two actions the hiring agency takes matters because
a “suitability action” is appealable to the Board but an
“objection to an eligible” is not. Compounding the confu-
sion is the need to appreciate the subtle but important
distinction between the similarly worded “suitability
determination” and “suitability action.” As described
above, the regulations provide that the criteria for making
a suitability determination can be a basis for rendering a
suitability action as well as used for making an objection
to an eligible.
    Despite the potential in the regulations for blurring
the distinction between suitability actions and objections
to an eligible, Mr. Solis does not challenge the legality of
these regulations, nor does he argue that an “objection to
an eligible” should be appealable. E.g., Appellant Br. 4;
see also Oral Arg. 43:12–43:50. Mr. Solis instead limits
his argument to challenging the Board’s factual findings
that CBP’s non-selection of Mr. Solis for the two positions
at issue here were objections to an eligible instead of
suitability actions. Appellant Br. 4. We thus confine our
focus to whether CBP permissibly applied the regulations
to his case.
                            III.
    The Board agreed with Mr. Solis that the documents
in the record “repeatedly discuss [his] failed polygraph
examination as resulting in a determination that he was
‘unsuitable.’” J.A. 4. The Board also pointed out, howev-
er, that the same documents state that Mr. Solis is not
entitled to MSPB appeal rights and refer to rescinding his
tentative offers based on “[o]bjections to eligibles,” which
are a reference to 5 C.F.R. § 332.406. J.A. 4, 21, 126–27.
The Board recognized that the December 3, 2012 memo-
randum was “internally inconsistent,” but such “inartful
references to suitability do not transform [his] nonselec-
tion into an appealable suitability action.” J.A. 4–5.
10                                               SOLIS   v. MSPB



    We agree with the Board that the references in the
record to a suitability determination do not require a
finding that CBP necessarily took a Board-reviewable
suitability action because the regulations expressly pro-
vide that the criteria for making suitability determina-
tions under § 731.202 can be the basis for a hiring agency
to make either a suitability action or an unreviewable
objection to an eligible. The documents in evidence are
ambiguous because they could have referred to a suitabil-
ity action or an objection to an eligible.
     PSD’s December 3, 2012 memorandum, for example,
states that “[a]n unfavorable suitability determination
has been rendered for [Mr. Solis] based on the following
suitability factor(s): Criminal or dishonest conduct” and
has a subject line of “Unfavorable Suitability Determina-
tion.” J.A. 21. These references to an unfavorable suita-
bility determination are consistent with CBP taking a
“suitability action,” but they are also consistent with CBP
making an “objection to an eligible” based on the criteria
for making suitability determinations. Although the
memorandum refers to “All CBP Federal Employment,” it
does not refer to a “suitability action.” Furthermore, the
memorandum also states that “this information is provid-
ed for your action in processing an Objection to an Eligi-
ble,” and it states in all capital letters that “[Mr. Solis] is
not entitled to MSPB appeal rights.” J.A. 21. The latter
references support a finding that CBP processed each of
Mr. Solis’s applications as an “objection to an eligible”
based on the criteria for making suitability determina-
tions rather than taking a “suitability action” against Mr.
Solis. Given this ambiguity, the Board properly remand-
ed to the AJ for a jurisdictional hearing to clarify the
meaning of the documents. J.A. 2.
    At the jurisdictional hearing, the CBP witnesses testi-
fied that CBP did not take a suitability action against Mr.
Solis and thus did not preclude Mr. Solis from seeking
any employment with the agency. J.A. 4, 782. The AJ
SOLIS   v. MSPB                                            11



explained that “[w]hile the agency’s December 3, 2012
letter referred to eligibility for all CBP positions and cited
a suitability criteria as the basis, [Ms.] Rohleder’s undis-
puted testimony establishes that the letter was actually
processed as an objection to an eligible under § 332.406
and the agency’s actions were limited to withdrawing the
tentative offers.” J.A. 782. The AJ found that the totality
of the record established that CBP’s actions did not rise to
a suitability action, and CBP did not cancel Mr. Solis’s
eligibility or debar him from employment. Id.
    The Board agreed with the AJ, finding that CBP’s
documents “failed to carefully differentiate between
suitability and nonselection when discussing the results
of [Mr. Solis’s] polygraph and the action that followed.”
J.A. 5. Nevertheless, it found that the “officials responsi-
ble for rescinding [his] tentative job offers and processing
suitability actions, generally, provided undisputed testi-
mony that [CBP] did not make a suitability determina-
tion.” J.A. 5.
     We agree that the AJ reasonably resolved witness
credibility to find that CBP processed each of Mr. Solis’s
applications as an “objection to an eligible” rather than
taking a “suitability action” against him. An AJ’s credi-
bility determinations are virtually unreviewable. Hamb-
sch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986)
(“To the extent that the petitioner’s claim is based upon a
challenge to the presiding official’s credibility determina-
tions, we reiterate our previous holdings that these de-
terminations are virtually unreviewable.”). In a situation
like this, where there are conflicting statements in the
record that do not make only one finding on a point rea-
sonable and the AJ finds witness testimony to be credible
and persuasive, it is not our role under the substantial
evidence standard to re-weigh the evidence and testimony
anew.
12                                             SOLIS   v. MSPB



    Mr. Solis argues that the testimony of the PSD wit-
nesses (Mr. Staples and Mr. Brown) contradicted the
documentary record. These witnesses testified that the
December 3, 2012 memorandum was a “template” and not
a “suitability determination,” which Mr. Solis contends
conflicts with Mr. Brown’s sworn declaration that Mr.
Solis “was found to have a significant response to the
suitability questions on the polygraph exam that resulted
in a failed examination and was found unsuitable for
employment per [5 C.F.R. § 731.202(b)(2)] ‘Criminal or
Dishonest Conduct.’” J.A. 72, 713. But this testimony
does not show that CBP took a “suitability action” because
§ 332.406(b) expressly permits CBP to make an “objection
to an eligible” by using the § 731.202 criteria for making a
“suitability determination.” Mr. Brown’s reference to
§ 731.202 is thus consistent with CBP’s position that it
made an “objection to an eligible” under § 332.406(b), and
Mr. Solis does not challenge the legality of these regula-
tions. Appellant Br. 4.
    Mr. Solis also argues that Mr. Staples admitted that
the December 3, 2012 memorandum applied to “whatever
position [he] applied for,” J.A. 721, and Mr. Brown admit-
ted that the memorandum applied to all CBP employment
by agreeing that it was “an actual unsuitable memo from
an actual unfavorable determination,” J.A. 730. Mr.
Brown, however, clarified that this memorandum applied
only to positions for law enforcement officers, for which
“passing the polygraph is an actual condition of employ-
ment.” J.A. 730. The Anti-Border Corruption Act of 2010
requires that “all applicants for law enforcement positions
with [CBP] . . . receive polygraph examinations before
being hired for such a position.” 6 U.S.C. § 221(a). Alt-
hough Mr. Brown could not explain why the December 3,
2012 memorandum was written as if it applied to “all”
CBP positions rather than just law enforcement officer
positions, he did clarify that the memorandum was a
template. The AJ found that CBP did not bar Mr. Solis
SOLIS   v. MSPB                                          13



from any and all employment, including non-law enforce-
ment positions for which a polygraph may not be neces-
sary. The AJ also found that although the use of the
same polygraph examination results for three years may
have effectively prevented Mr. Solis from being appointed
to a law enforcement position, CBP did not cancel his
eligibility or debar him because he in fact could and did
reapply to subsequent BPA positions. The AJ also credit-
ed Ms. Rohleder’s undisputed testimony that she pro-
cessed each of his applications as an objection to an
eligible under § 332.406.
     Mr. Solis responds that the testimony of the non-PSD
witnesses (Mr. Schwartz and Ms. Rohleder) was irrele-
vant because PSD has sole responsibility for taking
suitability actions. J.A. 411. He argues that he received
a pre-employment investigation by PSD, but the AJ
allowed non-PSD witnesses to corroborate the testimony
of PSD witnesses. We disagree that the testimony of the
non-PSD witnesses was irrelevant. Mr. Schwartz’s testi-
mony provided context for why polygraphs were necessary
for applicants to law enforcement officer positions. He
also testified regarding Mr. Solis’s actual polygraph. Ms.
Rohleder testified that her office received the December 3,
2012 memorandum, it processed each of Mr. Solis’s appli-
cations as an objection to an eligible under § 332.406, and
it sent a separate withdrawal letter to Mr. Solis for each
of the positions to which he had applied. This testimony
was relevant to show how CBP processed Mr. Solis’s
actual applications for the two positions at issue.
    We find that even though the documentary evidence
and witness testimony could be ambiguous, substantial
evidence supports the Board’s finding that CBP processed
each of Mr. Solis’s applications as an objection to an
eligible under § 332.406. The Board properly determined
that it lacked jurisdiction to review CBP’s non-selection of
Mr. Solis based on an objection to an eligible for the two
positions at issue.
14                                             SOLIS   v. MSPB



                            IV.
    We also note that Mr. Solis references—but only in a
very brief passing reference in the conclusion sections of
his opening and reply briefs—that CBP took a “construc-
tive” suitability action against him. Appellant Br. 21;
Reply Br. 10. CBP responds that Mr. Solis waived any
“constructive suitability” argument because he raised the
argument only in passing and provided no supporting
argument. Intervenor Br. 44.
    We agree that Mr. Solis waived any argument relat-
ing to a “constructive” suitability action. The Board did
not mention a constructive suitability action, J.A. 1–6,
and Mr. Solis only mentions it in the briefest, most con-
clusory way to us with no development or support. Oracle
Am., Inc. v. Google Inc., 750 F.3d 1339, 1377 n.17 (Fed.
Cir. 2014) (“We note, moreover, that, because Google only
mentions this point in passing, with no development of an
argument in support of it, under our case law, it has not
been properly raised.”). Mr. Solis does not explain what
he means by a constructive suitability action. To the
extent that Mr. Solis is arguing that his non-selections
were a suitability action because CBP used suitability
criteria to non-select him, the regulations authorize the
use of suitability criteria as a basis for an agency’s objec-
tion to an eligible, as we explain above, and he does not
challenge these regulations. Alternatively, to the extent
that Mr. Solis is suggesting that his two non-selections
based on the same polygraph examination collectively
amount to a pattern of agency action designed to block
him from any and all employment at CBP, we see no
evidence of him making this argument to the Board.
Therefore, Mr. Solis waived this argument.
                       CONCLUSION
    We affirm the Board’s finding that it lacked jurisdic-
tion to review CBP’s non-selection of Mr. Solis for two
SOLIS   v. MSPB                                      15



positions based on an objection to an eligible under the
applicable regulations.
                     AFFIRMED
                         COSTS
   No costs.
