       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               KENNETH P. BEYERS,
                    Petitioner,

                           v.

             DEPARTMENT OF STATE,
                     Respondent.
               ______________________

                      2012-3099
                ______________________

    Appeal from the Merit Systems Protection Board in
No. DC3330110538-I-1.
                ______________________

              Decided: February 12, 2013
               ______________________

   KENNETH P. BEYERS, of Arlington, Virginia, pro se.

    AUSTIN M. FULK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Principal Deputy Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and STEVEN J. GILLINGHAM, Assistant Director.
                 ______________________
2                                  KENNETH BEYERS   v. STATE
     Before DYK, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
     Kenneth P. Beyers, a preference-eligible veteran, was
denied employment for a position in the Foreign Service of
the U.S. Department of State (the “agency”) based on a
failed suitability determination. The Merit Systems
Protection Board (“the Board”) dismissed his claim under
the Veterans Employment Opportunities Act of 1998
(VEOA) on the ground that the petitioner’s claim was
barred by law of the case principles. For the following
reasons, we vacate and remand.
                       BACKGROUND
     Beyers applied for a position in the Foreign Service as
a Diplomatic Security Engineering Officer. Based on an
initial review of his application, Beyers received a condi-
tional offer of employment in a letter dated August 18,
2009. This letter informed Beyers that the offer was
“contingent upon [his] satisfactory completion of . . .
security, medical, and suitability clearance processes.”
J.A. 20. Though Beyers successfully completed the securi-
ty and medical clearances, he failed the suitability deter-
mination, and his candidacy was “terminated by decision
of the [Foreign Service’s] Final Review Panel” on Novem-
ber 30, 2010. J.A. 25. The panel found that Beyers was
unsuitable for employment based on, inter alia, prior
misconduct in employment and a lack of financial respon-
sibility. An appeals committee upheld the Final Review
Panel’s decision on March 9, 2011. Because Beyers was
deemed unsuitable, he was never placed on a rank-
ordered list of eligible candidates or given additional
points based on his status as a preference-eligible veter-
an.
    Beyers appealed to the Board, claiming both that (1)
the agency’s suitability determination was in error (the
“suitability appeal”) and (2) the agency violated the VEOA
 KENNETH BEYERS   v. STATE                                3
in processing his application (the “VEOA appeal”). The
administrative judge (“AJ”) to whom the case was as-
signed issued an order on April 22, 2011, separating the
claims into two distinct appeals with separate docket
numbers. This order directed Beyers to file documentation
proving that the Board had jurisdiction of his VEOA
appeal, and directed the agency to file a response on the
VEOA issue by May 3, 2011. The order noted that “[i]f
[Beyers] shows that the Board has jurisdiction over the
[VEOA] appeal, [it] will adjudicate the appeal after
providing a hearing . . . for the further development of the
written record on the claim.” J.A. 51.
     Shortly after this order, on April 25, 2011, the AJ
issued an initial decision in the suitability appeal. The AJ
noted that she lacked jurisdiction over the suitability
appeal for two reasons. First, to the extent that regula-
tions allow “suitability actions” to be appealed to the
Board, a “non-selection” based on a suitability determina-
tion is not appealable. See 5 C.F.R. § 731.501(a) (noting
that “suitability action[s]” may be appealed to the Board);
5 C.F.R. § 731.203(b) (“A non-selection . . . is not a suita-
bility action . . . .”). Second, even if the non-selection of
Beyers based on the suitability determination had been a
“suitability action,” such actions are only appealable to
the Board when they relate to suitability determinations
made by the Office of Personnel Management or an agen-
cy acting under delegated authority under Part 731 of the
regulations, which was not the case here. See 5 C.F.R. §
731.501(a). This decision on the suitability appeal became
final on May 30, 2011. Beyers concedes that jurisdiction
was not present in the suitability appeal.
    On April 27, 2011, Beyers responded to the AJ’s order
to explain why the Board nonetheless had jurisdiction
over the separate VEOA appeal. Beyers argued that the
Board had jurisdiction over the VEOA appeal under 5
U.S.C. § 3941(c) and 22 C.F.R. § 11.20(a)(4). The govern-
ment in turn challenged the Board’s jurisdiction over the
4                                  KENNETH BEYERS   v. STATE
VEOA claim and argued that, even if the Board had
jurisdiction, Beyers failed to state a claim under the
VEOA.
     On May 20, 2011, the AJ issued her initial decision on
the VEOA appeal. She held that Beyers met the jurisdic-
tional requirements of a VEOA claim. But she also held
that Beyers failed to state a VEOA claim, noting that
“neither the VEOA, nor any other statute or regulations
cited by [Beyers] in his numerous pleadings, prohibit an
agency from determining that a preference[-]eligible
candidate is not qualified for a position because of reasons
not related to veterans status.” J.A. 58. The full Board
affirmed on January 30, 2012. The Board determined
that, because it lacked jurisdiction over the suitability
appeal, review of the merits of the suitability determina-
tion in the VEOA appeal was barred by the law of the
case, and that, accordingly, the appeal would be “dis-
missed for failure to state a claim for which relief may be
granted.” J.A. 3. Beyers appeals the Board’s final decision
on the VEOA appeal. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
                       DISCUSSION
    When reviewing a decision of the Board, “[w]e may
only set aside agency actions, findings, or conclusions if
we find them to be ‘(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 . . . .’” Whiteman v. Dep’t of Transp.,
688 F.3d 1336, 1340 (Fed. Cir. 2012) (quoting 5 U.S.C.
§ 7703(c)).
    Here, the Board declined to consider whether the
agency suitability determination constituted a violation of
VEOA, concluding that it was foreclosed from doing so
based on law of the case principles. This ruling was
incorrect. Any decision in the suitability appeal could not
 KENNETH BEYERS   v. STATE                               5
be law of the case with respect to the VEOA appeal, as
those cases are separate appeals—the relevant doctrine
here is collateral estoppel, which can be applied in differ-
ent cases that address identical issues. Morgan v. Dep’t of
Energy, 424 F.3d 1271, 1274-75 (Fed. Cir. 2005). But the
issues in the two appeals were not identical, and thus
collateral estoppel does not apply here. The suitability
appeal determined only that the Board lacked jurisdiction
over the merits of the suitability determination; it did not
make any holding with respect to the merits of the appeal.
Thus, insofar as the merits of the suitability determina-
tion may serve as a factual predicate for a valid VEOA
claim, the Board was not foreclosed from considering the
merits of the suitability determination.
    The government appears to argue that, even if the
Board incorrectly relied on law of the case, the Board
should be affirmed because petitioner’s suitability claims
do not state a claim under the VEOA. We agree that the
VEOA does not generally accord any special treatment to
veterans who are deemed unsuitable to hold a particular
position. See Lazaro v. Dep’t of Veterans Affairs, 666 F.3d
1316, 1319 (Fed. Cir. 2012) (“[T]he VEOA does not enable
veterans to be considered for positions for which they are
not qualified.”). We also note that, as a general matter,
the Board does not have jurisdiction to review the merits
of suitability determinations that result in an employee’s
non-selection. 5 C.F.R. § 731.501(a); 5 C.F.R. § 731.203(b).
    Nonetheless, Beyers can establish a VEOA claim if he
successfully “alleges that [the] agency has violated [his]
rights under any statute or regulation relating to veter-
ans’ preference.” 5 U.S.C. § 3330a(a)(1)(A). We have
recently held in Lazaro that, in the context of a VEOA
claim, “the Board has jurisdiction to determine whether
[an agency] afforded [the petitioner] the right to compete
for [a position] and properly determined, in accordance
with [relevant veterans preference statutes or regula-
tions], that [the petitioner] was not qualified for the
6                                KENNETH BEYERS   v. STATE
position.” 666 F.3d at 1321. We think the question as to
whether the Board may (or must) similarly address
suitability issues in the context of the petitioner’s VEOA
claim is an issue best addressed in the first instance by
the Board.
            VACATED AND REMANDED
