Solis v. Merit Systems Protection Board
703 F. App'x 964
| Fed. Cir. | 2017Background
- Fernando Solis was tentatively selected for CBP law-enforcement positions (Border Patrol Agent and Customs and Border Protection Officer) but CBP withdrew both offers after he failed a polygraph regarding past drug use.
- CBP’s Personnel Security Division (PSD) sent an internal December 3, 2012 memorandum referencing an “Unfavorable Suitability Determination” and noting criminal/dishonest conduct, but also instructing HR to process an “Objection to an Eligible.”
- HR issued separate withdrawal letters for each position and informed Solis he lacked Merit Systems Protection Board (MSPB) appeal rights.
- Solis appealed to the MSPB arguing CBP took an appealable “suitability action” (which could bar all CBP employment) rather than an unreviewable “objection to an eligible” tied to a specific vacancy.
- After a jurisdictional hearing, the Administrative Judge (AJ) and then the Board credited CBP witnesses who testified PSD did not actually take a suitability action; rather HR processed objections to eligibles under 5 C.F.R. § 332.406.
- The Board concluded it lacked jurisdiction to review the non-selections and the Federal Circuit affirmed, holding substantial evidence supports that CBP processed objections to eligibles, not an appealable suitability action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CBP’s withdrawal of tentative offers was an appealable “suitability action” | Solis: PSD’s memorandum and references to “unsuitable” show CBP made a suitability determination that can bar all CBP employment | CBP: Actions were objections to eligibles processed by HR under §332.406 (nonappealable); PSD transmitted polygraph results but did not take a suitability action | Held: Substantial evidence supports that CBP processed objections to eligibles, so the Board lacked jurisdiction to review |
| Whether documentary references to “suitability” control over witness testimony | Solis: The memorandum’s language requires finding a suitability action despite template explanations | CBP: The memo was a template; testimony showed no suitability action or debarment; HR handled withdrawals | Held: Ambiguous documents resolved by AJ credibility findings in favor of CBP; courts will not reweigh credibility |
| Whether using the same polygraph result across applications constitutes a constructive suitability action | Solis: (argued briefly) the combined effect of two withdrawals effectively barred him | CBP: No suitability action; Solis could still apply for non-law-enforcement positions; argument waived | Held: Argument waived for inadequate development; no record finding of constructive suitability action |
| Adequacy of MSPB factfinding and jurisdictional burden | Solis: Board failed to identify all material facts and improperly resolved credibility | CBP: Board and AJ held a jurisdictional hearing, credited witnesses, and applied regs | Held: Board’s factual findings are supported by substantial evidence and AJ credibility determinations are virtually unreviewable |
Key Cases Cited
- Hicks v. Merit Sys. Prot. Bd., 819 F.3d 1318 (Fed. Cir.) (standard of appellate review of Board decisions)
- Wrocklage v. Dep’t of Homeland Sec., 769 F.3d 1363 (Fed. Cir.) (substantial-evidence standard)
- Stoyanov v. Dep’t of Navy, 474 F.3d 1377 (Fed. Cir.) (plaintiff bears burden to establish Board jurisdiction)
- Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313 (Fed. Cir.) (review limited by substantial evidence on factual findings)
- Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885 (Fed. Cir.) (Board jurisdiction limited to actions designated appealable)
- Hambsch v. Dep’t of Treasury, 796 F.2d 430 (Fed. Cir.) (AJ credibility determinations are virtually unreviewable)
- Oracle Am., Inc. v. Google Inc., 750 F.3d 1339 (Fed. Cir.) (undeveloped arguments are waived)