Miller v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

JIMMIE L. MILLER,
Petitioner,

v.

DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________

2014-3061
______________________

Petition for review of the Merit Systems Protection
Board in No. AT-0752-10-0998-C-1.
______________________

Decided: June 5, 2014
______________________

JIMMIE L. MILLER, of Memphis, Tennessee, pro se.

ELIZABETH ANNE SPECK, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were STUART F. DELERY, Assistant Attor-
ney General, ROBERT E. KIRSCHMAN, JR., Director, and
CLAUDIA BURKE, Assistant Director.
______________________
2 MILLER v. DVA

Before PROST, ∗ Chief Judge, BRYSON and DYK, Circuit
Judges.
PER CURIAM.
Jimmie L. Miller appeals from a final decision of the
Merit Systems Protection Board (“Board”) denying his
petition for review of the Board’s May 30, 2013 initial
decision. Miller v. Dep’t of Veterans Affairs, No. AT-0752-
10-0908-C-1 (M.S.P.B. Nov. 25, 2013) (“Final Order”). For
the reasons that follow, we affirm.
BACKGROUND
Mr. Miller previously held the position of Housekeep-
er Aid at the Veterans Administration (“VA”) Medical
Center in Memphis, Tennessee. On July 29, 2010, Mr.
Miller appealed the VA’s decision to remove him effective
February 20, 2009. During the course of that litigation,
the parties reached a settlement agreement. See J.A. 40-
42. The agreement provided that Mr. Miller’s removal
would be held in abeyance for one year and Mr. Miller
would be reinstated to his previous position, pay grade
and step. J.A. 40. Additionally, it said:
Mr. Miller will be returned to work on the 4pm to
12am (evening) workshift until he completes his
spring semester in school on or about May 2011.
If Mr. Miller satisfactorily performs all of his du-
ties during this period ending May 2011, the
Agency will consider placement on the evening
shift.
J.A. 41. After the settlement agreement went into effect,
the VA kept Mr. Miller on the evening shift for two years,

∗
Sharon Prost assumed the position of Chief Judge
on May 31, 2014.
MILLER v. DVA 3

but then announced its intention to move him to the day
shift in July 2013. See J.A. 25.
On March 20, 2013, Mr. Miller filed a petition for en-
forcement of the settlement agreement, alleging that the
VA breached the agreement by taking him off the night
shift and by not considering him for permanent placement
on the night shift. See J.A. 36-37. He alleged that he was
harmed by these actions because he needs to remain on
the night shift in order to complete his coursework for a
Medical Assistant Program. J.A. 37. The administrative
judge ruled that the VA had complied with the settlement
agreement, which only required the agency to keep Mr.
Miller on the night shift through May 2011. Miller v.
Dep’t of Veterans Affairs, No. AT-0752-0908-C-1 (M.S.P.B.
May 30, 2013). Mr. Miller appealed that decision to the
Board, which affirmed the administrative judge’s initial
decision. Final Order at 3.
Mr. Miller timely appealed the Board’s final order.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of Board decisions is limited by statute.
Under 5 U.S.C. § 7703(c), we may only reverse a Board
decision if we find it to be (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law; or
(3) unsupported by substantial evidence. Ward v. U.S.
Postal Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011).
In his informal brief, Mr. Miller’s only allegation is
that “there are strong fact[s] that show that the settle-
ment agreement was breach[ed].” Pet’r Br. 2. Thus, he
appears to be arguing that the Board’s decision was
unsupported by substantial evidence. However, he does
not identify any specific facts that he believes undermine
the Board’s decision. He has therefore not met his burden
4 MILLER v. DVA

of establishing that the Board’s conclusion was unsup-
ported by substantial evidence.
To the contrary, we find that substantial evidence
supports the Board’s determination that the VA did not
breach the settlement agreement. Indeed, the settlement
agreement required only that Mr. Miller be retained on
the evening shift until May 2011, after which time the
agency would “consider” placing him on the evening shift.
Consistent with that requirement, the VA retained Mr.
Miller on the evening shift until May 2011 and for a full
two years beyond that time. Furthermore, the record
reflects that in May 2013, the agency did consider wheth-
er it could retain Mr. Miller in that capacity, but conclud-
ed that it no longer had a need for a night-time shift for
his position. J.A. 25. Thus, the VA fully complied with its
obligations under the settlement agreement.
CONCLUSION
For the foregoing reasons, we conclude that the Board
did not err in concluding that the VA had complied with
the terms of the settlement agreement. Accordingly, we
affirm.
AFFIRMED
COSTS
Each party shall bear its own costs.