Miller v. Fdic

United States Court of Appeals
for the Federal Circuit
______________________

ROBERT MICHAEL MILLER,
Petitioner

v.

FEDERAL DEPOSIT INSURANCE CORPORATION,
Respondent
______________________

2014-3146
______________________

Petition for review of the Merit Systems Protection
Board in No. SF-3330-12-0711-I-1.
______________________

Decided: April 8, 2016
______________________

ROBERT MICHAEL MILLER, Fairfax, VA, pro se.

CORINNE ANNE NIOSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., CLAUDIA
BURKE.
______________________

Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.
2 MILLER v. FDIC

NEWMAN, Circuit Judge.
Robert M. Miller appeals the decision of the Merit
Systems Protection Board (MSPB or Board) denying his
request for remedial relief under the Veterans Employ-
ment Opportunities Act (VEOA). 1 We modify the Board’s
reasoning, but conclude that a VEOA violation is not
shown on the modified reasoning. Accordingly, the deci-
sion is affirmed.
BACKGROUND
Mr. Miller served on active military duty from June
2003 until July 21, 2007, and has a Veterans Administra-
tion disability rating of 60 percent. The issue on appeal
relates to Mr. Miller’s non-selection for an advertised
position with the FDIC, his employer. He attributes the
non-selection to failure of the FDIC to fully consider his
work experience under 5 U.S.C. § 3311(2) and 5 C.F.R. §
302.302(d).
Mr. Miller holds a Bachelor’s degree in Mathematics
and Economics, a Master’s degree in Economics, and a
Ph.D. degree in Economics. While obtaining his graduate
degrees, Mr. Miller served as a Teaching Assistant in the
Economics Department at the University of Illinois-
Urbana. He has also served as a Visiting Economics
Lecturer at the University of Kentucky, an Associate
Professor with the ROTC program at the University of
California-Berkeley, and Dean of Academic Affairs at a
small college. Since 2008 Mr. Miller has been employed
as an Economics Analyst in the FDIC’s Division of Re-
search in San Francisco, California. He entered at the
GS-9 level and has progressed to the GS-12 level.

1 Miller v. FDIC, 121 M.S.P.R. 88 (2014).
MILLER v. FDIC 3

On September 12, 2012, the FDIC posted a vacancy
announcement for a GS-14 position as Associate Professor
of Leadership and Management at the FDIC’s Corporate
University. The series and grade for the position is CG-
1701-14, signifying that the position is within the Office of
Personnel Management’s (OPM) Education occupational
series. The basic education requirements for the position,
as described in the job posting, are:
A degree that included or was supplemented by
major study in education or in a subject-matter
field appropriate to the position, such as leader-
ship, management, or organizational behavior.
OR
Combination of education or experience – courses
equivalent to a major in education, or in a subject
matter field appropriate to the position described
above, plus appropriate experience or additional
course work that provided knowledge comparable
to that normally acquired through the successful
completion of the 4-year course of study described
above.
According to OPM standards, twenty-four semester hours
is considered equivalent to a major field of study. OPM,
Group Coverage Qualification Standards: Professional
and Scientific Positions, available at https://www.opm.
gov/policy-data-oversight/classification-qualifications/
general-schedule-qualification-standards/#url=GS-PROF.
Mr. Miller submitted an application for the Associate
Professor position, stating on his application that he met
the education requirement by a combination of education
and experience. After reviewing his application, Human
Resources Specialist Patty Evans told Mr. Miller that his
application materials did not demonstrate that he met the
education requirements for the position. Ms. Evans
4 MILLER v. FDIC

invited Mr. Miller to submit additional information in
support of his qualifications.
Mr. Miller responded with a description of his mili-
tary training and experience. Ms. Evans reiterated that
the education requirement for the position could only be
met through twenty-four semester hours of coursework in
education, leadership, management, or organizational
behavior, completed at an accredited educational institu-
tion. Mr. Miller responded by submitting unofficial
transcripts and recommended guidance from the Ameri-
can Council on Education (ACE) on the award of credits
for military training and coursework when applied toward
an accredited degree program.
Ms. Evans forwarded the information to subject-
matter expert Catherine Hand. Like Ms. Evans, Ms.
Hand concluded that Mr. Miller did not meet the neces-
sary education requirements. Mr. Miller was notified that
he was not eligible for the position. He requested recon-
sideration, and Ms. Evans forwarded the reconsideration
request to another Human Resources Specialist, Bonnie
Senft. Ms. Senft asked Ms. Hand to review Mr. Miller’s
application materials, and Ms. Hand again concluded that
he did not meet the minimum education requirements.
Ms. Senft also researched the ACE guidance, and deter-
mined that Mr. Miller’s military credits were not accredit-
ed, because his military training and coursework were
never applied to a degree program; the credits are only
guidance, and not deemed accredited.
In response, Mr. Miller stated: “I believe this is one of
those rare occasions where I may not meet the exact
educational requirement for the particular series, but I
am demonstrably well qualified to perform work in the
series because of exceptional experience,” as stated in
OPM’s “Policies and Instructions for Interpreting Mini-
mum Education Requirements” in section E.4.g. In
response, Ms. Senft stated that Mr. Miller still did not
MILLER v. FDIC 5

meet the twenty-four semester hour education require-
ment for this position. The position was ultimately filled
by a veteran with a doctorate degree in organizational
leadership.
In accordance with the VEOA, Mr. Miller filed a com-
plaint with the Department of Labor (DOL) alleging
violation of the VEOA. The DOL denied Mr. Miller’s
claim, and he appealed to the MSPB. Before the MSPB,
he alleged that the FDIC failed to comply with 5 U.S.C. §
3311(2) and 5 C.F.R. § 302.302(d) because the FDIC did
not credit his experience when evaluating the minimum
education requirement. 5 U.S.C. § 3311(2) (“[A] prefer-
ence eligible is entitled to credit . . . for all experience
material to the position for which examined, including
experience gained in religious, civic, welfare, service, and
organizational activities, regardless of whether he re-
ceived pay therefor.”); 5 C.F.R. § 302.302(d) (“[A]n agency
shall credit a preference eligible . . . with all valuable
experience.”).
The MSPB’s administrative judge held a hearing, and
issued an initial decision denying Mr. Miller’s appeal.
The AJ found that “[w]ithout question, the agency consid-
ered the appellant’s educational background at length.”
Miller v. FDIC, No. SF-3330-12-0711-I-1, 2013 WL
4179817, at *5 (MSPB Mar. 20, 2013) (Initial Decision).
The AJ found, based on the testimony of Ms. Senft and
Ms. Hand, that the agency “thoroughly considered the
appellant’s application and other submissions in deter-
mining that he did not meet the minimum educational
requirements for the Associate Professor position or the
rare exception to the mandated minimum education
requirements.” Id. at *7.
Mr. Miller appealed to the full Board. He argued that
Kirkendall v. Department of the Army, 573 F.3d 1318
(Fed. Cir. 2009), required the Board to assess whether the
agency properly weighed and evaluated his experience in
6 MILLER v. FDIC

determining that he was not qualified for the Associate
Professor position. He stated that the Board is required
to assess his qualifications for the position, including
whether his “exceptional experience” substituted for the
absence of twenty-four semester hours of course credits in
the designated fields. The Board disagreed with this
statement of the Board’s appellate obligations, stating
that:
[U]nder 5 U.S.C. § 3311(2) and 5 C.F.R. §
302.302(d), we conclude the Board's role is limited
to determining whether the hiring agency improp-
erly omitted, overlooked, or excluded a portion of
the appellant’s experiences or work history in as-
sessing his qualifications for the vacancy, and the
Board will not reevaluate the weight the agency
accorded those experiences in reaching its decision
that the appellant was not qualified for a given
position of employment. See Kirkendall, 573 F.3d
at 1324 (“Section 3311(2) guarantees that any ex-
perience of a veteran that is material to the posi-
tion for which the veteran is examined will be
credited. At the very least, ‘credited’ means ‘con-
sidered.’”) (citation omitted). VEOA does not em-
power the Board to reevaluate the merits of an
agency’s ultimate determination that a prefer-
ence-eligible veteran is not qualified for a position
with the agency.
Miller, 121 M.S.P.R. at 96.
Mr. Miller appeals, stating that the Board misinter-
preted the VEOA and misapplied the statutes and regula-
tions on which the Board relies.
DISCUSSION
A
We review the Board’s decision to ascertain whether it
was (1) arbitrary, capricious, an abuse of discretion or
MILLER v. FDIC 7

otherwise not in accordance with law; (2) obtained with-
out following the procedures required by law; or (3) un-
supported by substantial evidence. 5 U.S.C. § 7703(c); see
Barrett v. Soc. Sec. Admin., 309 F.3d 781, 785 (Fed. Cir.
2002). Factual findings of the Board are sustained unless
they are not supported by substantial evidence. See
Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.
Cir. 1998).
The Veterans’ Preference Act of 1944 (VPA), Pub. L.
No. 359, ch. 287, 58 Stat. 390, established the principle of
veterans’ preference, whereby preference eligible veterans
receive certain advantages when seeking federal employ-
ment. The VPA is codified in scattered sections of Title 5
of the U.S. Code. See, e.g., Lazaro v. Dep’t of Veterans
Affairs, 666 F.3d 1316, 1318 (Fed. Cir. 2012) (discussing
some of the statutes and regulations enacted to provide
veterans with their preference rights); Joseph v. FTC, 505
F.3d 1380, 1381 (Fed. Cir. 2007) (same). The VEOA
provides preference eligible veterans with an administra-
tive challenge to an agency hiring decision that a veteran
believes violates a veteran’s rights under a statute or
regulation relating to veterans’ preference. 5 U.S.C. §
3330a.
“Federal agencies generally use two types of selection
to fill vacancies: (1) the open ‘competitive examination’
process and (2) the ‘merit promotion’ process.” Joseph,
505 F.3d at 1381 (citations omitted). The competitive
examination process is typically open to the public. 5
C.F.R. § 332.101. The merit promotion process is used
when the position is to be internally filled by a current
agency employee or a “status” applicant, such as a prefer-
ence-eligible veteran. Id. § 335.103(b)(1). Veterans
receive certain advantages under both processes, but the
advantages differ. An agency may accept applications
under both procedures and retains “the discretion to fill a
vacant position by any authorized method.” Joseph, 505
F.3d at 1384 (citations omitted).
8 MILLER v. FDIC

In competitive examination procedures, “an agency
must comply with special statutes and regulations when
it determines whether a veteran is qualified for a given
position.” Lazaro, 666 F.3d at 1318. Under 5 U.S.C.
§ 3311(2), when experience is a factor in determining
eligibility for a competitive service position, preference
eligible veterans are entitled to “credit” “for all experience
material to the position.” Under 5 C.F.R. § 302.302(d),
“an agency shall credit a preference eligible . . . with all
valuable experience.” Despite these provisions, precedent
has recognized that “the VEOA does not enable veterans
to be considered for positions for which they are not
qualified.” Lazaro, 666 F.3d at 1319.
On appeal, Mr. Miller argues that the Board misin-
terpreted the requirements of 5 U.S.C. § 3311(2) and 5
C.F.R. § 302.302(d) that an agency must “credit” a prefer-
ence eligible veteran “for all experience material to the
position for which examined.” 5 U.S.C. § 3311(2). He
argues that the Board applied Kirkendall incorrectly in
holding that the Board’s role “is limited to determining
whether the hiring agency improperly omitted, over-
looked, or excluded a portion of the appellant’s experienc-
es or work history,” Miller, 121 M.S.P.R. at 96. In
response, the FDIC argues that the VEOA does not au-
thorize the Board to conduct a substantive review of a
preference eligible veteran’s qualifications.
The Board stated that its “role is limited to determin-
ing whether the hiring agency improperly omitted, over-
looked, or excluded a portion of the appellant’s experience
or work history in assessing his qualifications for the
vacancy.” Miller, 121 M.S.P.R. at 96. MPSB review is not
so limited. The VEOA, the MSPB statute and regula-
tions, and Federal Circuit and Board precedent all indi-
cate that not only must the MSPB determine whether the
experience record was complete, but it must also assess
whether that record was adequately considered by the
agency. The FDIC is correct that the VEOA does not
MILLER v. FDIC 9

authorize the MSPB to conduct, on appeal, a substantive
review of the veteran’s qualifications and adjudicate the
correctness of the agency’s hiring decision. But the MSPB
must assure that the veteran’s experience and work
history were actually considered.
The VEOA provides preference eligible veterans with
a right to challenge agency hiring decisions that violate a
statute or regulation relating to veterans’ preference. 5
U.S.C. § 3330(a). Under 5 U.S.C. § 3311(2), when experi-
ence is a factor in determining eligibility, preference
eligible veterans are entitled to “credit” “for all experience
material to the position.” Under 5 C.F.R. § 302.302(d),
“an agency shall credit a preference eligible . . . with all
valuable experience.” We have recognized that “the
VEOA does not enable veterans to be considered for
positions for which they are not qualified.” Lazaro, 666
F.3d at 1319. Lazaro illustrates the operation of the
VEOA, whereby the MSPB reviews whether a veteran’s
qualifications were appropriately determined and consid-
ered, without intruding into the selection process when
the qualifications were considered.
The court has explained that “[a]t the very least,
‘credited’ must mean ‘considered.’” Kirkendall, 573 F.3d
at 1324. In Kirkendall, the agency had refused to consid-
er military experience submitted in a document separate
from an application, and the court held that the agency’s
refusal to look at a relevant document is a statutory
violation of § 3311(2)’s guarantee of credit for all material
experience. See id. (“We can barely imagine a stronger
case of violation of a veteran’s preference rights.”).
Kirkendall requires not only a complete record, but con-
sideration of that entire record.
In Lazaro the court rejected the Board’s ruling that it
lacked jurisdiction to review an allegation of failure to
credit experience because it would amount to a review of
the non-selection action on its merits. The Lazaro court
10 MILLER v. FDIC

explained that the Board misapplied “sweeping language”
that the issue in a VEOA appeal “is not whether a partic-
ular personnel action is proper and should be sustained,”
from Ruffin v. Department of Treasury, 89 M.S.P.R. 396,
401 (2001). The court explained “[t]here is simply no way
to analyze whether a veteran’s preference rights were
violated without examining the grounds upon which the
veteran’s non-selection was predicated.” Lazaro, 666 F.3d
at 1320; see McCandless v. Merit Sys. Prot. Bd., 996 F.2d
1193, 1202 (Fed. Cir. 1993) (holding “[t]he MSPB inquiry
into whether it has jurisdiction cannot be . . . divorced
from the factual record”).
The Board has recognized that “examining the
grounds upon which the veteran’s non-selection was
predicated,” Lazaro, 666 F.3d at 1320, involves more than
determining whether something was improperly omitted,
overlooked, or excluded from the agency record. In Robert
E. Miller v. Department of Navy, the Board applied the
principles of Lazaro, while recognizing that “the VEOA
gives the Board no authority to review the merits of the
agency’s action beyond determining whether the agency
violated a law or regulation related to veterans’ prefer-
ence.” 2013 WL 9659019, at *5 (MSPB Nov. 27, 2013).
The Board reviewed and upheld the AJ’s “analysis of the
application process that [the veteran] is entitled to re-
ceive,” including analyzing the application requirements,
the veteran’s résumé, and the determination by a special-
ist at the agency that the veteran lacked the specified
experience. Id at *5 n.2; see also Clarke v. Dep’t of Navy,
94 M.S.P.R. 604, 607 (2003) (ruling that MSPB has juris-
diction of VEOA appeals and sustaining the agency’s non-
selection because nothing in the appellant’s application
“indicate[d] that this experience ‘cumulated to the equiva-
lent of at least two years of full-time special collections
work,’ as required by the vacancy announcement.”).
Applying these principles, in Phillips v. Department of
Navy, 110 M.S.P.R. 184 (2008), the Board found a VEOA
MILLER v. FDIC 11

violation because “[t]here was no evidence in the record
that the agency actually considered whether the appel-
lant's listed experience would satisfy OPM’s require-
ment.” Id. at 188. As remedy, the MSPB ordered the
agency to take corrective action and to reconstruct the
selection processes.
Although the MSPB does not reevaluate the weight
the agency accorded to a veteran’s experience, the MSPB’s
jurisdiction extends to determining whether the agency
actually evaluated “experience material to the position,”
as required by 5 U.S.C. § 3311(2) and 5 C.F.R. §
302.302(d).
B
The Board found, based on review of the record, “that
the agency dutifully and thoroughly considered [Mr.
Miller’s] work history,” a finding “reinforced by the fact
that the agency solicited additional information from the
applicant.” Miller, 121 M.S.P.R. at 97. The record con-
tains declarations, deposition and hearing testimony, and
documentation presented at the hearing conducted by the
AJ; this information was discussed in the AJ’s initial
decision, and reviewed by the full Board.
On this appeal, Mr. Miller concedes that he does not
meet the minimum requirement of twenty-four semester
hours of coursework. He argues that the FDIC should
have found him qualified on the basis of his experience,
citing OPM’s “Policies and Instructions for Interpreting
Minimum Education Requirements,” which state that “on
rare occasions, there may be applicants who may not meet
exactly the educational requirements for a particular
series, but who may be in fact demonstrably well qualified
to perform the work in a series because of exceptional
experience or a combination of education and experience.”
OPM Qualifications, § E.4.g. To be considered qualified
under this exception, “the applicant’s work experience
must reflect significant full performance-level accom-
12 MILLER v. FDIC

plishments directly applicable to the positions to be
filled.” Id.
The Board found that the FDIC evaluated all of Mr.
Miller’s experience, including supplemental materials,
and found that it did not provide the “exceptional,” “di-
rectly applicable” experience required to bring him within
the exception. The record shows that substantial evi-
dence supports the Board’s conclusion that the agency
“credited” all of Mr. Miller’s work history in evaluating
the education requirements, thus supporting the Board’s
finding that 5 U.S.C. § 3311(2) was not violated. Alt-
hough it is clear that Mr. Miller is highly educated and
has substantial experience, it is not the role of the court to
determine whether he satisfies the requirements for the
position on the basis of his experience.
C
Mr. Miller also argues that the FDIC violated the
Delegated Examining Unit Standard Operating Procedure
(DEU SOP) by failing to inform him that he could request
formal reconsideration. Under the FDIC’s DEU SOP,
there is a formal reconsideration process initiated by a
request in writing from an applicant. The AJ found that
the DEU SOP is not a statute or regulation relating to a
veterans’ preference, and thus is beyond the jurisdiction
of a VEOA appeal.
Mr. Miller argues that the AJ erred by limiting wit-
ness testimony on the issue of violation of the DEU SOP,
because he states that a failure to reconsider experience
amounts to a failure to credit experience under 5 U.S.C.
§ 3311(2) and 5 C.F.R. § 302.302(d).
The question is whether the FDIC’s failure to notify
Mr. Miller of this reconsideration process amounted to a
violation of a statute or regulation related to veterans’
preference, or a failure to credit experience under
§ 3311(2). Mr. Miller argues that Ms. Senft should have
MILLER v. FDIC 13

realized that he was dissatisfied with the FDIC’s final
determination and given him notice of the opportunity for
reconsideration. At the hearing, in response to a question
by the AJ, Ms. Senft stated that the DEU SOP does not
require the agency to notify an applicant of the reconsid-
eration process absent a request for additional review or
reconsideration by the applicant. Mr. Miller does not
argue that he made such a request. On overview of the
entirety of the procedures that occurred, we conclude that
the AJ did not abuse his discretion in limiting testimony
on the FDIC’s reconsideration procedures.
D
Mr. Miller also criticizes the AJ’s procedural and dis-
covery decisions. As stated in Curtin v. Office of Person-
nel Management, 846 F.2d 1373, 1378 (Fed. Cir. 1988),
“[p]rocedural matters relative to discovery and eviden-
tiary issues fall within the sound discretion of the board
and its officials.” Mr. Miller has not established that any
of the AJ’s discovery or evidentiary rulings caused harm
or prejudice that reasonably could have affected the
outcome of the case. See id. at 1379 (“[I]n order for peti-
tioner to prevail on these issues he must prove that the
error caused substantial harm or prejudice to his rights
which could have affected the outcome of the case.”).
CONCLUSION
We conclude that the MSPB erred in insisting that it
has no authority or responsibility beyond determining
whether the record before the agency was complete.
Precedent requires that the Board determine whether the
record was adequately considered by the agency. Howev-
er, in this case the Board did determine that the agency
adequately considered the record, including witness
testimony at the hearing conducted by the AJ and analy-
sis by the AJ and the full Board. We discern no reversible
error in the Board’s ruling that a VEOA violation was not
shown.
14 MILLER v. FDIC

AFFIRMED
Each party shall bear its costs.