Case: 22-2246 Document: 21 Page: 1 Filed: 05/22/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ERIC WILLIAMS,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2022-2246
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3330-18-0427-I-1.
______________________
Decided: May 22, 2023
______________________
ERIC WILLIAMS, North Charleston, SC, pro se.
KELLY GEDDES, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA M.
MCCARTHY.
______________________
Before MOORE, Chief Judge, TARANTO and CHEN, Circuit
Judges.
Case: 22-2246 Document: 21 Page: 2 Filed: 05/22/2023
2 WILLIAMS v. DEFENSE
PER CURIAM.
Eric Williams appeals from the final decision of the
Merit Systems Protection Board (Board) denying his re-
quest for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). For the following rea-
sons, we reverse.
BACKGROUND
In February 2018, Mr. Williams, a preference-eligible
veteran, applied for a contract specialist position with the
Defense Logistics Agency (DLA). Mr. Williams submitted
several documents with his application, including his re-
sume, transcript, military discharge form, and Standard
Form 50, which detailed his previous federal service as a
contract specialist. As part of the application, Mr. Williams
was required to complete an assessment questionnaire
with several questions regarding his qualifications. Ques-
tion 2 of the assessment read: “From the descriptions be-
low, select the letter that BEST describes the highest level
of education and/or experience that you fully possess in or-
der to minimally qualify for this position. Read all of the
statements completely before making your selection.” In
response to Question 2, Mr. Williams selected Answer E: “I
do not possess the required level of specialized experience
and/or education to qualify for this position.” Because he
selected this response, the online staffing system automat-
ically deemed him ineligible for the position and the DLA
did not consider the remainder of his application materials.
Upon receiving notice that he was deemed ineligible,
Mr. Williams filed a complaint with the United States De-
partment of Labor (DOL) alleging the DLA had violated his
rights pursuant to the VEOA. DOL denied his claim, and
he appealed to the Board. In an initial decision, the admin-
istrative judge determined Mr. Williams failed to show
DLA violated his veteran’s preference rights. The Board
Case: 22-2246 Document: 21 Page: 3 Filed: 05/22/2023
WILLIAMS v. DEFENSE 3
affirmed with modifications. 1 Mr. Williams appeals. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it is (1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence. 5 U.S.C.
§ 7703(c). We review the Board’s statutory and regulatory
interpretations de novo. Augustine v. Dep’t of Veterans
Affs., 503 F.3d 1362, 1365 (Fed. Cir. 2007).
Mr. Williams argues the DLA violated 5 U.S.C.
§ 3311(2) by failing to credit him for all experience material
to the position. Appellant’s Informal Opening Br. at 2–5.
Section 3311(2) provides: “In examinations for the compet-
itive service in which experience is an element of qualifica-
tion, a preference eligible is entitled to credit . . . for all
experience material to the position for which [he is] exam-
ined, including experience gained in religious, civic, wel-
fare, service, and organizational activities.” 5 U.S.C.
§ 3311(2). The rules implementing this statute require
that “an agency shall credit a preference eligible . . . with
all valuable experience.” 5 C.F.R. § 302.302(d). The Board
determined the DLA had not violated these provisions be-
cause the application instructions did not restrict Mr. Wil-
liams from considering this relevant experience in
responding to Question 2’s inquiry of whether he
1 The Board determined the administrative judge
procedurally erred by failing to notify Mr. Williams that his
hearing request was denied, failing to set a date on which
the record would close, and denying him the opportunity to
submit rebuttal evidence. After reviewing all of Mr. Wil-
liams’ submissions, however, the Board concluded these
procedural errors did not prejudice his substantive rights.
Case: 22-2246 Document: 21 Page: 4 Filed: 05/22/2023
4 WILLIAMS v. DEFENSE
considered himself qualified. S. Appx. 3; see also S. Appx.
14. Thus, the Board concluded, to the extent Mr. Williams
did not consider these experiences in responding to Ques-
tion 2, that error is attributable to him, not the DLA. S.
Appx. 3. While that may be factually true, the statute and
rules require more of the DLA.
Section 3311(2) requires the agency to credit all expe-
rience material to the position. Kirkendall v. Dep’t of Army,
573 F.3d 1318, 1324 (Fed. Cir. 2009). Indeed,
The court has explained that “[a]t the very least,
‘credited’ must mean ‘considered.’” In Kirkendall,
the agency had refused to consider military experi-
ence submitted in a document separate from an ap-
plication, 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. Kirkendall requires not only a
complete record, but consideration of that entire
record.
Miller v. Fed. Deposit Ins. Corp., 818 F.3d 1361, 1366 (Fed.
Cir. 2016) (internal citations omitted) (quoting Kirkendall,
573 F.3d at 1324).
As we made clear in Kirkendall and Miller, the agency
must consider all material experience. The DLA failed to
do so here. It is undisputed that the DLA did not consider
any of Mr. Williams’ application materials detailing his rel-
evant experience, as the online staffing system automati-
cally deemed him ineligible for the position. Although Mr.
Williams was declared ineligible based on his response to
Question 2, this response does not excuse the DLA’s failure
to comply with § 3311(2). The statute requires “considera-
tion of that entire record,” not only the response to a single
question in an application. See id. (emphasis added). The
DLA cannot give dispositive weight to a single question-
naire response without considering the rest of the applica-
tion materials, which contained information about Mr.
Case: 22-2246 Document: 21 Page: 5 Filed: 05/22/2023
WILLIAMS v. DEFENSE 5
Williams’ experience. See, e.g., Kirkendall, 573 F.3d at
1324 (holding the agency violated § 3311(2) by ignoring the
preference-eligible veteran’s military documents submit-
ted with his application simply because the agency’s prac-
tice required that all information be in a single document).
In fact, the DLA’s application form expressly stated all
questionnaire responses “are subject to evaluation and ver-
ification.” S. Appx. 21; see also S. Appx. 18 (“Your applica-
tion package will be reviewed to ensure you meet the basic
eligibility and qualifications requirements . . . .”).
While the DLA was not obligated to go beyond Mr. Wil-
liams’ application to determine whether Mr. Williams was
qualified for the position, it was obligated to independently
assess Mr. Williams’ qualifications based on the materials
included in his application—materials that, in this case, all
parties appear to agree demonstrate Mr. Williams met the
minimum qualifications. See Appellant’s Informal Open-
ing Br. at 6. The DLA may not abdicate its statutory and
regulatory duty to credit a preference-eligible veteran for
all his relevant experience by shifting the burden to Mr.
Williams to assess his qualifications.
We therefore reverse the Board’s final decision. The
DLA violated Mr. Williams’ rights under VEOA, and he is
therefore entitled to relief. To be clear, we hold only that
the DLA violated Mr. Williams’ right to have his experience
credited as part of his application. We express no opinion
as to whether Mr. Williams should have been placed in a
specific quality category in DLA’s category ranking system
or whether he should have been awarded the job. We re-
mand to the Board to craft the appropriate relief. See
Kirkendall, 573 F.3d at 1325.
REVERSED AND REMANDED
COSTS
Costs to Mr. Williams.