N OTE : This disposition is nonprecedential.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

______________________

E RIC W ILLIAMS , North Charleston, SC, pro se.

K ELLY G EDDES , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by B RIAN M. B OYNTON , S TEVEN J OHN G ILLINGHAM , P ATRICIA M. M C C ARTHY

.

______________________

Before M OORE , Chief Judge

, T ARANTO and C HEN , Circuit Judges

. Case: 22-2246 Document: 21 Page: 1 Filed: 05/22/2023WILLIAMS v. DEFENSE 2

P ER C URIAM

. Eric Williams appeals from the final decision of the Merit System s Protection Board (Board) denying his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA)

. For the following reasons, w e reverse

. B ACKGROUND 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 resume, 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 questionna ire with several questions regarding his qualifications

. Question 2 of the assessment read: “From the descriptions below, select the letter that BEST describes the highest levelof education and/or experience that you fully possess in order to minimally qualify for this position. Read all of the statements completely before making your selection.” In response to Q uestion 2, Mr. Williams selected Answer E: “I do not possess the required level of specialized experience and/or education to qualify for this p osition.” Because heselected this response, the online staffing system automatically 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 Department of Labor (DOL) alleging the DLA had violated his rights pursuant to the VEOA

. DOL denied his claim, andhe appealed to the Board. In an initial decision, the administrative judg e determined Mr. Williams failed to show DLA violated his veteran’s preferen ce rights. The Board Case: 22-2246 Document: 21 Page: 2 Filed: 05/22/2023WILLIAMS v. DEFENSE 3

affirmed with modifications

. 1 Mr. Williams appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

D ISCUSSION

We must affirm the Board’s decision unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise notin accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; 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 experie nce material to the position. Appellant’s Informal Opening Br. at 2

– 5. Section 3311(2) provides : “In examinations for the competitive service in which experience is an element of qualification, a preference eligible is entitled to credit .

. . for all experience material to the position for which [he is] examined, including experience gained in religious, civic, welfare, service, and organizational activities.” 5 U.S.C. § 3311(2)

. The rules implementing this statute require that “a n 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 th ese provision s because the application i nstructions did not restrict Mr. Williams from considering this relevant experience in responding to Question 2 ’s inquiry of whether he

1 T he 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. Williams’ submissions, however, the Board concluded these procedural errors did not prejudice his substantive rights. Case: 22-2246 Document: 21 Page: 3 Filed: 05/22/2023WILLIAMS v. DEFENSE 4

considered himself qualified . S. Appx. 3 ; see also S. Appx. 14. Thus, the Board concluded

, to the extent Mr. Williamsdid not consider these experiences in responding to Question 2, that error is attr ibutable to him, not the DLA. S. Appx. 3. While t hat may be factually true, the statute and rules require more of the DLA.

Section 3311(2) requires the agency to credit all experience 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 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. 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. I t is undisputed that the DLA did not consider any of Mr. Williams’ application materials detailing his relevant experience , as the online staffing system automatically deemed him ineligible for the position . Although Mr. Williams was de clared i neligible based on his respon s e to Question 2, this response does not excuse the DLA’s failure to comply with § 3311(2). The statute requires “consideration of that entire record ,” not only the response to a single question in a n application

. See id. ( emphasis added). The DLA cannot give dispositive weight to a single questionnaire response without considering the rest of the application materials

, which contained information about Mr. Case: 22-2246 Document: 21 Page: 4 Filed: 05/22/2023WILLIAMS v. DEFENSE 5

Williams’ experience. See , e.g. , Kirkendall

, 573 F.3d at 1324 ( hol ding the agency violated § 3311(2) by ignoring the preference

- eligible veteran’s military documents submitted with his application simply because the agency’s practice required that all information be in a single document). In fact, the DLA’s application form expressly stated allquestionnaire responses “are subject to evaluation and verification.” S. Appx. 21 ; see also S. Appx. 18 (“Your application package will be reviewed to ensure you meet the basic eligibility and qualifications requirements .

. . .” ).

While the DLA was not obligated to go beyond Mr. Williams’ application to determine whether Mr. Williams was qualified for the position, it was obligated to independently assess Mr. Williams’ qualification s 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 Opening Br. at 6. The DLA may not abdicate its statutory and

r egulatory 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 specifi c quality category in DLA’s category ranking systemor whether he should have been awarded the job. We remand to the Board to craft the appropriate relief. See Kirkendall , 573 F.3d at 1325.

REVERSED AND REMANDED

C OSTS

Costs to Mr. Williams. Case: 22-2246 Document: 21 Page: 5 Filed: 05/22/2023