# United States **Court of Appeals**  **for the Federal Circuit**

______________________

ROBERT M ICHAEL MILLER , Petitioner

v.

FEDERAL DEPOSIT INSU RANCE CORPORATION , Respondent

______________________

201 4- 3146

______________________ Petition for review of the Merit Systems Protection Board in No. SF-3 330 -12- 0711 -I-1.

______________________

Decided: April 8, 2016

______________________

R OBERT M ICHAEL M ILLER , Fairfax, VA , pro se.

C ORINNE A NNE N IOSI , Commercial Litigation Branch

, Civil Division, United States Department of Justice, Washington , DC, for respondent. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRS C HMAN , J R

. , C LAUDIA B URKE

.

______________________

Before N EWMAN , O’M ALLEY , and C HEN , Circuit Judges.MILLER v. FDIC 2

N EWMAN , Circuit Judge.

Robert M. Miller appeals the decision of the Merit Systems Protection Board (MSPB or Boa rd ) d enying his request for remedial relief under the Veteran s Emplo yment 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 dec ision is affirmed

. B ACKGROUND

Mr. Miller served on active military duty fro m June 2003 until July 21, 2007, and has a Veterans Administr ation 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. § 33 11(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 E conomics, and a Ph.D. degree in E conomics. While obtaining his graduate degrees, Mr. Miller serve d as a T eaching A ssistant in the E conomics D epartment at the University of Illinois

Urbana

. He has also served as a V isiting Economics L ecturer at the University of Kentucky

, an Associate Professor with the ROTC program at the University of Cali fornia

- Ber ke ley, and Dean of Academic Affairs at a small college. Since 2008 Mr. Miller has been employed as an Economic s Analyst in the FDIC’s Division of R esearch 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 i s 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 subje ct

- matter field appropriate to the position, such as leade rship, 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 descri bed 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 submit ted an applica tion for the Associate Professor position

, statin g on his application that he met the education requirement by a combination of education and experience. After reviewing his application, Human Resource s Specialist Patty Evans told Mr. Miller that his application materials did not demonstrate that he met the education requirements for the position

. Ms. EvansMILLER v. FDIC 4

invited Mr. Miller to submit additional information in support of his qualifications.

Mr. Miller responded with a description of his mil itary training and experience. Ms. Evans reiterated that the education requirement for the position could only b e met through twenty

- four semester hours of coursework in education, l eadership, management, or organizational behavior, completed at an accredited educational instit ution. Mr. Miller responded by submitting unofficial transcripts and recommended guidance from the Amer ican Council on Education (ACE) on the award of credit s for military training and coursework when applied toward

an accredited degree program

. Ms. Evans forwarded the information to s ubject

matter expert Catherine Hand. Like Ms. Evans, Ms. Hand concluded that Mr. Mi ller did not meet the nece ssary education req uirement s

. Mr. Miller was notified that he was not eligible for the position. He request ed reco nsideration , and Ms. Evans forwarded the reconsid eration request to another H uman R esource s S pecialist

, 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 requirement s

. Ms. Senft also researched the ACE guidance

, and dete rmined that Mr. Miller’s military credits were not accredi ted, because his military t raining and coursework were never applied to a degree program; the credits are only guidance, and not deemed accredited.
In response, Mr. Miller stat ed: “I believe this is one of those rare occasions where I may not meet the exact educational requirement f or 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 Min imum Education Requirements” in section E.4.g. In

response, Ms. Senft sta ted that Mr. Miller still did notMILLER v. FDIC 5

meet the twenty

- four semester hour education requir ement 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 co mplaint 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. § 302.30 2 (d) because the FDIC did
not credit his experience when evaluating the minimum education requirement

. 5 U.S.C. § 3311(2) (“[A] preference 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 r eceived 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 d enying Mr. Miller ’s appeal

. T he AJ found that “[w]ithout question, the agency consi dered 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)

. T he 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 dete rmining 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. De partment of the Army , 573 F.3d 1318 (Fed. Cir. 2009), required the Board to assess whether the agency properly weighed and evaluated his experience inMILLER v. FDIC 6

determining that he was not qualif ied 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 Boa rd’s appellate obligations, stating th at:
[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 impro perly omitted, overlooked, or excluded a portion of the appellant ’ s experi ences or work history in a ssessing 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 e xperience of a veteran that is material to the pos ition for which the veteran is examined will be credited. At the very least, ‘credited’ means ‘co nsidered.’ ”) (citation omitted). VEOA does not e mpower the Board to reevaluate the merits of an

agency ’ s ultimate determination that a prefe rence

- 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 misinte rpre ted the VEOA and misapplied the statutes and regul ations on which the Board relies

. D ISCUSSION

A

We review the Board’s decision to ascertain whether it was (1) arbitrary, capricious, an abuse of discretion orMILLER v. FDIC 7

otherwise not in accordance with law; (2) obtai ned wit hout 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 su pported by substantial evidence

. S ee 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 p refer ence eligible veterans receive certain advantages when seeking federal emplo yment . 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 administr ative challenge to an agency hiring decision that a veteran believes violat es a veteran’ s rights under a statute or regulation relat ing to veteran s’ 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 prefe rence

- eligible veteran. Id. § 335.103(b)(1). Veterans receive certain advantages under both processes, but the advantages differ. An agency may accept applic ations under both procedures and retains “the discretion to fill a vacant position by any authorized method.” Joseph , 505 F.3d at 1384 (citations omitted).MILLER v. FDIC 8

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 i n 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

va luable experience .” Despite these provisions , precedent has recognized that “t he 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. Mil ler argues that the Board misi nte rpret ed the requirements of 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) that an agency must “credit” a prefe rence 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, ove rlooked, or excl uded a portion of the appellant’ s experien ces or work history ,” Miller , 121 M.S.P.R. at 96. In response, th e FDIC argues that the VE OA does not a uthorize the Board to conduct a substantive review of a prefere nce eligible veteran’s qualifications.

The Board state d that its “ role is limited to determi ning whether the hiring agency improperly omitted, ove rlooked, 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. T he VEOA, the MSPB statute and regul ations

, and Federal Circuit and Board precedent all ind icate 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 notMILLER v. FDIC 9

authorize the M SPB 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 an d work history were actually considered.
The VEOA prov ides preference eligible veterans with a right to challenge agency hiring decisions that violate a
statute or regulation relating to veteran s’ preference. 5 U.S.C. § 3330(a). Under 5 U.S.C. § 3311(2), when exper ience is a factor in determining eligibilit y, preference eligible veterans are entitled to “credit” “for all experience material to the position.” U nder 5 C.F.R. § 302.302(d),

“ an agency shall credit a preference eligible

. . . with all valuable experience .” We have recognized that “t he 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 review s whether a veteran’s qualifications were appropriately determined and consi dered, 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 consi der military experience submitted in a document separate from an app lication , 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 i d. (“W e can barely imagine a stronger case of violation of a veteran’s preference rights .”)

. Kirkendall requires not only a complete record, but co nsideration of that entire r ecord.

In Lazaro the court rejected t he 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 courtMILLER v. FDIC 10

explained that the Board misapplied “sweeping language” that the issue in a VEOA appeal “is not whether a parti cular 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 simp ly no way to analyze whether a vet eran’ s preference rights were violated without examining the grounds upon which the veteran’ s non

- selection was predicated. ” Lazaro

, 666 F.3d at 1320 ; s ee 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 det ermining whether something was improperly omitted, overlooked, or excluded from the agency record

. In Robert E. Miller v. Dep artment 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 r elated to veterans’ preference

. ” 2013 WL 9659019, at *5 (MSPB Nov. 27, 2013). T he Board reviewed and upheld the AJ’s “analysis of the application process that [the veteran] is entitled to r eceive,” including analyzing the application requirements, the veteran’s résumé , and the determination by a specia list at the agency that the veteran lacked the specified experience. Id at *5 n.2 ; s ee also Clarke v. Dep’t of Navy

, 94 M.S.P.R. 604 , 607 (2003) (ruling that MSPB has juri sdic tion of VEOA appeals and sustaining the agency’s non

selection because nothing in the appellant’s application

“ indicate[d] that this experience ‘ cumulat ed to the equiv alent of at least two years of full

- time special col lections work,’ as required by the vacancy announcement. ”).
Applying these principles, in Phillips v. Dep artment of Navy , 110 M.S.P.R. 184 (2008) , the Board found a VEOAMILLER v. FDIC 11

violation because “ [t] here was no evidence in the record that the agency actually considered whether the appe llant's listed experience w ou ld satisfy OPM’ s requir ement.” 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 experi ence, the MSPB’s jurisdiction extends to determining whether the agency actually evaluate d “experience material to the position ,” as required by 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d).

B

T he 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 inform ation from the applicant.” Miller , 121 M.S.P.R. at 97. T he record co ntains declarations, deposition and hearing testimony, and documentation present ed at the hearing conducted by the AJ; this information was discussed in the AJ’s initial decision, and re viewed 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 wel l 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 signi ficant full performance

- level acco m-MILLER v. FDIC 12

plishments directly applicable to the positions to be filled.” Id.

The Board found that the FDIC evaluated all of Mr. Miller’s experience , in cluding supplemental materi als, and found that it did not provide the “exceptio nal ,” “d irectly applicable” experience required to bring him within the exception. The record shows that s ubstantial ev idence supports the Board’s conclusion that the agency “credited” all of Mr. Miller’s work history in evaluating the education requireme nts
, thus supporting the Board’s finding that 5 U.S.C. § 3311( 2) was not violated

. Al though i t 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 DE U 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.

M r. Miller argues that the AJ erred by limiting wi tness 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 ).

T he question is whether the FDIC’s failure to notify Mr. Miller of this recons ideration 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 tha t Ms. Senft should haveMILLER 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 reconsi deration 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
t he 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 di scovery decisions

. As st ated in Curtin v. Office of Pers o nnel Management , 846 F.2d 1373, 1378 (Fed. Cir. 1988)

,
“ [p] rocedural matters relative to discovery and evide ntiary issues fall within the sound discretion of the board and its officials.” Mr. Miller has not established tha t any of the AJ’s discovery or evidentiary rulings caused harm or prejudice that reasonably could have affected the outcome of the case. See i d. at 1379 (“[I] n order for pet itioner 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. ”).

C ONCLUSION

We conclude that the MSPB err ed 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. Howe ver, 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 anal ysis by the AJ and the full Board. We discern no reversible error in the Board’s ruling that a VEOA violation w as not shown.MILLER v. FDIC 14

AFFIRMED
Each party shall bear its costs.