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 Employment 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 decision is affirmed. 

BACKGROUND

Mr. Miller served on active military duty from June 

2003 until July 21, 2007, and has a Veterans Administration 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 IllinoisUrbana. 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 Research 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 CG1701-14, 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 leadership, 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 military 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 institution. Mr. Miller responded by submitting unofficial 

transcripts and recommended guidance from the American 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 subjectmatter expert Catherine Hand. Like Ms. Evans, Ms. 

Hand concluded that Mr. Miller did not meet the necessary education requirements. Mr. Miller was notified that 

he was not eligible for the position. He requested reconsideration, 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 determined that Mr. Miller’s military credits were not accredited, 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 Minimum 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 requirement 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 complaint 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] 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 received 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 considered 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 determining 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 improperly omitted, overlooked, or excluded a portion of 

the appellant’s experiences or work history in assessing 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 experience of a veteran that is material to the position for which the veteran is examined will be 

credited. At the very least, ‘credited’ means ‘considered.’”) (citation omitted). VEOA does not empower the Board to reevaluate the merits of an 

agency’s ultimate determination that a preference-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 misinterpreted the VEOA and misapplied the statutes and regulations 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 without following the procedures required by law; or (3) unsupported 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 employment. 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 administrative 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 preference-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 misinterpreted the requirements of 5 U.S.C. § 3311(2) and 5 

C.F.R. § 302.302(d) that an agency must “credit” a preference 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, overlooked, or excluded a portion of the appellant’s experiences or work history,” Miller, 121 M.S.P.R. at 96. In 

response, the FDIC argues that the VEOA does not authorize the Board to conduct a substantive review of a 

preference eligible veteran’s qualifications.

The Board stated that its “role is limited to determining whether the hiring agency improperly omitted, overlooked, 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 regulations, and Federal Circuit and Board precedent all indicate 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 experience 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 considered, 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 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. 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 consideration 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 particular 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’ preference.” 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 receive,” including analyzing the application requirements, 

the veteran’s résumé, and the determination by a specialist 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 jurisdiction of VEOA appeals and sustaining the agency’s nonselection because nothing in the appellant’s application 

“indicate[d] that this experience ‘cumulated to the equivalent 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 appellant's listed experience would satisfy OPM’s requirement.” 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 contains 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,” “directly applicable” experience required to bring him within 

the exception. The record shows that substantial evidence 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. Although 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 witness 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 reconsideration 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 discovery decisions. As stated in Curtin v. Office of Personnel Management, 846 F.2d 1373, 1378 (Fed. Cir. 1988), 

“[p]rocedural matters relative to discovery and evidentiary 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 petitioner 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. However, 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 analysis 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.