Petition for review of the Merit Systems Protection Board in
MICHAEL MILLER, Fairfax, VA, Pro se.
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.
NEWMAN, O'MALLEY, and CHEN, Circuit Judges.
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). We modify the Board's reasoning,
but conclude that a VEOA violation is not shown on the
modified reasoning. Accordingly, the decision is
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).
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 Research in San Francisco, California. He entered at the
GS-9 level and has progressed to the GS-12 level.
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
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
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.
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
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 invited Mr. Miller
to submit additional information in support of his
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 ...