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Miller v. Federal Deposit Insurance Corporation

United States Court of Appeals, Federal Circuit

April 8, 2016

ROBERT MICHAEL MILLER, Petitioner
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, Respondent

          Petition for review of the Merit Systems Protection Board in No. SF-3330-12-0711-I-1.

         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.

          OPINION

         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 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.

         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 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 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 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 ...


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