Miller v. Federal Deposit Insurance
2016 U.S. App. LEXIS 6403
| Fed. Cir. | 2016Background
- Miller, a preference-eligible veteran with a 60% disability rating, worked at the FDIC as an Economic Analyst (GS-12) after active duty ended in 2007.
- FDIC posted CG-13 Financial Economist vacancies in Washington, D.C.; Miller applied under both competitive and merit-promotion procedures.
- Miller was one of three applicants interviewed; interviewers rated his answers a mix of Outstanding, Good, and Inadequate. No candidate was selected and the vacancy was cancelled.
- Miller alleged the cancellation was in bad faith to avoid hiring a veteran and filed a Department of Labor complaint (denied), then appealed to the MSPB under the VEOA.
- The MSPB found jurisdiction over the VEOA claim but concluded the FDIC lawfully cancelled the vacancy due to lack of qualified candidates and found no violation of veterans’ preference.
- The Federal Circuit affirmed, concluding substantial evidence supports the Board’s findings and that cancellation for lack of qualified applicants does not violate VEOA rights.
Issues
| Issue | Miller's Argument | FDIC's Argument | Held |
|---|---|---|---|
| Whether MSPB jurisdiction existed over Miller’s VEOA challenge | Cancellation was bad faith tied to veteran status; raised VEOA claim | VEOA claim lacked nexus to veteran preference rights; cancellation permissible | MSPB had jurisdiction but no VEOA violation proven |
| Whether cancellation violated veteran’s right to compete under 5 U.S.C. § 3304(f)(1) | Cancellation denied meaningful opportunity to compete; discovery needed to show bad faith | Miller had opportunity to compete (interviewed); VEOA guarantees only the opportunity to compete, not selection | Miller had a full opportunity to compete; nonselection/cancellation did not violate VEOA |
| Whether alleged reprisal/discrimination or litigation-related animus could convert cancellation into a VEOA violation | Reprisal and animus show bad faith and pretext for denying veteran preference | Alleged animus unrelated to veteran status; even if true, not a VEOA violation | Alleged motives were not shown to be related to veteran preference rights and do not establish VEOA violation |
| Whether the Board erred by resolving merits before discovery completed or by applying summary-style standards | Board deprived Miller of chance to rebut selecting official’s declaration; discovery would change outcome | Record shows Miller competed and no factual nexus to veteran status; additional discovery would not alter result | No reversible error; substantial evidence supports Board, and further discovery would not change VEOA outcome |
Key Cases Cited
- Joseph v. FTC, 505 F.3d 1380 (Fed. Cir. 2007) (VEOA/merit-promotion guarantees only the opportunity to compete)
- Abell v. Dep’t of the Navy, 343 F.3d 1378 (Fed. Cir. 2003) (agency may cancel announcement for lawful reasons; veterans not guaranteed selection)
- Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012) (VEOA does not entitle veterans to be considered for positions for which they are unqualified)
- Barrett v. Soc. Sec. Admin., 309 F.3d 781 (Fed. Cir. 2002) (standard of appellate review of MSPB decisions)
- Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313 (Fed. Cir. 1998) (Board’s factual findings reviewed for substantial evidence)