Riller v. Federal Deposit Insurance
2016 U.S. App. LEXIS 6406
| Fed. Cir. | 2016Background
- Robert M. Miller, a preference-eligible veteran with a 60% VA disability, applied for a GS-14 Associate Professor (CG-1701) position at FDIC Corporate University; vacancy required 24 semester hours in education/leadership/management (OPM standard).
- Miller has advanced academic credentials (Ph.D. in Economics) and varied teaching/leadership experience, and was a current FDIC GS-12 employee when he applied.
- FDIC HR initially found his application did not show the requisite 24 semester hours; Miller submitted military training documentation and ACE guidance on military-credit equivalency, but FDIC concluded those credits were not accredited because they were not applied to a degree program.
- Miller argued under OPM guidance that his exceptional experience should substitute for the formal coursework requirement; FDIC reviewed materials and concluded his experience did not meet the rare-exception standard.
- Miller filed a VEOA complaint with DOL, appealed to MSPB after DOL denial; MSPB (AJ and full Board) found FDIC had considered his experience and denied relief. Miller appealed to the Federal Circuit.
Issues
| Issue | Miller's Argument | FDIC's Argument | Held |
|---|---|---|---|
| Whether MSPB’s review under VEOA is limited to checking for omission of experience from the record | MSPB must assess whether agency properly weighed/evaluated his experience and whether exceptional experience substitutes for missing coursework | VEOA does not permit Board to second-guess substantive hiring decisions; Board’s role limited to checking for omission | Court: MSPB erred to say its role is so limited; it must ensure the agency actually considered the veteran’s full record, but may not reweigh merits of the hiring decision |
| Whether FDIC failed to “credit” all material experience under 5 U.S.C. § 3311(2) / 5 C.F.R. § 302.302(d) | Miller: FDIC failed to credit/consider military training and other experience as substitute for coursework | FDIC: It considered Miller’s submissions and reasonably concluded they did not meet the OPM rare-exception standard | Held: Substantial evidence shows FDIC actually considered the experience; no VEOA violation shown |
| Whether FDIC violated its DEU SOP by not notifying Miller about formal reconsideration | Miller: Failure to inform him of reconsideration denied crediting process and thus violated veterans’ preference rules | FDIC: DEU SOP is an internal procedure, not a statute/regulation relating to veterans’ preference; Miller did not request reconsideration | Held: MSPB properly treated DEU SOP issue as outside VEOA jurisdiction; no reversible error in limiting testimony |
| Whether AJ abused discretion in discovery/evidentiary rulings | Miller: Procedural and discovery rulings prejudiced his ability to prove crediting failure | FDIC: AJ’s procedural rulings were within discretion and no showing of substantial prejudice | Held: No abuse of discretion; Miller failed to show harm affecting outcome |
Key Cases Cited
- Kirkendall v. Dep’t of the Army, 573 F.3d 1318 (Fed. Cir. 2009) ("credited" requires agencies to consider all material veteran experience)
- Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012) (MSPB must examine grounds for non-selection to determine if veteran preference rights were violated)
- Joseph v. Federal Trade Comm’n, 505 F.3d 1380 (Fed. Cir. 2007) (distinguishes competitive vs. merit-promotion procedures and veterans’ advantages)
- McCandless v. Merit Sys. Prot. Bd., 996 F.2d 1193 (Fed. Cir. 1993) (MSPB jurisdiction inquiry cannot be divorced from factual record)
- Curtin v. Office of Personnel Management, 846 F.2d 1373 (Fed. Cir. 1988) (procedural discovery/evidentiary rulings lie within MSPB discretion)