Riller v. Federal Deposit Insurance

818 F.3d 1361, 2016 U.S. App. LEXIS 6406, 2016 WL 1393544
CourtCourt of Appeals for the Federal Circuit
DecidedApril 8, 2016
DocketNo. 2014-3146
StatusPublished
Cited by32 cases

This text of 818 F.3d 1361 (Riller v. Federal Deposit Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riller v. Federal Deposit Insurance, 818 F.3d 1361, 2016 U.S. App. LEXIS 6406, 2016 WL 1393544 (Fed. Cir. 2016).

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 [1363]*1363experience 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 Economies 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-1.4 position as Associate Professor- of Leader.ship 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-oversighVelassification-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 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 subject-matter 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 [1364]*1364Ms. 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 meet the twenty-four semester ho'ur education requirement for this position. The position was ultimately filled by a veteran with a doctorate degree in organizational leadership.

- Tn accordance with the VEOA, Mr. Miller filed a complaint with tiie Department of Labor (DOL) alleging violation of the VEOA. The DOL denied Mr. Miller’s claim, and he áppealed 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 “[wjithout 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 (M.S.P.B. 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 Associáte Professor position or the rare exception to the mandated minimum education requirements.” Id, at *7.'

Mr.

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Bluebook (online)
818 F.3d 1361, 2016 U.S. App. LEXIS 6406, 2016 WL 1393544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riller-v-federal-deposit-insurance-cafc-2016.