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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. DC-3330-13-0504-I-1.

         ROBERT MICHAEL MILLER, Fairfax, VA, Pro se.

         MARTIN M. TOMLINSON, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., STEVEN J. GILLINGHAM.

         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 relief under the Veterans Employment Opportunities Act (VEOA) resulting from his non-selection for a vacancy advertised by the Federal Deposit Insurance Corporation (FDIC). We affirm the Board's decision.[1]

         Background

         Mr. Miller served on active duty from June 2003 until July 21, 2007. He has a Veteran's Administration disability rating of 60 percent. Since 2008, Mr. Miller has been employed as an Economic Analyst in the FDIC's Division of Research in San Francisco. He was hired at the GS-9 level and has risen to the GS-12 level.

         On September 7, 2012 the FDIC posted vacancy announcements for a CG-13 Financial Economist position in Washington, D.C. The FDIC posted two vacancy announcements, the first open to all U.S. citizens and the second for status candidates. Mr. Miller submitted applications under both hiring procedures.

         Mr. Miller was one of three applicants selected for an interview. Mr. Kupiec, the selecting official, and two other senior FDIC employees participated in the interviews. Each interviewer rated each candidate's answers to three questions on bank failure prediction models as Outstanding, Good, or Inadequate. On the first question, all three interviewers rated Mr. Miller's response as " Good." On the second question, two interviewers rated his answer as " Inadequate" and one interviewer rated his answer as " Good." On the third question, two interviewers rated his answer as " Inadequate" and one interviewer rated his answer as " Outstanding." The other two candidates also received some " Inadequate" ratings. No candidate was selected, and the vacancy was cancelled.

         Mr. Miller was notified that no one had been chosen for the Financial Economist position. He then filed a complaint with the Department of Labor, stating that the FDIC had cancelled the vacancy in bad faith to avoid hiring a veteran or having to request a " pass over" from the Office of Personnel Management. The Department of Labor denied Mr. Miller's claim, finding no evidence to support the charge of violation of his veterans' preference rights.

         Mr. Miller appealed to the MSPB, alleging violation of the VEOA based on bad faith in the cancellation of the position. He cited Willingham v. Department of the Navy, 118 M.S.P.R. 21 (2012), in which the Board held that " bad faith in deciding to cancel a vacancy may be a factor in determining if a cancellation affects a veteran's right to compete." Id. at 31. He also alleged reprisal and discriminatory practices.

         The administrative judge (AJ) dismissed Mr. Miller's appeal for lack of MSPB jurisdiction. The AJ found that the charge of bad faith in cancellation of the position did not raise a non-frivolous allegation of violation of veterans' preference, and thus the Board lacked jurisdiction. The AJ also found the allegation of bad faith to be unsupported.

         The full Board found that the MSPB had jurisdiction over the VEOA claim, but found no violation of the VEOA. The Board held that the allegation of non-selection for the Senior Financial Economist position in violation of veterans' preference rights was sufficient to confer jurisdiction over a VEOA appeal. However, the Board ...


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